RELEVANCE OF NATURAL LAW TO NIGERIAN LEGAL SYSTEM

43





RELEVANCE OF NATURAL LAW
TO NIGERIAN LEGAL SYSTEM
BY
PATRICIA SUKORE























DEDICATION
This book is dedicated to God Almighty, who is my greatest inspiration. My parents: late Mr. Joseph E. Akhakon and late Mrs. Sarah Akhakon.



























TABLE OF CASES

DONOGHUE V. STEPHENSON (1932) A.C. 562-
EDET V. ESSIEN (1932) 11N.L.R. 47-
ESHUGBAYI ELEKO V. OFFICER ADMINISTERING THE GOVERNMENT OF NIGERIA (1931) A.C. 662 AT p 673-
FAWEHINMI V. ABACHA (1996) 9N.W.L.R. (pt.4750) 710 C.A at p. 755-
LAOYE V. OYETUNDE (1944) A.C. 170
ONIAH V. ONYIAH (1989)-
RANSOME KUTI V. ATTORNEY GENERAL OF FEDERATION (19850 2 N.W.L.R. (pt. 6) 211 at p. 230
RYLAND V. FLETCHER (1866) L.R. 1 Exch. 265, affirmed (1868) L.R. 3 H.L. 330














NIGERIAN STATUTES REFERRED TO:
LAND USE ACT 1978
NIGERIAN CONSTITUTION 1999
NIGERIAN CONSTITUTION 1979
AFRICAN CHARTER ON HUMAN AND PEOPLE'S RIGHTS
(RATIFICATION AND ENFORCEMENT ACT) CAP. 10 LAWS OF FEDERATION OF NIGERIA 1990

FOREIGN STATUTES REFERRED TO:
UNITED NATIONS DECLARATION OF HUMAN RIGHTS (1948)
AFRICAN CHARTER ON HUMAN AND PEOPLE'S RIGHTS (1981)
AMERICAN DECLARATION OF RIGHTS (1776)
THE FIFTH AMENDMENT OF THE AMERICAN CONSTITUTION-













TABLE OF CONTENTS PAGES

Title page--------------------------------------------------------------------------I
Dedication-------------------------------------------------------------------------II
Table of Cases--------------------------------------------------------------------III
Table of Statutes------------------------------------------------------------------IV
Table of Contents-----------------------------------------------------------------V
Abstract----------------------------------------------------------------------------VIII

CHAPTER ONE-------------------------------------------------------------------1-5
Introduction
Definition of terms
Statement of problem
Purpose of study, Aims and Objectives
Significance of study
Scope of Study
Methodology
Literature Review

CHAPTER TWO-------------------------------------------------------------------6-12
Classical Natural law
2.1 Greek philosophers
2.2 Stoic Philosophers
2.3 Roman Philosophers
2.4 Christian Philosophers (Natural Law in the Middle Ages)


CHAPTER THREE----------------------------------------------------------------13-22
Modern progress of Natural Law
3.1 Modern Natural law Philosophers
3.2 Ideal Natural Law Philosophers
3.3 Criticisms against Natural Law School
3.4 Revival of Natural Law

CHAPTER FOUR-----------------------------------------------------------------23-34
Natural Law in our Legal system
4.1 International Law (African Charter on Human and People's Rights)
4.2 Natural Law in the Received English Law and Customary Law
4.3 Nigerian Constitution and Natural Law
4.4 Natural Law and the Law of Torts
4.5 Criminal Law and Natural Law
4.6 Law of Contract and Natural Law
4.7 Land law and Natural Law
4.8 Sharia Law and Natural Law
4.9 The Decree and Natural Law



CHAPTER FIVE------------------------------------------------------------------------------35-38
5.0 Criticisms and possible suggestions
5.1 Summary
5.2 Conclusion

BIBLIOGRAPHY------------------------------------------------------------------------------39

























ABSTRACT
In recent times, various rules and Laws have evolved in different areas of our legal system whose origin could be traced to the principles of the Natural Law School. In spite of the relevance of Natural Law for the development of a theory of Justice and for the criticism of unjust political structures, we would be amazed at how some barbaric rules still fall back on the Doctrine of Natural Law as the basis for its provisions.

Chapter two of this study will deal mainly with the Classical Natural Law Philosophers and their various postulations on what Natural Law ought to be.

A reflection will be made in chapter three, on the ways the Ideal Natural Law Jurists and the modern Natural Law philosophers see law. Also in this chapter, the criticism of the Natural Law School will be met, the Natural Law School, as will be espoused, was largely criticized by the Positivist School.

This essay will not be complete without relating the Doctrine of Natural Law to our system. Recourse will be made to the African Charter on Human and People's Rights. Effort will be made to locate and appreciate the term 'Natural Law' in our legal system, which comprise various areas in our substantive and procedural - such as Criminal Law, Law of Torts, Customary Law and so on. The important roles played by Natural Law in these areas, will be discussed by pointing out the particular area that is traceable to the postulations of Natural Law theorists. All these, we'll see in chapter four.

In the final analysis, more criticisms will be encountered on the wrong application of the Natural Law doctrine in some areas of our legal system and possible suggestions will be made in that respect.






















CHAPTER 1
INTRODUCTION
Natural Law is a concept of great historical antecedent; its main purpose is based on the search for what is absolute in law. A distinguishing feature of the theory of Natural Law, on a very close scrutiny, is found to be mere expressions of morality and justice. Most Natural Law adjudicators are unbending in defending the thesis that some actions are objectively right and others are objectively wrong. Many, for instance, are of the opinion that it is objectively right to keep promises or to be kind to neighbors and that it is objectively wrong to indulge I gratuitous cruelty. The purpose of using the expression 'objectively right' and 'objectively wrong' is to stress that it is not merely a question of what a person happens to like or dislike, or, of what is the common attitude in his society, most Natural Law adjudicators have been aware that there may be human beings, who see nothing wrong with performing human sacrifices. But a Natural Law adjudicator will insist that, if this be the case, these group of humans are wrong and ignorant, just as wrong as if they thought that the sun rotates around the earth, or that two plus two equals five.1



DEFINITION TERM:
Natural Law school is one of the schools of Jurisprudence with seeks to define laws as it ought to be. Black's laws dictionary,4 define Natural law thus.
''The expression "Natural Law'' or jus naturale , was largely used in the philosophical speculations of Roman jurist of the Antonine
Age and was intended to denote a system of rules and principles



for the guidance of human conduct which, independently of enacted law or of the system peculiar to any one people, might be discovered by the rational intelligence of man and would be found to grow out of and conform to his nature, meaning by that word, his whole mental, moral and physical constitution… and have be promulgated by God solely through human reason''.

