Law 515 Jurisprudence and Legal Theory I

NATIONAL OPEN UNIVERSITY OF NIGERIA
SCHOOL OF LAW
COURSE CODE: LAW515
COURSE TITLE: JURISPRUDENCE AND LEGAL THEORY I

COURSE CODE: LAW 515
COURSE TITLE: Jurisprudence and Legal Theory 1
COURSE WRITER: Nduka C. Njoku

School of Law, NOUN
EDITORS : Professor J. A. Sokefun

Mr. Ugbejeh Ernest Ogwashi
School of Law, NOUN
DEAN: Professor J. A. Sokefun

School of Law, NOUN
COURSE LECTURERS: Professor J. A. Sokefun, Mr. Nduka Njoku, NOUN

National Open University of Nigeria Headquarters
14/16 Ahmadu Bello Way
Victoria Island
Lagos
Abuja Office
No. 5 Dares Salaam Street
Off Aminu Kano Crescent
Wuse II, Abuja
Nigeria
e‐mail: [email protected]
URL: www.nou.edu.ng
2015
COURSE TITLE: Jurisprudence and Legal Theory I
TABLE OF CONTENTS Page
1.0 INTRODUCTION...........................................................................................1
2.0 JUSTIFICATION............................................................................................1
3.0 COURSE OBJECTIVES.....................................................................................1
4.0 WORKING THROUGH THE COURSE................................................................2
5.0 COURSE MATERIALS......................................................................................2
6.0 STUDY UNITS...............................................................................................2
7.0 REFERENCES................................................................................................3
8.0 ASSIGNMENT FILE.........................................................................................4
9.0 TUTOR MARKED ASSIGNMENT.......................................................................4
10.0 HOW TO GET THE MOST FROM THIS COURSE..............................................6
11.0 SUMMARY...................................................................................................7
National Open University of Nigeria Headquarters
14/16 Ahmadu Bello Way
Victoria Island
Lagos
Abuja Office
No. 5 Dares Salaam Street
Off Aminu Kano Crescent
Wuse II, Abuja
Nigeria
e‐mail: [email protected]
URL: www.nou.edu.ng
2015
1.0 INTRODUCTION
LAW 515 deals with the various aspects of the Course known in full as Jurisprudence
and Legal Theory. The Course seeks to provide the student with varied views of the
theoretization of law, beginning with a general overview of the purpose and
importance of Jurisprudence to all endeavours, particularly law.
Within the societal microcosm, law is seen in relation to justice, morality and religion
and the interdependence of these various forces to each other is also pivotal, and
therefore needs proper comprehension. Further, there is an inquiry into law and its
influence on society, the interaction between law and social change, and the
importance of ethics in the discipline of law.
The ‘sources of law’ is also made a subject of inquiry as a means of deciphering

thespecific content of law, among several other related courses.
What you will learn in this Course.
The overall aim of Jurisprudence and Legal Theory (LAW 515) is to focus on the
foundational basis of law in relation to other elements of law like morality, justice,
religion, ethics, social change, etc. It concludes with an expose on the sources of law
(legislation, judicial precedents, customs and conventional customs).
The reason for the review of this course material is to provide further clarifications
on the fundamental topics discussed in this course. Considerable effort was made to
expound and analyse the topics where it is necessary.
2.0 JUSTIFICATION
With the proliferation of several areas of law previously unknown to students such as
Aviation Law, Maritime Law, Law of Cyberspace and new law forms that have
become an essential aspect of daily life, it has become crucial for the students to be
aware of the purpose of law both at an individual level and on an institutional level.
The major aim of this is to enable students develop their expertise in specific fields
of law. Additionally, it allows students to develop an ideology that is specific to
them in legal practice, making them aware of options open to them in order to avoid
wrong career choices. And all this is done by the aid of information as to the nature,
applicability and eternal purpose of law.
Lastly, all viewpoints are accommodated as regards human, cultural and social
factors using traditional methodological patterns and other supportive methods of
information gathering.
3.0 COURSE OBJECTIVES
The aim and objectives of this course is to give the students a foundational basis for
the study and understanding of the basic contents of Jurisprudence and Legal
Theory thereby preparing them for a more complex theoretical content in the second
semester of the academic session. At course completion, students will be able to:
Have a basic understanding of the relation of law to society both in terms of its
nature, applicability and its eternal purpose;
Be able to distinguish between law and morality, justice and religion and further be
able to define law and its effectiveness in relation to these other societal
imperatives;
Have a theorization of law and social change. Hopefully, with specific reference to
Nigeria, be able to decipher the elements that can make law more efficient;
understand its attributes as a social control tool and how this has been harnessed by
various governments in and outside Nigeria;
Understand the relationship between ethics and the law;
Have a complete knowledge of the sources of law and what elements are
characteristic of law in terms of its sources; and
To have a good understanding of the nature of law, how laws are ascertained and
the tools lawyers and jurists use in arriving at resolutions through deductions and
analogy.
4.0 WORKING THROUGH THIS COURSE
To complete this course, you are required to read the study units, recommended
textbooks and other materials. Each unit contains self-assessment exercises, and at
tutor-decided points in the course, you are required to submit assignments for
assessment purposes. At the end of the course is a final examination. The course
should take you 14 weeks (Revision and Examination inclusive) in total to complete.
Below, you will find listed all the components of the course, what you have to do
and how you should allocate your time to each unit in order to complete the course
successfully on time.
5.0 COURSE MATERIALS
The major materials to be used for the course are:

This Course Guide;
Study Units;
Textbooks;
Assignment File; and
Presentation Schedule
In addition, you must obtain the textbooks as they are not provided by NOUN. You
are required to obtain them in your own responsibility. You may purchase your own
copies.
Your tutor will always be available should you have any problem in obtaining these
textbooks.
6.0 STUDY UNITS
There will be 4 Modules in this Course which are subdivided into 12 Study Units, and
they will be distributed as follows:
Module 1
Unit 1 The Purpose of the Study of law and Jurisprudence
Unit 2 Nature, definition and scope of Jurisprudence
Unit 3 Meaning and Functions of Law
Module 2
Unit 1 The Relation of law to: Justice, Morality and Religion
Unit 2 Law and Social Change
Unit 3 Ethics
Module 3
Unit 1 Sources of Law I: Legislation
Unit 2 Sources of Law II: Custom
Unit 3 Sources of Law III: Judicial Precedents
Module 4
Unit 1 Applicability and the Role of these Sources in Contemporary and
Early Society
Unit 2 Analysis of Fundamental Legal Concepts I: Rights, Duties, and Liability
Unit 3 Analysis of Fundamental Legal Concepts II: Ownership, Possession,

Personality and Liberty
Note: Each unit contains a number of self-test questions. These questions generally
test your understanding of the topic you have just covered by requiring you to apply
what you have read in some practical ways. This will definitely help you to gauge
your progress and to reinforce your understanding of the materials. Together with
the TMAs, these exercises will assist you in achieving the stated learning objectives
of the individual units and of the course in general.
7.0 REFERENCES
Some of the important materials that will be used throughout the course are listed
below.
A.W.B. Simpson ed., J. Raz, On the Functions of Law, Oxford Essays in
Jurisprudence, 2 nd ser., Clarendon Press, Oxford, p. 278-304
Dennis Patterson, Law and Truth, Moral Realism and Truth in Law, Oxford
University Press, Oxford, 1996, 43 – 58
Dias, R.W.M., Jurisprudence, 4 th ed. (Butterworth & Co. (Publishers) Ltd, Boston)
FunsoAdaramola, Basic Jurisprudence, 3 rd ed., Raymond Kunz Communication,
Lagos, 2004, 84-105
Hon. Justice KayodeEso, Law, Religion and Secular State, MIJ Publishers, Lagos,
1990 at 291
J.M. Elegido, Jurisprudence, Spectrum Law Publishing, Ibadan, 1994, 182 – 195
L.B. Curzon, Jurisprudence, 2 nd ed., Cavendish Publishing Limited, London, 1995,
p. 1 – 11
p. 159 – 167
Lord Denning, Landmarks in the Law, Butterworth, London, 1984 at 351 – 365
Lord Radcliff.,The Law and its Compass, 1961, pp. 92-93
Prof. Okunniga, Inaugural Lecture (1983) Series 62 at p. 207

Radcliffe and Cross, The English Legal System, 4th ed. London, Butterworth, 1964,
p. 375-392
8.0 ASSIGNMENT FILE
In this file, you will find all the details of the work you MUST submit to your tutor for
marking. The marks you obtain for these assignments will count towards the final
mark you obtain for this course. Further, information on assignments will be found in
the Assignment File itself and later in this Course Guide in the section on
assessment. You are to submit 5 assignments, out of which the best 4 will be
selected and recorded for you.
Presentation Schedule
The presentation schedule included in your course materials gives you the important
dates for this year for the completion of TMAS and attending tutorials. Remember:
YOU ARE REQUIRED TO SUBMIT ALL YOUR ASSIGNMENTS BY THE DUE DATE. You
should guard against falling behind in your work.
Assessment
There will be two aspects to the assessment of the course: the first is the TMAs,
while written examination is the second.
In solving the assignment, it is expected of you to apply the information, knowledge

and techniques you acquired during the course. With regards to the assignments,
they must be submitted by or before deadlines stated in the presentation schedule
and the Assignment
File. These TMAs will account for 30% of your total mark.
At the end of the course, you will be subject to a 3-hour final written examination.
This will count for 70% of your total marks.
9.0 TUTOR-MARKED ASSIGNMENTS (TMAS)
As already mentioned, there will be 5 TMAs in this course. You only need to submit 4
of the 5 assignments. It is however advisable and better for you to submit all 5 as
this will leave a choice of selecting and recording the best 4 for your 30% CA.
Assignment questions for the units in this course are contained in the Assignment
File. You will be able to complete your assignments from the information and
materials contained on your textbooks, reading, and study units. However, it is
desirable in all degree level education to demonstrate that you have read and
researched more widely than the required minimum. Using other references will give
you a broader viewpoint and may provide adeeper understanding of the subject.
When you have completed each assignment, send it together with a TMA form to
your tutor. Make sure that each assignment reaches your tutor on or before the
deadline given in the presentation schedule and Assignment File. If, for any reason,
you cannot meet the deadline, contact your tutor before the assignment is due to
discuss the possibility of an extension. Note that extensions will not be granted after
deadlines except there are exceptional circumstances.
Final Examination and Grading
The final examination for LAW 515 will be of 3 hours duration and will account for
70% of the total course mark. The examination will, most probably, consist of
questions that reflect the types of self-testing and tutor-marked problems you have
previously encountered. All areas of the course will be assessed.
Make use of the time between finishing the last unit and sitting the examination to
revise the entire course. You might find it useful to review your self-assessment
exercises, TMAs and comments by your tutorial facilitator before the examination.
The final examination covers information from all parts of the course.
Course Marking Scheme
The following table presents a representation of actual course mark allocation.
Assessment Marks
Assignments 1 – 5(Five) assignments, best four marks of the five counts as 30% of
course marks.
Final Examination 70% of overall course marks
Total 100% of course marks
Table 1: Course Marking Scheme
Course Overview
This table brings together the units, the number of weeks you should take to
complete them and the assignments that follow them.
Unit Title of Work Weeks Activity Assessment (End of Unit)
1 The Purpose of the Study of Law & Jurisprudence
Week 1
2 Nature, Definition & Scope of Jurisprudence
Week 2 Assignment 1
3 Meaning & Functions of Law Week 3
4 The Relation of Law to: Justice, Morality & Religion
Week 4 Assignment 2
5 Law & Social Change Week 5
6 Ethics Week 6 Assignment 3
7 Sources of Law I: Legislation Week 7
8 Sources of Law II: Custom Week 8
9 Sources of Law III: Judicial Precedents
Week 9 Assignment 4
10 Nature, Ascertainment, Applicability
& the Role of these Sources in
Contemporary & Early Society
Week 10
11 Analysis of Fundamental Legal
Concepts I: Rights, Duties, & Liability
Week 11
12 Analysis of Fundamental Legal
Concepts II: Ownership, Possession,
Personality & Liberty
Week 12 Assignment 5
13 Revision Week 13
Examination Week 14
Table 2: Course Organizer
10.0 HOW TO GET THE MOST FROM THIS COURSE
In Distance Learning programmes, the study units replace the university lecturers.
This is one of the advantages of DL. You can read and work through specially
designed study materials at your own pace, and at a time and place that suit you
best. In other words, the study units provide an avenue of reading the lecture
instead of listening to the lecturer. The study units tell you when to read
recommended books and other materials the same way a lecturer might recommend
some readings to you. So, the study unit is to be seen as your lecturer. Each of the
study units follows a common format. The first item is an introduction to the subject
matter of the unit and how a particular unit is integrated with other units and the
course as a whole. The next is a set of learning objectives. These let you know what
you must achieve upon completion of the unit in question. After completing a
particular unit, it is desirable that you go back and check whether you have achieved
the objectives set out at the beginning of the unit. If you constitute the habit of
doing this, you will significantly improve your chances of passing the course.
The main body of the unit guides you through the required reading from other
sources. This will usually be either from your recommended books or from a reading
section. Self-assessment exercises are interspersed throughout the units. Working
through these tests willhelp you to achieve the objectives of the units and prepare
you for the assignments and the examination. You should do each self-assessment
exercise as you come to it in the study unit. There will also be numerous examples
given in the study units; work through these when you get to them too.
The following represents a practical strategy for working through the course. Should
you run into any trouble, telephone your tutor or visit your study centre. Remember:
your tutor’s job is to help you. So, whenever you need help, do not hesitate to get in
touch with your tutor.
a) Read this Course Guide thoroughly;
b) Organise a study schedule. Be aware of the time you are expected to spend on
each unit and how the assignments relate to the units. Know how to source for
relevant information and keep an up-to-date diary of all necessary activities.
c) Once you have created your own study schedule, make sure you stick to it. The
major reason most students do not perform well is that they get behind with their
course work as a result of their inability to keep to their personally designed
schedule. If you get into any kind of difficulty with your schedule, please let your
tutor knows before it will be too late for him to help you.
Tutors and Tutorials
There are 10 hours of tutorials provided in support of this course. You will be
notified( of the dates, times and location of these tutorials, together with the name
and phone numbersof your tutor, as soon as you are allocated to a tutorial group.
Your tutor will mark and comment on your assignments, keep a close watch on your
progress and on any difficulty you might encounter and assistance will be available
at the study centre. You must submit your TMAs to your tutor well before the due
date (at least 2 working days are required). They will be marked by your tutor and
returned to you as soon as possible.
Do not hesitate to contact your tutor if need be. You should try your best to attend
the tutorials. This is the only chance to have a face-to-face contact with your tutor.
You will be able to ask him any question pertaining to your course or any general
guidance. To gain maximum benefits from tutorial, it is advisable that you prepare a
list of questions before attending them. You will also learn a lot by participating in
discussions at tutorials actively.
By so doing, you will be able to clear any doubt that you may have on your mind.
11.0 SUMMARY
By trying out all the above, we are quite confident that you will not only have a
sound understanding of Jurisprudence and Legal Theory; you will also be able to
pass your examination with ease.
We wish you success with the course and hope that you will find it both interesting
and useful.
Table of Contents Page
Module 1
Unit 1: The Purpose of the Study of Law &jurisprudence.....................................1
Unit 2: Nature, Definition & Scope of

