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11 Jan

JURISPRUDENCE 2.3 NATURAL LAW III (THE AGE OF REASON)

THE AGE OF REASON.

During the 15th and 16th century, we had the Renaissance[1] and the Reformation. This age witnessed the  efflorence of scientific discovery…. A revolt against the established order. New thinking favoured the notion that no religious doctrine can be supported by philosophical arguments or science. Religion and superstition were replaced by reason and knowledge. Doubts were created and people started to ask questions.

Nicholas Machiavelli: in his work “the prince”. The Prince noted that the prince should maintain the socio-political institutions to which the people are accustomed to. The Prince has to be resilient and ruthless to achieve his aim. The state is power not justice. A leader should pay lip service to mercy religion and other virtues but should depart form them anytime in defence of his kingdom.he rejected divine law and noted that the end justifies the means. Success should be commanded and controlled with audacity.

Luther: stood against what he saw as false doctrines and malpractices within the church. Like devotion to the saints, Virgin Mary, Celibacy requirement of the church’s clergy and so on.

Charles Marcus argued that natural law wazs an unjust instrument of those in power to justify their hold of power.

Jean Bodin 1530-1596. Haas been credited as the father of sovereignty which he posits comes from God. The ruler bein God’s representative on earth who should rule in accordance with God’s Law. That the nature of the fail determined the state He formulated the patriarchal theory. With the foundation that the King can do no wrong and has absolute powers.

Thomas Hobbes 1588-1679. Credited for his work “Leviathan” 1651. He said that man lived in the state of nature where the first law was self preservation and selfishness. Life was short, nasty and bruttish. To escape the state of war, men in the state of nature had to enter into a social contract and establish a civil society.Though man is endowned with reason, he chooses to behave like a beast and is innately selfish and power hungry. This necessitates a superior power (the sovereign Leviathan) to check man’s excesses and passions. Gali leo also subscribes to this? He said we should follow the golden rule which is do unto others what you want them to do unto you. Others include, seek peace, accommodate others interests, equality, humility, mediation, Arbitration, pardon, carry out promises made, gratefulness and so on.

Gali Leo (1564-1543).

He negated the doctrines of the church in terms of noting that the earth moves round and is not flat. That man was moved by fear and self-interest.

Hug Grotious: 1583-1649. A dutch jurist regarded as the father of international law.

He argued that natural law can exist independent of God. In “The Law of War and Peace” he noted that reason can be deduced either a priori (rationally) or a posteriori (the acceptance of law among the nations). He identified the duality of natural law. That international law is a product of natural law.

John Locke 1632-1704. He was an apostle of capitalism and acquisition of property? He gave a foundation to the rule of law doctrine to be later perfected by A.V Dicey. He refutes the divine right of king. He also posited the opposite of Hobbe’s theory htat in the state of nature, man was in a paradise lost and beautiful world with liberty. The only thing lacking was security. This necessitated a civil society by unity of men to preserve their lives, liberty and estate.

Uniterd States V Madison that the US is not a government of man but government of law. Gouriet V Union of Post Office Workers. Be you ever so high, yet the law is above you.

Implications of John Locke’s Theory.

  1. You cannot give what you do not have. The fundamental right is an inalientable right which belongs to every human being irrespective of age, sex, race, and so on. Ransome Kuti V AG Fed.
  2. There should be no arbitrary deprivation of rights.
  3. The social contract is an agreement in trust and a violation can warrant a revolt to establish a new government by a new social contract. The right to rebel when the government becomes tyrannical and capricious. See the law that provides that there should be no taxation without legislation.

CRITIQUE.

Theological approach and invoking the bible to justify capitalism. His concept is a product of the naturalist fallacy passing the is for the ought.

That he is from a middle class background and could not relate to the suffering of the people.

That he was formalistic and failed to recognise the inequality in the society which is a reality.

Jean Jacques Rousseau: 1712-1788. In his work Contrasucea he noted that man is born free but everywhere in chains. That man has inborn natural rights but society imposes restrictions for the common good and overriding public interest. His idea fuelled the French revolution. He is of the opinion that the freedom and equality of men is the basis of their happiness which the social contract seeks to achieve. He believed in majoritarian democracy. Isaiah Belin Criticised him on the basis that freedom and equality inhibit one another as where there is freedom, there would be less equality and where there is more equality, therewould be leess freedom. See Archbishop Olubunmi Okogie V A.G Lagos, Adewole V Jakande. He sees to have imbibed the idea of a social contract.

Thomas Paine too who noted that the American Declaration of Independence is a natural Law document as the document posits that government should seek to enforce man’s inalienable rights like liberty and pursuit of happiness. The right of people as a sovereign was also reflected in the French Declaration of July 14 1789. Section 14 remarks that sovereignty lies in the people. This liberty is up to not doing harm to others or the public. See Section 45 Of the 1999 Constitution. See the Fifth Amendment which also provides of the right to remain silent and no double jeopardy. See Section 36 of the 1999 Constitution.