ALEXANDER, a Natural Law jurist says that Natural Law is unerring law ''this is to say that Natural Law is faultless, it is right reasoning. It has been called different names by various people, names like, moral law, universal law, External law, divine law, law of reason etc. THOMAS HOBBES on his part was of the opinion that the state of nature has a law of nature that governs it, so if man transgresses this law of nature, the man would be living contrary to nature, reason and common equity.
STATEMENT OF PROBLEM
The bone of contention in this study is the location of the principles of Natural Law in our legal system thereby exposing the ignorance of relating all laws whether good or bad to the principles of Natural Law
PURPOSE OF STUDY
May aim and objective in this preparing is this paper is the insistence on the need to, without any reservation imbibe the true nature of Natural law which according to the jurist
DEV VECCHIO- is in:
``…harming nobody…''




SIGNIFICANCE OF STUDY
This long essay will be of great assistance in creating awareness for the legislative body or any law making body in the country and the court of law, on what the principles of Natural Law entails (what it is and what it is not). It will also be of help to students of jurisprudence to quickly without recourse to other textbooks, find out what area of our Laws are relevant to Natural law doctrines.













This study in relating Natural Law to our system, will go further in identifying natural law with some criteria which may be morality, fairness, ethics and the likes, these principle are valid for all times and places.
METHODOLOGY
The method which will be employed in this research work will be use of secondary data; this includes the use of textbooks, case law, constitutions and the likes for a concise understanding and appreciation of this study.
LITERATURE REVIEW
This study will make reference to constitutions and various authorities will be cited in the course of this research work like: LLODD, an introduction to jurisprudence, DIAS, ELEGIDO and so on.

As this research work progresses, when the various area of our law which are in alliance with the principle of Natural Law are being discussed, books like Park on source of Nigerian Law, Okonkwo and Nash on criminal law and so on, will be used in order to make this long essay a success.



















NOTES TO CHAPTER 1
J.M. ELEGIDO, JURISPRUDENCE P. 20
ADARAMOLA, "Basic jurisprudence'' Ist ed P.11
DIAS on jurisprudence 5th ed. P. 470
5TH ed.




CHARPTER 2
2.0 CLASSICAL NATURAL LAW
The classical Natural Law school consists of the Greek which includes the Stoics, the Romans of which also consist of the Christian philosophers. This chapter will talk on the contributions of the classical jurist to law; the Classical Natural Law will be dealt with here under by mentioning the philosophers that made the greatest contributions in the definition of law as it ought to be.
2.1 THE GREEK PHILOSOPHERS
It is decline of the City States and the raise of large empires and kingdoms in the Greek World, associated with the conquests of ALEXADER that Natural Law as a universal system comes to the fore. The Stoic philosophers were particularly responsible.
ARISTOTLE (384-322BC)
The doctrine of Aristotle has had a unique influence in the history of thought. Aristotle bases much of his answer to the question of what the best kind of life is for man to live. He teaches that the best kind of life will be that in which man succeeds in attaining what constitutes man's ultimate end or supreme good. Man's highest power according to Aristotle, is his intelligence and the highest object to which man's intelligence is to be applied is God. Accordingly, the proper good for man, his eudemonia, a Greek word which can be translated as happiness or, better, well living or flourishing , would lie in performing constantly the highest act of his highest power, that is to say in devoting his life to the philosophical contemplation of God.
Aristotle insisted that there is a "natural justice" which everywhere has the same force and does not depend on our accepting it or not'' He thought for instance that adultery, theft and murder are wrong always and everywhere, he therefore went on to say that man, apart from being part of nature, and matter, has the ability to reason, which makes man different and superior in the general order of

things in this universe. To him, man is a reasonable being; therefore man's reasoning should be able to inform him that must identify himself with the ideal of Natural Law in order to be able to realize his objectives in life.
To PLATO (428-328 BC) there was a strong connection between law and justice which means that Natural Law is tied up to the ideas of justice, justice to him was the highest good. He was of the opinion that an appreciation and understanding of the highest good is not within the reach of every man even though all are endowed with reasoning faculty. He stated that in the Polis or State we have the following categories of men.
Those with the highest intellectual ability
Those with less intellect.
He held that those in life in the first category should be the ruler of the people with less intellect. In other words Plato was making a case for philosophers- kings, that is the ruler of the people or the president of a nation should an intellectual, a philosopher.
Aristotle responded to this idea by arguing that it is a mistake to make government by wise ruler and government by laws, mutually exclusive alternatives. He thought even the wisest ruler need to be guided and controlled by laws in order to govern well because the law has an impersonal quality or objective which no man, however good can attain without the help of laws any rulers will be liable to be swayed in his judgment by his own self-interest, emotion, personal ambition, etc. He also pointed out that if the ruler is subject to the law there will be certain equality between ruler and subject, but if the ruler has uncontrolled power then he will have to exercise a personal despotic rule which is not compatible with the dignity of the subjects. He concluded that ideal government would be that in which there is the rule of law rather than that of individual''.
Another idea of Aristotle which has great influence in jurisprudence is that of equity. He argued that as law is made up of general rules it is necessarily imperfect, for it is impossible to foresee and provide in advance for all the





different combinations of circumstance which may arise. Therefore in order to do justice in the exceptional cases which had not been taken into consideration when the general rules were framed it will be necessary that somebody (e.g. the judges) be given a power to depart from the general rules when these exceptional case arises. This, he called the power to do equity. 1
2.2 THE STIOCS (UNDER THE GREEKS)
The concept of Natural Law as postulated by Aristotle forms the basis of the Stoics. According to the stoics, reason governs the universe. They believe that the universe is governed by a rational mind.

