RELEVANCE OF NATURAL LAW

TO NIGERIAN LEGAL SYSTEM

BY
PATRICIA SUKORE

1
 DEDICATION
This book is dedicated to God Almighty, who is my greatest inspiration. My parents: late Mr. Joseph E.
Akhakon and late Mrs. Sarah Akhakon.

2
 TABLE OF CASES

DONOGHUE V. STEPHENSON (1932) A.C. 562-

EDET V. ESSIEN (1932) 11N.L.R. 47-
ESHUGBAYI ELEKO V. OFFICER ADMINISTERING THE GOVERNMENT OF NIGERIA (1931) A.C.
662 AT p 673-
FAWEHINMI V. ABACHA (1996) 9N.W.L.R. (pt.4750) 710 C.A at p. 755-
LAOYE V. OYETUNDE (1944) A.C. 170
ONIAH V. ONYIAH (1989)-
RANSOME KUTI V. ATTORNEY GENERAL OF FEDERATION (19850 2 N.W.L.R. (pt. 6) 211 at p. 230
RYLAND V. FLETCHER (1866) L.R. 1 Exch. 265, affirmed (1868) L.R. 3 H.L. 330

NIGERIAN STATUTES REFERRED TO:

LAND USE ACT 1978
NIGERIAN CONSTITUTION 1999
3
NIGERIAN CONSTITUTION 1979
AFRICAN CHARTER ON HUMAN AND PEOPLE’S RIGHTS
(RATIFICATION AND ENFORCEMENT ACT) CAP. 10 LAWS OF FEDERATION OF NIGERIA 1990

FOREIGN STATUTES REFERRED TO:

UNITED NATIONS DECLARATION OF HUMAN RIGHTS (1948)
AFRICAN CHARTER ON HUMAN AND PEOPLE’S RIGHTS (1981)
AMERICAN DECLARATION OF RIGHTS (1776)
THE FIFTH AMENDMENT OF THE AMERICAN CONSTITUTION-

TABLE OF CONTENTS PAGES

Title page--------------------------------------------------------------------------I
Dedication-------------------------------------------------------------------------II
Table of Cases--------------------------------------------------------------------III
Table of Statutes------------------------------------------------------------------IV
Table of Contents-----------------------------------------------------------------V

4
Abstract----------------------------------------------------------------------------VIII

CHAPTER ONE-------------------------------------------------------------------1-5
1.0 Introduction
1.1 Definition of terms
1.2 Statement of problem
1.3 Purpose of study, Aims and Objectives
1.4 Significance of study
1.5 Scope of Study
1.6 Methodology
1.7 Literature Review

CHAPTER TWO-------------------------------------------------------------------6-12
2.0 Classical Natural law
2.1 Greek philosophers

2.2 Stoic Philosophers

2.3 Roman Philosophers

2.4 Christian Philosophers (Natural Law in the Middle Ages)

CHAPTER THREE----------------------------------------------------------------13-22
3.0 Modern progress of Natural Law
3.1 Modern Natural law Philosophers
3.2 Ideal Natural Law Philosophers
3.3 Criticisms against Natural Law School
3.4 Revival of Natural Law

CHAPTER FOUR-----------------------------------------------------------------23-34
4.0 Natural Law in our Legal system
4.1 International Law (African Charter on Human and People’s Rights)

4.2 Natural Law in the Received English Law and Customary Law

4.3 Nigerian Constitution and Natural Law

5
4.4 Natural Law and the Law of Torts

4.5 Criminal Law and Natural Law

4.6 Law of Contract and Natural Law

4.7 Land law and Natural Law

4.8 Sharia Law and Natural Law

4.9 The Decree and Natural Law

CHAPTER FIVE------------------------------------------------------------------------------35-38

5.0 Criticisms and possible suggestions

5.1 Summary

5.2 Conclusion

BIBLIOGRAPHY------------------------------------------------------------------------------ 39

6
 ABSTRACT
In recent times, various rules and Laws have evolved in different areas of our legal system
whose origin could be traced to the principles of the Natural Law School. In spite of the
relevance of Natural Law for the development of a theory of Justice and for the criticism of
unjust political structures, we would be amazed at how some barbaric rules still fall back on
the Doctrine of Natural Law as the basis for its provisions.

Chapter two of this study will deal mainly with the Classical Natural Law Philosophers and
their various postulations on what Natural Law ought to be.

A reflection will be made in chapter three, on the ways the Ideal Natural Law Jurists and the
modern Natural Law philosophers see law. Also in this chapter, the criticism of the Natural
Law School will be met, the Natural Law School, as will be espoused, was largely criticized
by the Positivist School.

7
This essay will not be complete without relating the Doctrine of Natural Law to our system.
Recourse will be made to the African Charter on Human and People’s Rights. Effort will be
made to locate and appreciate the term ‘Natural Law’ in our legal system, which comprise
various areas in our substantive and procedural - such as Criminal Law, Law of Torts,
Customary Law and so on. The important roles played by Natural Law in these areas, will be
discussed by pointing out the particular area that is traceable to the postulations of Natural
Law theorists. All these, we’ll see in chapter four.

In the final analysis, more criticisms will be encountered on the wrong application of the
Natural Law doctrine in some areas of our legal system and possible suggestions will be
made in that respect.

8
CHAPTER 1
INTRODUCTION
Natural Law is a concept of great historical antecedent; its main purpose is based on the
search for what is absolute in law. A distinguishing feature of the theory of Natural Law, on a
very close scrutiny, is found to be mere expressions of morality and justice. Most Natural
Law adjudicators are unbending in defending the thesis that some actions are objectively
right and others are objectively wrong. Many, for instance, are of the opinion that it is
objectively right to keep promises or to be kind to neighbors and that it is objectively wrong
to indulge I gratuitous cruelty. The purpose of using the expression ‘objectively right’ and
‘objectively wrong’ is to stress that it is not merely a question of what a person happens to
like or dislike, or, of what is the common attitude in his society, most Natural Law
adjudicators have been aware that there may be human beings, who see nothing wrong with
performing human sacrifices. But a Natural Law adjudicator will insist that, if this be the
case, these group of humans are wrong and ignorant, just as wrong as if they thought that the
sun rotates around the earth, or that two plus two equals five.1

1. DEFINITION TERM:
Natural Law school is one of the schools of Jurisprudence with seeks to define
laws as it ought to be. Black’s laws dictionary,4 define Natural law thus.
‘’The expression “Natural Law’’ or jus naturale , was largely used in the
philosophical speculations of Roman jurist of the Antonine
Age and was intended to denote a system of rules and principles

for the guidance of human conduct which, independently of enacted law or of the
system peculiar to any one people, might be discovered by the rational intelligence
of man and would be found to grow out of and conform to his nature, meaning by

9
that word, his whole mental, moral and physical constitution… and have be
promulgated by God solely through human reason’’.

