CONTENTS
1.0 Introduction
2.0 Objectives
3.0 Main Content
- Meaning of the term ‘Source’
- Classes of Sources of Law
- Formal Source
- Material Source
- Authoritative and Binding Source
- Other Source
- Theories of Sources of Law
- Consensus Theory
- Conflict Theory
- Other Theory
- Autochthonism
4.0 Conclusion
5.0 Summary
6.0 Tutor-Marked Assignment
7.0 References/Further Readings
INTRODUCTION
We are beginning to look into the Sources of Law. It is perhaps important to distinguish Sources of Laws from Sources of Law. When we look at law as series rather than as a
system, we may refer to Source of Law, which may include sources within and outside the law properly so called. In this lecture, we are concerned with a legal system and our focus is on legal Sources of Law. We shall look into some theories, some of which appear to ally with Social Contract Theory or Marxism as the case may be: Autochthonism will receive some attention so as to evaluate how home grown or alien our sources are and the essence, if any, of change.
OBJECTIVES
The objective of this lecture is that at the end, you should be able to understand the meaning of terms use, the classes, and the theories of sources as well as the autochthony of law.
MAIN CONTENT
The Meaning of the Term “Source(S)” According to Black Law Dictionary
The term “Source(s)” (also termed fons juris) may mean the origin and defined source of law as something (such as a constitution, treaty, statute, of custom) that provides authority for legislation and for judicial decisions; a point of origin for law or legal analysis authoritative statement from which the substance of the law is derived. It may also be described as: “something (such as a Constitution, Treaty, Statute, or Custom) that provides authority for legislation and for judicial decisions. A source of law is the point of origin for law or legal analysis.
You may have observed lawyers in Court, when they make statements and refer the Court to particular decided cases, the Law Reports where such cases can be found, to some Act or Statute and pointing to a particular chapter, part or section. We say that the Law Reports and the Statute or Act so cited are sources of his authoritative statements or law.
In literature of jurisprudence, the problem of “Source(s)” relates to the question: Where does the Judge obtain the rules by which to decide cases? In our present context: Where do we obtain the law we have been talking about – the law constituted in the Nigerian Legal System? In this sense of the sources of law, Fullers has listed the following: statutes, judicial precedents, custom, the opinion of experts, morality and equity. Fuller probably was concerned with “Sources of Laws” rather than Sources of Law – where the law generally draws not only its content but also its force.
In the context of legal research, the term “Sources” connotes
- the origin of legal concepts and ideas
- governmental institutions that formulate legal rules
- published manifestation of the law
Classes of Sources of Law
Sources of Law may be classified into formal or material, and the latter further subdivided into historical, legal, authoritative and binding, or other sources.
Formal Source
A formal source is what gives validity to the law.Upon what authority is the National Open University established?
Upon an Act of the National Assembly, Who gave the National Assembly authority to legislate?
The Constitution, Where does the Constitution derive its power?
The general will and power of the people of Nigeria. This is the Ultimate Source. Thus the formal source of law may be traced to the “common consciousness” of the people, or the “Divine Will”.
Material Source
Here we are not concerned with basis of validity as we did in our discussion of “formal source” of law. We are concerned here with the origin of the substance of the law – Where the law derives from or the authoritative source from which the substance of the law has been drawn. This may be
(i) Historical
This may comprise the writings of lawyers, e.g. the rules and principles of foreign law. The writings do not form part of the local law until they are formally received or enacted into law. Prior thereto, they serve as persuasive authority.
(ii) Legal
These are sources that are recognized as such by law itself. Examples are statutes, Judicial Precedent and Customary Law
Authoritative And Binding Source
This refers to the origin of the legal rules and principles, which are being enacted or formulated and regarded as authoritative and binding. Examples are legislations (Received law and Local statutes), judicial precedents (Common law and Equity; and local precedents) and Customs (Customary law).