The Stoics came about the 4th century; it was led by ZENO, to them, man lives naturally if he lives according to his reasoning. The basic teachings of the Stoics are as follows:

1. Man has the capacity to reason
2. The true polis is one comprising reasonable men all over the world.
3. According to them, man can discover Natural Law by reason which is eternal to man, and that, Natural Law it is to say Natural Law is not the product of human reasoning and that it is universal and immutable.

They stressed the ideas of individual worth, moral duty and universal brotherhood, and though in the early days theirs was a philosophy of withdrawal enjoining conformity to the universal law upon the select few of wise men alone, in its later development, especially under PANAETITUS OF RHODES, in the 2nd century B.C. stress was placed on its universal aspects as laying down a law not only for the wise but for all men.2

ROMAN PHILOSOPHERS.
Stoicism passed over to and influenced Roman thought. The Romans did not develop the concept of National Law beyond the bound charted by the Greeks; their leading the philosophers merely adopted the Greek theory of Natural Law and added nothing intrinsically Roman to it.




CICERO De Re Publica (106-43 B3) a Roman orator, wrote on what he called the ''True Law,'' to him, the true law must confirm to right reason which must be in agreement with nature, this law had been made for man and is among men: on his agreement with true law, he said that:

This true law is not one at Roman and another at Athens, it is not one law today and another after, it is unchangeable, immutable, and everlasting and it binds every man without exception. The true law is therefore the highest reason that has laid down rules that man should follow, what he should do or not do''

Cicero further explains the concept of Natural Law.

True law is right reasoning in an agreement with nature, it is of universal application, unchanging and everlasting. It summons to duty by its commands and averts from wrongdoing by its prohibition. And it does not lay its commands or prohibition upon good men in vain; though neither have effect on the wicked.
It is sin to try to alter this law, nor is it allowable to attempt to repeal any part of it and it is impossible to abolish in entirely… and there will be one master and ruler, that is, God, over us all, for He is the author of this law, its promulgator, and its enforcing judge . Whoever is disobedient… will suffer the worst penalties, even if he escapes what is commonly considered punishment''

The doctrine of Cicero come to be regarded as the Jus Naturea of the Romans, he was the first Natural Law philosophers to assert the revolutionary principle that any positive law that contradict the Natural Law should be destroyed.











2.4 CHRISTIAN PHILOLOPHERS (UNDER THE ROMANS )
There was first a need for stability in a world emerging from the dark ages. Secondly, the struggle between church and state beginning and there was need for the church to establish its superiority by rational argument rather than by force, since secular authority had the monopoly of force. Thirdly, it was necessary for Christendom to unite in the force spreading heathen menace and a need was felt for unifying Christian philosophy, the available philosophic materials consisted largely of the natural law philosophies of Greece and Rome.3
It should be noted that the doctrine of Natural Law as taught by Cicero finally became the basis of the legal philosophy of the church especially the Catholic writer THOMAS AQUINAS (1224-1274 AD) an Italian monk. The Christian doctrine of natural law is entirely based upon his work. Aquinas fourfold Classification is into:
Divine Law (Lex Divina): This he distinguished from natural law as been revealed rather than discovered by reason, for instance, the code of law given by god to the Hebrews, or the rules given through scriptures.
Eternal Law (Lex aeterna): According to Aquinas, Eternal law was said to be Divine reason which governs the entire community of the universe. Thus the rational guidance of created things on the part of God, as the prince of the universe, which has the quality of Law.
Natural Law (Lex Naturalis): Since all things which are subject to Divine Providence are measured and regulated by eternal law – it is clear that all things participate to some degree in eternal law, in so far as they derived from it certain inclinations to those actions and aims which are proper to them. But, of all others, rational creatures are subject to Divine providnce in a very special way: being themselves made participators in providence itself, in that they control their own actions and the actions of others. So they have certain share in the divine reason itself; this participation in the Eternal law by rational creatures is called Natural Law.4





Human Law (Lex human or Positive law): This is man-made law which must however be made to conform to reason and thus to the Natural Law. They are the particular dispositions arrived at by an effort of human reason provided that the other conditions that are necessary to law are observed5.
Human law according to Aquinas is inferior to Natural Law; it is no longer legal but rather a corruption of law"

It may be important at this however to note in relation to the Greek and Roman that Natural Law conflicted with some Greek positive laws on certain matters, for example, whereas natural law condemned slavery, Greek law condoned it. But because Greek philosophers were anxious to ensure stability of their society after a long period of wars - The Peloponesan wars, civil unrest, they did not draw the logical conclusion that positive law which do not conform to the standards laid down by Natural law should be Violently overthrown. Rather, they argued that such Laws ought to be tolerated until they could be peacefully reformed or repealed.
Aquinas like the Greek philosophers, was however desirous to discourage scandal and social disorder, though he later taught that positive Law, even the wicked ones should nevertheless, be obeyed. Although he connected Natural law closely with God, he emphasized its identification with human reason. Aquinas also asserted that the whole hierarchy of law, including positive (state) law was an inspiration from God.
