Jurisprudence...............................................5
Unit 3: Meaning & Functions of

Law......................................................................8
Module 2
Unit 1: The Relation of Law to: Justice, Morality & Religion..................................12
Unit 2: Law & Social Change.............................................................................17
Unit 3: Ethics....................................................................................................21
Module 3
Unit 1:Sources of Law I: Legislation.................................................................26
Unit 2: Sources of Law II: Custom...................................................................32
Unit 3: Sources of Law III: Judicial Precedents................................................37
Module 4
Unit 1: Applicability and the Role of these Sources in Contemporary and Early
Society..........................................................................................................41
Unit 2:Analysis of Fundamental Legal Concepts I: Rights, Duties, and Liability...45
Unit 3:Analysis of Fundamental Legal Concepts II: Ownership, Possession,
Personality and Liberty..................................................................................48
MODULE 1
UNIT: 1 THE PURPOSE OF THE STUDY OF LAW & JURISPRUDENCE
CONTENTS
1.0 Introduction
2.0 Objectives
3.0 Main Body
3.1 Why Studying the Course?
3.2 Importance of the study of Jurisprudence
3.3 The role and the uses of the study
3.4 How the study can be applied to practical purposes both in terms of
practice and content.
4.0 Conclusion
5.0 Summary
6.0 References/Further Readings

1.0 INTRODUCTION
Every student, for a start, often deems the study of Jurisprudence a Herculean task.
So they tend to ask themselves: Why studying Jurisprudence? Jurisprudence is
studied for so many reasons. It helps law students to understand every aspect of the
philosophy of law, just as it ensures appropriate use of legal terminology. The study
of Jurisprudence broadens the knowledge of the students; it fosters the intellectual
rigour that ought to be the hallmark of any university education; and it helps law
students to turn out competent lawyers on the long run.
2.0 OBJECTIVES
To help the students deal with the importance of the study of jurisprudence with
references to the functions of the study of jurisprudence of other non-law spheres.
Examines the inadequacies of definitions and descriptions of what Jurisprudence
entails.
Strives to explain to the students the overall study of Jurisprudence in terms of its
uses, applicability, functions and purposes.
3.0 MAIN BODY
3.1 Why Studying the Course?
The question is often asked: Why studying a course obviously as dry as

Jurisprudence and Legal Theory? The answer is within the finger-tips. The study of
Jurisprudence and Legal Theory helps to put the various fields of human endeavours
within a particular context.
Thus, there is the Jurisprudence of law (which examines the various rudiments
making up the field of law), the Jurisprudence of Economics, the Jurisprudence of
Medicine, the Jurisprudence of Sociology, and so on and so forth. We also take the
pain to study the Course because it increases human knowledge and makes problem
solving easier.
Students are advised to peruse the textbooks for more reasons why we study
Jurisprudence as a course.
Self-Assessment Exercise (SAE) 1
Adduce some of the reasons why people study Jurisprudence and Legal Theory as a
course.
3.2 The Importance of the study of Jurisprudence
The following are some aspects of the importance of studying Jurisprudence:

Jurisprudence discloses knowledge of general ideas and principles of all legal
systems, so it is called eye of the law. Certain fundamental conceptions such as
negligence, liability, mensrea etc. have to be learned before provision of law relating
to them can be understood, and Jurisprudence teaches these fundamental
conceptions.
Jurisprudence trains the mind into legal ways of thought. It teaches the proper use
oflegal terms, and is called grammar of law.
The study of jurisprudence helps law makers by providing them brief and clear
terminology.
It enlightens students and helps them in adjusting themselves in the society without
causing injuries to the interests of other students and other people.
To find out the true meaning of law, jurisprudence helps the judges and the lawyer.
What are the benefits of the study of Jurisprudence?
3.3 The Role and the Uses of the Study
When properly understood, Jurisprudence plays a pivotal role in the society. It

enhances an easy understanding of the laws of the land, thereby making application
simple and effortless. Jurisprudence can be applied not only to the field of law but
also to Sociology, Economics, Sciences, etc. Its uses are therefore beyond doubts.
3.4 How the study can be applied to practical purposes both in terms of practice and
content.
Jurisprudence can be applied to several areas in Nigeria. The Natural Law school for
instance has helped to shape our laws to a certain extent. Some instances of this
include the penalisation of the offence of murder, stealing and some others based on
the principles of morality.
Also, before customary law can become applicable, it must pass the repugnancy
test, i.e. it must not be repugnant to natural justice, equity and good conscience.
This is in line with the Natural Law school of thought.
Legal positivism is also in active use. According to this school, law is man-made.
There must be an identifiable sovereign who doles out the law. There must be
subjects who obeythe laws of the sovereign, and in case of violation or breach, there
must be accompanying sanction. The Criminal Code for example is promulgated by a
sovereign (the National Assembly and the President). Nigerians are the subjects and
penalties are available under various sections for breach.
There are also some jurists under legal positivism who see law as what the court
says. In applying this to Nigeria, judicial precedent, which is what the court says,
forms part of our laws in Nigeria.
The study of Jurisprudence has therefore been put to practical use in Nigeria
What function does the study of Jurisprudence have in evolving a legal philosophy?
Examine the current legal regime in Nigeria and explain your view of Nigeria having
a legal philosophy or otherwise.
4.0 CONCLUSION
We have seen that Jurisprudence as the study of theories and philosophies of law
has gone a long way in helping us grapple effectively with the nature of law, legal
reasoning, legal systems and legal institutions. Its importance and practical
applicability in Nigeria have also been explored.
5.0 SUMMARY
In this unit, you have learnt about the following:
i. Why Studying the Course?
ii. The importance of the study of Jurisprudence
iii. Role and Uses of the Study
iv. How the study can be applied to practical purposes both in terms of practice and
content.
6.0 REFERENCES
A.W.B. Simpson ed., J. Raz, On the Functions of Law, Oxford Essays in
Jurisprudence, 2 nd ser., Clarendon Press, Oxford, p. 278-304
p. 1 – 11
p. 159 – 167
Lord Radcliffe, The Law and its Compass, 1961, pp. 92 – 93

Prof. Okunniga, Inaugural Lecture (1983) Series 62 at p. 207
Radcliffe and Cross, The English Legal System, 4 th ed. London, Butterworth, 1964,
p. 375-392
UNIT 2 NATURE, DEFINITION AND SCOPE OF JURISPRUDENCE
CONTENTS
1.0 Introduction
2.0 Objectives
3.0 Main Body
3.1 Nature of Jurisprudence
3.2 Definition of Jurisprudence
3.3 Scope of Jurisprudence
4.0 Conclusion
5.0 Summary
6.0 Tutor-Marked Assessment
7.0 Reference/Further Readings
1.0 INTRODUCTION
You are expected to learn three things under this unit. These are the nature,
definition and scope of Jurisprudence. Under the nature of jurisprudence, the
correlation of the nature to the scope of Jurisprudence is revealed in the sense that
no delineation of the scope of Jurisprudence can be regarded as final. The issue of
definition will face the same brick wall faced elsewhere as no universally acceptable
definition can be spotted.
2.0 OBJECTIVES
Students are to identify the nature of jurisprudence as well as its scope. The various
available definitions are also to be critiqued. At the end of this Unit, students must
be able to draw an avid distinction between the scope and nature of Jurisprudence.
They must also be able to appreciate the fact that there is no definition that serves
as an end to all definitions.
3.0 MAIN BODY
3.1 Nature of Jurisprudence
Jurisprudence deals essentially with abstract and theoretical inquiry into important
principles of law and legal systems. Jurisprudence, as a subject of study is unique
because unlike other subjects in law it does not create a set of rules. Again,
jurisprudence is not derived from authority nor does it have practical applications
in the sense that it does not possess rules which can be deployed to solve factual
problems. Consequently, there is no unanimity of opinion among jurists on the
subject of jurisprudence. Every jurist possess his own idea of what jurisprudence
is but also determines for himself what are the limits and scope of the study of
jurisprudence. The divergence in thoughts are the product of ideogical and
environmental differences.
The point that students must be apprised of here is that the nature of
Jurisprudence is such that no delineation of its scope can be regarded as final.
This statement will be better appreciated with an illustration. On torts or
contracts, a student may be recommended to read any of the standard textbooks
with the assurance that whichever book he does read, he will derive much the
same idea as to what the subject is about. With Jurisprudence, this is not so.
Books called “Jurisprudence” vary widely in subject-matter and treatment. The
reason is that these writings concern thought about law on the broadest possible
basis, rather than expositions of law itself. Thus, students need know that
Jurisprudence deals with the structure, uses and functioning of law and legal
concepts. And that is what you are expected to focus on while embarking on the
study of Jurisprudence.
What is the nature of Jurisprudence?
3.2 Definition of Jurisprudence
Students should know by now that as simple as the issue of definition sounds, it is
not simple in actual fact because we often end up not finding a generally accepted
one. In the same manner, the answer to the question, ‘What is Jurisprudence?’ is
that it means pretty much whatever anyone wants it to mean. A better way
therefore, in the face of lack of agreement in definition, may probably be asking the
question: ‘How is this word used? Or more pertinently, what is a book on
Jurisprudence going to do? Few of the available definitions are to be examined. It
has been described etymologically to mean expositions of particular branches of the
law, e.g., the name ‘Equity Jurisprudence’ was once given to a textbook on Equity. It
can also be used to describe the legal connections of any body of knowledge. It has
also been used to refer to the body of law built up by the decisions of particular
courts. It has also come to mean almost exclusively the analysis of the formal
structure of law and its concepts. The bottom-line here is that there is no definition
which isan end to all definitions which is why it is often safer to describe what
Jurisprudence is than to define it. Consult textbooks for further readingon some of
the definitions of jurisprudence offered by scholars.
Jurisprudence is the study of the general theoretical questions about the nature of
law and legal systems, it examines the relationship between law, justice and morality.
According to Dworkin, jurisprudential theories are theories aimed at showing the
main point of the law. This means that it is important that we identify precisely what
it is that a society gains by having a developed legal system.
Jurisprudence as a concept is better described than defined. Do you agree?
3.3 Scope of Jurisprudence
Jurisprudence deals with thought about law rather than with knowledge of what the
law is in various branches. Jurisprudential study therefore ranges from minute
analytical dissections and sharp distinctions at one end of the intellectual scale to the
broad sweep of ideas and philosophies through the ages at the other. Jurisprudence
is primarily concerned with the nature and function of law. It deals with such
questions as what is Law, where does it come from,what does it do?( And what are
the means for doing it? Its ambit is not limited to law only; it extends to include any
thought or writing about law and its relation to other social sciences such as
economics, psychology, philosophy, sociology, politics and ethics etc. It digs, into the
historical past and attempts to create the symmetry of a garden out of the confusion
of different conflicting legal systems.
Jurisprudence discloses knowledge of general ideas and principles of all legal

systems, so it is called the eye of law. Certain fundamental conceptions such as
negligence, liability, mensrea, etc. have to be learned before provision of law
relating to them can be understood, and Jurisprudence teaches these fundamental
conceptions.
Jurisprudence is a field that encompasses several other fields. Discuss
4.0 CONCLUSION
Thus far, we have examined the nature, meaning and scope of Jurisprudence. In the
process, we are able to identify the relationship existing between the nature and
scope of Jurisprudence. We also are able to further underscore the fact that no task
is as difficult as defining a concept. That is the reason it was submitted that
Jurisprudence is better described than defined.
5.0 SUMMARY
We have learnt the following:
The nature of Jurisprudence
The definition of Jurisprudence
The scope of Jurisprudence
6.0 TUTOR-MARKED ASSIGNMENT 1
Critically examine the nature, scope and purposes of studying Jurisprudence and
Legal Theory.
7.0 FURTHER READINGS
pp 1 – 28
Hart, H.L.A., ‘Definition and Theory in Jurisprudence’ (1954), 70 Law Quarterly
Review, 37
UNIT 3 MEANING AND FUNCTIONS OF LAW
CONTENTS
1.0 Introduction
2.0 Objectives
3.0 Main Body
3.1 Meaning of Law
3.2 The Basic Schools of Law
3.3 Functions of Law
4.0 Conclusion
5.0 Summary
1.0 INTRODUCTION
This part of the module focuses on the main fulcrum of legal study, to wit, the
meaning of law, the basic schools of law and the functions of law. In essence, the
Unit beams searchlight on law and the functions it performs in the society. It also
endeavours to examine how the law has been able to effectively perform those
functions.
2.0 OBJECTIVES
The basic objective of this unit is to have a basic understanding of the several
definitions oflaw. It also aims at making students understand that there is no
definition to end all definitions. At the end of this unit, it is expected that students
will be able to place the various definitions of law within the particular school to
which they belong. They must alsobe able to identify the functions of law and
appreciate how the law has fared in performing those functions effectively.
3.0 MAIN BODY
3.1 Meaning of Law
The main focus of students, irrespective of whichever materials they use, is to

appreciate the fact that defining a legal concept is as difficult as asking the camel to
pass through the needle’s eye. In defining law using various approaches, students
are expected to factor in the relation of law to other social sciences and they equally
must be apprised of the impact of the early periods of theorization, the Sophists, the
Greeks, the Romans, etc on the emergence of the current modern meaning of law.
Underscoring the impossibility of having a generally acceptable definition, Prof.

