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 federal University dutse 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:
(i) Local Laws and custom
(ii) English Common law, the doctrines of English Equity and Statutes of
general applications in force in England on 1st
January, 1900.
(iii) Local legislation, and the interpretations based thereon
(iv) Law Reports

Functions of Law in the Society

Concept of Man
Man, by nature, is passionate, coveteous and if he is left to himself, the
world would resemble the devils workshop, where the logic of the fist
would reign.
The original state of man was one of disorder, force or violence. (Bodin)
and man is the most criminal creature made by God (Schophenhauer).
Man is a sinner and what he produces (overt act) is part of the original sin
and man’s spirit of rebellion strikes against almost all authority and every
institution in contemporary culture. (St. Augustine)
Seneca expressed the view that in his primitive state, men lived together
in peace and happiness, having all things in common; there was no
private property, there was no coercive government. Order was of the
best kind for men followed nature without fail and the best and the wisest
men were their rulers; who guided and were gladly obeyed as they
commanded wisely and justly. As time passed, the primitive innocence
disappeared, men became avaricious and dissatisfied with the common
enjoyment of the good things of the world and desired to hold them in
their private possession. Avarise rent the first happy society asunder and
the kingship of the wise gave place to tyranny so that men had to create
laws which should control their rulers.
In essence, men agreed to give up voluntarily their unfettered individual
rights and submit to the authority of a sovereign, a “Leviathan”. There is
no agreement as to whether this social contract arose from fear and force
(Hobbes) or in an atmosphere of enlightenment and reason (Locke and
Rousseau). What perhaps is less controversial was the felt need to
prevent or put an end to reign of warfare, terror and fear and to maintain
or usher in security, convenience and an ordered community.
Some of the functions of the law in the society can be subsumed as
follows:
Protection Of Interests
Von Ihering has said that, “the purpose of law is the protection of
interests”. But what is “interest and whose interest? The good of the
individual is not itself an end, but only a means of securing the good of
the society. In essence, the society is a higher conception than the
individual so that the individual can desire the common interest in
addition to his own. Andrei Vyshinsky’s view is that law and the state are
one so that any criminal act is a danger to the regime and the state.
He thought that emphasis on individual was a mere cloak to shroud the
exploitation of workers by the bourgeoisie. In the western philosophy,
function of law is to hold a balance between interests of the individual
and those of the state.
Preservation of Life, National Security And Public Safety And Social
Welfare.
Law protects the rights, duties of people, be it political, social, economic
or cultural.
Preservation of Life
According to Sohn, law is the sum of rules, which regulates the life of the
people, or creates social order and organization that are necessary for
preservation of life and ordered control of the life of the community. He
explained that the private law governs the rights and duties of individuals
while public law regulates the relationship between the individual and the
state.
Von Ihering sees the function of preserving life from the angle of striking
a balance between egoistic and altruistic motives. He said that the
purpose is the universal principle of the world. The purpose of human
violation is the satisfaction derivable from acts. The purpose of law is the
protection of interests. It is the function of law to regulate the
combination of egoistic and altruistic motives; to reconcile the interest of
the individual and the collective interests of society. Law therefore should
be moulded to serve practical purposes.
National Security and Public Safety
Emergency powers to incarcerate persons who commit or are suspected
of having committed an offence, and to stop and search without warrant
any receptable suspected to contain explosives, firearms and ammunition,
exist for purposes of national security and public safety.
Moreover, both the military and the police have powers to order the
detention of “trouble maker” whose freedom is reasonably considered
prejudicial to the society.
Thus, Law confines potentially dangerous mental defectives, murder
accused who are guilty but insane or not guilty by reason of insanity, in
order to protect the public at large.
In International perspectives, Law prescribes the sovereignty of each
State, safeguards each against external attacks, and allows measures
necessary for protection of its citizens.
Social Welfare of State
(i) The Constitution and various statutes enhance freedom. It is by Law
Slave Trade and Slavery extraction of executive bride price or
discrimination against Osu caste were abolished. Law frowns at arbitrary
arrest and detention, and guarantees right of freedom of movement,
speech and association. Writ of habeas corpus or Fundamental Rights
Enforcement Proceedings are provided by law where ones freedom is
curtailed wrongfully.
(ii) Tax laws provide money for social amenities.
(iii) Traffic laws provide for orderliness on the highways
(iv) Law of contract encourages business transactions and allows them to
strive.
(v) Law of tort protects proprietary rights and freedom of property, and
commands compensation, damages or other remedies in case of trespass.
(vi) Arbitration laws and rules of courts provide ways of setting
disputes when they arise.
(vii) Law Performs normative and social functions by pointing to
direction of wrong committed by members of the public and helping or
supporting state functionaries, operators and machinery of society.
Maintenance of Justice and Fairness in Society
Some writers equate law with justice, contending that Law ought to be
just. Jus Naturale, jus gentium and Equity and its body of rules were
developed out of the desire and search for justice, fairness and good
conscience, for all peoples. Kelsen denies there is a natural law or
immutable principles of justice to which the judge or legislator can
appeal. Nevertheless, “justice is an absolute requirement” and the judges
in applying the law must be fair, impartial and devoid of personal
prepossession or idiosyncrasy.
Furthermore, legal history has shown that:
(i) Some basic standards are common to every society. Every society
criminates murder, theft, rape,
(ii) Province of law and morals is uncertain in certain ‘marginal’ forms of
belief e.g. incest, abortion, infanticide.
Both law and ethics are relative. This explains why incest which was not
criminal before 1907, suddenly became one in 1908. Suicide in England
(not in Nigeria) was criminal in 1960, but it ceased to be so in 1961.
Homosexual conduit is now an ex-crime in so far as it is between
consenting adults. Wandering used to be a crime in Nigeria until
comparatively recent times. Only three out of Ten Commandments are
crimes yet all the commandments both crimes and non-crimes are very
important to Christian civilization. The Constitution provides that no one
may be condemned unheard and for equal opportunity and reasonable
time for defence and very importantly for fair trial. The provision is
available for all – both high and low, rich and poor, the saint and the
offender and even the tiresome zealot in the minority group.
One must recognize that there appears to be some dichotomy between
“Justice according to Law” and “Justice in the Law” (in theory or
practice). The common desire is that the law ought to be just.