NOTES TO CHAPTER TWO
Elegido op. cit., pp 31-33
Lloyd, " An introduction to jurisprudence"
DIAS, "OP. Cit. p. 471
Lloyd, op. cit, 4th ed.
Adaramola, op. cit, p. 15




















CHAPTER THREE
3.0 MODERN PROGRESS OF NATURAL LAW (16TH -18TH CENTURY AD)
Consequent upon the schism of the Roman Catholic Church, Protestantism emerged in Europe and culminated in religious wars between Roman Catholics and Protestants all over European continent. Partly as a result of these religious wars and partly for other critical factors, secularism grew and people started it outright, turning their attention to pagan philosophies.
At this period government rose, kings contrived alliances with the middle classes and moved to crush the nobles and eventually established centralized personal regimes, e.g. in Spain, England and France. The spirit of nationalism got a boost as the different European princes rivaled and competed among themselves on land and sea..1
3.1 MODERN NATURAL LAW PHILOSOPHERES (RATIONALIST, NATURAL RIGHTS SCHOOL)
These came into prominence with the rise of individualism. Each person was thought of enjoying an area of sanctity, Natural Rights' are Abstract versions of claims, Liberties and immunities and at this level of generalization, are akin to principles, standards and doctrines, it is in this sense that they have been embodied in sundry bills of Rights, Charters of fundamental freedoms and constitutions; they are called 'Natural' perhaps because they are thought to be essential to social existence. Rules of law crystalized out them2. An example is evidenced in the American Declaration of Rights (1776) and became fully manifest with the outbreak of the French Revolution (1789). Both of them were mainly inspired by natural law ideas of liberty, equality and fraternity. All events of this period are fully reflected in the works of Hugo Grotius.











HUGO GROTIUS (1583)- 1645 AD)

He was Dutch and supporter of absolute autocracy, generally regarded as the father of international law; he was the most eminent of the rationalist school of Natural law. He contended that natural law is purely Natural rights and that natural law can be proved with arithmetic precision. Grotius gave the most vital principles of international law as "pacta sunt sarvanda "i.e. that promise solemnly made in treaties must be respected and fulfilled. Other rules and principle of Natural law formulated by him which today constitutes the nucleus of the fundamental principles international law, i.e. respect for other people's property and the restitution of gain made from such property, the reparation of damages caused by one's fault and the recognition of certain acts and omission meriting punishment. Natural law principle, he said, developed in human intellect and is immutable.

Grotius could be said to have contributed immensely to the development
Of Natural law in the following areas:

SECULARISM

Although, Grotius personally believed in God yet he tried to make his theory of natural law acceptable to all and sundry including unbelievers, therefore, if natural law being an attribute of man, exists independently of God, it is binding on all believers and unbelievers alike.

ABSOLUTISM:
Grotius employed the social contact theory to support the power of a ruler; Man joins society for the purpose of self-preservation and the security of his person and property, and surrendered his rights to the ruler in exchange for these facilities. Though the ruler is subject to natural l law, if he disobeys the rule badly, revolt against him is forbidden except in rare circumstances.





INTERNATIONALISM
Grotius applied the principles of Natural law and the theory of social contract to the community of nations. His postulate is that the ruler and state were bound to enter a wider society which would be governed by international law - a portion of Natural law.3

THOMAS HOBBES (1588-1679 AD)
Hobbes an Englishman and a royalist sympathizer, philosopher and political theoretician was exiled in Paris, France, from 1640 -1651 during the English civil war; he was a proponent of absolutist autocracy like Grotius, and approach Natural law from a purely secular angle in 1651, he published his great book entitled "Leviathan " while still in France. In it, he contended that when man lived in a state of nature he lived in misery, anarchy and grave insecurity, and was continually at war with his fellowmen. In this condition education and invention were unattainable, and social life, commerce and industry were impossible. Men lived in perpetual fear, misery and interminable strife ending in violent deaths; it was chaos and ruins all around. Hobbes described life in such a state as "solitary, poor, nasty, brutish and short". So as to secure order and personal security, man had to escape from this frightening situation by entering into society his preference for absolutism was probably predicated upon his harrowing experiences of the English Civil war.4
He went further to explain what man later did in this state of nature in which chaos was dominant

"But it dawned on man through the exercise of his reason (i.e. natural law) that peace was desirable, and that the sensible thing for him to do was to enter into society thereby limiting his own liberty of action, provided that other men did the same. This is the "Social Contract".









The contract according to Hobbes contained the following covenant made by men with each other and one another:

"I authorize and give up my right of government myself to the ruler on condition that thou give up thy right to him and authorize all his action in like manner"

However by propounding his theory of the natural rights of people to self-preservation, Hobbes charted a new course and laid a foundation which has incidentally led to the idea of fundamental human rights of which self- preservation is a primary right. Earlier (i.e., in the renaissance and Reformation periods) natural law lawyers had project natural law as a bundle of duties placed upon human beings in a normative pattern to which he must conform, but Hobbes tunes human awareness to the concept of natural rights, saying that individual could claim such rights against society.5

JOHN LOCKE (1632-1704 AD)

Unlike Hobbes, Locke was an anti-absolutist who employed natural law to oppose absolute government; Hobbes approach to natural law was secular but Locke based his natural law theory firmly on creative Deity.

Contending that the power of government must of necessity be limited, he used the social contract theory to assert the natural rights of the citizens against his government. In other words, government holds power in trust for the general and equal benefit of the citizens. Hobbes went further by saying that the protection offered by the Natural Law in a state of nature, to personal possessions was quite ineffective as there was an absence of dependable legal system and of an impartial judiciary. Nor was there sufficient power in any person to enforce the law. Men therefore came into organized society, i.e. the state, through the social contract (Pactum Unionis) and chose their own ruler (who should enforce the law) through majority decision. In this way, people limited their own freedom voluntarily, although previously in the natural state. All they did was to surrender to the society the power to preserve order and enforce the Natural Law, especially for the protection of life, liberty and property.

Thus, so long as government fulfills this purpose, its law must be obeyed, but when it ceases to protect these rights or start to encroach on them, its law loses their validity and the government could be overthrown. Locke in relaying his view that unlimited sovereignty was contrary to Natural Law, said, the following limitations must be imposed on it:
That the sovereign must not exercise arbitrary power over the lives and fortunes of the people. The Maxim "Nemo dat quod non habit" therefore applies.
The sovereign must not rule arbitrarily but musts rule through proper legislations and judicial system.
The sovereign can only deprive the citizens of his property with his consent, and there should be no compulsory acquisition without the payment of compensation.
The sovereign must not delegate his power of legislation to anyone else, the maxim, "delegatus non protest delegare" applies.