Okunniga once stated that ‘nobody including the lawyer has offered, nobody
including the lawyer is offering, nobody including the lawyer will ever be able to
offer a definition of law to end all definitions’.
A working definition of law can be said to be ‘the binding rules of conduct meant to
enforce justice and prescribe duty or obligation, and derived largely from custom or
formal enactment by a ruler or legislature.’
It is very essential that laws carry with them the power and authority of the enactor,
and associated penalties for failure or refusal to obey. Law derives its legitimacy
ultimately from universally accepted principles such as the essential justness of the
rules, or the sovereign power of a parliament to enact them.
Elegido posits that many definitions of law have been proposed in the history of
jurisprudence. This is as a result of the fact that law is a very complex phenomenon
which can be studied from many different standpoints. The fact that two different
writers are offering different definitions of law does not necessarily mean that their
ideas are absolutely different. It could be that the two writers are emphasizing
different areas of law. There could also be radical differences in definitions of law
offered by different writers which is reflective of radical or philosophical differences
and different ideological leanings.
Also writers have different views of what constitutes a good definition. The task of
differentiating law from other social phenomena which are somehow similar to law
such as social morality is similar to the effort of distinguishing contiguous primary
colours.
Despite the complex nature of law, there are fundamental characteristics that are
present in law. Law has the peculiar value that it advances the common good of a
communitythrough the coordination of the activities of its members. There are many
goods which men can attain through their individual efforts. However, there are also
goods which makes it possible for each individual in the society to attain effectively
whatever goods he chooses to pursue, examples are public infrastructure.
As Elegido has pointed out that it is necessary that human beings co-ordinate their
actions if they are to pursue effectively any common good for the society. Effective
co-ordination however depends on obedience to a common authority. Law therefore,
he contends, is one of the means of achieving this aim. Law provides a means of
fostering effectively the common good of one’s society. Law also has the value that
it makes it possible for authority to be exercised in a way that minimizes
arbitrariness and maximizes the freedom of the members of the community. This
requires the exercise of authority through the ideals of rule of law.
It is also important to note that law is made up of normative standards. This means
that it is the duty of law to guide both judges and the people on the ways in which
they must act in order to foster the common good of their community. Law seeks to
guide the actions of the people through general rules. The learned author further
states that law also is made by an authority which has effective control in the
community. Equally law regularizes the social life of an independent political
community and provides for a system of sanctions and means of coercion.
Attempt a critique of the various definitions of law while coming up with your own
working definition.
3.2 The Basic Schools of Law
Under this head, students are expected to explore the various theories of law. These
are also referred to as the various schools of thought in Jurisprudence. Students are
especially expected to be able to connect the dots by linking the various
jurisprudential schools together in terms of ages. The starting point should be the
Natural Law School. Some of the schools that should be explored include: the
Natural law school, analytical positivism, legal realism, sociology of law, critical legal
studies, the work of the contemporary philosopher of law, Ronald Dworkin, etc.
Natural law is the idea that there are rational objective limits to the power of
legislative rulers. The foundations of law are accessible through human reason and it
is from these laws of nature that human-created laws gain whatever force they
have. For legal positivism, there is no necessary connection between law and
morality and the force of law comes from some basic social facts although positivists
differ on what those facts are.
Legal realism on its part argues that the real world practice of law is what
determines what law is. According to this school, the law has the force that it does
because of what legislators, judges, and executive do with it.(
Critical legal studies is a younger theory of Jurisprudence that has developed since
the 1970s which is primarily a negative thesis that the law is largely contradictory
and can be analysed as an expression of the policy goals of the dominant social
group.
Ronald Dworkin has advocated a constructive theory of Jurisprudence in his work

which can be characterised as a middle path between natural law theories and
positivist theories ofgeneral Jurisprudence.
Students are expected to understand the standing of the various schools as well as
the links or differences existing as between various schools or theories of
Jurisprudence.
While natural law theorists believe that law should legislate morality, the legal
positivists are of the view that law should distant itself from morality. In the light of
this statement, examine the similarities and the dissimilarities between the two
schools of thought.
3.3 Functions of Law
What functions does law perform in a given society? Students must identify these
functions and appreciate them in practical terms. Broadly speaking, law performs
two major functions. It performs prescriptive function by prescribing how people
ought to conduct themselves, and law helps to realise justice.
Specifically, law performs the following functions:
a) It cultivates and ensures the existence of adequate order;
b) It provides resolutions to conflicts;

c) It provides a safe haven for individuals and their assets;
d) It maintains the structured operation of the civilisation; and
e) It protects civil liberties as set forth in each nation’s constitution.
Added to the above, law also performs a host of other functions such as its functions
in relation to achieving justice, tracing the root of sovereignty in a society, defining
freedom of individuals and delineating where freedom of one must be curtailed so
that it may not affect the freedom of the other, helping to determine the question of
legitimacy of a given government, determining the question whether an entity can
qualify as a state, and so on and so forth.
In view of the above we can therefore summarise( that the function of law connotes
its purpose. The normative propositions of law are dictated by social, moral,
economic, political and other purpose. The overall purpose of law is the achievement
of justice. The function of law according to Salmond is it application in deciding
disputes and by way of enforcement.
The bottom-line is that you are expected to know all these functions and to be able
to explain them extensively through the use of the various reference materials
stated at the end of the section.
Without law, there can never be a society. Do you agree?
4.0 CONCLUSION
There are several definitions of law; yet there is no universally acceptable one. You
havealso learnt about the various schools of law all of which attempt a definition or
a description of law from a perspective most relevant to and conducive to them; and
finally, we look at the various functions performed by law.
5.0 SUMMARY
In this unit, you have learnt about:
a) The meaning of law
b) The Basic Schools of Law
c) The Functions of Law
6.0 REFERENCES
pp 1 – 28
Lagos, 2004, 1 – 15
Obilade, A.O., The Nigerian Legal System, (Sweet & Maxwell, London)
Prof. Okunniga, Inaugural Lecture (1983) Series 62 at 207
Simpson, A.W.B. The Common Law and Legal Theory, Oxford Essays in
Jurisprudence, 2nd Ser., Clarendon Press, Oxford, p. 77 – 99
MODULE 2
UNIT 1 RELATION OF LAW TO JUSTICE, MORALITY & RELIGION
CONTENTS
1.0 Introduction
2.0 Objectives
3.0 Main Body
3.1 Definitions of justice, morality and religion
3.2 Relation of law to justice
3.3 Relation of law to religion
3.4 Relation of law to morality
3.5 How non-law elements affect law’s viability
4.0 Conclusion
5.0 Summary
6.0 Tutor-Marked Assignment (2)
1.0 INTRODUCTION
The existing relationship between law on the one hand, and morality, justice and
religion, on the other, is the concern of this unit. It will also examine how other non-
law elements affect the efficiency of law.
2.0 OBJECTIVE
This topic deals with the importance of morality, religion and justice to the notion of
law and the influence these other elements have on its efficiency. Further, a study is
carried out as to how these elements can be harnessed when legislation is drafted.
We also examine the institutional adequacy of these elements in relation to law.
3.0 MAIN BODY
3.1 Definitions of justice, morality and religion
You are to look at the various available definitions of justice, morality and religion.
This is only to aid your understanding of the relationship between each of these
concepts and law. Justice, according to John Rawls, is ‘the first virtue of social
institutions, as truth is of systems of thought.’ Thus, justice can be thought of as
distinct and as more fundamental than benevolence, charity, mercy, generosity or
compassion. It has traditionally been associated with concepts of fate, reincarnation
or Divine Providence, i.e., with a life in accordance with the cosmic plan. Of
particular importance to you as students is that justice is a concept that means
different things to different people. To an accused person, justice will mean that
system which set him free, regardless of how immoral this may sound. To the
prosecution, justice is attained by the securing of conviction against the accused,
while to the society, justice is done when the right person goes to jail and the right
person is set free.
Morality can be used to refer to a code of conduct that, given specified conditions,
will be put forward by all rational persons. Understand that morality can be used in
its descriptive or normative sense. In its descriptive sense, morality refers to
personal or cultural values, codes of conducts or social mores that distinguish
between right and wrong in the human society. In the normative sense, morality
refers to a code of conduct that applies to all who can understand it and can govern
their behaviours by it. In the normative sense, morality should never be overridden,
that is, no one should ever violate a moral prohibition or requirement for non-moral
considerations.
Religion is a cultural system that creates powerful and long-lasting meaning by

establishing symbols that relate humanity to beliefs and values. Note that the word
‘religion’ is at times used interchangeably with ‘faith’ or ‘belief system’, but religion
differs from private belief in that it has a public aspect. Most religions have
organised behaviours, including clerical hierarchies, a definition of what constitutes
adherence or membership, congregation or laity, regular meetings or gathering for
the purposes of veneration of a deity or for prayer, holy places (natural or artificial),
and/or scriptures. The practice of a religion may also include sermons,
commemoration of the activities of a god or gods, sacrifices, festivals, feasts, trance,
initiations, funerary services, matrimonial services, meditation, music, art, dance,
public service, or other aspects of human culture.
Through these definitions and others you will come by, you will discover that there is
a close nexus between religion, justice and morality, but each of the three concepts
is closer to law than the other as you will soon discover.
Attempt a working definition of justice, morality and religion.
3.2 Relation of law to Justice
Your focus here is to grapple with the relationship between law and justice. As a
point of start you should concern yourselves with the four aspects of justice. First,
there is achievement of justice in the distribution of advantages and disadvantages
in society.
Secondly, there is achievement of justice by curbing the abuse of power and liberty.
Thirdly, there is achievement of justice in deciding disputes, which is the aspect

closely related to the work of lawyers. And, finally, there is achievement of justice in
adapting to change. The major relationship between law and justice is that law
makes all these outlined aspects possible.
The relationships are several but few will be referred to herein. A given law is itself
either just or unjust according to whether or not it complies with those objective
principles of justice. But one may be pressed to ask: what will happen where a judge
has to apply an unjust law? Will that make his judgment unjust? The issue here is
where the judge considers the law to be unjust from its face. Justice, we need know,
is as defined by legislation/law. Thus, where the law is clear and certain that a
particular consequence should follow some behaviour, once that is done, justice has
been achieved in that case.
Now, going back to our judge, he will be doing injustice if he rules contrary to what
the law says. Besides, his decision is very likely to be upturned on appeal by higher
courts. Thus, the law defines justice.
Salmon believes that law is an instrument of the society and the object of the law is
to achieve justice. The goal of the law is the achievement of justice. According to
Acquinas and Augustine, unjust law is no law; whilst Salmon believes that law is
those principles applied by the state in the administration of justice. Justice can be
gleaned from the wider and more restricted sense. In the wider sense, an unjust law
is no law, while in the narrower sense, we see justice as one area of morality.
According to Salmon, there are two different levels of justice – distributive justice
which ensures a fair division of social amenities, benefits and burdens among the
members of the community. For example, it is a principle of democratic system that
a citizen is entitled a right to vote and no one should have more than one vote. Also,
in terms of taxation, the burden of taxation should be fairly distributed among the
citizens.
The second level of justice is the corrective justice. The corrective justice intervenes
at a point where the distributive justice fails to achieve its aim. If X takes possession
of the land belonging to P, corrective justice would intervene to restore X land to it.
In other words, distributive justice serves to secure benefits, opportunities and
burdens while corrective justice is to redress problems created by distributive justice.
Distributive justice are usually contained in constitutions and codes while courts of
law apply the corrective justice. Again, law strives to strike a balance between
competing interests in the society. It is for this reason that Roscoe Pound regarded
law as an instrument of social engineering, the function of which is to maximize the
interest of community and its members, and to promote smooth running of the
society.
You are expected to read more on this relationship in the texts provided under
references.
You are expected to read more on this relationship in the texts provided under
references.
Is there any relationship between law and justice?
3.3 Relation of law to religion
The relations between law and religion have adopted an almost infinite variety of
forms through the very long history of these two forms of human activities.
First of such relationship is that law has been of a tremendous help in fostering
religious freedom/unity. The law prepares the ground by prescribing some
acceptable modes of worship. Since it is not possible for the whole world to be of
one religion, there is need for law to perform this task. Without such regulations,
some barbaric religious practice such as sacrificing of human beings or killing of
human beings may be permissible.
Second, in principle it is not difficult to draw a conceptual distinction between

religious precepts and moral norms. Examples of the former are the duty of the
Catholic to attend Mass on Sundays and the duty of the Moslem not to drink alcohol.
Examples of the latter are the duties not to steal and not to kill the innocent. While
religious precepts are binding only on the adherents of the religious body which
imposes them, moral norms or principles, if they are sound, are valid for all men
irrespective of their religion.
The above distinction is important because while the imposition of a purely