ALEXANDER, a Natural Law jurist says that Natural Law is unerring law ‘’this is to
say that Natural Law is faultless, it is right reasoning. It has been called different
names by various people, names like, moral law, universal law, External law,
divine law, law of reason etc. THOMAS HOBBES on his part was of the opinion that
the state of nature has a law of nature that governs it, so if man transgresses this
law of nature, the man would be living contrary to nature, reason and common
equity.
2. STATEMENT OF PROBLEM
The bone of contention in this study is the location of the principles of Natural
Law in our legal system thereby exposing the ignorance of relating all laws
whether good or bad to the principles of Natural Law
3. PURPOSE OF STUDY
May aim and objective in this preparing is this paper is the insistence on the need
to, without any reservation imbibe the true nature of Natural law which according
to the jurist
DEV VECCHIO- is in:
``…harming nobody…’’

4. SIGNIFICANCE OF STUDY
This long essay will be of great assistance in creating awareness for the legislative
body or any law making body in the country and the court of law, on what the
principles of Natural Law entails (what it is and what it is not). It will also be of
help to students of jurisprudence to quickly without recourse to other textbooks,
find out what area of our Laws are relevant to Natural law doctrines.

10
This study in relating Natural Law to our system, will go further in identifying
natural law with some criteria which may be morality, fairness, ethics and the
likes, these principle are valid for all times and places.
5. METHODOLOGY
The method which will be employed in this research work will be use of
secondary data; this includes the use of textbooks, case law, constitutions and the
likes for a concise understanding and appreciation of this study.
6. LITERATURE REVIEW
This study will make reference to constitutions and various authorities will be
cited in the course of this research work like: LLODD, an introduction to
jurisprudence, DIAS, ELEGIDO and so on.

As this research work progresses, when the various area of our law which are in
alliance with the principle of Natural Law are being discussed, books like Park on
source of Nigerian Law, Okonkwo and Nash on criminal law and so on, will be
used in order to make this long essay a success.

11
 NOTES TO CHAPTER 1
1. J.M. ELEGIDO, JURISPRUDENCE P. 20
2. ADARAMOLA, “Basic jurisprudence’’ Ist ed P.11
3. DIAS on jurisprudence 5th ed. P. 470
4. 5TH ed.

12
CHARPTER 2

2.0 CLASSICAL NATURAL LAW

The classical Natural Law school consists of the Greek which includes the Stoics,
the Romans of which also consist of the Christian philosophers. This chapter will
talk on the contributions of the classical jurist to law; the Classical Natural Law
will be dealt with here under by mentioning the philosophers that made the
greatest contributions in the definition of law as it ought to be.

2.1 THE GREEK PHILOSOPHERS

It is decline of the City States and the raise of large empires and kingdoms in the
Greek World, associated with the conquests of ALEXADER that Natural Law as a
universal system comes to the fore. The Stoic philosophers were particularly
responsible.

ARISTOTLE (384-322BC)

The doctrine of Aristotle has had a unique influence in the history of thought.
Aristotle bases much of his answer to the question of what the best kind of life is
for man to live. He teaches that the best kind of life will be that in which man
succeeds in attaining what constitutes man’s ultimate end or supreme good. Man’s
highest power according to Aristotle, is his intelligence and the highest object to
which man’s intelligence is to be applied is God. Accordingly, the proper good for
man, his eudemonia, a Greek word which can be translated as happiness or,
better, well living or flourishing , would lie in performing constantly the highest
act of his highest power, that is to say in devoting his life to the philosophical
contemplation of God.

Aristotle insisted that there is a “natural justice” which everywhere has the same
force and does not depend on our accepting it or not’’ He thought for instance that
adultery, theft and murder are wrong always and everywhere, he therefore went
on to say that man, apart from being part of nature, and matter, has the ability to
reason, which makes man different and superior in the general order of

13
 things in this universe. To him, man is a reasonable being; therefore man’s
reasoning should be able to inform him that must identify himself with the ideal
of Natural Law in order to be able to realize his objectives in life.

To PLATO (428-328 BC) there was a strong connection between law and justice
which means that Natural Law is tied up to the ideas of justice, justice to him was
the highest good. He was of the opinion that an appreciation and understanding of
the highest good is not within the reach of every man even though all are
endowed with reasoning faculty. He stated that in the Polis or State we have the
following categories of men.

1. Those with the highest intellectual ability

2. Those with less intellect.

He held that those in life in the first category should be the ruler of the people
with less intellect. In other words Plato was making a case for philosophers-
kings, that is the ruler of the people or the president of a nation should an
intellectual, a philosopher.

Aristotle responded to this idea by arguing that it is a mistake to make

government by wise ruler and government by laws, mutually exclusive
alternatives. He thought even the wisest ruler need to be guided and controlled by
laws in order to govern well because the law has an impersonal quality or
objective which no man, however good can attain without the help of laws any
rulers will be liable to be swayed in his judgment by his own self-interest,
emotion, personal ambition, etc. He also pointed out that if the ruler is subject to
the law there will be certain equality between ruler and subject, but if the ruler
has uncontrolled power then he will have to exercise a personal despotic rule
which is not compatible with the dignity of the subjects. He concluded that ideal
government would be that in which there is the rule of law rather than that of
individual’’.