Other Sources
These are non-formal sources or origin of legal rules that lack authority, but are persuasive merely. Professor Elias considered the “Source of Law” in terms of the main- spring of its authority and classified this into six categories; namely:
- Local Laws and custom
- English Common law, the doctrines of English Equity and Statutes of general applications in force in England on 1st January,
- Local legislation, and the interpretations based thereon
- Law Reports
- Textbooks and Monographs on Nigerian Law
- Judicial Precedents
There is no hard and fast rule on classification of Source. What is of essence is knowing or identifying the sources themselves and the theories that have been proffered
Theories of Sources of Law
Legal writers have proffered sources of law, which may neatly be discussed under three headings:
Consensus Theory
This theory conceives of a legal system as a product of consensus idea of society, functioning as an integrated structure, whose members agree on the norms, rules, and values, which they have mutually and voluntarily agreed should be uniformly respected. In Nigeria, sovereignty and supremacy reside on people, not their ruler and these people are represented by the members of the House of Assembly, House of Representatives and the Senate, who make laws on their behalf. In the traditional chiefly and chiefless societies, the monarch and chiefs declare what the law has always been from time immemorial, and where they are in doubt, they consult, The Book, the Quaran, or the Oracle.
Conflict Theory
The conflict theory is to the effect that the society is made up of series of conflicting and competing groups, and law and legal system is a dictate of the wealthy and powerful in the society to perpetuate their positions, and class interests.
Whether the lawmakers are wealthy or go into lawmaking in order to acquire wealth or get wealthier is arguable. However, there is freedom of expression at the floor of the
Houses and immunity from liability from what goes on there. Dictates of wealth or power, does not therefore appear real or apparent in passing of bills into law.
Other Theory (Middle Course)
There is a middle course between Consensus theory and conflict theory. This middle of the road approach argues that Legal system is the handiwork of those exercising political and legal powers of state, not necessarily to protect their own class interests, but expressing the definition of the privileged group, their values, notions and morals.
Autochthonism
Legal Theorists have raised further argument of how much of our laws and their sources are autochthonous. Autochthonism or autochthony pertains to the nativity of the law. That is to say, the extent to which the law is or is not indigenous or native to the land in which it operates. Are the sources of Nigerian law indigenous (autochthony) or foreign (alien)?
An autochthonous legislation, for example, may be one which does not trace its validity to any foreign legislature; rather it is home-grown and rooted in the country itself. Autochthony has two aspects:
(i) Formal Autochthony
This relates to the “Source(s)” from which the law or the Court, derives its authority as law
(ii) Substantive Autochthony
This refers to the contents of the legislation or law e.g. the frame of government which the Constitution has established.
SELF ASSESSMENT EXERCISE 1
Account for the autochthony of the Nigerian constitution Let us consider some examples from other jurisdictions. Dr. de Valera’s government of Eire, 1937 prepared a draft Constitution,
and presented to the Parliament for approval. Upon approval, he submitted the draft Constitution to the people in a plebiscite, which adopted it. Further example can be found in Papua New Guinea
SELF ASSESSMENT EXERCISE 2
Compare the enactment of the Constitution of Nigeria and of Eire: What difference do you observe.
CONCLUSION
Our focus, however, is ‘the sources’ of law in Nigeria. You learnt the meaning of the term ‘Source’, then its classification as well as the theories behind it and the extent to which the classes are home grown or alien.
SUMMARY
We have tried to examine the term: “the sources of law” rather than “sources of laws”. The theories relating to sources range from consensus to conflict and middle of the road approach. These have been discussed. It is an open question whether the sources of our Constitution and laws are autochthonous (home-grown) or alien.
Contemporary writers including Professor Nwabueze have contended that the importance of legal autochthony relates more to the contents of the law rather than the origin of the Constitution (or any law) or substantive autochthony.
The argument for legal autochthony tends to excite nationalistic sentiments and perhaps pride. Legal autochthony is not to be desired for its own sake. Rather it is to be seen as a means of effecting changes in the Constitution (or any law).
TUTOR-MARKED ASSIGNMENT
Give an account of the difficulties met with in attempting to formulate a satisfactory classification of laws.
REFERENCES/FURTHER READINGS ELIAS, T: Law in a Developing Society
ELIAS T.: Nigeria Legal System OBILADE: Nigeria Legal System
OLUSEGUN YEROKUN, Modern Law of Contract, 2nd ed., Nigerian Revenue Project Publishers (2004)
T.O DADA, General Principles of Law, 3rd ed., T.O. Dada & Co. (2006)
I.E. SAGAY, Nigerian Law of Contract, 2nd ed., Spectrum Law Publishing (2001)
EWAN MACINTYRE, Business Law, 1st ed., Pearson Education Limited (2008)