religiousprecept on people who are not members of a religious body is intolerable
and is likely to destroy the basis for the religious coexistence of the adherents of
different religions, basing the law on moral norms which are adopted by virtue of
their intrinsic appropriateness in the regulation of common life is not objectionable in
itself.
Even though it is acceptable for the laws of the society to reflect moral ideas which,
at least in principle, can be defended without invoking religiously revealed doctrines,
a problem may arise when laws, which may have been enacted for purely secular
reasons and that, in the view of the legislator or even of the great majority of the
population, are unobjectionable from a moral point of view, are vigorously objected
to on religious grounds by the members of some religious group. Thus, law must be
conversant with some religious precepts which if legislated against may cause
national upheaval.
The law plays a pivotal role in ensuring freedom of religion. Discuss.
3.4 Relation of law to morality
The relations between law and morality are the most obvious and prominent. There
has always been a debate on whether law should legislate morality and views are
varied on what is likely to be the consequences of legislating some people’s morality
as morality of everybody. Thus, issues of homosexuality, gay marriage, lesbianism,
etc have attracted various comments especially as they relates to the reasons why
the law cannot be used as a weapon to stop such practices.
There is no doubt about it: there is a nexus between law and morality. The laws
prohibiting stealing and murder, among several others, are hinged on morality. It is
therefore morally wrong to steal just as it is morally wrong to kill. But we need to be
aware of the fact that the relations between law and morality are not as always
clear-cut as these examples. For instance, while it is legally and morally wrong to
kill, it is not legally wrong to watch a person drown in a swimming pool, even though
the same act may be morally wrong. It is also not legally wrong to refuse to help an
accident victim, even though this also will be morally wrong.
There is also the argument that there should be a limit to the extent the law will
interfere in the private lives of the citizens. Cases made against criminalising
homosexuality, lesbianism, gay marriage and prostitution are based on this ground.
It has been argued that whatever people in this category do are done in the privacy
of their rooms; hence, since they do not constitute threat to the people around them
or the public at large, it will be going too far for the law to poke-nose into their
private lives. But, what about where a homosexual decided to practise the act on a
young boy?Or, what about where he influences such a boy to be his partner in such
a practice?
The normative structure of the language of the law reflects the use of the words
“ought”, obligation and duty. A person asserting a moral duty is usually obliged to
proffer reasons for asserting a moral duty, while legal obligation is more in the
nature of a command. A legal obligation does not depend on the reason but on
authority.
There is equally distinctions of substance between morals and law. The two do not
altogether coincide and that there is a field of positive law that is not deducible from
any pre-existing system of natural law. One of the tenets of positivists is that
positive law is quite distinct from, and its validity in no way dependent upon morals.
However, a measure of coincidence between them may be essential to the working
of human society.
Kant believes that laws prescribe for external conduct whereas morals prescribe
internal conduct. This means that morals alone are concerned with subjective
factors, such as motive. Law on the other hand, is concerned with the external
manifestations of motive. Many lawyers believe that the characteristic element of
law is sanctions which differentiates law from morals. Nevertheless, morals are not
without sanctions such as incurring societal condemnation or the condemnation of
peers. Law, however, has a regularized and specific sanctions.
The relations between law and morality, like other aspects, are inexhaustive. You are
therefore expected to read up others.
Does Law have any relation to morality?
3.5 How non-law elements affect law’s viability
The viability of law is often affected by non-law elements. You should look at the
need for the law making bodies to ensure that the laws they are churning out are in
compliance with the practice and ways of life of the people who are expected to
obey the law. For instance, where a law clashes with ideas which are vigorously held
in the community, there is a strong likelihood that the law will be ignored or even
positively boycotted. There is therefore a need for the law to take these ideas into
consideration. In Nigeria for instance, the osu system has been abolished by law,
but the practice still continues since the law is not in line with the publicly held belief
in that part of the country. The law to regulate bride price payable on brides( in
some parts of the country has also suffered the same fate. Where these non-law
elements are not taken into consideration, there is a possibility that the law will be
weakened in the process and will remain unenforced.
Self-Assessment Exercise
To what extent do non-law elements affect the viability of law?
4.0 CONCLUSION
So far, we have examined the relations of law to justice, religion and morality, and in
the course of doing this, we have been able to identify these relationships. Our study
in this unit has made us to appreciate the interrelationship existing among these
various concepts.
5.0 SUMMARY
In this unit, we have studied the following:
Definition of justice, morality and religion
Relations of law to justice
Relations of law to religion
Relations of law to morality
How non-law elements affect law’s viability
6.0 TUTOR-MARKED ASSIGNMENT (2)
While it is not legally wrong to embark on acts of homosexuality, it is morally wrong

to so(do. Discuss this assertion with particular reference to the relationship between
law and (morality.
7.0 REFERENCES
pp 1 – 28
Elegido, J.M., Jurisprudence, Spectrum Law Publishing, Ibadan, 1994, 182 – 195
Lagos, 2004, 85 – 105
Hon. Justice KayodeEso, Law, Religion and Secular State, MIJ Publishers, Lagos,
1990 at 291
Lord Denning, Landmarks in the Law, Butterworth, London, 1984 at 351 – 365
UNIT 2 LAW AND SOCIAL CHANGE
CONTENTS
1.0 Introduction
2.0 Objectives
3.0 Main Body
3.1 Law as an instrument for positive change
3.2 The limitation of law in creating social change
3.3 Resistance to Change
4.0 Conclusion
5.0 Summary
1.0 INTRODUCTION
One enviable attribute of law is its ability to adapt to changing situations. Thus, the
law is never static. This unit will therefore examine how law influences and copes
with social changes. It will also look at the roles of a lawyer in that change.
Instances of law and social changes in Nigeria will be given while limitation of
positive legal influence in Nigeria will also be considered.
2.0 OBJECTIVES
This topic will examine the law in relation to the changes in society while at the
same time analysing specific cases that have brought changes to the Nigerian polity
such as the status of bank interests, the influence of ‘sacred cow’ legislation and
cases, issues emanating from electoral law cases and the general issue of judicial
activism. It will also deal extensively with societal change and the lawyers’ role in
that change.
3.0 MAIN BODY
3.1 Law as an instrument for positive change
The laws of Medes and Persians were said to be immutable; but unless a system is
capable of adapting itself to changing conditions, it can only go the way of the Laws
of the Medes and Persians. Adaptability is a condition necessary for the continued
existence of a legal system. According to Lord Justice Scarman, ‘these challenges are
not created by lawyers; they certainly cannot be suppressed by lawyers; they have
to be met either by discarding or by adjusting the legal system...’ It is therefore for
the law to meet new developments as well as challenges in the Society.
You are to examine the various ways by which changes may come within a legal
system.
Some of these include (by) day-to-day adjustment of detail and tinkering with
theinstruments www.no‐trafficking.org/resources_int_tip_laws.htmwww.no‐
trafficking.org/resources_int_tip_laws.htmwww.no‐
trafficking.org/resources_int_tip_laws.htmused in legal reasoning; or by reform on a
larger scale. The system itself may be changed, in which case the change may be
constitutional or revolutionary. Other forces of change include: social evolution,
computers, medical developments, change through disobedience, etc.
You are also expected to particularly refer to changes in Nigeria and how the law
have( been able to adjust to meet such changes. One common example is the
discovery, recently, of the heinous effect of climate change and global warming on
the environment. Since this discovery was made, countries world over at state level
and at international level have enacted legislation to take care of the effects of
climate change on their environment.
Another notorious example is the recent growing trend of terrorism. Terrorism had
been in use before now but it has become prevalent in recent years. Owing to this,
the UN constituted a committee on terrorism and by way of resolution, made it
compulsory for all member states to legislate on terrorism. The advent of computers
has also brought about lots of changes, but the law has always been equal to the
task. There are several other examples of these changes. You are to read the
textbooks under further reading to aid your knowledge in this regard.
To what extent is law a vehicle of social change? Give examples.
3.2 The limitation of law in creating social change
Despite the fact that law has been said to be the vehicle driving social change and
meeting the new demands thrown up by such changes, there are also limitations of
law in creating social change in Nigeria, just like elsewhere. There is the argument
that the law is imposed externally in an almost coercive way. Today, people are
characterized by a “crisis of confidence” and alienation from social institutions
because of uncontrollable economic conditions. It is therefore argued that law is
hardly the expression of those people’s will.
They argue further that few people participate in the formulation of laws and
legislation.
One of the limitations of law as an instrument of social change is the possibility of

prevailing conflict of interest. Other limitations related to the efficacy of law in social
change include divergent views on law and the prevailing morality and values.
A very good example here is the Nigerian Evidence Act. The definition of a document
as contained in that Act is far away from modern day reality. There are some
documents that will not be admissible because they have not been specifically
mentioned in the Act. The cause of this is legislative ineptitude by our
parliamentarians and this constitutes a big limitation on legal-driven change in the
field of evidence.
Also, despite the fact that corruption is on the increase in Nigeria, we still have not
gotten it right to come up with up-to-the-task legislation that will discourage other
corrupt leaders.
The laws as they exist now are such that permit plea bargaining, a situation where
the rogue government officials will part with some of the loot and serve minimal jail
term.
Government actions such as the above limit the ability of the law to create social
change.
You are expected to embark on further readings to be able to appreciate other

limitations.
In what scenario can the law limit the extent of social change?
3.3 Resistance to Change
Even though social change is a desirable phenomenon, we have seen, from our
discussion above, that there are times when law will itself constitute limitation to
attaining social change, and we did say that such limitation should not be attributed
to the law, rather it should be attributed to the law givers.
You need to know that there are also cases where laws face resistance from
members of the society who find different reasons for their resistance such as their
values, customs, or even the cost of change and sometimes because people feel
threatened by the change. The factors that are a barrier to change are separated
into social, psychological, cultural, and economic factors and all are interdependent.
For instance, vested interests change is opposed by individuals or groups who fear
they will lose their power, prestige or wealth when the new law is introduced. A
good example here is the Health Care Bill in America. Lots of health care operators
resisted the passage of the Act and are still lobbying for its repeal after it hasbeen
passed. The passage of the Nigerian Health Bill is also another example. Various
stakeholders in the health sector have advised President Jonathan not to sign the Bill
into Law and they vow to embark on a strike should he go ahead to sign the Bill.
These are social and economic factors which serve as bases for people to resist
social change.
Similarly, in highly stratified societies, people of upper classes oppose changes

because they fear losing privileges over the lower classes. Some people resist social
change on ideological grounds. These and several others are reasons why some
people resist social change.
Identify and discuss the various factors that may lead to resistance of social change
by the society.
4.0 CONCLUSION
This unit intimates you on the roles played by laws in bringing about social change
as well as in sustaining it. The limitations to social change are also examined
together with resistance to social change.
5.0 SUMMARY
This unit has taken you through the following areas:
Law as an instrument for positive social change
The limitation of law in creating social change
Resistance to social change
6.0 REFERENCES
415 – 448
Elegido, J.M., Jurisprudence, Spectrum Law Publishing, Ibadan, 1994, 373 – 390
Hon. Justice KayodeEso, The Lawyer and Society, Thoughts on Law and
Jurisprudence, MIJ Publishers, Lagos, 1990 at 91
Hon. Justice KayodeEso, Towards Peace through Law, Thoughts on Law and
Jurisprudence, MIJ Publishers, Lagos, 1990 at 67

UNIT 3 ETHICS
CONTENTS
1.0 Introduction
2.0 Objectives
3.0 Main Body
3.1 Character of a legal practitioner
3.2 Practitioner/Client & Practitioner/Practitioner Relationship
3.3 Practitioner/Court Relationship
3.4 Attraction of Business
3.5 Remuneration and Fees
4.0 Conclusion
5.0 Summary
1.0 INTRODUCTION
The importance of this unit cannot be over-emphasised since it deals with the ethics
expected of a legal practitioner, a body of which you will soon become a member.
The unit will examine the ideal personalities of a legal practitioner as well as what is
expected of him vis-a-vis his clients and the court. You shall be properly guided here
by the Rules of Professional Conduct for Legal Practitioners, 2007. This is therefore a
must-get for you.
2.0 OBJECTIVES
This unit is meant to assist you in having an overall knowledge of what training in
learning and character connotes as a law student and legal practitioner in the
making. You will learn about the duty of confidentiality in your intercourse with your
clients, your relation to other practitioners, improper client poaching and attraction
of business as well as the authorized mode and scale of charging fees.
3.0 MAIN BODY
3.1 Character of a legal practitioner

What attributes must a legal practitioner possess? That is the question you are
called upon to answer under this sub-topic. There are several of such attributes. By
virtue of his being a legal practitioner, it is incumbent upon him to be ‘fit and proper’
and to live above board.
Since he is a minister in the temple of justice, he is expected to be an embodiment

of justice, not only by his words but also by his deeds.
A legal practitioner is also expected to know the law, that being his workshop, and
he must be ready to discharge his duties steadfastly whenever he is representing a
client in court.
What qualities must a legal practitioner possess?
3.2 Legal practitioner/Client & Practitioner/Practitioner Relationship
A legal practitioner owes some duties towards his clients just as the clients owe him
some duties. In the same vein, a lawyer is expected to carry out some duties
towards his colleagues and vice versa. You are expected to know what these duties
are. What will be mentioned here are inexhaustive. As such, you are expected to
embark on further reading for the other duties of a lawyer to his clients, clients to
lawyer, and lawyer to lawyer.
Starting with the duties of a lawyer to his clients, the following are some of such
duties:
A lawyer must listen to the instructions of his client attentively and must carry out
the said instructions to the letter, provided the instructions do not involve the
commission of crime.
He also must prosecute the case of the client diligently. Some lawyers have been
dealt with by the LPDC for lack of diligent prosecution of their clients’ cases or for
avoidable negligence.
Most importantly, a legal practitioner owes his client the duty of confidentiality. In
other words, the client is entitled to have all discussions between him and his lawyer
kept confidential. The communication is privileged and must not be divulged to a
third party without the consent of the client. However, where such instructions
involve the commission of a crime, the lawyer in question will be bound to disclose
with or without the consent of the client.
He must operate a separate bank account for his client money. He must not mix this
up with his own money.
As for the client, he owes his lawyer the duty of full disclosure and he must pay his
lawyer for the service rendered.
The relationship between legal practitioners is expected to be cordial and respectful.