Locke also divided government power into three:
The legislative: which is to promulgate laws for the protection of natural rights?
The executive: This has the duty of enforcing the laws.
The "Federative" power, i.e. the to declare war and make peace, and control the foreign affairs of the state.
Like Grotius and others, Locke was convinced that the Natural law is easily discernible through human reason, he said:
" I doubt not, but from self-evident proposition, by necessary consequences, as uncontestable as those in mathematics, the measure of right and wrong might be made out to any one that will apply himself with the same indifference and attention to the one as he does the other of these sciences"




Thus, the law of nature stands as an eternal law to all men.
Locke's doctrine of natural rights concerning the protection of life, liberty and property also became embodied in the American declaration of independence and in the Fifth Amendment to the American constitutions.6
LON FULLER AND THE MORALITY OF LAW
To Fuller the connection between law and morality is a necessary one. But, unlike earlier naturalists, he does not argue that the rules of a legal system must conform to any substantive requirements of morality, or to any other external standard; rather, he postulates the need for rules of law to comply with "Internal Morality. This inner morality takes the form of certain principles that must be observed during the process of making and promulgation of law, so Fuller lists eight typical ideals or formal virtues to which a legal system should strive, and these according to him are:
"General; promulgation absence of retroactive legislation an d certainly no abuse of retrospective legislation, no contradictory rules congruence between rules as announced and their actual administration, clarity avoidance of frequent change absence of laws requiring the impossible""

3.2 IDEAL NATURAL LAW PHILOSOPHERS
Another development was "Natural law with a variable content" of which STAMMLER (1856-1938) was an exponent. He distinguished between technical legal science which concerns a given legal system and theoretical legal science which concerns rules giving effect to fundamental principles, the former deals with the content of the law; the later relates them to ultimate principles. To Stammler, Natural law is nothing more than "ideal law" for a particular place and time. He was of the opinion that since there are variations in the affairs of men from state to state and age to age, man is bound to have various ideals from one age to another.



Stammler's theory was a departure of the classical school concept of Natural law, to him there nothing like unchangeable and immutable Natural law, his was of a variable content. JOSEPH KOHLER shares similar view with Stammler, he said that reason will help find the ideal Natural law for one's nation. He saw law as a social fact connected and inseparable from the culture of the society. According to Stammler, in order to achieve justice, a legislator has to bear in mind four principles. These are, firstly, two "Principles of Respect":
The content of a person's volition must not depend upon the arbitrary will of another.
Every legal demand can only be maintained in such a way that a person obligated may remain a fellow creature.
Secondly, there are two "Principles of Participation":
A person lawfully obligated must not be arbitrarily excluded from the community.
Every lawful power of division may exclude the person affected by it from the community only to the extent that the person may remain a fellow creature.
Conclusively, therefore, Natural rights are abstract versions of claims, liberties and immunities and at this level of generalization are akin to principles, standards and doctrines, it is in this sense that they have been embodied in sundry bills of Right, charters of fundamental freedom and constitution; they are called natural perhaps because they are thought to be essential to social existence7.

3.3 CRITICISM AGAINST THE NATURAL LAW SCHOOL
The reason why natural law suffered a serious reverse during the 19th century could be put two categories:
Hostility against the social contract, and
Hostility against natural law generally
DAVID HUME (1711-1776), was first to deal a telling blow on natural law theories during the 18th century. He was "the supreme rationalist" who debunked the existence of natural law the social contract, contending that they were contrary to empirical truths. He argued that the validity of normative rules cannot logically be treated as an objective fact, but must depend on the relative view point of those who apply them, whereas, on the other hand, positive law, i.e. state law, is something that is valid and ascertainable without recourse to subjective consideration. Hume pointed out that the "the moral sense is guided by pleasure and pain" to him Natural law is a matter of belief and not of knowledge.

Though, it was David Hume who noted that Utility should be substituted for Natural law, it was JEREMY BENTHAM (1748-1832) who eventually expounded this notion and treated in detail the significance and functioning of the Utility as a plausible substitute for natural law. Bentham argued that natural law is a fiction and not a reality, saying that it is nothing g, but an empty phrase.
The hostility against natural law grew as scientific research progressed, empiricism then became popular and people embraced knowledge and disapproved shear belief At the same time people became aware of the relativity of morality and moral standards as they found that the notions of what was good or bad varied with different times and different societies; for example religious wars and religious intolerance were held to be right in the Middle Ages and the sixteenth and seventeenth centuries in Europe, but since then, religious toleration has been accepted as right .

The then emerging new theories of man's evolution gave the impression that man and society are continually improving, that is moving from a low state to a higher one.




All these influences made the 19th century Europeans and Americans impatient with Natural Law teachings which always suggest that an ideal pattern or condition was once followed but had been lost or abandoned by man and has to be regained although no one seems to know precisely what was lost, or how and when it was lost.
3.4 REVIVAL OF NATURAL LAW
The doctrine of the critics of Natural Law jurists shook the foundation of Natural Law theory, the walls of Natural Law crumbled and crashed. However, the doctrines of Natural Law rose gradually from its ruins due to the following reasons:



The so-called scientific investigation had its own loopholes; it was found to be replete with fundamental historical vacuums and geological gaps that is not susceptible to proof i.e. Darwin's theory of evolution.
The inability of positivism to give adequate answer to the injustice perpetuated by autocratic regime gave birth to a re-think of the positivist position.
It was used as an anti-Nazi weapon in the post-second world war era. Ideals of Natural rights and of the nullity of immoral laws were successfully used in trying and bringing the war criminals to book. The rights were subsequently incorporated in the United Nations Declaration of Human Rights in 1948 and have since been codified as positive human rights in various international covenants and entrenched in several national constitutions.
In the struggle for supremacy between communism and capitalism, both camps sought support in absolute rights, social justice etc., for their respective social –economic ideologies. Kelsey indeed suggested that the west deliberately revived the natural right to property specifically to combat communism .9













NOTES TO CHAPTER THREE
ADARAMOLA, op,cit,p.16
DIAS, op,cit,p.501
ADARAMOLA, op.cit,p.17-18
ADARAMOLA, op.cit.pp. 18– 19
ADARAMOLA, op.cit.p.19
ADARAMOLA, op.cit.pp. 19– 21
Lloyd, op.cit
ADARAMOLA, op.cit.pp. 24– 26
ADARAMOLA, op.cit, ibid.



