Another idea of Aristotle which has great influence in jurisprudence is that of

equity. He argued that as law is made up of general rules it is necessarily
imperfect, for it is impossible to foresee and provide in advance for all the

14
 different combinations of circumstance which may arise. Therefore in order
to do justice in the exceptional cases which had not been taken into
consideration when the general rules were framed it will be necessary that
somebody (e.g. the judges) be given a power to depart from the general
rules when these exceptional case arises. This, he called the power to do
equity. 1
2.2 THE STIOCS (UNDER THE GREEKS)
The concept of Natural Law as postulated by Aristotle forms the basis of the
Stoics. According to the stoics, reason governs the universe. They believe
that the universe is governed by a rational mind.

The Stoics came about the 4th century; it was led by ZENO, to them, man
lives naturally if he lives according to his reasoning. The basic teachings of
the Stoics are as follows:

1. Man has the capacity to reason

2. The true polis is one comprising reasonable men all over the world.
3. According to them, man can discover Natural Law by reason which is
eternal to man, and that, Natural Law it is to say Natural Law is not the
product of human reasoning and that it is universal and immutable.

They stressed the ideas of individual worth, moral duty and universal
brotherhood, and though in the early days theirs was a philosophy of
withdrawal enjoining conformity to the universal law upon the select few of
wise men alone, in its later development, especially under PANAETITUS OF
RHODES, in the 2nd century B.C. stress was placed on its universal aspects as
laying down a law not only for the wise but for all men.2

1. ROMAN PHILOSOPHERS.
Stoicism passed over to and influenced Roman thought. The Romans did not
develop the concept of National Law beyond the bound charted by the Greeks;
their leading the philosophers merely adopted the Greek theory of Natural Law
and added nothing intrinsically Roman to it.

15
CICERO De Re Publica (106-43 B3) a Roman orator, wrote on what he called the
‘’True Law,’’ to him, the true law must confirm to right reason which must be in
agreement with nature, this law had been made for man and is among men: on
his agreement with true law, he said that:

This true law is not one at Roman and another at Athens, it is not one law
today and another after, it is unchangeable, immutable, and everlasting and it
binds every man without exception. The true law is therefore the highest reason
that has laid down rules that man should follow, what he should do or not do’’

Cicero further explains the concept of Natural Law.

True law is right reasoning in an agreement with nature, it is of universal

application, unchanging and everlasting. It summons to duty by its commands
and averts from wrongdoing by its prohibition. And it does not lay its commands
or prohibition upon good men in vain; though neither have effect on the wicked.
It is sin to try to alter this law, nor is it allowable to attempt to repeal any part of
it and it is impossible to abolish in entirely… and there will be one master and
ruler, that is, God, over us all, for He is the author of this law, its promulgator,
and its enforcing judge . Whoever is disobedient… will suffer the worst penalties,
even if he escapes what is commonly considered punishment’’

The doctrine of Cicero come to be regarded as the Jus Naturea of the Romans,
he was the first Natural Law philosophers to assert the revolutionary principle
that any positive law that contradict the Natural Law should be destroyed.

16
2.4 CHRISTIAN PHILOLOPHERS (UNDER THE ROMANS )

There was first a need for stability in a world emerging from the dark ages. Secondly,
the struggle between church and state beginning and there was need for the church
to establish its superiority by rational argument rather than by force, since secular
authority had the monopoly of force. Thirdly, it was necessary for Christendom to
unite in the force spreading heathen menace and a need was felt for unifying
Christian philosophy, the available philosophic materials consisted largely of the
natural law philosophies of Greece and Rome.3

It should be noted that the doctrine of Natural Law as taught by Cicero finally became
the basis of the legal philosophy of the church especially the Catholic writer THOMAS
AQUINAS (1224-1274 AD) an Italian monk. The Christian doctrine of natural law is
entirely based upon his work. Aquinas fourfold Classification is into:

1. Divine Law (Lex Divina): This he distinguished from natural law as been revealed
rather than discovered by reason, for instance, the code of law given by god to the
Hebrews, or the rules given through scriptures.
2. Eternal Law (Lex aeterna): According to Aquinas, Eternal law was said to be Divine
reason which governs the entire community of the universe. Thus the rational
guidance of created things on the part of God, as the prince of the universe, which
has the quality of Law.
3. Natural Law (Lex Naturalis): Since all things which are subject to Divine Providence are
measured and regulated by eternal law – it is clear that all things participate to some
degree in eternal law, in so far as they derived from it certain inclinations to those
actions and aims which are proper to them. But, of all others, rational creatures are
subject to Divine providnce in a very special way: being themselves made
participators in providence itself, in that they control their own actions and the
actions of others. So they have certain share in the divine reason itself; this
participation in the Eternal law by rational creatures is called Natural Law.4

17
4. Human Law (Lex human or Positive law): This is man-made law which must however
be made to conform to reason and thus to the Natural Law. They are the particular
dispositions arrived at by an effort of human reason provided that the other
conditions that are necessary to law are observed5.
Human law according to Aquinas is inferior to Natural Law; it is no longer legal but rather
a corruption of law”

It may be important at this however to note in relation to the Greek and Roman that
Natural Law conflicted with some Greek positive laws on certain matters, for example,
whereas natural law condemned slavery, Greek law condoned it. But because Greek
philosophers were anxious to ensure stability of their society after a long period of
wars - The Peloponesan wars, civil unrest, they did not draw the logical conclusion that
positive law which do not conform to the standards laid down by Natural law should be
Violently overthrown. Rather, they argued that such Laws ought to be tolerated until
they could be peacefully reformed or repealed.
Aquinas like the Greek philosophers, was however desirous to discourage scandal and
social disorder, though he later taught that positive Law, even the wicked ones should
nevertheless, be obeyed. Although he connected Natural law closely with God, he
emphasized its identification with human reason. Aquinas also asserted that the whole
hierarchy of law, including positive (state) law was an inspiration from God.

