INTRODUCING LAW Kasim Balarabe LLB ABU BL Nigeria

INTRODUCING LAW Kasim Balarabe LLB (ABU), BL (Nigeria), LLM (Geneva), LLM (VU Amsterdam), Dip RL (IIHL, Italy) PHD Researcher (Maastricht, Netherlands) Barrister and Solicitor of the Supreme Court of Nigeria 1 TOPIC TWO

CONTENTS OF THE PRESENTATION NATURE OF LAW ROLE AND FUNCTIONS OF LAW IN THE SOCIETY 2

NATURE AND FUNCTIONS OF LAW 3 CONCEPT OF MAN l Man, by nature is passionate, covetous and if he’s left to himself, the world would resemble the devil’s workshop where the logic of the fist would reign. l According to Bodin, the original state of man was one of disorder, force or violence. l According to Schophenhauer, man is the most criminal creature made by God. l According to St. Augustine, man is a sinner and what he produces (overt act) is part of the original sin and man’s spirit and rebellion strikes against almost all authority and every institution in contemporary culture.

NATURE AND FUNCTIONS OF LAW l l 4 According to Seneca, in primitive state, men lived together in peace and happiness, having all things in common; there was no private property, there was no coercive government. Order was of the best kind, for men followed nature without fail. The best and wisest men were their rulers, who guided and were gladly followed as they commanded wisely and justly. As times passed, the primitive innocence disappeared, men became avaricious and dissatisfied with the common enjoyment of the good things of the world and desired to hold them in their private possession.

NATURE AND FUNCTIONS OF LAW l l 5 Avarice rent the first happy society asunder and the kingship of the wise gave place to tyranny so that men have to create laws which should control their rulers. In essence, men agreed to give up voluntarily their unfettered individual rights and submit to the authority of sovereign. There was no agreement as to whether this social control arose from fear and force or in an atmosphere of enlightenment and reason. What perhaps is less controversial was the felt need to prevent or put an end to reign of warfare, terror and fear and to maintain or usher in security, convenience and an ordered community.

NATURE AND FUNCTIONS OF LAW 6 NATURE OF LAW l As we have noted, the term ‘law’ is used in many senses. l We may also speak of the laws of physics, mathematics, science, or the laws of football. l When we speak of the law of a State, we use the term law in a special and strict sense and in that sense law may be defined as a rule of human conduct, imposed upon and enforced among, the members of a given State. l People are by nature social animals desiring the companionship of others, and in primitive times they tended to form tribes, groups, or societies, either for self-preservation or by reason of social instinct.

NATURE AND FUNCTIONS OF LAW l l l i. 7 ii. If a group or society is to continue, some form of social order is necessary. Rules of Laws are, therefore, drawn up to ensure that members of the society may live and work together in an orderly and peaceful manner. The larger the community (or groups or State), the more complex and numerous will be the rules. If the rules or laws are broken, compulsion is used to enforced obedience. We may say, then, that two ideas underline the concept of law: Order, in the sense of methods or system; and Enforcement – i. e. the enforcement of obedience to the rules or laws laid down.

NATURE AND FUNCTIONS OF LAW l ii. l 8 On examination of the definition given above certain important points should be noted: Law is a Body of Rules: when referring to ‘the law’ we usually imply the whole of the law however it may have been formed. We must however note that some of our laws were formed out of the customs of the people. But a great part of the law has been created by legislation, i. e. the passing of laws. Law is for Guidance of Human Conduct: people resort to various kinds of rules to guide their lives. Thus moral rules and ethics remind us that it is immoral or wrong to covet, to tell lies or to engage in drunkenness in private.

NATURE AND FUNCTIONS OF LAW l l iii. 9 Society may well disapprove of the transgression of these moral or ethical precepts. The law however is not concerned with such matters and lives them to the individual’s conscience or moral choice and the pressure of public opinion; no legal action results (unless a person tells lies under oath in a court, when he or she may be prosecuted for perjury). Thus there is a degree of overlap between moral and legal rules. Law is Imposed: we sometimes think of laws as being laid down by some authority such as monarch, dictator, or group of people in whom special power is vested. In Uganda we can point to legislation for examples of laws laid down by a sovereign body, namely Parliament.

NATURE AND FUNCTIONS OF LAW iii. iv. v. l 10 Enforcement: unless law is enforced, it loses its effectiveness as a law and those persons subject to it will regard it as dead. The force used is known as sanction and it is this sanction which the State administers to secure obedience to its rules. The State: a State is a territorial division in which a community or people lives subject to a uniform system of law administered by a sovereign authority. Content of Law: the law is a living thing and it changes through the course of history. Changes are brought about by various factors such as colonization, invasion, contact with other races, material prosperity, education, the advent of new machines or new ideas or new religions.

NATURE AND FUNCTIONS OF LAW l vi. 11 Law respond to public opinion and changes accordingly. Justice and Law: people desire justice in their personal, social, and economic dealings. There is no universal agreement on the meaning of justice, and ideal or perfect justice is difficult to attain in this life. People strive for relative justice, not perfect justice; and good laws assist to that end.

NATURE AND FUNCTIONS OF LAW 12 ROLE AND FUNCTIONS OF LAW: LAW IN SOCIETY l Society cannot exist without rules of social order. Every society has its own publicly recognized authority for declaring, administering and enforcing its laws. l One of the most obvious and most central characteristics of all societies is that they must possess some degree of order to permit the members to interact over a sustained period of time. l Different societies have different forms of order. Some societies are highly regimented with strictly enforced rules whereas others continue to function in what outsiders might consider very unstructured with apparently few strictly rules being enforced.

NATURE AND FUNCTIONS OF LAW l l l 13 In our society, laws play an important role in the creation and maintenance of social order and the most obvious way in which law contributes to the maintenance of social order is the way in which it deals with disorder or conflict In a democracy, the ultimate purpose of laws is to solve or mitigate the societal problems that degrade or threaten to degrade the liberty and well-being of the people, i. e. , the “public good. ” Law is part of our daily lives whether personal or business, therefore it is important to understand the role and the function of it.

NATURE AND FUNCTIONS OF LAW l l 14 Law is everywhere at work, when we are driving, school and every other things we do during the day. Without knowing it, everything we do involves law and every decision we make in some way or another law is involved. Functions of law refer to the purpose and end result of law in the society. No society can develop without law. Generally law serves the following functions:

NATURE AND FUNCTIONS OF LAW 1. 2. 3. 4. 5. 6. 7. 8. 9. 15 Preservation of life Protection of property Preservation of peace, order and good behaviour Protection of morality Protection of interests Protection of national security and public safety Preservation of territorial integrity Social cohesion Law as an instrument of economic, political and social change

NATURE AND FUNCTIONS OF LAW 10. 11. 12. 13. 14. 16 Law as an instrument of settling disputes Law as an instrument of protection of fundamental human rights and freedoms Law as an instrument of setting out the structure of government Protection of sovereignty of State Creation of employment

NATURE AND FUNCTIONS OF LAW HOME WORK l Read about Language of the Law 17

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