Senior lawyers must not look down on their juniors and must be ready to put them
through whenever they seem to be in trouble in the court room. This is more so
where a senior lawyer is appearing in a case where the lawyer on the other side is a
new wig. He must not take advantage of this; rather, he must be ready to put him
through on how to move motions or how to do whatever it is he is having problem
doing.
Practitioners must also be ready to share useful information with one another.
Where there is a new precedent on a particular legal principle, he must be ready to
share same with his colleagues through the internet or through journal articles. New
development in the field of law/legal practice must also be shared with other
lawyers. This is where the NBA is most useful: to organise seminars, retreats, etc to
ensure cordial relationship and friendly existence among legal practitioners.
Itemise and explain the practitioner/client relationship.
3.3 Practitioner/Court Relationship
The lawyer’s duties to the court include the following:
Punctuality: A legal practitioner must be punctual in getting to court. The court sits
at 9 a.m. It is therefore incumbent upon the legal practitioner to be in court before
that time and before His Lordship sits.
A legal practitioner must be properly robed before the court. A male lawyer must be
adorned in dark suit with his wig and gown. The same colour is allowed for female
lawyers. Odd colours are not permitted and lawyers owe the court the duty of being
properly robed. Wearing of red or pink or yellow suits will therefore not be
overlooked without admonition or being outright sent out by the court; so also is
over-embellishment by female lawyers.
He must not mislead the court by mischievously citing wrong authorities.
He must make available to the court authorities relied upon in his argument before
the court.
He must be respectful to their lordships.
He must address the court in proper nomenclature e.g. for the High Court Judges
upward to the Supreme Court, the right nomenclature is My Lords or Your
Lordship/Ladyship (Note that Your Lordship is generally acceptable even for a female
Judge). It is Your Worship in the Magistrate Court.
He must be able to control his temper even where he seems to have been wronged
by their lordships.
He must be courteous to the court. Even where he does not share their lordships’
views, it will be wrong for him and will be in breach of his duty to remain courteous
to the court for him to fume immediately a decision is handed down by saying that
‘your lordships are biased and we are going to appeal against this biased decision’.
The court also owes some duties to lawyers. These include:
Punctuality: the court must sit latest by 9 a.m. The practice by some Judges who sit
far after 9 a.m. without any convincing reason is therefore in breach of this duty.
Since respect is reciprocal, the court must also address counsel in a respectful
manner.
The court must be seen as father of all. It must not show preference for any
counsel.
This encapsulates the duty to direct counsel, especially the new wig. Instead of
making them feel inferior, the court must help them through in the doing of
whatever it is they want to do before the court.
The court must avoid abusive words.
You are to read the suggested textbooks/materials to get more of these duties
Explain the reciprocal duties of the court to legal practitioners.
3.4 Attraction of Business
As a legal practitioner, it is imperative for you to know that you are distinct from
other professionals and therefore, there are rules of professional conduct that guide
you and the profession.
Following from the above, there is a limit to the extent you can go in attracting your
clients. There are some practices that are not acceptable in legal practice. One of
such is the rule against advertising. A legal practitioner is precluded from embarking
on any kind of outrageous advertising style. He is not allowed to solicit for clients
either through radio jingles or any other forms of adverts. What is allowed is
moderate advertisement. A lawyer is thus permitted to put up a modest signpost
indicating the name of his chambers and his general practice areas. The signpost
must not be too big and the wordings contained therein must not be too specific. A
signpost with the wordings ‘Adeolu& Co, the Best Criminal Lawyer in Town’ will not
be acceptable because it is indicting the credibility and ability of other practising
lawyers in that area. An acceptable advert via signpost may include
‘OlutunjiAdegbenga& Co. Adelabi Chambers: Solicitor and Advocate of the Supreme
Court of Nigeria’ etc.
It is also unacceptable for a legal practitioner to source out potential cases from
clients. By this it is meant a situation where a legal practitioner will go out to look for
actionable situations and then instigate the parties to go to court so that he can be
their counsel.
A legal practitioner must also not engage himself in any form of advertisement that
will run down his colleagues. This is known as ‘touting’.
In soliciting for clients therefore legal practitioners must abide by the relevant
sections of the Rules of Professional Conducts which govern attraction of business by
counsel.
Should advertising by legal practitioners be legal? Examine the pros and cons.
3.5 Remuneration and Fees
The remuneration and fees of legal practitioners are also governed by the relevant
laws which must be abided by in charging clients for various services. With respect
to landagreement, a legal practitioner is expected to charge 10% of the purchase
sum of the land in question. For company incorporation and related activities under
the Company and Allied Matters Act 2004, relevant rules applied. In the field of legal
drafting generally, there is a law that regulates how a lawyer should charge for legal
drafting.
A legal practitioner must charge his fees and remuneration in line with the various
provisions of the law and must not charge clients arbitrarily.
Discuss the rules guiding the remuneration and fees of legal practitioners.
4.0 CONCLUSION
So far in this unit, we have concerned ourselves with those rules of professional
ethics that are laid down to maintain and further underscore the respect attached to
the legal( profession. The breach of any of these rules will not be overlooked by the
appropriate authorities. It may lead to suspension of the affected practitioner. It
may lead to warning, and where the breach is so grave, it may lead to the striking
out of the name of the affected legal practitioner from the Roll of the Supreme Court
of Nigeria. Where the culprit is merely suspended, he can continue with his legal
practice after serving the suspension term.
Where his name has been struck out of the Supreme Court Roll, he can be
reinstated after showing convincing evidence of penitence.
5.0 SUMMARY
In this unit, you have learnt about ethics of legal practice. Specifically, the following
areas have been covered:
a) Character of a legal practitioner
b) Practitioner/Client & Practitioner/Practitioner Relationship
c) Practitioner/Court Relationship
d) Attraction of Business
e) Remuneration and Fees
The legal profession is not a profession without ethics. While lawyers are expected
to respect the court in prosecuting their clients’ cases, the court is equally expected
to be decorous toward counsel. In line with this, critically examine the roles of a
counsel to the court and vice versa.
7.0 REFERENCES
Legal Practitioner’s Act, 1962 (as amended)
Olakanmi& Co., Legal Ethics Series, 2 nd ed., Lawlords Publication, 2008
Rules of Professional Conduct for Legal Practitioners, 2007
MODULE 3
UNIT 1 SOURCES OF LAW I: LEGISLATION
CONTENTS
1.0 Introduction
2.0 Objectives
3.0 Main Body
3.1 Emergence of Legislation

3.2 Merits and Demerits of legislation
3.3 Different types of subordinate legislation
3.4 Interpretation of Statutes
4.0 Conclusion
5.0 Summary
1.0 INTRODUCTION
This module will deal with sources of law as a whole and under it we shall be
examining in three units the three sources of law, namely legislation, custom, and
judicial precedent. This unit is however concerned with legislation. Under it, you are
expected to know how legislation originated, its definition, merits and demerits,
subordinate legislation and the interpretation of statutes.
2.0 OBJECTIVES
This unit treats the emergence of legislation as the dominant source of law. It delves
intothe different types of legislation (paying particular attention to types of
subordinate legislation). It also examines the modes of interpreting statutes such as
the literal and liberal interpretations and the philosophical basis for such
interpretations thereby helping the student with a full appreciation of what will be
his tools in legal practice. At the end of this unit, you are therefore expected to have
mastered the art of legislating.
3.0 MAIN BODY
3.1 Emergence of Legislation
Until the 19th century, legislation played a relatively subordinate role in most
countries as a source of law and was clearly dwarfed in importance and relevance by
customary law and case law. This is however not to say that legislation did not exist
from early times; indeed the earliest document written in the English language
whose contents have been preserved is precisely the laws or “dooms” of King
Ethelbert of Kent promulgated in the 17th( century.
It is true also that many statutes were passed in England during the Middle Ages.
Overall, however, it is fair to say that statutes played a comparatively small part in
the development of the law until fairly recent times. However, the situation has now
changed drastically.
During the 19th and 20th( centuries a huge increase in the use of enacted law has
taken place and it is clear that legislation has now become by far the most important
source of law.
In Nigeria for instance, before the advent of colonialism, the various indigenous
localities were majorly guided in their acts and deeds by customary laws which were
enforced by the family units as well as the royal system. But with the dawn of
colonialism, there has been a gradual migration away from putting reliance on
customs as our British masters came with the idea of legislating over the whole
entity now called Nigeria. They equally qualified largely the application of our
customary law which, according to the set standard, must not be repugnant to
natural justice, equity and good conscience.
Aside from directly legislating for Nigeria through the Queen’s Order-in-Council, our
British masters also made applicable in Nigeria common law, equity and the statutes
of general applications in force in England on the 1st of January 1900.
With the above foundation properly laid, the indigenous nationalist leaders that took
over the affairs of the country after independence had no problem, with minimal
supervision from Her Majesty’s government, to make laws, by way of legislation, for
the good governance of the country. Today, Nigerian legislation are designated as
Acts of Parliament at the national level where they are enacted by the National
Assembly in a civilian/democratic dispensation. Laws are the equivalent name given
to them at the state level. During the military era, they are designated Decree and
Edict respectively while By-laws are used to describe laws made by the local
government during both eras.
According to Salmond, legislation as a source of law consists in the declaration of

legal rules by a competent authority. Used in a wider sense, it includes all methods
of law making. To legislate therefore is to make new law in any fashion or in any
method. He therefore contends that any act done with the effect of adding to, or
altering the law is an act of legislative authority. Used in this sense, legislation
includes all sources of law, and not just one of them. In that regard, he further
posits: when a judge establishes a new principle by the process of judicial decision,
he may be said to exercise legislative and not just judicial power.
Used in a stricter or narrower sense, according to Salmond, legislation is the laying

down of legal rules by a sovereign or subordinate( legislator. In this narrower sense,
differentiation must be made between law making by a legislator and law making by
the court.
Trace the emergence of legislation in Nigeria.

3.2 Merits and demerits of legislation
There is no gainsaying the facts that legislation possesses some clear advantages
over other sources of law especially judicial precedents. There are equally
disadvantages. You are to look into these advantages as well as disadvantages of
legislation.
Legislation, to give it a working definition, can be defined as the process through

which statutes are enacted by a legislative body that is established and empowered
to do so. It has also been described as law made deliberately in a set form by an
authority, which the courts have accepted as competent to exercise that function.
What is deducible from this is: legislation is a parliamentary process; people that
take part in its making must be authorised to so do by law; these people must be
recognised by the court; and the legislation must be in a ‘set form’.
Some of the advantages of legislation over judicial precedent include the following:
The major advantage of legislation is that it is made by parliament and therefore

reflects the will of the people in so far as members of the parliament are
democratically elected. This cannot be said of the court system. Statutes made by
the legislature therefore enjoy a direct democratic legitimacy that judge-made law
lacks.
Secondly, the idea of limited power which is enjoined by the rule of law is better
secured through the device of separation of power and this ideal is reflected by
giving the main legislative powers to the legislature while confining the functions of
the court in the main to the application of the law.
Additionally, as the society becomes more complex and the laws try to achieve ever
more ambitious objectives, it becomes more important to have detailed information
about the likely social effects of new laws. As late as two centuries ago the
government lacked the means of collecting this information. The result is that now
the legislature is much better placed than the judiciary to collect the necessary
information prior to engaging in making complex laws.
Another important merit of legislation is that it provides for predictability. Since it is

in a written form, it can be consulted so that citizens can know their ‘dos’ and
‘don’tsbeforehand and they can regulate their lives along that axis accordingly. Even
though case law can also be consulted, you only get to know of it as a party when
the court has laid it down, and not before you go to court. This applies especially to
new precedents.
Finally, legislation is far more suitable than case law to change quickly many related
but different rules of law. While it will often take time to change judicial precedents,
the enactment of statute can change overnight vast areas of law.
The major disadvantage of legislation is that the words and terms used in Acts of
Parliament may be subject to many interpretations, thus rendering it unclear or
ambiguous in a given fact situation.
You should be able to come up with additional advantages and disadvantages after
reading your text books.
Discuss the advantages and disadvantages of legislation in Nigeria.
3.3 Different types of subordinate legislation
Subordinate legislation is law made by an executive authority under powers given to

them by primary legislation in order to implement and administer the requirements
of that primary legislation. It is also known as delegated legislation.
Using subordinate legislation is advantageous for the following reasons: it saves

limited time in parliament and allows rapid change; since members of the parliament
lack detailed or technical knowledge in some cases, they can make up for this
through the use of delegated legislation which allows for the use of expert
knowledge; it also allows quick response to new development; it enables minor
changes to statutes; its withdrawal or amendment is very easy; etc.
It equally has some disadvantages. These include: it implies that parliament has
insufficient time to scrutinize it, and as such parliament is not reviewing legislation
properly; sub-delegation of power is a further problem which causes complexity and
confusion; there is lack of publicity as some of these delegated legislation are not
known by people to be affected by it; it is undemocratic as most regulations are
made by civil servants or other unelected people; etc.
There are several types of subordinate legislation. Some of these are listed below:
Local authority by-Laws made by local councils under enabling Acts;
Public corporation by-laws made under statutory authority;
Rules of court made by the rules committees pursuant to the enabling Acts;
Ministerial/departmental regulations made by statutory authority;
Order in Council made by statutory authority or under the Royal Prerogative; etc.
Explain the various types of subordinate legislation in Nigeria.