18
NOTES TO CHAPTER TWO

1. Elegido op. cit., pp 31-33

2. Lloyd, “ An introduction to jurisprudence”
3. DIAS, “OP. Cit. p. 471
4. Lloyd, op. cit, 4th ed.
5. Adaramola, op. cit, p. 15

19
CHAPTER THREE
3.0 MODERN PROGRESS OF NATURAL LAW (16TH -18TH CENTURY AD)
Consequent upon the schism of the Roman Catholic Church, Protestantism
emerged in Europe and culminated in religious wars between Roman Catholics
and Protestants all over European continent. Partly as a result of these religious
wars and partly for other critical factors, secularism grew and people started it
outright, turning their attention to pagan philosophies.
At this period government rose, kings contrived alliances with the middle classes
and moved to crush the nobles and eventually established centralized personal
regimes, e.g. in Spain, England and France. The spirit of nationalism got a boost as
the different European princes rivaled and competed among themselves on land
and sea..1
3.1 MODERN NATURAL LAW PHILOSOPHERES (RATIONALIST, NATURAL RIGHTS
SCHOOL)
These came into prominence with the rise of individualism. Each person was thought
of enjoying an area of sanctity, Natural Rights’ are Abstract versions of claims,
Liberties and immunities and at this level of generalization, are akin to principles,
standards and doctrines, it is in this sense that they have been embodied in sundry
bills of Rights, Charters of fundamental freedoms and constitutions; they are called
‘Natural’ perhaps because they are thought to be essential to social existence. Rules
of law crystalized out them2. An example is evidenced in the American Declaration of
Rights (1776) and became fully manifest with the outbreak of the French Revolution
(1789). Both of them were mainly inspired by natural law ideas of liberty, equality and
fraternity. All events of this period are fully reflected in the works of Hugo Grotius.

20
HUGO GROTIUS (1583)- 1645 AD)

He was Dutch and supporter of absolute autocracy, generally regarded as the father
of international law; he was the most eminent of the rationalist school of Natural law.
He contended that natural law is purely Natural rights and that natural law can be
proved with arithmetic precision. Grotius gave the most vital principles of
international law as “pacta sunt sarvanda “i.e. that promise solemnly made in treaties
must be respected and fulfilled. Other rules and principle of Natural law formulated
by him which today constitutes the nucleus of the fundamental principles
international law, i.e. respect for other people’s property and the restitution of gain
made from such property, the reparation of damages caused by one’s fault and the
recognition of certain acts and omission meriting punishment. Natural law principle,
he said, developed in human intellect and is immutable.

Grotius could be said to have contributed immensely to the development

Of Natural law in the following areas:

SECULARISM

Although, Grotius personally believed in God yet he tried to make his theory of
natural law acceptable to all and sundry including unbelievers, therefore, if natural
law being an attribute of man, exists independently of God, it is binding on all
believers and unbelievers alike.

ABSOLUTISM:
Grotius employed the social contact theory to support the power of a ruler; Man joins
society for the purpose of self-preservation and the security of his person and
property, and surrendered his rights to the ruler in exchange for these facilities.
Though the ruler is subject to natural l law, if he disobeys the rule badly, revolt
against him is forbidden except in rare circumstances.

21
INTERNATIONALISM
Grotius applied the principles of Natural law and the theory of social contract to the
community of nations. His postulate is that the ruler and state were bound to enter a
wider society which would be governed by international law - a portion of Natural
law.3

THOMAS HOBBES (1588-1679 AD)

Hobbes an Englishman and a royalist sympathizer, philosopher and political
theoretician was exiled in Paris, France, from 1640 -1651 during the English civil war;
he was a proponent of absolutist autocracy like Grotius, and approach Natural law
from a purely secular angle in 1651, he published his great book entitled
“Leviathan “ while still in France. In it, he contended that when man lived in a state of
nature he lived in misery, anarchy and grave insecurity, and was continually at war
with his fellowmen. In this condition education and invention were unattainable, and
social life, commerce and industry were impossible. Men lived in perpetual fear,
misery and interminable strife ending in violent deaths; it was chaos and ruins all
around. Hobbes described life in such a state as “solitary, poor, nasty, brutish and
short”. So as to secure order and personal security, man had to escape from this
frightening situation by entering into society his preference for absolutism was
probably predicated upon his harrowing experiences of the English Civil war.4
He went further to explain what man later did in this state of nature in which chaos
was dominant

“But it dawned on man through the exercise of his reason (i.e. natural law) that peace
was desirable, and that the sensible thing for him to do was to enter into society
thereby limiting his own liberty of action, provided that other men did the same. This
is the “Social Contract”.

22
The contract according to Hobbes contained the following covenant made by men
with each other and one another:

“I authorize and give up my right of government myself to the ruler on condition that
thou give up thy right to him and authorize all his action in like manner”

However by propounding his theory of the natural rights of people to self-

preservation, Hobbes charted a new course and laid a foundation which has
incidentally led to the idea of fundamental human rights of which self- preservation is
a primary right. Earlier (i.e., in the renaissance and Reformation periods) natural law
lawyers had project natural law as a bundle of duties placed upon human beings in a
normative pattern to which he must conform, but Hobbes tunes human awareness
to the concept of natural rights, saying that individual could claim such rights against
society.5

JOHN LOCKE (1632-1704 AD)

Unlike Hobbes, Locke was an anti-absolutist who employed natural law to oppose
absolute government; Hobbes approach to natural law was secular but Locke based
his natural law theory firmly on creative Deity.

Contending that the power of government must of necessity be limited, he used the
social contract theory to assert the natural rights of the citizens against his
government. In other words, government holds power in trust for the general and
equal benefit of the citizens. Hobbes went further by saying that the protection
offered by the Natural Law in a state of nature, to personal possessions was quite
ineffective as there was an absence of dependable legal system and of an impartial
judiciary. Nor was there sufficient power in any person to enforce the law. Men
therefore came into organized society, i.e. the state, through the social contract
(Pactum Unionis) and chose their own ruler (who should enforce the law) through
majority decision. In this way, people limited their own freedom voluntarily, although
previously in the natural state. All they did was to surrender to the society the power

23
 to preserve order and enforce the Natural Law, especially for the protection of life,
liberty and property.

Thus, so long as government fulfills this purpose, its law must be obeyed, but when it
ceases to protect these rights or start to encroach on them, its law loses their validity
and the government could be overthrown. Locke in relaying his view that unlimited
sovereignty was contrary to Natural Law, said, the following limitations must be
imposed on it:
1. That the sovereign must not exercise arbitrary power over the lives and fortunes of
the people. The Maxim “Nemo dat quod non habit” therefore applies.
2. The sovereign must not rule arbitrarily but musts rule through proper legislations and
judicial system.
3. The sovereign can only deprive the citizens of his property with his consent, and there
should be no compulsory acquisition without the payment of compensation.
4. The sovereign must not delegate his power of legislation to anyone else, the maxim,
“delegatus non protest delegare” applies.

