Introduction to Legal Methods

Legal method is the study of law, and the legal methods of doing things, so that law can be effectively used for the benefit of the individual, society and state. Legal method is made up of two words: “legal” and method. The word 'legal' according to the Merriam Webster’s dictionary is something relating to law. It is also described as conforming to rules or law. “Law” is a set of rules enforced through a set of institutions.

Nature of legal methods

A fresh undergraduate law student must first understand that legal method does not concern itself with principles, doctrines and rules comprising a jurisdiction's substantive law in a field. Rather, it does concern itself with the mythology employed, principally by courts, to create, elaborate and apply that substance. Legal methods is an introduction to both the nature of the English legal system and its sources and the techniques which lawyers use when handling these sources. Studying legal method should be exciting, challenging and rigorous. To fresh students however, it has the reputation of being boring and mechanical.

Legal method is not a course that can be easily crammed or memorized and it should not be crammed or just memorized, but should be understood. If not, it will weaken the foundation of the student’s legal education.

The study of law may be related to the study of a foreign language because it proceeds in an orderly fashion. Students are not just introduced to the study of law straight away. They, who are just coming into the university to study law are not just introduced to specific laws like law of torts, company law, law of evidence, etc., but are instead to take the course of legal methods which revolves around the study of basic principles, nature, sources, role of law and the methods of law which can be effectively applied for a better understanding of the subject matter and this can be compared to the study of foreign language in the sense that for one to learn and understand, one has to start from the scratch of the rudiments. For instance, in the case of English language, one starts learning from the alphabets and then proceeds to learning of two to three letter words and to vocabularies and then masters the language to the extent of expressing oneself in that language. Such is the same with the study of law by learning in an orderly fashion, from the study of legal vocabularies, concepts, definitions, principles, cases, statutes and from secondary materials to primary materials. The study of legal methods provides the basis for the study of law and this marks its comparison with the study of a foreign language.

Importance of legal methods

The importance of the study of legal method cannot be overemphasized and the importance of this course will be discussed here.

1. The main importance of the course is to provide a ground work on the fundamental concept of law. The course is aimed both at students with no previous knowledge of law and those with minimal knowledge of law.
2. The course is also to help students understand the logic of law, which is captured in one of McLeod's introductory lines “legal methods when properly understood is a creative process which provides a fascinating study in reasoning and using language in order to achieve practical results”.
3. Legal methods is a course, which amongst other things, exposes students to the nature, language, technique and dynamics of law in the early stage of their academic life in order to lay a solid foundation for the proper understanding and application of the various substantive principle and rules which they will come across as they advance in the studies.
4. Legal methods provides a lively introduction to both the nature of the English legal system and its sources and the techniques which lawyers use when handling those sources. It is this that has made the course popular for clear introduction to the subject of law.
5. With the study of legal methods, ideas revolving around the creation of application are espoused. The processes of making court applications for hearing are learned in the study of legal methods. Although it may not go deep into it, it gives knowledge of it.
6. The study of legal methods lays a foundation upon which other law subjects are built. With the study of legal methods, one is exposed to other law subject like trust and equity, jurisprudence, etc.

What is law?

Law is basically that which is laid down, ordained, or established. A rule or method according to which phenomena or actions coexist or follow each other. “Law” is a solemn expression of legislative will. It orders, permits and forbids. It announces rewards and punishments. “Law,” without an article, properly implies a science or system of principles or rules of human conduct, answering to the Latin “jus”, as when it is spoken of as a subject of study or practice.

Features of law

The word “law” can be interpreted to mean a lot of things. For example, we have the law of gravity, the law of demand and supply and we have criminal law. How do we know the particular meaning of law that is relevant to a law student? This would only be made possible if the specific features of this meaning of “law” is expatiated:

1. Law is a body of rules: Law is not just contained in a single document. If it were so, there would be no need for lawyers. Law can be found in an array of sources. For example, in Nigeria, laws can be found in the Constitution, statutes and case laws. All these together make up the corpus juris of Nigerian law.
2. Law is man-made: This is one of the main distinctive features of law. Other meanings of law, like the law of gravity, the law of thermodynamics, etc., are not made by man; they are laws made by nature. Even laws which are said to be divinely given need man in order for them to be enforced. The laws of God would have no effect on man except if the society of man chooses to abide by them.
3. It is normative in character: The purpose of law is to allow some actions and criminalize some other actions. This feature of law is best described as being normative; it prescribes the dos and don’ts of the society. An example of law prohibiting an action can be found in the provision of section 319 of the Criminal Code which prescribes the death penalty for the act of murder. Another example of the law prescribing actions can be found in section 143 of the Constitution of the Federal Republic of Nigeria 1999(as amended) which provides for the procedure to be followed in the removal of the president from office by the legislature.
4. It has an element of coercion: Before a prohibition can be said to be a law, there has to be means by which it can be enforced in the society. If there isn’t, the law would just be regarded as a moral rule at best. This is why the state makes use of elements of force like the police in order to enforce its laws and the judgement of the courts.
5. It is territorial in nature: Unlike the laws of gravity, which apply on the whole surface of the earth, law in our context only applies within a certain territory. This is in most cases the society that accepts the law to govern them. Although in some cases, law can apply in another territory through the use of conquest. In the case of Holman v Johnson (1775) 1 Cowp. 341, the plaintiff sold tea to the defendant in Dunkirk, with the full knowledge that the tea was to be smuggled into England. Subsequently the buyer refused to pay on the basis that the sale of the tea was illegal. The court rejected this argument on the basis that it would mean that the laws of England are also applicable in Dunkirk.
6. It is dynamic in nature: This means that law evolves over time in order to meet the specific needs of the society in which it is operative. For example, Nigeria has had a series of constitutions, ranging from the Clifford Constitution of 1922, to the present 1999 Constitution.

Theories of law

Theories of law refers to the different schools of thought over the nature of law, and they are observed below.

1. The Positivist Theory of Law

This theory of law was spearheaded by John Austin. He proposed the command theory of law, which is also regarded to as the positivist school. According to him in his book, The Province of Jurisprudence Determined, he defined law as “a command set by a superior being to inferior beings and enforced by sanctions.” By this definition, it means that the only things that can be regarded as law are those that are enacted as such by the person authorized to do so. The definition has the following elements:

• The existence of a definite sovereign.
• The sovereign is without legal limitation in the exercise of his power.
• The subjects must be in the habit of obeying him because of his coercive power to impose sanctions.

The positivist theory of law has been criticized on numerous grounds. First, not all laws are couched as commands. For example, the provisions contained in Chapter II of the 1999 Constitution which deal with the fundamental objectives and directive principles of state policy are not binding on the government of the nation. This is considering the fact that they are not justiciable by the provision of section 6(6)(c) of the 1999 Constitution. Another criticism is the fact that positive law is only concerned with the fact that the sovereign enacts a law. It is not concerned with whether or not the law is moral or acceptable to the society.

Also, the idea of an uncommanded commander, who has no legal limitations, would not be applicable in today’s world. Even if it is a military regime, the military is still bound by the provisions of the laws it enacts. For example, in the case of Ojukwu vs Governor of Lagos State, the action of the military governor in evicting the defendant off his property without following due process was held to be ultra vires and null and void by the court.

Finally, not all human beings obey the law because of the sanctions attached to it. Some people just do not contravene the law because it is their nature. For example, some people abstain from murder not just because of its punishment but because they find the killing of a fellow human being repulsive.

2. The Pure Theory of Law

This theory of law is led by Professor Hans Kelson. It is of the view that law is a system of norms accepted by the society to be binding. Each of these norms trace their validity to a higher norm until it gets to the grunde norm. The grunde norm is the norm from which other norms get their validity. For example, murder is unlawful because it can be traced to the provision of section 315 of the Criminal Code. The Criminal Code is valid because it was enacted by the legislature. The legislature’s powers to make laws is valid because it is provided for under section 4 of the 1999 Constitution. The Constitution is also valid because it originates from the people and is accepted by them.

This theory of law has been criticized because it posits that a law is valid if it satisfies the requirement of being backed by a higher norm. It does not concern itself with the morality or immorality of the said law.

Another criticism of this theory is due to the fact that it is not always easy to trace the grunde norm in a given society. The assertion that the Constitution is the grunde norm is one based on false logic. This is due to the fact that it is said that the constitution gets its power from the people. But in the Nigerian situation, we are not sure if it is the people that provided the constitution or the military government.

Also, a grunde norm is only effective as long as it is respected by the people it seeks to govern. If it loses the confidence of the people through a revolution or a coup d’etat, it would become ineffective. A practical example is the fact that the 1999 Constitution provides in section 1(2) that no one can operate the government of Nigeria except in accordance with the provisions of the Constitution. However, when there is a successful coup, this section and a host of others are removed by the military government in power.