CHAPTER FOUR

NATURAL LAW IN OUR LEGAL SYSTEM

As LORD LLOYD1 points out, Natural Law calls our attention to the near universal principle which must of necessity underlie the quantities of human laws and human institutions, both from their historical and circumstantial perspective.
It lead us to discover the need to study law in the light of some other disciplines and to realize and appreciate how moral objectives can relate and play a crucial role in its formulation and interpretation and the adjudication of disputes. Moreover, Natural Law leads us to think out why we have or need law in society.

This chapter will deal mainly with the relevance and application of Natural Law to our legal system.

INTERNATIONAL LAW
An emphasis on individual liberty and freedom has been Western political and philosophy since the 17th century, associated particularly with the doctrine of natural rights. In the 20th century the doctrine has resulted in widespread acceptance of the existence of fundamental rights built into the constitutional frame work as a bill of rights, as well as receiving recognition internationally by means of Covenants of Human Rights agreed upon between to states.

The content of such rights are derived from the constitutional traditions common to member states and from international treaties to which member states have adhered.

This could traceable to the postulations of HUGO GROTITUS of the Rationalist school who posited that:



"Promises solemnly made in treaties must be respected and fulfilled''

It is in this vein that mention has to be made of the AFRICA CHARTER ON HUMAN AND PEOPLE`S RIGHT (1981),The sovereign state of Nigeria pursuant to the convention of African Charter on Human and Peoples Rights enacted a legislature incorporating it as Nigeria Law. By virtue of SECTION 1 of the Africa chapter on human and people`s right (Ratification and enforcement) Act Cap. 10 laws of the Federal of Nigerian 1990, the provision of the African Charter on Human and People's Rights shall, subject as provided, have force of law in Nigeria.

Nigeria incorporated the African Charted on Human and People's rights into its statute books because it is a signatory to the convention, by signing same and incorporating it into law; seek to act in accord with the dictates of Section 12 (1) of the 1979 Constitution, which requires that no treaty between the Federation and any other country shall have force of law except to the extent to which any such treaty is enacted into law by the legislature3.

International Law was largely founded and developed and is still being developed upon the principle and premises of Natural Law. The African charter on human and people's Rights (Ratification and Enforcement Act),
Cap. 10 laws of the Federation of Nigerian 1990 in its articles provides that the member states shall recognize the rights, duties and freedoms enshrined in the Charter and shall undertake to adopt legislative or other measures to give effect on them4.

The Articles provides for rights to life5, right to the respect of the dignity inherent in a human being6, right to liberty7, right to freedom of movement and residence8, right to seek and obtain asylum9, rights to legal expulsion10, right not to be expelled en-mass from member states11, all these rights as was postulated by the modern Natural Law philosophers, and are inherent and inalienable.





The African Charter on Human and People's Right (Ratification and Enforcement Act) Cap 10 laws of the Federal 1990 is supreme and higher in hierarch than all state and Federal Law in the country, as was posited MUSDAPHER J.C.A. in the case of:
FAWEHINMI V.ABACHA12
"The member countries- parties to the protocol-recognized that the fundamental human right stem from the attributes of human beings which justify their international protection and accordingly by the promulgation of Cap 10, the Nigerian state attempts to fulfill its international obligation. It is an international obligation which the nation voluntarily entered and agreed to be bound… it is in my view that notwithstanding the fact that Cap 10 was Promulgated by the National Assembly in 1983, it is a legislature with international flavor and the ouster clauses contained in Decree No. 107 of 1993 or No. 12 of 1994 cannot affect its operation in Nigerian… while the decree of the federal military government may over-ride other municipal laws, they cannot oust the jurisdiction of the court when properly called upon do so in relation to matters pertaining to human right under the Africa Charter. They are protected by International Law and the Federal Military government is not legally permitted to legislate out of its obligations.''

The federal government is therefore enjoined to give due recognition to this law i.e. the Africa Charter on Human and people's Rights, the law is in full force and has an aura of inviolability unlike most municipal laws and may as long as it is in statue book be clothed with vestment of inviolability.












NATURAL LAW: THE RECEIVED ENGLISH LAW AND CUSTOMARY LAW:
The new vision of the so called customary laws which have been reported in books and applied more or less faithfully in the state sponsored customary courts, often are very different from the older laws which exist before the period of colonial rule.

Present day customary laws would be a new law which has been strongly influenced by the specific economics, institutional and social –cultural conditions of colonial rule and which has been created either by the colonist or by the colonized in response to colonial penetration, or by a combination of both.

That colonial rule has decisive impact on traditional societies and on their laws can hardly be denied. The problem of "adopting" to modern conditions the rules of customary law first arose with occasion of the efforts by the English court to apply customary rules the test of conformity with Natural justice, Equity and good conscience ''
LORD WRIGHT in the case of LAOYE V OYETUNDE13, expressed the view that the Repugnancy Test was intended to invalidate barbarous customs. LORD ATKIN said in ESHIGBAYI ELEKO V OFFICER ADMINISTRATION THE GOVERNMENT OF NIGERIA14 that a barbarous custom must be rejected on the ground of repugnancy to Natural Justice, Equity and good conscience. Thus, in the case of EDET V ESSIEN the appellant have paid dowry in respect of a woman when she was a child, later, the respondent paid dowry in respect of the same woman to the woman's parents and took her as his wife. The applicant claimed custody of the children of the union on the grounds that under customary law he was the husband of the woman, that, the woman could not contract "another legal marriage until the dowry paid by him was refunded and until this is done, he is entitled to the children borne by the woman. The court held if such a rule has been established, though it is not, was still repugnant to natural Justice, equity and good conscience.