Locke also divided government power into three:

The legislative: which is to promulgate laws for the protection of natural rights?

The executive: This has the duty of enforcing the laws.

The “Federative” power, i.e. the to declare war and make peace, and control the foreign
affairs of the state.

Like Grotius and others, Locke was convinced that the Natural law is easily discernible
through human reason, he said:

“ I doubt not, but from self-evident proposition, by necessary consequences, as

uncontestable as those in mathematics, the measure of right and wrong might be made out
to any one that will apply himself with the same indifference and attention to the one as he
does the other of these sciences”

24
Thus, the law of nature stands as an eternal law to all men.

Locke’s doctrine of natural rights concerning the protection of life, liberty and property also
became embodied in the American declaration of independence and in the Fifth
Amendment to the American constitutions.6

LON FULLER AND THE MORALITY OF LAW

To Fuller the connection between law and morality is a necessary one. But, unlike earlier
naturalists, he does not argue that the rules of a legal system must conform to any
substantive requirements of morality, or to any other external standard; rather, he
postulates the need for rules of law to comply with “Internal Morality. This inner morality
takes the form of certain principles that must be observed during the process of making and
promulgation of law, so Fuller lists eight typical ideals or formal virtues to which a legal
system should strive, and these according to him are:

“General; promulgation absence of retroactive legislation an d certainly no abuse of

retrospective legislation, no contradictory rules congruence between rules as announced and
their actual administration, clarity avoidance of frequent change absence of laws requiring
the impossible|”

3.2 IDEAL NATURAL LAW PHILOSOPHERS

Another development was “Natural law with a variable content” of which STAMMLER
(1856-1938) was an exponent. He distinguished between technical legal science which
concerns a given legal system and theoretical legal science which concerns rules giving
effect to fundamental principles, the former deals with the content of the law; the later
relates them to ultimate principles. To Stammler, Natural law is nothing more than “ideal
law” for a particular place and time. He was of the opinion that since there are variations in
the affairs of men from state to state and age to age, man is bound to have various ideals
from one age to another.

25
Stammler’s theory was a departure of the classical school concept of Natural law, to him
there nothing like unchangeable and immutable Natural law, his was of a variable content.
JOSEPH KOHLER shares similar view with Stammler, he said that reason will help find the
ideal Natural law for one’s nation. He saw law as a social fact connected and inseparable
from the culture of the society. According to Stammler, in order to achieve justice, a
legislator has to bear in mind four principles. These are, firstly, two “Principles of Respect”:

1. The content of a person’s volition must not depend upon the arbitrary will of another.
2. Every legal demand can only be maintained in such a way that a person obligated may
remain a fellow creature.
Secondly, there are two “Principles of Participation”:
1. A person lawfully obligated must not be arbitrarily excluded from the community.
2. Every lawful power of division may exclude the person affected by it from the
community only to the extent that the person may remain a fellow creature.
Conclusively, therefore, Natural rights are abstract versions of claims, liberties and
immunities and at this level of generalization are akin to principles, standards and
doctrines, it is in this sense that they have been embodied in sundry bills of Right,
charters of fundamental freedom and constitution; they are called natural
perhaps because they are thought to be essential to social existence7.

3.3 CRITICISM AGAINST THE NATURAL LAW SCHOOL

The reason why natural law suffered a serious reverse during the 19th century
could be put two categories:
1. Hostility against the social contract, and
2. Hostility against natural law generally

DAVID HUME (1711-1776), was first to deal a telling blow on natural law theories during the
18th century. He was “the supreme rationalist” who debunked the existence of natural law
the social contract, contending that they were contrary to empirical truths. He argued that
the validity of normative rules cannot logically be treated as an objective fact, but must
depend on the relative view point of those who apply them, whereas, on the other hand,
positive law, i.e. state law, is something that is valid and ascertainable without recourse to
subjective consideration. Hume pointed out that the “the moral sense is guided by pleasure
and pain” to him Natural law is a matter of belief and not of knowledge.

26
Though, it was David Hume who noted that Utility should be substituted for Natural law, it
was JEREMY BENTHAM (1748-1832) who eventually expounded this notion and treated in
detail the significance and functioning of the Utility as a plausible substitute for natural law.
Bentham argued that natural law is a fiction and not a reality, saying that it is nothing g, but
an empty phrase.

The hostility against natural law grew as scientific research progressed, empiricism then
became popular and people embraced knowledge and disapproved shear belief At the same
time people became aware of the relativity of morality and moral standards as they found
that the notions of what was good or bad varied with different times and different societies;
for example religious wars and religious intolerance were held to be right in the Middle
Ages and the sixteenth and seventeenth centuries in Europe, but since then, religious
toleration has been accepted as right .

The then emerging new theories of man’s evolution gave the impression that man and
society are continually improving, that is moving from a low state to a higher one.

All these influences made the 19th century Europeans and Americans impatient with
Natural Law teachings which always suggest that an ideal pattern or condition was once
followed but had been lost or abandoned by man and has to be regained although no one
seems to know precisely what was lost, or how and when it was lost.

3.4 REVIVAL OF NATURAL LAW

The doctrine of the critics of Natural Law jurists shook the foundation of Natural Law theory,
the walls of Natural Law crumbled and crashed. However, the doctrines of Natural Law rose
gradually from its ruins due to the following reasons:

27
1. The so-called scientific investigation had its own loopholes; it was found to be replete
with fundamental historical vacuums and geological gaps that is not susceptible to
proof i.e. Darwin’s theory of evolution.
2. The inability of positivism to give adequate answer to the injustice perpetuated by
autocratic regime gave birth to a re-think of the positivist position.
3. It was used as an anti-Nazi weapon in the post-second world war era. Ideals of
Natural rights and of the nullity of immoral laws were successfully used in trying and
bringing the war criminals to book. The rights were subsequently incorporated in the
United Nations Declaration of Human Rights in 1948 and have since been codified as
positive human rights in various international covenants and entrenched in several
national constitutions.
4. In the struggle for supremacy between communism and capitalism, both camps
sought support in absolute rights, social justice etc., for their respective social –
economic ideologies. Kelsey indeed suggested that the west deliberately revived the
natural right to property specifically to combat communism .9

28
NOTES TO CHAPTER THREE

1. ADARAMOLA, op,cit,p.16
2. DIAS, op,cit,p.501
3. ADARAMOLA, op.cit,p.17-18
4. ADARAMOLA, op.cit.pp. 18– 19
5. ADARAMOLA, op.cit.p.19
6. ADARAMOLA, op.cit.pp. 19– 21
7. Lloyd, op.cit
8. ADARAMOLA, op.cit.pp. 24– 26
9. ADARAMOLA, op.cit, ibid.