3. Natural Law Theory

The natural law theory of law is espoused by people like Zeno, Thomas Aquinas and Grotius. They are of the view that law can be deduced by man from reason as to what is right or wrong. This theory of law is of the position that there is an innate tendency in all humans helping to distinguish right from wrong. Natural law is simply what is “right, just and fair”. Natural law has been the basis for an array of liberation struggles. It was invoked by the Americans in their struggle of liberation from Britain, by the French during their revolution, in the abolition of slave trade and is now being used to justify homosexuality.

However, there are numerous criticisms for this theory of law. First is the fact that unless natural law is promulgated as a law, it does not carry the force of law and would not be enforceable. At best, it would be considered as a moral rule. A very good example is the fact that the Criminal Code which operates in Southern Nigeria doesn’t criminalise adultery. However according to Section 387 and 388 of the Penal Code, which operates in Northern Nigeria, adultery is an offence.

Also, the dictates of natural law are usually seen subjectively. What is fair, equitable and just to one person may not be fair, equitable and just to another person. This issue is what has made natural law to be referred to as a harlot.

A very good example of this is in the clamour for homosexuality. The homosexuals and their supporters are of the view that it is only fair and just for them to be allowed to have sexual intercourse with anyone they choose. Those who oppose it on the other hand are of the opinion that homosexuality is against the order of nature and should thus be prohibited. Thus, it would be problematic if everyone in the society is left to choose what is right and wrong on the basis of how he feels.

4. Historical Theory of Law

This theory was propounded by Friedrich Carl Von Savigny, a German aristocrat. The theory was propounded in order to counter the influence of the natural theory of law in overthrowing monarchs in 17th and 18th century Europe.

The theory is of the view that law should be made in accordance with the custom of the people. This custom, referred to as volksgeist, is the spirit of the people and what binds them together. Thus, attempts should not be made to make laws that would deviate from the customs and way of life of the people. Von Savigny was an aristocrat, and so it is evident that he was interested in maintaining the status quo.

One of the criticisms against this school is the fact that if it is followed dogmatically, it could hinder radical reforms which would turn out to be good for the society. One can only imagine how backward the society would be if strange customs like slavery and absolute monarchy were not abolished. Another criticism of this theory of law is the fact that it is not at all times that customs are fair and just. There are a lot of customs that segregate a particular class of people. If this theory is to be followed to the latter, it would put these people in perpetual bondage.

This could be seen as the reason for the Evidence Act to provide in section 18(3) that a custom would only be applicable if it conforms to public policy, natural justice, equity and good conscience.

5. Sociological Theory of Law

The sociological theory gained prominence from the mid nineteenth century to the twentieth century. One of its most prominent supporters was Eugene Ehrlich. According to this school, law is based on what could be called the “facts of law”, how people acted. The way the society acts determines the kinds of laws that would be laid down. If the society by its actions fails to acknowledge a law, the law is doomed to fail as a means of social control.

A very good example of this is the case of corruption in the Nigerian society. Despite the enactment of many Acts like the Economic and Financial Crimes Commission Act and a host of others, corruption is still viewed as a way of life in Nigeria. Virtually everyone has at a point in time given or received a bribe. The different measures put in place to control corruption have obviously failed because the people do not support the law by their actions.

The sociological school, however, also has its own share of criticisms. First, it is not all the time that conduct influences the law. There are situations in which the law influences the conduct of members of the society. For instance, vehicle owners register their vehicles because of the law mandating them to do so.

Another criticism is the fact that it is quite risky to “go with the flow”. Just because every other person is disobeying the law would not excuse an offender who is caught and is being made a scape goat. The present Dasuki armsgate scandal is a good example of this. Assuming but not conceding that he is guilty, it would not be a valid excuse that the perpetrators should not be punished because virtually everyone in government at that point was corrupt.

There is another variant of the sociological theory propounded by Roscoe Pound, former Dean of Harvard Law School. According to him, there are limited resources in the society and thus, numerous competing claims to those resources. It is then the aim of the law to balance these competing claims in such a way that it would cause the least harm. This is done through the instrumentality of the courts.

6. The Utilitarian Theory of Law

This theory of law is championed by Jeremy Bentham. According to him, the purpose of the law is to guarantee communal utility. Utility in this sense means that which affects the happiness of the people. The law should always seek to promote the utility that would positively affect the larger part of the society.

According to this school, there are four basic utilities: security, equality, liberty and abundance. The most important one is security, followed by liberty and the remaining two. The law should always seek to balance individual interest with that of the community. For example, the law allows for the police to invade the privacy of a suspected armed robber, robbing him of his liberty, in order to guarantee the security of the society.

