Understanding the term law is of vital importance to any law student, especially, the newly admitted undergraduate ones.
Before delving into the definition of law, it is of paramount importance to note that, there is no universal acceptable definition of law.
Many scholars and school of thought had proffered different definitions of law, yet, none of them is able to define the the term law with precision.
This diversifications in definition of law gave birth to different schools of thought with each of them existing with different definition. It is on this bases that one of the scholar of law propound that ” nobody including the lawyer has offered, nobody including the lawyer is offering, nobody including the lawyer has offered the correct definition of law to end all definition ” . premise on this, it’s crystal clear that their is not precision in the definition of law.
At this juncture, a perusal of some of the definitions is critical.
The meaning of law can be used in either a general or technical sense.
Our main concern in this paper is the technical meaning of law.
Therefore, the easiest and the most practical way of beginning to define law, is by looking at the institutional sources of law devoid of any associated philosophical problems.
In this regard, law can be defined as “a rule or body of rules made by institutions,bodies and persons vested with the power to make such rules which are binding and enforced among members of a given state or society.
It is also a system that regulates and ensures that individuals or a community adhere to the will of the state.” Only law so created can be said to be legally binding upon individual or upon the state itself.
Haven examine some definition of law, it will be quite important and beneficial to consider and discussed the features and characteristics of law that can be deduced from the above definition.
FEATURES AND CHARACTERISTICS OF LAW
1. Law is a body of rules
Law consists of multi various rules,some of which are contained in several sources such as the constitution, and several other statutes and cases decided by the courts in disputes involving two or more individuals and government,inter alia.
Laws are usually made to guide the conduct of the people of a particular society or territory and are binding on the people within that society or territory. Although there are some laws that are applicable universally. Example of laws like that are international law.
3. It is man-made
Laws are rules adopted by the society to govern itself. Since law is man made, man has the responsibility to determine to a large extent. The content of the law of his society. If the law is bad or ineffective, man must take responsibility for it.
4.Dynamic in nature
Law is not static but dynamic.since law is meant to regulate the behavior of man in the society, the content of each society usually changes as the social,political and economic world in which he lives changes.
As discussed earlier, there are different theories of law propounded by different scholars. A brief analysis of this schools will help.
Theories of law
There are several generally accepted theories concerning the origin of law. A theory is a comprehensive explanation concerning some aspects of how society works.
Theories are used by scholars to traced the historical antecedent of law and how it developed. All these can be ascertain by reviewing the theoretical perspectives of different writers.
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Some of the important philosophies will be treated briefly.
The word “positive law derived from the word “posit” which means “to put” or “to place”. Positive law is therefore the law put,placed or imposed upon the situations by the rulers. The chief Protagonist of this theory, John Austin propounded his ‘command theory of law’ in his celebrated but controversial book the province of jurisprudence determined where he defines law as “a command set by a superior being to inferior beings and enforced by sanctions”.
According to this school, they believed that before you can called anything law, it must be issue by a sovereign being and backed by sanction. It is on this basis that they define law as the command of the sovereign and nothing more. It therefore follows that, any law that is bereft of sanction is not a law.
2.Pure theory of law
This school of thought is led by Hans kelson. The pure theory of law postulated by prof. Hans kelson degrees with the command theory and describes it as nonsensical. For kelson, law is a system of norms. A law is valid if it has been created by a norm which itself has been created by a higher norm within the legal order.
The main element of pure theory of law is that the legal validity of each rule is determined simply by reference to the question wheather it has been laid down, or posited, in accordance with whatever requirements as stipulated by legal systems in questions.
Therefore the theory has been criticized first on the ground that it stresses the formal validity of law rather than its functions and effect in the society.
3.Natural law school
The natural law philosophy has served as the basis for the development of the concept of equality, human rights,democracy etc.across the globe. The believed law to be anything that is fair, just and right.
Natural law serves as a test for the ‘validity’ of man -made law .
This school is propounded by Thomas Aquinas. He is of the view that law is universal in nature. He further stressed that, every human being is endowed with knowledge to distinguished from that which is right and that which is wrong. They argue vehemently that, law is universal and applicable to all individual in the world.
The weakness of this school of thought is what is termed “the multiple conscience problem “.that is different individuals may have different conceptions of ‘fairness ,’’rightness,’’justice ‘ with respect to the same issue.
4. Historical school
This theory was developed to counter the widespread influence of the natural law school in the 17th and 18th century Europe in overthrowing the monarchs and creating egalitarian societies.
According to this theory, there is what is called the spirit of the people,volkgeist, which binds the people of a particular society together and distinguishes from any other people.
The historical school favors the evolution of law over a period of time as opposed to the concept of fairness,goodness and justice,etc, as espoused by the natural law school,which can lead to revolution.
This school is of the believe that, before you can adopt any law in a given society, you must traced back the historical antecedent of such law as applicable in that given society.
According to this theory, law should be a formal restatement of the customs prevalent in the society.
5. The realist school
The realist school is of American origin. The realist in their analysis of the concept of law focused mainly on the court system, particularly trial courts with the ultimate objective of reforming the judicial system.
They are of the view that, the law is made by the court. They further stressed that, anything pronounced and accepted by the court becomes the law.
Shinkafi is a 400level law student of Usman Danfodio University, Sokoto.