29
 CHAPTER FOUR

NATURAL LAW IN OUR LEGAL SYSTEM

As LORD LLOYD1 points out, Natural Law calls our attention to the near universal
principle which must of necessity underlie the quantities of human laws and human
institutions, both from their historical and circumstantial perspective.

It lead us to discover the need to study law in the light of some other disciplines and to
realize and appreciate how moral objectives can relate and play a crucial role in its
formulation and interpretation and the adjudication of disputes. Moreover, Natural Law
leads us to think out why we have or need law in society.

This chapter will deal mainly with the relevance and application of Natural Law to our
legal system.

1. INTERNATIONAL LAW
An emphasis on individual liberty and freedom has been Western political and
philosophy since the 17th century, associated particularly with the doctrine of natural
rights. In the 20th century the doctrine has resulted in widespread acceptance of the
existence of fundamental rights built into the constitutional frame work as a bill of
rights, as well as receiving recognition internationally by means of Covenants of
Human Rights agreed upon between to states.

The content of such rights are derived from the constitutional traditions common to
member states and from international treaties to which member states have adhered.

This could traceable to the postulations of HUGO GROTITUS of the Rationalist school
who posited that:

30
 “Promises solemnly made in treaties must be respected and fulfilled’’

It is in this vein that mention has to be made of the AFRICA CHARTER ON HUMAN AND
PEOPLE`S RIGHT (1981),The sovereign state of Nigeria pursuant to the convention of
African Charter on Human and Peoples Rights enacted a legislature incorporating it as
Nigeria Law. By virtue of SECTION 1 of the Africa chapter on human and people`s right
(Ratification and enforcement) Act Cap. 10 laws of the Federal of Nigerian 1990, the
provision of the African Charter on Human and People’s Rights shall, subject as
provided, have force of law in Nigeria.

Nigeria incorporated the African Charted on Human and People’s rights into its statute
books because it is a signatory to the convention, by signing same and incorporating it
into law; seek to act in accord with the dictates of Section 12 (1) of the 1979
Constitution, which requires that no treaty between the Federation and any other
country shall have force of law except to the extent to which any such treaty is enacted
into law by the legislature3.

International Law was largely founded and developed and is still being developed
upon the principle and premises of Natural Law. The African charter on human and
people’s Rights (Ratification and Enforcement Act),
Cap. 10 laws of the Federation of Nigerian 1990 in its articles provides that the
member states shall recognize the rights, duties and freedoms enshrined in the
Charter and shall undertake to adopt legislative or other measures to give effect on
them4.

The Articles provides for rights to life5, right to the respect of the dignity inherent in a
human being6, right to liberty7, right to freedom of movement and residence8, right to
seek and obtain asylum9, rights to legal expulsion10, right not to be expelled en-mass
from member states11, all these rights as was postulated by the modern Natural Law
philosophers, and are inherent and inalienable.

31
The African Charter on Human and People’s Right (Ratification and Enforcement Act)
Cap 10 laws of the Federal 1990 is supreme and higher in hierarch than all state and
Federal Law in the country, as was posited MUSDAPHER J.C.A. in the case of:
FAWEHINMI V.ABACHA12
“The member countries- parties to the protocol-recognized that the
fundamental human right stem from the attributes of human beings which justify their
international protection and accordingly by the promulgation of Cap 10, the Nigerian
state attempts to fulfill its international obligation. It is an international obligation
which the nation voluntarily entered and agreed to be bound… it is in my view that
notwithstanding the fact that Cap 10 was Promulgated by the National Assembly in
1983, it is a legislature with international flavor and the ouster clauses contained in
Decree No. 107 of 1993 or No. 12 of 1994 cannot affect its operation in Nigerian… while
the decree of the federal military government may over-ride other municipal laws, they
cannot oust the jurisdiction of the court when properly called upon do so in relation to
matters pertaining to human right under the Africa Charter. They are protected by
International Law and the Federal Military government is not legally permitted to
legislate out of its obligations.’’

The federal government is therefore enjoined to give due recognition to this law i.e.
the Africa Charter on Human and people’s Rights, the law is in full force and has an
aura of inviolability unlike most municipal laws and may as long as it is in statue book
be clothed with vestment of inviolability.

32
 2. NATURAL LAW: THE RECEIVED ENGLISH LAW AND CUSTOMARY LAW:

The new vision of the so called customary laws which have been reported in books
and applied more or less faithfully in the state sponsored customary courts, often are
very different from the older laws which exist before the period of colonial rule.

Present day customary laws would be a new law which has been strongly influenced
by the specific economics, institutional and social –cultural conditions of colonial rule
and which has been created either by the colonist or by the colonized in response to
colonial penetration, or by a combination of both.

That colonial rule has decisive impact on traditional societies and on their laws can
hardly be denied. The problem of “adopting” to modern conditions the rules of
customary law first arose with occasion of the efforts by the English court to apply
customary rules the test of conformity with Natural justice, Equity and good
conscience ‘’

LORD WRIGHT in the case of LAOYE V OYETUNDE13, expressed the view that the
Repugnancy Test was intended to invalidate barbarous customs. LORD ATKIN said in
ESHIGBAYI ELEKO V OFFICER ADMINISTRATION THE GOVERNMENT OF NIGERIA14
that a barbarous custom must be rejected on the ground of repugnancy to Natural
Justice, Equity and good conscience. Thus, in the case of EDET V ESSIEN the appellant
have paid dowry in respect of a woman when she was a child, later, the respondent
paid dowry in respect of the same woman to the woman’s parents and took her as his
wife. The applicant claimed custody of the children of the union on the grounds that
under customary law he was the husband of the woman, that, the woman could not
contract “another legal marriage until the dowry paid by him was refunded and until
this is done, he is entitled to the children borne by the woman. The court held if such a
rule has been established, though it is not, was still repugnant to natural Justice, equity
and good conscience.