One of the criticisms against this school is that it does not specify a method for balancing the interest of the individual and community.

7. The Functional Theory

This theory of law is championed by distinguished United States jurist, Oliver Wendell Homes Jr. His view is that the law is what the courts say it is. He says the law should be viewed from the perspective of the bad man. According to him, the bad man doesn’t give two hoots about legal theories, all he cares about is what the court would decide in his situation.

Thus, notwithstanding what is contained in the statutes, since it is the courts that interpret the law, the law would be what the court pronounces it to be. This school also recognizes the power of the court to make law when the statutes do not provide for a particular scenario or they are vague about it.

One of the criticisms against this school is that it only concentrates on the courts and ignores the legislative and administrative authority. This is arguably erroneous, considering the fact that the court itself is a creation of statute. Section 6 of the Constitution of the Federal Republic of Nigeria 1999(as amended) establishes the judiciary.

8. The Realist Theory of Law

This school is of American origin, and is subscribed to by people like Oliver Wendell Holmes, Justice Jerome Frank, John Chipman Gray and Karl Llewellyn. This school posits that the law is not just what is in the books and decided cases. They are of the view that the judge and jury, in making their decisions, are influenced by extraneous factors. For example, if a judge that has been a victim of rape or is close to a victim tries an accused rapist, there is every likelihood that she would not want him to go scot free due to her previous experience. Also, a judge who is handling the trial of a former colleague or contemporary would be lenient compared to the trial of an accused who is not related to him.

This school aims at reforming the judicial system. They are of the view that judges should constantly try their best in order to be objective in deciding a particular case.

Which of The Theories of Law is the Best?

The above numerous theories have been explained and it can be said that all the schools are correct in their own right. This is due to the fact that the definitions of law given are affected by the subjective experiences of each of the jurist. A good example is Carl Von Savigny, who supported the historical school because he was an aristocrat and so has an interest in maintaining the status quo.

The main idea behind the different schools can be summarised in one quick allegory of some blind men who were told to identify an elephant by touching it. The one that touched the legs described it as a tree, the one that touched the trunk called it a snake, the one for the body called it a rock and the one that touched the tusk described it as a spear. All the blind men were correct in their own right, however, they were also wrong as their perspectives were limited to only an aspect.

In light of this, it would be best to quote Professor Mrs Okunniga who stated: “Nobody, including the lawyer, has offered, nobody including the lawyer is offering and nobody including the lawyer will ever be able to offer a definition of law to end all definitions.”

Functions of law

1. Definition and Regulation of Social Relationships

This means that the law helps to define the kinds of relationship among individual members of the society that would be recognised by it. For instance, under the Marriage Act, a valid marriage is a union between a man and a woman. Thus, unions between couples of the same sex are not recognised in the Nigerian Legal System.

Furthermore, the Constitution provides in section 40 that there is freedom of association between members of the society. However, some other laws like the Company and Allied Matters Act, provide for steps to be taken before a company could be registered as such and is recognised by the law as a distinct legal person. In all, the law regulates the relationship between members of the society in order to prevent associations or relationships that would end up being harmful to the society.

2. Identification and Allocation of Official Authority

Another function of law is that it helps to grant authority to those chosen by the society, whether expressly or indirectly. For example, the 1999 Constitution establishes the Legislature, Executive and Judiciary in the provisions of sections 4, 5 and 6 respectively. The provisions does not only establish them, their specific duties are also provided for.

3. Dispute Settlement and Remedies

In the course of interaction amongst members of the society, there is always bound to be strife between members. The law comes in situations like this to provide for the procedures in which these issues can be resolved and if need be, the provision of remedies for the breach of the rights of members of the society. The law achieves this through the instrumentality of the judicial system.

The method of dispute resolution adopted by the society depends on its size and complexity. If it is a small and simple society, disputes would be resolved in a way that would ensure continued relationship among the members. If it is a complex society in which parties have no need for further relationship, the disputes would be resolved in a way that apportions blames and grants remedies as adequately needed.

4. Change of Law

Another function of law is that it provides methods by which the laws can be modified in order to meet the needs of the changing times. For example, the Constitution in section 4 vests in the legislature the power to make laws for Nigeria. This means they can re-enact laws and correct anomalies in them. The specific processes to be followed by the legislature in enacting laws for the federation are provided for by the Constitution in section 58.

Also, the Constitution provides in section 9 for the procedures to be followed in amending its content. The provision of methods for amending laws goes a long way to end ambiguity as to how the laws should be modified to suit the needs of the society.