3.4 Interpretation of Statutes
Statutes become meaningless if not interpreted by the court. The primary duty of
the court in this regard is to find the intention of the legislation. Such intention must
be discovered from the wordings of the statutes. It must be an intention manifested
by the words used. If every word has only one meaning, this task would have been
very easy. However, words have no particular meaning except they are put in
context. Problem however emanates from the fact that members of the parliament
lack the prescience to know all situations that will arise and therefore legislate
unambiguously for each situation. Some words used in statutesrepresent such vague
standard that interpreting them is like making a subsidiary legislation.
Examples of such words are ‘reasonable time’ and ‘inordinate delay’ among several
others.
The type of interpretation technique that the court will apply will depend on how
clear forward the words used are. Where the words are unambiguous, the court will
most likely adopt the literal rule of interpretation. In some cases, the words may be
unambiguous but the result of applying the words as they are may bring about
injustice or absurdity. In such cases, the court may adopt the mischief rule of
interpretation or any other rule of interpretation that will lead to justice.
The various rules of interpretation will now be summarily discussed. You are
expected to read up on the pros and cons of each rule and form your own opinion
about them.
Literal rule of interpretation which is the simplest and the most easily applied holds
that statutes are to be interpreted literally. In other words, if the words used are
unambiguous, such words must be given their literal meaning and it is immaterial
that hardship would or is likely to result from the application of such literal
interpretation. This is well illustrated in the cases of R v. Bangaza (1960)5 FSC 1;
Adegbenro v. Akintola (1962)1 All NLR 465.
Note however that the principle that the wording of a statute is to be construed
literally is only a general principle which must be applied only where the wording is
clear and generally unambiguous.
The Golden rule of interpretation was formulated in Beck v. Smith (1836)2 M & W
191 at p. 195; 150 E.R. 724 at p. 726 and it states that ‘it is a very useful rule in the
construction of a statute to adhere to the ordinary meaning of the words used, and
to the grammatical construction unless that is at variance with the intention of the
legislature to be collected from the statute itself, or leads to any manifest absurdity
or repugnance, in which case the language may be varied or modified so as to avoid
such inconvenience but no further’.
Thus, where the word to be interpreted is ambiguous, it is the court’s duty to
interpret it in such a manner as to avoid absurdity. See R v. Princewell (1963)2 All
NLR 31; Council of the University of Ibadan v. Adamolekun (1967)1 All NLR 213;
Awolowo v. Federal Minister of Internal Affairs (1962) LLR 177
Also, in applying, Golden rule, the court may construe the word ‘or’ as ‘and’ and vice
versa whenever this is necessary to avoid absurdity. See Ejoh v. IGP (1963)1 All NLR
250; R v. Eze (1950)19 NLR 110; Interpretation Act 1964 (No. 1 of 1964), ss 1 and
18(3); Jamaal Steel Structures Ltd v. African Continental Bank Ltd (1973) 1 All NLR
208
The Mischief rule of interpretation holds that in order to interpret a statute properly,
it is necessary ‘to consider how the law stood when the statute to be construed was
passed, what the mischief was for which the old law did not provide and the remedy
provided by the statute to cure the mischief’. See Re Mayfair Property Co (1898)2 Ch
28 at p. 35; Balogun v. Salami (1963)1 All NLR 129. The court is then to construe
the statute in such a manner as to ‘suppress the mischief and advance the
remedy...’ See Heydon’s case (1584)3 Co. Rep. 7a; 76 ER 638; Akerele v. IGP
(1955)21 NLR 37
Other general principles of interpretation include:
Lex non cogitadimpossibilia (the law does not compel the doing of impossibilities) Ut
res magisvaleat quam pereat (that it may rather have effect than be destroyed) The
ejusdem generis rule holds that where particular words of the same class are
followed by general words, the general words must be construed to be similar in
meaning to the particular words. See Board of Customs & Excise v. Viale (1970)2 All
NLR 53; Nasr v. Bouari (1969)1 All NLR 35; Onasile v. Sami (1962)1 All NLR 272
In all, it is important that the provisions, being interpreted must not be read in
isolation; rather it must be put in context, and this is the only reasonable
explanation that can be givenwhere the court has interpreted ‘or’ to mean ‘and’ and
‘shall’ to mean ‘may’.
You shall be properly guided by the suggested further reading materials on this
topic.
Words must be interpreted from their context. Discuss.
4.0 CONCLUSION
This unit has taken us through the rubrics( of legislation and how they are
interpreted in our courts. It has underscored the importance of placing words in
context before interpreting them and has also explored the various interpretation
techniques often employed by our various courts.
5.0 SUMMARY
In this unit, you have learnt the following:
a) Emergence of legislation
b) Merits and demerits of legislation
c) Different types of subordinate legislation
d) Rules of statutory interpretation
6.0 REFERENCES
p. 218 – 245
Lagos, 2004, 254 – 288
Glanville Williams, Learning the Law, 11 th ed., Stevens and Sons, London, 1992, p.
97 – 108
Hon. Justice KayodeEso, The Court as Guardian of the Constitution, Thoughts on
Law and Jurisprudence, MIJ Publishers, Lagos, 1990 at 17
Obilade, A.O., The Nigerian Legal System, (Sweet & Maxwell, London) p. 55 – 68
UNIT 2 SOURCES OF LAW II: CUSTOM
CONTENTS
1.0 Introduction
2.0 Objectives
3.0 Main Body
3.1 Savigny’sVolksgeist theory of law and custom
3.2 Types of custom

3.3 Limitation to validity of custom
3.4 Colonial elements in Repugnancy cases
4.0 Conclusion
5.0 Summary
1.0 INTRODUCTION
This unit will consider in-depth custom as a source of law. It is meant to

complement unit 1 which deals with legislation. As opposed to legislation as a source
of law which emanates from a body of elected people and which may be at variance
with the people’s ways of life, this unit examines custom as a source against the
backcloth that it derives and emanates from the people themselves. Attempt will be
made to place this source of law within a jurisprudential context of Savigny’s
Historical School of law where he pontificated his Volksgeist theory of law.
2.0 OBJECTIVES
Termed volksgeist in Germany, customs are deemed to arise from a national

consciousness. This unit will therefore examine the emergence and fall of customs
as well as the different types of customs. Further, the limitations placed on the
practice of customs by various statutes will be examined with particular reference to
the notion of some kind of African law.
3.0 MAIN BODY
According to Salmond the importance of custom as a source of law continuously

diminishes as the legal system grows. According to him under English law it has now
almost ceased to operate, to an extent because it has been superseded by
legislation and precedent and partly because of the stringent limitations imposed by
law upon its law creating efficacy.
Reasons for the reception of customary law.
Salmond opines that custom is the embodiment of those principles which have
commended themselves to the national conscience as principles of justice and public
utility. Equally, it is important to note that the fact any rule that has already the
sanction of custom, raises a presumption that it deserves to obtain the sanction of
law also. Courts of justice should be content to accept rules of right which have
already in their favour the prestige and authority of long acceptance.
Salmond further contends that custom is to society what law is to state. Each is the
expression and realisation of the principles of right and justice. The law embodies
those principles as they commend themselves to the community in the exercise of its
sovereign power. Custom embodies them as acknowledged and approved, not by
the power of the state, but the public opinion of the society at large.Salmond further
states that nothing is more natural than that, when the state begins to evolve out of
the society, the law of the state should in respect of its material contents be in great
part modelled upon, and coincide with, the customs of the society. When executing
its function of administration of justice, it accepts as valid the rules of right already
accepted by the society of which it is itself a product, and it finds those principles
already realised in the customs of the land.
The second reason Salmond offered for the law-creative efficacy of custom is to be
found in the fact that the existence of an established usage is the basis of a rational
expectation of its continuance in the future. Justice demands that,unless there is
good reason to the contrary, men’s rational expectations shall, so far as possible, be
fulfilled rather than frustrated. He went on to say that even if customs are not
ideally just and reasonable, it may yet be wise to accept them as they are, rather
than to disappoint the expectations which are based upon established practice.
3.1 Savigny’sVolksgeist theory of law and custom
Under this topic, you are expected to make use of Savigny’s theory of law to explain
the concept of custom and its importance as a source of law. Literally, volksgeist is a
term connoting the productive principle of a spiritual or psychic character operating
in different national entities and manifesting itself in various creations like language,
folklore, mores, and legal order.
According to Savigny however, the nature of any particular system of law was the
reflection of the ‘spirit of the people who evolved it’. Hence, in a simple term,
volksgeist means the general or common consciousness or the popular spirit of the
people. Savigny believed that law is the product of the general consciousness of the
people and a manifestation of their spirit. Savigny’s central idea was that law is an
expression of the will of the people. It does not come from deliberate legislation but
arises as a gradual development of common consciousness of the nation. He was of
the view that a nation’s legal system is greatly influenced by the historical culture
and traditions of the people and growth of law is to be located in their popular
acceptance. He therefore contended that, emanating from the consciousness of the
people, custom not only precedes legislation but is also superior to it. He faulted the
general view that laws are of universal validity or application and contended instead
that each people develop its own legal habits, as it has peculiar language, manners
and constitution. Relying on his own method, Savigny stated that the law is a
product of the volksgeist, embodying the whole history of a nation’s culture and
reflecting inner convictions that are rooted in the society’s common experience. The
volksgeist, he claimed, drives the law to develop slowly over the course of history.
Thus, a thorough understanding of the history of the people is necessary for
studying their law accurately.
According to Savigny, ‘the foundation of the law has its existence, its reality in the
common consciousness of the people. We become acquainted with it as it manifests
itself in external acts, as appears in practice, manners and customs. Custom is the
sign of positive law’. Hence, Savigny clearly believes custom as the source of law
and Volksgeist (common consciousness) as the ultimate foundation of any legal
system. Savigny’s view of law is therefore in line with the meaning of custom which
has been defined as the way of life of a people which develops with the people over
time.
Is there any link between custom and Savigny’svolksgeist theory of law?
3.2 Types of Customs
For our purposes, three main types of custom can be identified and briefly
discussed. These are: local customs, usages and general customs.
Local custom refers to the customs of particular localities which are capable of being
recognised as laws even in derogation of the common law. Local customs were
respected and resorted to in the course of the development of common law
doctrines when judges would go out to decide disputes arising among different
people. Such resolution was oftenbased on local customs. Their acceptance by the
court is hedged around with a number of conditions which have been evolved by the
judiciary. For instance, such local custom to be applicable must possess a sufficient
measure of antiquity; it must have been enjoyed continuously; it must have been
enjoyed ‘as of right’; it must be certain and precise; and the custom has to be
consistent with other customs in the same area.
Note however that the fact that it may conflict with local customs elsewhere did not
matter. This is why the geographical limit within which such local customs are
applicable must be precisely defined. With time, reliability on local customs started
to fizzle out as the common law had been able to develop common customs that had
metamorphosed into written statutes. The idea of local customs also became
demystified as developments in the transportation and other sectors brought
together several localities which where hitherto unreachable.
Usage emanated from the fact that society is never still. As it develops it moves
away from the letter of the law by evolving practices that may influence or simply
by-pass existing rules. Such practices only acquire the label ‘laws’ when incorporated
into statute or precedent, but they have immeasurably greater significance and
operation apart from this.
One sphere is in contract. If transactions in a particular trade, or of a particular kind
in a particular locality, have long been carried on subject to a certain understanding
between the parties, it is but natural that in the course of time everyone in the
trade, or in the locality, who carries on such transactions, will assume them to be
done in the light of this understanding, if nothing is said to the contrary. Since one
of the purposes of law is to uphold the settled expectations of men, the courts
sometimes incorporate these settled conventions as terms of the contract.
Certain conditions must however be met before the court can do so, namely: the
usage must be so well established as to be notorious; such usage cannot alter the
general law of the land, whether statutory or common law; it must be a reasonable
usage; it need have no particular scope; and the usage will not be enforced in a
particular case if it purports to nullify or vary the express terms of the contract.
General custom: It has long been a commonplace of English judicial

pronouncements that a custom prevailing throughout the land, if it existed before
1189, is part of the common law. This identity between general custom and the
common law was a matter of historical development, for the common law from its
earliest days was no more than the creation of the judges. The reliance by Royal
justices on decisions given in one part of the realm, based on local customs, as
precedents for decisions in other parts gradually produced principles of general
application, which came to be known as the ‘common custom of the realm’ or the
‘common law’. It is only for the judges then to declare what amount to ‘general
custom of the realm’
Explain the various types of customs.
3.3 Limitation to validity of custom
Rules of customary law are subject to tests of validity prescribed by statute. These
tests therefore constitute some limitation on the validity of customs. You are
expected to study in detail those tests that limit the validity of customs.
The first test is the repugnancy test;This test holds that the custom sought to be
applied must not be repugnant to natural justice, equity and good conscience. It is
provided for in the High Court Laws of all states of the federation. See Section 26(1)
of the High Court Law of Lagos State; see also Section 14(3) of the Evidence Act.
What this test is composed of has not really been well defined by scholars. It can
only be understood through the cases where the courts have held some customary
laws/practices to be in breach of the repugnancy doctrine. See the following cases:
Laoye v. Oyetunde ((1944) AC 170; EsugbayiEleko v. Officer Administering the
Government of Nigeria (1931) AC 662 at p. 673; Lewis v. Bankole (1908)1 NLR 81 at
pp. 99 – 102; Dawodu v. Danmole (1958)3 FSC 46; Edet v. Essien (1932)11 NLR 47;
Re EffiongOkon Ata (1930)10 NLR 65; Mariyama v. SadikuEjo (1961) NRNLR 81
among others.
The repugnancy test thus constitutes a limitation on the validity of customs as a

source of law. Where the custom is barbaric, contentious or out of tune with modern
expectation, the court will be inclined to hold that such custom breaches the
repugnancy test/doctrine.
The second test often applied by the court to test the validity of customary law is
the incompatibility test. According to Section 26(1) of the Lagos State High Court
Law, any customary law that is incompatible either directly or by implication with
any law for the time being in force shall not be applied by the court. Similar
provisions will be found in other High Court laws of various regions/states. The
scope of ‘any law for the time being in force’ is debatable. Some have argued that it
includes English law: see Re Adadevoh (1951)13 WACA 304 at 310, where the West
African Court of Appeal stated obiter that ‘any law in force’ included ‘the rules of the
common law as to the unenforceability of claims contrary to public policy.’ See also
Adesubokan v. Yinusa (1971) NNLR 77 where it was held that ‘any law’ in section
34(1) of the High Court Law of the Northern States included the received English
statutes of general application. See further: Rotibi v. Savage (1944)17 NLR 77.
The third and the last test is that of public policy. In other words, any custom to be
applied by the court must not be contrary to public policy. The application of
customary law has been precluded in many cases on the ground of being contrary to
public policy. See section 14(3) of the Evidence Act; Re Adadevoh (supra); Alake v.
Pratt (1951)13 WACA 304 and Cole v. Akinyele (1960)5 FSC 84.
The above are the limitations to the validity of custom.
With the aid of decided cases, explain the repugnancy doctrine.
3.4 Colonial elements in Repugnancy cases
There is no disputing the fact that what was held to be repugnant to natural justice,
equity and good conscience during the colonial era would mostly be determined by
the colonial masters’ perception of repugnancy. This was a very big mistake since
one could not appreciate a people’s culture except he is part of that culture. Hence,
some of the customs that were held to be repugnant or that were deemed to be
barbaric and outrageous may not be so when placed within African culture and
customs of that time.