33
 According to Thomas Aquinas:

“if any human law is at variance in any particular with the Natural
Law, it is no longer legal but rather a corruption of law”.
It was also the view of CICERO that any positive law that contradicts the Natural law should
be disobeyed and destroyed.

The doctrine of Equity is another example of English Law that has been received into
Nigeria. It differs from the common Law, first, in terms of its origin, and second, because of
its determination to “bend” common law rules whenever the peculiar circumstances of the
case makes it unfair and unjust to apply common law strictly.
It has always been accepted that Equity in its narrow technical sense (as the rules developed
by the court of chancery) or, in its broad sense of justice and fairness. Thus in: ONIAH V
ONYIAH17 , the supreme court considered various principles developed at Equity in
determining whether a land lord is entitled to forfeit the tenancy of his customary tenants
who have turned round to dispute the land lord’s title to his land.

The doctrine of Equity is traceable to the postulations of the natural law school in the
person of Aristotle who submitted that in order for justice to be done in exceptional cases,
the judges would have to depart from the general rules. This, he called:

“…The power to do Equity”

3. THE NIGERIAN CONSTITUTION AND NATURAL

The Nigerian constitution entrenches the rights every citizen. In the
RANSOME KUTIV ATTORNEY GENERAL OF THE FEDERATION, the nature of
fundamental Human rights in a Natural Law perspective has been well
expounded by ESO.J.S.C. Thus:

34
“It is the primary condition to a civilized existence and what has been done by
our constitution since independence, starting with the independence
constitution i.e. Order in Council 1960 up to the present constitution… is to
have these rights enshrined in the constitution so that the right could be
‘’immutable…”

These rights includes, right to life, Right to dignity, Right to personal liberty,
right to fair hearing, right to freedom of movement, right to freedom from
discrimination19, among others.

It was Hobbes, Locke and Grotius, the modern natural law philosophers that
provided that natural rights are inalienable rights inherent in man, which is
endowed on by nature.

JOHN LOCKE used the social contract theory to assert the natural rights of
the citizen against his government, according to him, government holds
power in trust for the general and equal benefit of his citizens, this
predicated in the Fundamental objectives and Directive Principle of state
Policy20 in which the fundamental obligation of the government is
stipulated.

4.4. LAW OF TORTS AND NATUAL LAW

The most predominant principle of natural law which all the Natural Law
philosophers where known by, is their general view on “Reason’’ as guiding
principle in man’s walk in life. The law of Torts is derived from this
principle of reason.

In the frequent citied word of ALDERSON B21

“Negligence is the omission to do something which a reasonable man, guided

upon those consideration which ordinary regular the conduct of human
affairs, would do or doing something which a prudent and reasonable man
would not do”.
35
In RYLAND V. FLETCHER,22 BLACK BURN J. propound the rule that:

“The person who for his own purposes (and in the course of a non-natural user
of his land) brings on his land.. anything likely to do mischief if it escapes,
must keep it at his peril and if he does not do so, is prima –facie answerable
for all damage which is the natural consequence of its escape.’’

HUGO GROTUS was the one who provided for the:

“...Reparation of damage caused by one’s fault”.

The “duty of care’’ is a main feature of the law of Torts which is popular
referred to as the ‘’Neighbor Principle’’. Everybody is supposed to be his
brother’s keeper as is being recorded in the Holy Bible23 and to love one’s
neighbor as oneself, this, THOMAS AQINAS said it is being revealed rather
than being discovered by reason and the example he gave was the code of
law given by God to the Hebrews or the rules given through the scriptures.

In DONOGHUE V STVENSION24. It was established that a manufacture of

chattel owes a duty of care to the ultimate customers thereof. In this case
the plaintiff suffered from illness after drinking the content of a bottle of
ginger beer manufactured by the defendants which contained the
decomposed remain of a snail.

4.5. CRIMINAL LAW AND NATURAL LAW

Criminal law deals with offences and crimes, examples are: murder, rape,
stealing, receiving stolen goods and arson. All these acts are prohibited
expressly by the state, in criminal codes in all other parts of the country and
penal codes in the Northern parts of the country.

36
 The entire criminal law is premised on Natural Law of the Medieval period
(the Christian Philosopher), in the person of THOMAS AQUINAS whose view
was derivative from the 10 commandements25, any person who commits
any of the prohibited criminal acts is punished. Punishment of offenders
therefore forms the main purpose of criminal law.

Other Natural Law Philosophers also contributed in this direction. CICERO,

a Roman Philosopher postulated that whoever is disobedient to this law of
nature:

“… will suffer the worst penalties …”

HOGO GROTITUS a modern jurist also talked about the recognition of

certain acts and omissions meriting punishment. As it is been illustrated in
the maxim by DEL VECCHIO an Ideal Natural Law jurist “honeste, vivere,
niminem laedere; suum ciqui tribuere, etc (i.e live honestly; hurt no one;
give unto everyone his due).

4.6 LAW OF CONTRACT AND NATURAL LAW

Contract consists of an agreement or a set of promises which is regarded as
binding and enforceable on the parties entering into it. The elements of a
valid contract are: Offer, Acceptance and Consideration. For a contract to
exist there has to be an offer by one party to another party, and an
acceptance by the person to whom the offer is addressed. An offer may be
defined as a definite undertaking or promise, made by one party with the
intention that it shall become binding on the party to whom it is addressed.
It was HUGO GROTIUS, a modern natural Law jurist contribution to Natural
Law that:

“…Promise solemnly made… should be respected in fulfilled” (Pacta sunt

servanda)

37
 4. LAND LAW AND NATURAL LAW

Our land could be traceable to the postulations of the modern jurist on

Natural Law, it was JOHN LOKE`S contribution to Natural law that
government holds power for the general and equal benefit of the citizens,
this has formed the basis of our land law, in the sense that, the Governor of
each state of the federation holds land in trust and is been administered for
the use and common benefit of all Nigerians26.