According to Thomas Aquinas:
"if any human law is at variance in any particular with the Natural
Law, it is no longer legal but rather a corruption of law".
It was also the view of CICERO that any positive law that contradicts the Natural law should
be disobeyed and destroyed.

The doctrine of Equity is another example of English Law that has been received into Nigeria. It differs from the common Law, first, in terms of its origin, and second, because of its determination to "bend" common law rules whenever the peculiar circumstances of the case makes it unfair and unjust to apply common law strictly.
It has always been accepted that Equity in its narrow technical sense (as the rules developed by the court of chancery) or, in its broad sense of justice and fairness. Thus in: ONIAH V ONYIAH17 , the supreme court considered various principles developed at Equity in determining whether a land lord is entitled to forfeit the tenancy of his customary tenants who have turned round to dispute the land lord's title to his land.

The doctrine of Equity is traceable to the postulations of the natural law school in the person of Aristotle who submitted that in order for justice to be done in exceptional cases, the judges would have to depart from the general rules. This, he called:

"…The power to do Equity"


THE NIGERIAN CONSTITUTION AND NATURAL
The Nigerian constitution entrenches the rights every citizen. In the RANSOME KUTIV ATTORNEY GENERAL OF THE FEDERATION, the nature of fundamental Human rights in a Natural Law perspective has been well expounded by ESO.J.S.C. Thus:










"It is the primary condition to a civilized existence and what has been done by our constitution since independence, starting with the independence constitution i.e. Order in Council 1960 up to the present constitution… is to have these rights enshrined in the constitution so that the right could be ''immutable…"

These rights includes, right to life, Right to dignity, Right to personal liberty, right to fair hearing, right to freedom of movement, right to freedom from discrimination19, among others.

It was Hobbes, Locke and Grotius, the modern natural law philosophers that provided that natural rights are inalienable rights inherent in man, which is endowed on by nature.

JOHN LOCKE used the social contract theory to assert the natural rights of the citizen against his government, according to him, government holds power in trust for the general and equal benefit of his citizens, this predicated in the Fundamental objectives and Directive Principle of state Policy20 in which the fundamental obligation of the government is stipulated.

4.4. LAW OF TORTS AND NATUAL LAW
The most predominant principle of natural law which all the Natural Law philosophers where known by, is their general view on "Reason'' as guiding principle in man's walk in life. The law of Torts is derived from this principle of reason.

In the frequent citied word of ALDERSON B21

"Negligence is the omission to do something which a reasonable man, guided upon those consideration which ordinary regular the conduct of human affairs, would do or doing something which a prudent and reasonable man would not do".

In RYLAND V. FLETCHER,22 BLACK BURN J. propound the rule that:




"The person who for his own purposes (and in the course of a non-natural user of his land) brings on his land.. anything likely to do mischief if it escapes, must keep it at his peril and if he does not do so, is prima –facie answerable for all damage which is the natural consequence of its escape.''

HUGO GROTUS was the one who provided for the:

"...Reparation of damage caused by one's fault".

The "duty of care'' is a main feature of the law of Torts which is popular referred to as the ''Neighbor Principle''. Everybody is supposed to be his brother's keeper as is being recorded in the Holy Bible23 and to love one's neighbor as oneself, this, THOMAS AQINAS said it is being revealed rather than being discovered by reason and the example he gave was the code of law given by God to the Hebrews or the rules given through the scriptures.

In DONOGHUE V STVENSION24. It was established that a manufacture of chattel owes a duty of care to the ultimate customers thereof. In this case the plaintiff suffered from illness after drinking the content of a bottle of ginger beer manufactured by the defendants which contained the decomposed remain of a snail.

4.5. CRIMINAL LAW AND NATURAL LAW
Criminal law deals with offences and crimes, examples are: murder, rape, stealing, receiving stolen goods and arson. All these acts are prohibited expressly by the state, in criminal codes in all other parts of the country and penal codes in the Northern parts of the country.






The entire criminal law is premised on Natural Law of the Medieval period (the Christian Philosopher), in the person of THOMAS AQUINAS whose view was derivative from the 10 commandements25, any person who commits any of the prohibited criminal acts is punished. Punishment of offenders therefore forms the main purpose of criminal law.


Other Natural Law Philosophers also contributed in this direction. CICERO, a Roman Philosopher postulated that whoever is disobedient to this law of nature:

"… will suffer the worst penalties …"

HOGO GROTITUS a modern jurist also talked about the recognition of certain acts and omissions meriting punishment. As it is been illustrated in the maxim by DEL VECCHIO an Ideal Natural Law jurist "honeste, vivere, niminem laedere; suum ciqui tribuere, etc (i.e live honestly; hurt no one; give unto everyone his due).



4.6 LAW OF CONTRACT AND NATURAL LAW
Contract consists of an agreement or a set of promises which is regarded as binding and enforceable on the parties entering into it. The elements of a valid contract are: Offer, Acceptance and Consideration. For a contract to exist there has to be an offer by one party to another party, and an acceptance by the person to whom the offer is addressed. An offer may be defined as a definite undertaking or promise, made by one party with the intention that it shall become binding on the party to whom it is addressed. It was HUGO GROTIUS, a modern natural Law jurist contribution to Natural Law that:

"…Promise solemnly made… should be respected in fulfilled" (Pacta sunt servanda)

LAND LAW AND NATURAL LAW
Our land could be traceable to the postulations of the modern jurist on Natural Law, it was JOHN LOKE`S contribution to Natural law that government holds power for the general and equal benefit of the citizens, this has formed the basis of our land law, in the sense that, the Governor of each state of the federation holds land in trust and is been administered for the use and common benefit of all Nigerians26.
The land use Act states that it shall be lawful for the Governor to revoke a right of occupancy for overriding public interest27, the Act further provides that the occupier shall be entitled to compensation on revocation of right of occupancy28.
HUGO GROTIUS recognized the need for respect of other people's property and the restitution of gain made from such property. JOHN LOCKE also provides:
"The Sovereign can only deprive the citizen of his property with his consent, and there should be no compulsory acquisition without the payment of compensation".