Montesque emphasised separation of powers.

NEO NATURALISM.

This is just like natural law in relation to war. Natural law is seen as trying to appeal to relevancy in modern day. After the Second work war, the 20th century was characterised by positivism. The question was how to punish the Nazis who perpetuated atrocities during the war. Radbruch, Lon Fuller and so on said their acts should be retrospectively criminalised while writers like H.L.A Hart said no.

Section 14 of the 1999 Constitution[2]. Although it has been argued that the Nigerian Governmetn has broken the social contract. Note that the Inalenable rights are represented in the FHR which is entrenched in Chapter 4 of the 1999 Constitution. Jean Jacques Rousseau. Note the case where a 7th Day Adventist went to challenge the hlding of public exam on Saturday. Case of protest of parents of Sosoliso dispersed. Section 45, Public Order Act.

Utilitarianism: This looks at the utility of law…. Teleological meaning the function, the end. Utilitarianism is a teleological approach which says that law should maximise happiness… Professor Oyebode noted that this theory underlies the award of damages. The Nigerian Constitution in Section 14 (the security and welfare of the people shall be the primary purpose of the government) reflects utilitarianism.

We hear names like; Jeremy Bentham, David Hume, Montesquieu.

Hume noted that only utility can supply the answer.

Jeremy Bentham: espoused his hedonistic calculus which dealt with balancing of pleasures and pain. This being the task of all laws. The Hedonistic Calculus advocated commensuration between crime and punishment. Hierarchy of pain? Noting that deterrence is the primary objective of punishment. Where the pain outweighs the pleasure, infractions would be deterred. Punishment should give the society a feeling of satisfaction. Legislator’s mean? Quantitative Distortion shows the tolerance level of individuals varies. Therefore the legislator’s indicta is suggested. He notes that pleasures include: health, riches, good reputation, Knowledge, Memory, Piety, Friendship, etc. while pain includes: disappointment, unsatisfied desire, regret, social disapproval and so on. Legislator’s Indicta. See his “Fragment of Government” 1776 where he noted that greatest happiness stuff. Criticised for translating individual happiness as societal happiness-F.A Bradley. Happiness differs from people and greatest happiness is unpredictable. Furthermore, some pleasurable things are not good. It is impossible to measure pleasure and pain precisely. That he ignores the lot of the average person. He noted the Felicity Calculus which tests to see whether law produced the greatest happiness which is referred to as the principle of utility.

Becarria “on crimes and punishment” 1764 was of the opinion that “good legislation is the art of conducting man to the maximum of happiness, to the minimum of misery… the greatest happiness divided among the greatest number”.

Individualistic Utilitarianism: is characterised by freedom of will. Herbert Spencer 1820-1907 in his social statistic. He advocated the laissez faire and enjoined self actualisation. He argues that social norms (which transcend over individual needs) impede self actualisation.

Immanuel Kant (1774-1804) was for human volition. His notion of categorical imperative. Keelson was also regarded as a Kantian.

Prof Miller noted that by the law of contract, man exercises his freedom of will however, certain contracts are nenforcable because they are in violation of the universal law. Justice Sultherland in Adkins V Childrens St Hospital 1922 US 525 @ 546. Noted that freedom of contract ensures best bargaining power. Sir George Jessel in Printing Registering Co V Sampson 1895 L.R 19 Eq 462 @ 465. Noted same.

John Stuart Mill 1806-1873 was also of the opinion that man should do what he ehnjoys doing so long as they don’t interfere with the happiness of others.  He posits that the individual knows where the shoes pinch since he wears it not the government or society. (Look at abortion, Death Penalty, Homosequality, Drug Addiction, and so on… advocated that individual rather than state… different persons should be allowed to live different lives). The fact is social utilitarianism overrides individual utilitarianism e.g. Section 45 of the 1999 Constitution. Acquisition of land, public nuisance, tort. Ask the issue of rejecting victimless crime.

Social Utilitarianism: that the society is higher than the individual and collective happiness transcends individual happiness. See Section 45.

Rudolph Von Jhering 1818-1892 notes that law is a means to an end (which is the protection of the society’s interest). Teleological approach.

Freidman’s Legal Theories noted that there are various types of interests in a society. Jhering identifies 4 levels of social motion viz reward, coercion, duty and love. He notes that the first two make people abide by the law.

Julius Stone noted that Jherins thesis sought to reunite the legal conceptions with social realities. Therefore law seeks to synchronise the purpose of society with that of the individual as Stone noted that men exist for one another[3].

John Stuart Mill is a Disciple and follower of Bentham.

 

[1] Renaissance could be seen as an attempt by intellectuals to study and improve the secular and worldly

[2] Section 2 of the 1979 Constitution.

[3] Stone

Isochukwu

Quite eccentric really

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