The land use Act states that it shall be lawful for the Governor to revoke a
right of occupancy for overriding public interest27, the Act further provides
that the occupier shall be entitled to compensation on revocation of right of
occupancy28.

HUGO GROTIUS recognized the need for respect of other people’s property
and the restitution of gain made from such property. JOHN LOCKE also
provides:

“The Sovereign can only deprive the citizen of his property with his consent,
and there should be no compulsory acquisition without the payment of
compensation”.

4.8 SHARIA LAW AND NATURAL LAW

The intimate connection between law and religion is one of the main
sources of the strength of Islamic law. There are two main reason for this: in
the first place, the law is based on a strong ethical basis which is accepted
without question by the great majority of those subjected to it. Also, the law
receives a type of allegiance and adhesion which can properly be described
and which is far stronger than that usually accorded to law under other
systems.

Most Muslim thinkers think that what is truly good and evil cannot be
rational determined and that the only guide that men can trust is provided
by the Sharia which is said to be divine revelation.

38
 This line thought can be traceable to the doctrines of the Natural Law
school in the person of AQUINAS, in his classification he defined Divine law
as being revealed rather than being discovered by reason.

4.9 THE DECREE AND NATURAL LAW:

The Decree is the creation of the military. The military revolution that took
place on January 15th 1996 and which was followed by another on July 29th
1966, effectively abrogated the whole pre-existing democratic government.

Under the military regime there was an unsuccessful coup d`etat, many
persons were convicted of various offences connected with the attempted
coup d’etat under two Statutes passed by the parliament (provisional ruling
council) for special purpose the first sought to legalize certain deviations
from the existing laws of criminals procedure in determining the persons. It
defines the office of waging war against the queen, provided for trail
without a jury, by three judges to be nominated by the Ministry of Justice.

It also made admissible in evidence confession which was inadmissible

under the existing law. It provided for arrest without warrant and new
minimum penalty for the offence in question. The statutes were to be back –
dated (retrospective) to cover the abortive coup d`etat. The second statute
was passed to substitute the Chief Justice for the Minister of Justice, these
statutes were to cease to operate after the trial of the detained persons.

The validity of the Decree could be easily traced to Natural Law in the
middle Ages, specifically, the Christian natural Law philosopher, AUINAS,
who, in order to discourage scandal and social disorder in the society,
taught that positive laws, even the wicked ones should be obeyed, he also
provided that the whole Hierarchy of laws, including positive (state) law
was an inspiration from God.

39
NOTES TO CHAPTER FOUR

40
 CHAPTER 5

5. CRITISMS AND POSSIBLE SUGGESTIONS

Indeed so numerous are the forms of natural Law and so varied its
disguises. At some periods its appeal may have been essentially religious
or supernatural, but in modern times it has formed an important weapon
in political ideology. Essentially it has afforded a valuable aid to the powers
that be, desirous of justifying the existing law and the social and economic
system it embodies.
It is not surprising when ROSS Said:
‘’like a harlot, natural Law is at the disposal of everyone, the ideology does not
exist that cannot be defended by an appeal to the law of nature’’
Despite that fact that the Decree has a Natural Law backing, it would be
safe for us to conclude that AQUINAS’ support of positive law whether good
or bad was in order to prevent social disorder in the society.

Natural Law is generally against unjust laws, which are also retrospective in
nature.

On the issue of retrospective laws, it was LON FULLER of the Natural Right
School who provided to the effect, in his list of the eight typical ideals or
former virtues which a legal system should strive:
‘’…Absence of retrospective legislation and certainly no abuse of retrospective
legislation…’’

As regards Sharia Law, its close relationship with religion and law is a
source of great problem. As ALLOT has said:

41
 “Of all the world religion, Islam poses the greatest problem from the legal
point of the view when its adherents form a substantial proportion of the
population of the state’’.

This has been the basis of problems generating in some parts of the country,
prominent among which is Zamfara State. The cutting of limbs of accused
has been a main feature of this law thereby incapacitating the individual.
Even after he or she has repented from his or her wrong, the individual will
not be able to involve in any profiting venture for sustenance.

This was the case with one Buba Bello Jangedi whose right arm was
chopped offer for allegedly stealing a cow.

The basic principle of Natural Law is that men are born equal, man
inhumanity to man should therefore be discouraged, the punishment being
meted out under Sharia law are repugnant to natural justice, Equity and
good conscience. AQUINAS, provided that:

‘’if a human law is at variance in any particular with the Natural law, it is no
longer legal but rather a corruption of Law’’

There are certain elements that natural law prescribe that human must
conform to these are:

1. Right reasoning
2. Common Equity
3. Ethic
4. Morality, and
5. Justice

42
 1. SUMMARY
In this research work, various postulations of Natural Law philosophers
have been looked into; all of them are seen as to recognize ‘’Reason’’ as an
essential ingredient for an action or the making of Laws of a society.

The Greek said, Natural law could be discovered by reason which is external to
man, while the Romans said that this law was immutable, everlasting and
unchanging and whose maker is God. The modern jurist or the Rationalist saw
Natural Law as natural rights that are inherent in man, which cannot be
alienated. On the other hand, the ideal school sees Natural Law as having a
variable content, which varies from place to place.
In the study, Natural Law idea was applied to our legal system, the relevance of
Natural Law to our system was noted and appreciated.

It was also discovered that despite the relevance of Natural Law to our system
in the area of justice and morality, there seem to be a misapplication of its
principle. But we were later told that Natural Law is “Natural Justice’’ which
everywhere has the same force and does not depend on accepting it or not-
Aristotle.

2. CONCLUSION
In conclusion, therefore, that Natural Law has great relevance to our legal
system cannot be over-emphasized. We must however, remind ourselves of the
need to inculcate into our legal system without leaving out any area, the
virtues of Natural Law to its fullest, which could be achieved by taking its
virtues into consideration while making laws or applying it. These virtues
include morality and justice amongst others.

THOMAS HOBBES rightly provides that the state of nature has a Law that
governs it, so that if man transgresses this law of nature, would be living
contrary to:

‘’Nature, reason and common Equity’’

43