Academic journal article Nebula

Law and the State: A Philosophical Evaluation

Academic journal article Nebula

Law and the State: A Philosophical Evaluation

Article excerpt

Introduction

It is generally assumed that man is a socio-political animal, that man and society are mutually inextricable, and that no one can lead the life of the island (like the lonely Robinson Crusoe the ship-wrecked man trapped on an island). Such a world would simply be boring and meaningless. From the moment necessity endeared man to live beyond subsistence and evolve society, the questions have ever re-echoed: What is law? What is the role of law in the state? What are the rights and obligations of the citizens in the state? These rights and obligations vary from the intellectual, political, economic, judicial, to the freedom of expression, property ownership, equity and justice. However, the obligations and rights of the citizenry are actualized or negated according to the nature of law within a particular state.

The state is a personified abstraction. It often signifies the laws of the federation or a republic. It is in this sense that the state is said to have a geographical expression. A nation nonetheless refers to a people and the way they live (i.e. by their norms and customs). A nation state therefore, will include the people and the laws of the land by which the people organize their affairs. It is in this sense that we speak of a polity and the principle of democracy. As man and the state are inseparable, so are law and the state inseparable. Akin Ibidapo-Obe makes this point when he states that "law and society are inextricably linked because law is the foundation upon which social organization is built"(Ibidapo-Obe, 1992: 3). This implies that law intermingles with other social institutions and also with other academic disciplines within a polity. It is in this sense that Akin Ibidapo-Obe further states that:

   Law is the fountain head that nurtures, or is nurtured by other
   elements of social organization such as politics, economics,
   sociology, psychology and religion.... Kings and Princes, Chiefs
   and Priests, Bishops and Mullahs, Proletariat and Soldier and,
   indeed, any person or group of persons who hold(s) the reigns of
   power or governance over a group of people do(es) so on the basis
   of law. A lawfully authorized government rules by law in the same
   way as usurpers to power must resort to some form of law to gain
   legitimacy and control (p. 1).

G. Hay seems to be in agreement with the above assertion of Ibidapo-Obe when he states that the "command of the public force is entrusted to the judges in certain cases" (Hay, 1898-99: col. 195). A similar view is also espoused by Oliver. W. Holmes and J. C. Gray. Gray for instance, says that "every society or organized body of men must have a judge or judges to determine disputes.... The more civilized the society becomes, the more do the functions of a judge come to be exercised apart from other functions"(Gray, 1892-93: cols. 23-24). The foregoing assertion of Gray about law seems to suggest that law will best actualize its essence in a democratic society. It is against this line of thought that he further states that:

   The law or the laws of a society are the rules in accordance with
   which the courts of that society determines cases and which
   therefore, are rules by which members of that society are to govern
   themselves; and the circumstance which distinguishes these rules
   from other rules for conduct, and which makes them "the law", is
   the fact that the courts do act upon them. It is not that they are
   more likely to be obeyed than other rules(col.. 24).

Reiterating the above submission of Gray, Hay goes ahead to state that "de facto, the orders come from the courts, from the judicial, not from the executive departments" (col. 195). By implication, the judiciary is the overseer and regulator of law in a democratic society and for this reason it (the judiciary) must ensure that the law of the land is just in the eyes of the public. Once the public perceive that governance operates on the rule of law, the government of the land becomes easily acceptable. …

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