Examine all the above cases to which you have been referred on repugnancy
doctrine and bring out the colonial elements in some of them.
4.0 CONCLUSION
This unit has taken you through the fabric of custom as one of the sources of law. It
has also examined the importance, types and other salient issues on customs.
5.0 SUMMARY
We have studied the following:
a) Savigny’sVolksgeist theory of law and custom
b) Types of custom
c) Limitation to validity of custom
d) Colonial elements in Repugnancy cases
6.0 REFERENCES
p. 218 – 256 FunsoAdaramola, Basic Jurisprudence, 3 rd ed., Raymond Kunz

Communication, Lagos, 2004, 254 – 288
Obilade, A.O., The Nigerian Legal System, (Sweet & Maxwell, London) p. 55 –
UNIT 3 SOURCES OF LAW III: JUDICIAL PRECEDENTS
CONTENTS
1.0 Introduction
2.0 Objectives
3.0 Main Body
3.1 The doctrine of judicial precedent
3.2 The hierarchy of court and stare decisis
3.3 Ratio decidendi and how to isolate the ratio of cases
4.0 Conclusion
5.0 Summary
1.0 INTRODUCTION
The defects of slowness and uncertainty which often affect customs can be
overcome if a society comes to accept judicial decisions as a source of law.
Wherever there is a doctrine of precedent when a new issue is brought before the
courts the decision reached will become binding for later similar cases and in this
way will achieve the status of a legal rule without having to wait for the much slower
development of a common practice among the population at large. Again, in so far
as courts explain and justify their decisions, they make them clearer thus avoiding to
a certain extent the problems of uncertainty which can plague purely customary
rules. This is the concept of precedent at work and it is what we shall be exploring in
this unit.
2.0 OBJECTIVES
A judicial precedent is one of the lawyers’ tools; and distinguishing one case law
from another in terms of fact or ratio differences is crucial. Judicial precedent being
a distinguishing characteristic of English law will be treated with specific reference to
its influence in Nigeria in terms of its understanding, stare decisis, hierarchy of
courts, ratio decidendi and how a ratio of a case can be isolated.
3.0 MAIN BODY
3.1 The doctrine of judicial precedent
The doctrine of judicial precedent simply means law found in judicial decisions. It is
the principle of law on which a judicial decision is based, and it consists in what is
often referred to as the ‘ratio decidendi’ meaning ‘the reason for the decision’.
The origin of judicial precedent is traceable to the common law, a period when
itinerary judges appointed by the Queen went out into the various localities to
administer their local customs. With time, the judges soon discovered that some
customs were similar in the different localities they had been to for the purpose of
adjudication on their disputes. The judges would then take note of this and as the
time went on, it got to a point when there emerged what was referred to as the
common law of the realm.
The doctrine of precedent developed with the above system. Thus, instead of
applying the local or general customs of a particular locality, the judges would
conveniently refer to an earlier similar case and adopted their decisions in that
earlier case to the case at hand.
The most important requirement for the application of the doctrine then, and now, is
that the cases in question must be largely of the same/similar factual situations.
It is important that you know that there are two aspects of precedents: they possess
law-quality and they are binding. The distinction between the two must be properly
understood.
Quotability(as ‘law’ applies to the principle of a case, its ratio decidendi, while
bindingnessdepends on the hierarchy of courts, for generally decisions of higher
courts bind lower courts, but not vice versa. For instance, a decision of the High
Court is ‘law’ although it is not binding on any court other than those below it in the
hierarchy.
It is important for you also to know that there are cases where the decisions
established in an earlier case will not be applied in a later one despite the fact that it
ought to have been caught by the judicial precedent’s rule. This happens where
either of the lawyers in the cases is able to successfully distinguish his case from the
earlier one.
There are several merits and demerits of judicial precedents such as predictability of
judicial decisions (an advantage) and rigidity (a disadvantage), among others. You
are to read up the other advantages and disadvantages of judicial precedents.
Salmond states that the doctrine of precedent is known also as stare decisis. The
import of precedent is that judicial decisions have binding force and enjoy law-
quality per se. the bindingness of precedent depends on the hierarchy of courts and
accordingly higher courts bind lower courts and never the other way round. The
aspect of decisions which enjoy law-quality is its ratio decidendii.e the principle
behind a decision.
Salmond opines that for stare decisis to be established two conditions must be
satisfied. (1) There had to be a settled judicial hierarchy before there could be any
clear-cut doctrine of binding authority, for until then it could not be known whose
decisions bound whom. (2) There had to be a reliable report of cases. This is
because if cases are to be authoritative as law, there should be precise records of
what they lay down.
According to Salmond, stare decisismust be distinguished from res judicata. Res

judicata means that the final judgment of a competent court may not be disputed by
the parties or their successors or any third parties in any subsequent legal
proceeding. The main differences between the two doctrines are as follows:
(1) Res judicata applies to the decision in the dispute while stare decisis operates
as to the ruling of law involved.
(2) Res judicata normally binds only the parties and their successors. Stare
decisis relating as it does to the ruling of law, binds everyone, including those
who come before the court on other cases.
(3) Res judicata applies to all courts. Stare decisis is brought into operation only
by decisions of the High Court and higher courts.
(4) Res judicata takes effect after the time for appealing against a decision is
past. Stare decisis operates at once.
Critically examine the doctrine of judicial precedent.
3.2 The Hierarchy of Court and stare decisis
The correct application of the doctrine of judicial precedent is dependent on the

availability of a well-defined hierarchy of court and an up-to-date law reporting. The
decisions of higher courts are binding on lower courts within the hierarchy.
In Nigeria, the hierarchy of court is as provided for in the 1999 Constitution (as
amended) in which the Supreme Court is at the apex, followed by the Court of
Appeal, by the High Courts of States/Federal High Courts and by Magistrate Courts.
What this implies is that the decisions of the Supreme Court will be binding on all the
courts below it. In the same manner, the decisions of the Court of Appeal will be
binding on High Courts up to the courts at the lowest rung of the ladder.
The decision of a court will either be binding or persuasive. It is binding where the
court before which it is being cited has no option as to whether to apply it or not; it
must be applied and obeyed. On the other hand, where a decision urged before their
lordships only have a persuasive effect, this means that their lordships are at liberty
to either rely on it or not. The concept of persuasiveness is brought about where the
decision in question is either that of a court of coordinate jurisdiction, such as the
effect of the decision of a division of Court of Appeal on another division or the
effect of the decision of a Federal High Court on a State High Court. All these
decisions shall have a persuasive effect only on the courts before which they are
being sought to be applied. The same effect is accruable to foreign authorities such
as those of the English or American or Australian courts of justice. Where a well-
stratified hierarchy has been established, the courts within the hierarchy, knowing
where they stand, must obey all the decisions binding on them in handing down
their own decisions. This is to make for predictability of court processes. However,
there are certain instances where a court can deviate from its earlier decisions and
refuse to be bound by it. One of such cases is where its earlier decision is reached
per incuriam. A decision is reached per incuriam where it is reached by a court in
error. In such a case, if that court has the opportunity, it can correct the earlier
error. Also, where there are conflicting decisions of the court of appeal, an appellate
court may overrule any of such conflicting decisions to set the law straight; and
finally, where a decision has been impliedly overruled by the Supreme Court, the
Court of Appeal can overrule its earlier decision on such issue.
Stare decisis on the other hand means ‘following previous decisions’/‘stand by the
decision and not disturb the undisturbed.’ It is a doctrine that complements that of
judicial precedents.
Refer to the further reading section below to develop on what has been given to you
herein.
Discuss the importance of hierarchy of court to the doctrine of judicial precedent.
3.3 Ratio decidendi and how to isolate the ratio of cases
Your primary concern here is how to identify the ratio of a case. Even though this
may appear a less onerous task, in actual fact, it is a difficult task.
To start with, ratio decidendi as we have already stated means ‘the reason for the
decision’.
It is important because it is what is binding on the courts below the hierarchy. There
are several things that a judge says in the course of delivering his judgment. The
basic reasons he gave for so doing in his judgment constitutes the ratio while other
things said by the side are regarded as obiter dicta and have no binding effect.
Where the court in a previous case clearly stated the legal principle on which it
based its decision, the task before the court in a later case would have been
simplified as he would only need to regard those legal principles as the ratio. But it is
not always easy to determine the ratio as the decision-giving court would usually
have gone in a long circle before coming down to its decision.
In determining the ratio of a case, the courts usually consider any one or more of
the following factors: the reason for the decision as stated by the judge; the
principle of law stated by the judge as that on which the decision was based; and
the actual decision in relation to the material facts. In addition to these three, the
court may also consider the interpretation of the case in any later case determined
before the instant case.
In order to easily determine the ratio decidendi of a case, some scholars have
suggested the adoption of several theories such as the classical theory, Prof. A.L.
Goodhart’s theory, Prof J. Stone’s theory, among others. Whatever approach is
adopted, the fact remains that determining the actual ratio in a case is not an easy
task.
It has been said that identifying the ratio decidendi of any case is not an easy task.
Do you agree? If yes, explain the various methods/theories of determining the ratio
of any given judgment.
4.0 CONCLUSION
We have shown in this unit the invaluable importance of the doctrine of judicial
precedent because it makes for predictability and certainty in the course of justice. It
enables lawyers to know the weaknesses and strength of their cases even before
they go to court. Hence, it is of great necessity for a lawyer to know how to decipher
the ratio from a mere obiter.
5.0 SUMMARY
This unit covers the following areas:
a) The doctrine of judicial precedent
b) The hierarchy of courts and stare decisis
c) Ratio decidendi and how to isolate the ratio of a case
With case law examples, enumerate the circumstances when the Supreme Court
may overrule itself.
7.0 REFERENCES
p. 162 – 217
Lon L. Fuller, Anatomy of the Law, Greenwood Press Publishers, Westpoint, 1968,
p. 43 – 117
Michael Zander, The Lawmaking Process, Widenfield and Nicolson, London 1980,
102 – 131
Obilade, A.O., The Nigerian Legal System, (Sweet & Maxwell, London) p. 55 – 68
MODULE 4
UNIT 1 APPLICABILITY AND THE ROLE OF THESE SOURCES IN

CONTEMPORARY AND EARLY SOCIETY
CONTENTS
1.0 Introduction
2.0 Objectives
3.0 Main Body
3.1 The use of legal concepts in legal reasoning
3.2 Logic: deductive and inductive reasoning
3.3 Public policy, common sense, morality and ordinary sense of justice
4.0 Conclusion
5.0 Summary
1.0 INTRODUCTION
Lawyers/judges rely on the applicability of a combination of these sources in the

preparation of their cases or in the determination of legal issues arising before them.
They often take an entirely different approach from what a layman would have
expected to be their decision on certain factual situations. This is because they are
guided by law and legal principles which they must apply appropriately. This unit will
take us through how this can be effectively done.
2.0 OBJECTIVES
This unit is to help students understand how judges arrive at decisions. The unit also
discusses the interplay between the paths to the decisions of judges in their use of
deductive and inductive analogy, logic, basic principles of justice, public policy,
morals, common sense, etc. The hierarchy of the several tools at judges’ behest is
examined thoroughly.
3.0 MAIN BODY
3.1 The use of legal concepts in legal reasoning
In coming down to their decisions, judges and lawyers alike often rely on legal
concepts which have acquired some legalised meanings. This is one of the
peculiarities of legal reasoning. A layman is often bothered by the fact that
lawyers/judges do not decide cases by considering directly the merits of the possible
alternative solutions to them. They are further bewildered by the fact that
judges/lawyers are primarily preoccupied with categorising the cases coming before
them into some already pre-determined categories or ‘legal concepts’ and then
decide such cases according to the categories or concepts under which they fall.
Thus a judge would have to resort to whether someone has already assumed
‘possession’ to determine the question of ownership; whether ‘property’ has passed
on to another person; or whether a particular union is a ‘legal person’.
In as much as resort to these legal concepts may appear to portend grave danger,
the fact cannot be gainsaid that all developed legal systems make extensive use of
them and they cannot therefore be foregone.
You are expected to learn about these legal concepts and be conversant with the
various instances where judges and lawyers alike often resort to them for the proper
determination of cases before them.
Salmond observes that ‘sometimes this will all point to the same conclusion. At
others each will pull in a different direction; and here the judge can only weigh one
factor against another and decide between them. The rationality of the judicial
process in such cases consists in fact of explicitly and consciously weighing the pros
and cons in order to arrive at a conclusion’. Discuss.
3.2 Logic: deductive and inductive reasoning
Some writers have denied that there are cases in which judges can reach a decision
by the straightforward application of a rule. It is useful, therefore, to start by
reasserting that there are cases, especially many of the routine cases handled at the
lower levels of the judicial hierarchy, which can be decided by a purely deductive
application of known, clear and uncontroversial rules of law. A typical example of
deductive reasoning is as follows:
Men are mortal.
Socrates is a man.
Therefore Socrates is mortal.
The above is an example of a valid deduction. ‘Valid’ means that if the two premises
are true, then the conclusion must necessarily be true also.
A typical example of deductive reasoning in a legal context is provided below:

‘Any undischarged bankrupt shall... be guilty of an offence... if he obtains credit to
the extent of N100 or upwards from any person without first informing the person
that he is an undischarged bankrupt’. X, being an undischarged bankrupt, has
obtained credit to the extent of N100 from Y, without first informing him that he was
an undischarged bankrupt. Therefore, X is guilty of an offence.
The above is also a valid deduction; if the truth of the premises is accepted, it would
be self-contradictory to deny the truth of the conclusion. But, of course, logic itself
cannot guarantee the truth of the premises. If the major premise were not an
accurate expression of the law or the minor premises were a wrong description of
what in fact happened, then the conclusion would be wrong even though the
argument itself is valid.
On the other hand, while deductive reasoning proceeds from a general/major

premise to a minor/particular conclusion as we have shown above, an inductive
reasoning is just the opposite. An inductive reasoning proceeds from a particular
premise to a general conclusion. An example goes thus:
Yemisi is lazy;
Yemisi is a woman;
Therefore all women are lazy.
This also may be applied to legal propositions.
Logic and common sense lead to judges making law. Discuss.
3.3 Public policy, common sense, morality and ordinary sense of justice
While judges are expected to always align their decisions with laid down legal rules
andconcepts, they are equally guided by public policy, common sense, morality and
ordinary sense of justice. Public policy has been employed by the court to deny
some rights, even though Lord Denning has warned that judges should be careful
when resorting to public policy as a ground for denying a right because, according to
him, public policy may turn out to be an unruly horse if manned by a careless rider.
Thus, while the law allows the members of the populace to have audience to court
proceedings, public attendance at some proceedings is proscribed on the ground of
public policy.
Morality is another key factor that may condition judges’ decisions. Even though it is
clear that the law will not necessarily legislate morals, we have shown in unit 1 of
the 2nd Module that law may legislate morals at times. In the same manner, judges
are swayed by moral dictates when writing their judgment but they have the
herculean task of aligning or subsuming their desire for morals under available legal
concepts.
Common sense and ordinary sense of justice are also a veritable tool used by judges
when determining their decisions in every given case.
Thus, the first point of call for judges is to place reliance on legal concepts/rules,
after which they can rely on public policy, morality, ordinary sense of justice and/or
common sense in that order.
What are the several tools a judge may refer to in reaching a decision?
4.0 Conclusion
This unit has taught us the various determining factors that shape the decisions of
judges. It has opened our eyes to the fact that judges are primarily expected to base
their decisions on legal rules and concepts, and secondarily on other tools at their
behest such as public policy, morality, common sense and ordinary sense of justice.
5.0 SUMMARY
In this unit, the following have been explored:
a) The use of legal concepts in legal reasoning
b) Logic: inductive and deductive logic
c) Public policy, common sense, morality and ordinary sense of justice
6.0 REFERENCES
FunsoAdaramola, Basic Jurisprudence, 3 rd ed., Raymond Kunz Communications,
Lagos, pp. 254 – 288
Glanville Williams, Learning the Law, 11 th ed., Stevens and Sons, London, 1992, p.
112 – 138
Keith Evans, Advocacy at the Bar: A Beginner’s Guide, Blackstone Press Limited,
London, 1983 (Read generally).