4.8 SHARIA LAW AND NATURAL LAW
The intimate connection between law and religion is one of the main sources of the strength of Islamic law. There are two main reason for this: in the first place, the law is based on a strong ethical basis which is accepted without question by the great majority of those subjected to it. Also, the law receives a type of allegiance and adhesion which can properly be described and which is far stronger than that usually accorded to law under other systems.

Most Muslim thinkers think that what is truly good and evil cannot be rational determined and that the only guide that men can trust is provided by the Sharia which is said to be divine revelation.

This line thought can be traceable to the doctrines of the Natural Law school in the person of AQUINAS, in his classification he defined Divine law as being revealed rather than being discovered by reason.

4.9 THE DECREE AND NATURAL LAW:
The Decree is the creation of the military. The military revolution that took place on January 15th 1996 and which was followed by another on July 29th 1966, effectively abrogated the whole pre-existing democratic government.

Under the military regime there was an unsuccessful coup d`etat, many persons were convicted of various offences connected with the attempted coup d'etat under two Statutes passed by the parliament (provisional ruling council) for special purpose the first sought to legalize certain deviations from the existing laws of criminals procedure in determining the persons. It defines the office of waging war against the queen, provided for trail without a jury, by three judges to be nominated by the Ministry of Justice.

It also made admissible in evidence confession which was inadmissible under the existing law. It provided for arrest without warrant and new minimum penalty for the offence in question. The statutes were to be back –dated (retrospective) to cover the abortive coup d`etat. The second statute was passed to substitute the Chief Justice for the Minister of Justice, these statutes were to cease to operate after the trial of the detained persons.

The validity of the Decree could be easily traced to Natural Law in the middle Ages, specifically, the Christian natural Law philosopher, AUINAS, who, in order to discourage scandal and social disorder in the society, taught that positive laws, even the wicked ones should be obeyed, he also provided that the whole Hierarchy of laws, including positive (state) law was an inspiration from God.






NOTES TO CHAPTER FOUR























CHAPTER 5

CRITISMS AND POSSIBLE SUGGESTIONS

Indeed so numerous are the forms of natural Law and so varied its disguises. At some periods its appeal may have been essentially religious or supernatural, but in modern times it has formed an important weapon in political ideology. Essentially it has afforded a valuable aid to the powers that be, desirous of justifying the existing law and the social and economic system it embodies.
It is not surprising when ROSS Said:
''like a harlot, natural Law is at the disposal of everyone, the ideology does not exist that cannot be defended by an appeal to the law of nature''
Despite that fact that the Decree has a Natural Law backing, it would be safe for us to conclude that AQUINAS' support of positive law whether good or bad was in order to prevent social disorder in the society.

Natural Law is generally against unjust laws, which are also retrospective in nature.

On the issue of retrospective laws, it was LON FULLER of the Natural Right School who provided to the effect, in his list of the eight typical ideals or former virtues which a legal system should strive:
''…Absence of retrospective legislation and certainly no abuse of retrospective legislation…''
As regards Sharia Law, its close relationship with religion and law is a source of great problem. As ALLOT has said:






"Of all the world religion, Islam poses the greatest problem from the legal point of the view when its adherents form a substantial proportion of the population of the state''.
This has been the basis of problems generating in some parts of the country, prominent among which is Zamfara State. The cutting of limbs of accused has been a main feature of this law thereby incapacitating the individual. Even after he or she has repented from his or her wrong, the individual will not be able to involve in any profiting venture for sustenance.

This was the case with one Buba Bello Jangedi whose right arm was chopped offer for allegedly stealing a cow.
The basic principle of Natural Law is that men are born equal, man inhumanity to man should therefore be discouraged, the punishment being meted out under Sharia law are repugnant to natural justice, Equity and good conscience. AQUINAS, provided that:

''if a human law is at variance in any particular with the Natural law, it is no longer legal but rather a corruption of Law''
There are certain elements that natural law prescribe that human must conform to these are:
Right reasoning
Common Equity
Ethic
Morality, and
Justice





SUMMARY
In this research work, various postulations of Natural Law philosophers have been looked into; all of them are seen as to recognize ''Reason'' as an essential ingredient for an action or the making of Laws of a society.

The Greek said, Natural law could be discovered by reason which is external to man, while the Romans said that this law was immutable, everlasting and unchanging and whose maker is God. The modern jurist or the Rationalist saw Natural Law as natural rights that are inherent in man, which cannot be alienated. On the other hand, the ideal school sees Natural Law as having a variable content, which varies from place to place.
In the study, Natural Law idea was applied to our legal system, the relevance of Natural Law to our system was noted and appreciated.

It was also discovered that despite the relevance of Natural Law to our system in the area of justice and morality, there seem to be a misapplication of its principle. But we were later told that Natural Law is "Natural Justice'' which everywhere has the same force and does not depend on accepting it or not- Aristotle.

CONCLUSION
In conclusion, therefore, that Natural Law has great relevance to our legal system cannot be over-emphasized. We must however, remind ourselves of the need to inculcate into our legal system without leaving out any area, the virtues of Natural Law to its fullest, which could be achieved by taking its virtues into consideration while making laws or applying it. These virtues include morality and justice amongst others.

THOMAS HOBBES rightly provides that the state of nature has a Law that governs it, so that if man transgresses this law of nature, would be living contrary to:

''Nature, reason and common Equity''