UNIT 2 ANALYSIS OF FUNDAMENTAL LEGAL CONCEPTS I: RIGHTS,
DUTIES AND LIABILITY
CONTENTS
1.0 Introduction
2.0 Objectives
3.0 Main Body
3.1 The concept of rights
3.2 The concept of duties and liabilities
4.0 Conclusion
5.0 Summary
1.0 INTRODUCTION
This unit is meant to guide you through the various fundamental legal concepts with
particular focus on the concepts of rights, duties and liability. At the end of the unit,
you must be able to embark on your own on a critical legal analysis of these
fundamental concepts, and in addition, you must be capable of employing the
analysis in the legal field.
2.0 OBJECTIVES
This unit is meant to acquaint students with the concepts of rights, duties and
liabilities which are commonly used in legal lexicons thereby arming them with the
legal and philosophical basis for distinguishing them and helping them in general
practice.
3.0 MAIN BODY
3.1 The concept of rights;( Few concepts are as fundamental in law as that of rights.
However, on examination, it turns out that there is an amazing lack of consistency in
the way in which most people use the term ‘rights’: as soon as one scratches a little
below the surface it is quite likely that one will find that behind that technical-
sounding expression, there exist several half-baked and mutually incompatible
conceptions. Where one would expect to find a precisely defined and tightly
delimited concept, one meets only muddle.
In defining what a right is, you are expected to resort to various definitions coined
by jurists such as Vinogradoff, Salmond, Holmes, Gray, Hart, Dworkin, Raz, and
several others. You are to pay particular attention to the basic nitty-gritty of each
jurist’s definition of the concept. The whole essence of resorting to several
definitions is to open your eyes to the fact that the concept of right is not a straight-
jacket( one as it is largely controversial among jurists.
Of particular importance to you in the proper understanding of the concept of ‘right’

is Hohfeld’s analysis of rights, where he, through a diagrammatic representation,
explains the relationship between rights, duties and liberties. He points out where
there will be claim as well as where there will be no claim. The summary of his
analysis is his categorisation of rights into four main sections. He further
painstakingly explains the relations of power to immunity; the relations of liability to
disability; the relations between power and liability; as well as the relations between
immunity and disability. This is a very good point for you to start. An understanding
of Hohfeldian analysis of rights will therefore be of priceless use to you.
You are also required to go through the main theories of rights: benefit theory, will
or choice theory of right, expectation theory of rights, among several others.
The concept of right must also be applied to human rights and legal rights, and
here, you should consider the main theories of human rights such as the state of
nature theory, the social contract theories, the intuitionist theories, the duty-based
theory of human rights, etc.
Critically analyseHohfeldian’s conception of rights.
3.2 The concept of duties and liabilities
It is equally important to analyse with some care the idea of duty for several
reasons. A proper understanding of the concept is necessary in order to understand
the law. Lawregulates and guides human behaviour by binding people to act in
certain ways through thecreation of legal duties. Any misconception of what it is to
be under a duty is certain to result in a misunderstanding of how the law operates.
It is also essential to clarify one’s ideas about duties in order to understand what a
right is. Everybody can see that the concepts of duty and right are intimately
related. What many people fail to realize is that it is impossible to understand what a
right is without making reference to the idea of duty, but not vice versa. In other
words, the concept of duty is the more basic of the two and until it is clarified, it is
not possible to have a proper understanding of rights.
It is also of utmost importance that you know the various types of duty that exist:
moral, legal, social, religious, etc. The duty to keep one’s promise is moral; the duty
to drive on the right-hand side of the road is legal (note however that there is a
prima facie moral duty to comply with one’s legal duties); there is a social duty
among many Nigerian groups to offer food to a visitor who arrives at mealtime;
while Catholics have a religious duty to attend Mass on Sundays.
To understand the concept of duty the more, you must be conversant with the
various theories of duty such as the sanction theories of duty, the imperative
theories of duty, the theories of duty based on ‘feelings’, the acceptance theories of
duty and the rest. The analysis of duties in terms of reasons for action is also to be
embarked upon. You must also note that some authors conceive of duties as
encompassing obligations and liabilities.
Some authors have contended that duties encompass obligations and liabilities. Do
you agree with them? Discuss how.
4.0 CONCLUSION
The importance of basic legal concepts such as rights, duties and liabilities has been
explored and we have been able to grapple with the importance of their
understanding to everyday legal interactions and situations.
5.0 SUMMARY
In this unit we have learned the following legal concepts:
a) The concept of rights
b) The concepts of duties and liabilities
Highlight and discuss the nitty-gritty of the Hohfeldian analysis of rights and the
relations, if any, between duties and liabilities.
7.0 REFERENCES
A.W.B. Simpson ed., P.M.S. Hacker, Oxford Essays in Jurisprudence, 2 nd Ser.,
Clarendon Press, Oxford, p. 131 – 170
J.M. Elegido, Jurisprudence, Spectrum Law Publishing, Ibadan, 1994, 143 – 181;
L.B. Curzon, Jurisprudence, 2 nd ed., Cavendish Publishing Ltd., London, 1995, pp.
259 - 271
UNIT 3 ANALYSIS OF FUNDAMENTAL LEGAL CONCEPTS II:
OWNERSHIP, POSSESSION, PERSONALITY AND LIBERTY
CONTENTS
1.0 Introduction
2.0 Objectives
3.0 Main Body
3.1 The concepts of ownership and possession
3.2 The concept of personality
3.3 The concept of liberty
4.0 Conclusion
5.0 Summary
1.0 INTRODUCTION
This unit will consider the other legal concepts in jurisprudence. Specifically, we shall
be discussing the concepts of ownership and possession on the one hand and the
concepts of personality and liberty subsequently.
2.0 OBJECTIVES
The aim of this unit is to guide students through how to understand the concept of
ownership and its marked difference from that of possession which may or may not
flow from ownership. As a social policy, the concepts permeate commercial law and
go into areas as varied as criminal law in terms of the consequences of wrong
assumptions.
3.0 MAIN BODY
3.1 The concepts of ownership and possession;
The existing interplay between ownership and possession is very pivotal in various
fields of law such as contract and commercial laws. Until the conception of
ownership as a bundle of rights is mastered in a legal system, the regulation of
property in that system will be based on the intuitive concept of the immediate
physical control of a thing (i.e. possession). When this is the case the protection of
property will be limited. This can be seen clearly if the present legal position of the
holder of a right of occupancy in land in Nigeria is compared to that of a person
who was ‘seised’( of a piece of land in the 13th century in England.
Thus, while it is possible for the person in immediate control of a property to enjoy
both possession and ownership, there may be cases where only possession inures in
him while ownership is resident in another person.
To aid a better understanding of the concept of possession, a whole lot of theories

have been evolved. These theories should be studied. Some of these include
Savigny’s theory, Ihering’s theory, Salmond’s theory, Holmes’s theory, Pollock’s
theory, among others.
Ownership is well dissected by Dias in his book. This will be of profound assistance
to you in understanding the concept of ownership.
Discuss, if any, the relations existing between possession and ownership.
3.2 The concept of personality
The legal use of the word ‘person’ or ‘personality’ has attracted an assortment of
theories which is probably second to none in volume. This word has undergone
many shifts in meaning. Consult the various texts to ascertain and analyze these
meanings. It is used in respect to human beings, corporation sole, corporations
aggregate, public corporations, and unincorporated associations.
As earlier stated, there are several theories of legal personality. They include: the
‘purpose’ theory, the theory of the ‘enterprise entity’, the ‘symbolist’ or ‘bracket’
theory, Hohfeld’s theory, Kelsen’s theory, ‘fiction’ theory, ‘concession’ theory, and
‘realist’ and ‘organism’ theory.
Your attention here should be focused on how these theories impact on the legal
personality of the various entities considered/referred to above.
With regards to the various theories of personality, explain how personality is

conferred on various entities.
3.3 The concept of liberty
The basic task expected of you here is to grapple with distinction between the
concepts of liberty and claim. A claim implies a correlative duty, but a liberty does
not. This shows that liberty and claim are separate and separable. Also, the abuse of
liberty is never the path to freedom or justice. The achievement of justice in relation
to liberty, as with power, lies not in equal distribution, but in disallowing certain
liberties altogether and in controlling the exercise of those that are allowed. It is
thus essential that you are abreast of how to control liberty.
Apart from controlling liberty, there is equally a need to limit it in some deserving
instances. The liberty to exercise power should therefore be limited to within legally
available circumstances. Liberty must also be restrained. The whole of Chapter 5 of
Dias(on Jurisprudence will be helpful here.
How can liberty be controlled?(
4.0 Conclusion
We have so far examined the concepts of ownership and possession, with particular
emphasis on the relationship between the two concepts. We also have looked into
the concept of legal personality where we have been able to outline where the law
will confer legal personality on certain categories of entities. The concept of liberty
and the need to control, limit and restrain it have also been discussed.
5.0 SUMMARY
In this unit we have learned the following:
a) The concepts of ownership and possession
b) The concept of personality
c) The concept of liberty
6.0 REFERENCES
Dias, R.W.M., Jurisprudence, 4th ed. (Butterworth & Co. (Publishers) Ltd, Boston)
Chapter 5.
Funso Adaramola, Basic Jurisprudence, 3 rd ed., Raymond Kunz Communication,
Lagos, 2004, pp. 191 – 211
J.M. Elegido, Jurisprudence, Spectrum Law Publishing, Ibadan, 1994, 196 – 211;
227 – 240

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NATIONAL OPEN UNIVERSITY OF NIGERIA

COURSE CODE: LAW515

COURSE TITLE: JURISPRUDENCE AND LEGAL THEORY I

COURSE TITLE: Jurisprudence and Legal Theory 1

COURSE WRITER: Nduka C. Njoku

EDITORS : Professor J. A. Sokefun

DEAN: Professor J. A. Sokefun

COURSE LECTURERS: Professor J. A. Sokefun, Mr. Nduka Njoku, NOUN

14/16 Ahmadu Bello Way

No. 5 Dares Salaam Street

Off Aminu Kano Crescent

Wuse II, Abuja

TABLE OF CONTENTS Page

3.0 COURSE OBJECTIVES.....................................................................................1

4.0 WORKING THROUGH THE COURSE................................................................2

5.0 COURSE MATERIALS......................................................................................2

6.0 STUDY UNITS...............................................................................................2

8.0 ASSIGNMENT FILE.........................................................................................4

9.0 TUTOR MARKED ASSIGNMENT.......................................................................4

10.0 HOW TO GET THE MOST FROM THIS COURSE..............................................6

14/16 Ahmadu Bello Way

No. 5 Dares Salaam Street

Off Aminu Kano Crescent

Wuse II, Abuja

The ‘sources of law’ is also made a subject of inquiry as a means of deciphering

What you will learn in this Course.

Understand the relationship between ethics and the law;

4.0 WORKING THROUGH THIS COURSE

5.0 COURSE MATERIALS

The major materials to be used for the course are:

Assignment File; and

6.0 STUDY UNITS

Unit 1 The Purpose of the Study of law and Jurisprudence

Unit 2 Nature, definition and scope of Jurisprudence

Unit 3 Meaning and Functions of Law

Unit 1 The Relation of law to: Justice, Morality and Religion

Unit 2 Law and Social Change

Unit 1 Sources of Law I: Legislation

Unit 2 Sources of Law II: Custom

Unit 3 Sources of Law III: Judicial Precedents

Unit 1 Applicability and the Role of these Sources in Contemporary and

Unit 3 Analysis of Fundamental Legal Concepts II: Ownership, Possession,

A.W.B. Simpson ed., J. Raz, On the Functions of Law, Oxford Essays in

Jurisprudence, 2 nd ser., Clarendon Press, Oxford, p. 278-304

University Press, Oxford, 1996, 43 – 58

FunsoAdaramola, Basic Jurisprudence, 3 rd ed., Raymond Kunz Communication,

Lagos, 2004, 84-105

L.B. Curzon, Jurisprudence, 2 nd ed., Cavendish Publishing Limited, London, 1995,

L.B. Curzon, Jurisprudence, 2 nd ed., Cavendish Publishing Limited, London, 1995,

Lord Radcliff.,The Law and its Compass, 1961, pp. 92-93

Prof. Okunniga, Inaugural Lecture (1983) Series 62 at p. 207

8.0 ASSIGNMENT FILE

In solving the assignment, it is expected of you to apply the information, knowledge

9.0 TUTOR-MARKED ASSIGNMENTS (TMAS)

Final Examination and Grading

Course Marking Scheme

The following table presents a representation of actual course mark allocation.

Final Examination 70% of overall course marks

Total 100% of course marks