By Friday Nwankwo Ndubuisi
As a realist, I believe in concrete things and the potency of unseen hands in human affairs, which I term “Empirical Supernaturalism.” I’m drawn to practical philosophy, directly impacting human life, sharing Karl Popper’s approach. Popper’s emphasis on solving genuine problems outside philosophy resonates with me. My focus on human issues is conceptualized in existentialism, emphasizing human capacity to positively impact their environment, aligning with Jean-Paul Sartre’s “existentialism is humanism.” Sartre’s doctrine of “Human Freedom” and concepts like “existence precedes essence” and “freedom and responsibility” have profoundly shaped my philosophical orientation.
I developed my concept, “Subjective Universalism,” exploring the migration from self to whole, while studying Sartre’s philosophy. My interests in realism, existentialism, and Philosophy of Science converged to form this humanist perspective. Karl Popper’s works, such as “The Logic of Scientific Discovery” and “The Open Society and Its Enemies,” were game-changers. His theories on induction and deduction resonated with Albert Einstein’s perspective. Popper’s philosophy advocates for laissez-faire and free economic principles.
My encounter with Popper’s works and Sartre’s philosophy profoundly influenced my worldview, integrating science and humanism, which I perceive as “scientific humanism.” This synergy of Popper’s scientific outlook and Sartre’s humanism shapes my perspective. I’m committed to practical philosophy, addressing human problems, and promoting intellectual excellence.
My research on Popper’s “Conjecture and Refutation” was fascinating and challenging. I successfully defended my thesis in 1990. The integration of science and humanism remains my core theme, reflecting my philosophical orientation.
My interest in the philosophyof law
My interest in Philosophy, Law, and Journalism stems from their potential to promote justice and fairness. I have been particularly drawn to jurisprudence, excited by its concepts and doctrines. Professor J.I. Omoregbe, who taught me Philosophy of Law at both the undergraduate and postgraduate levels, further sharpened my interest. This led me to pursue a degree in Law, seeking to enhance my understanding of jurisprudence and gain a more authoritative voice. I achieved this by enrolling in the Faculty of Lawat the University of Lagos, where I earned LL. B and LL.M degrees,in 2000 and 2005, respectively. I was subsequently called to the Nigerian Bar, becoming an advocate of the Supreme Court of Nigeria and sworn in as a Notary Public in July 2013 by the Chief Judge of Lagos State, on behalf of the Chief Justice of the Federation.
My mission: Legal moralism
Madam Vice-Chancellor, I advocate for legal moralism, where law and morals align to achieve justice and fair play. However, some thinkers argue law can be used oppressively, citing the Gambian proverb, “law is a spider’s web, only the little insects get caught in it.” This highlights the naturalism-positivism debate, with naturalists like St. Augustine and St. Aquinas advocating for law reflecting ethical principles. In contrast, positivists like Thomas Hobbes and HLA Hart separate law from morals.
As a believer, philosopher, and lawyer committed to justice, I will clarify my stance on this debate. Lawmakers must consider humanity’s complexities and acknowledge law’s potential for harm due to human imperfections and lust for power. To mitigate this, ethical doctrines must be integrated into lawmaking. By acknowledging law’s limitations and incorporating moral principles, we can strive for a more just legal system that serves humanity, rather than perpetuating oppression.
Justice: conception, interpretation, application and admiration
Madam Vice-Chancellor, justice is essential for communal coexistence, and its importance has been recognized since ancient times. Great thinkers like Socrates, Plato, and Aristotle have grappled with questions about justice and its relationship to morals. The concept of justice is complex, but it is often seen as a principle guiding the physical world, promoting harmony and balance. Ancient Greek philosophers like Heraclitus and the Pythagoreans viewed justice as fundamental to the universe. Justice is crucial for global peace and harmony. Its significance is universally acknowledged.
Ideally, positive law should approximate perfect justice, making justice the object and standard of law. Any law that deviates from this objective is unworthy of the name. Justice is a fixed disposition to give each person their right. Roman jurisprudence considers the concept of a just law as the crowning achievement. Roman jurists saw justice as pervading humanity’s essence. Justice is achieved when individuals receive their due.
Plato’s conception of justice emphasizes social cohesion and order. He believed that individuals should do what they are naturally suited to do, leading to peace, justice, and stability. Aristotle similarly argued that justice involves treating individuals according to their worth. Justice is a condition where each keeps within their appointed sphere. This promotes harmony and balance in society. Individuals have different natural endowments.
A legitimate government prioritizes justice, maximizing people’s welfare and fairness. Cicero stated, “We are servants of the law in order that we may be free.” Leaders derive authority from the people, and their will holds force because of this vested power. Law should serve humanity, promoting justice and freedom. Justice is essential for human existence. Laws should align with moral principles to achieve true justice.
The adventure of legal positivism
Madam Vice Chancellor,
The concept of legal positivism has its roots in logical positivism, a philosophical approach that emphasizes empirical evidence and scientific methodology to understand reality (Comte, 1853, 5). This approach rejects metaphysical and subjective interpretations, focusing instead on observable facts (Mill, 1865, 12). Positivism seeks to unify scientific knowledge and promote social progress through objective analysis. It emphasizes empiricism, objectivity, and determinism, laying the groundwork for legal positivism. Legal positivism evolved from this foundation, focusing on human-made rules and social facts. This perspective rejects natural law theories, emphasizing positive law enacted by governments.
The Vienna Circle, a group of influential philosophers and scientists, played a significant role in developing logical positivism between 1924 and 1936 (Uebel, 2007, 45). Led by Moritz Schlick, they met regularly at the University of Vienna to discuss and develop their ideas on scientific language, methodology, and the unity of science (Hahn, 1987, 12). Their 1929 manifesto, “Wissenschaftliche Weltauffassung: Der Wiener Kreis,” marked a significant milestone in the development of 20th-century philosophy. The movement’s philosophical position, logical empiricism, emphasized science and scientific method. Notable members included Rudolf Carnap, Hans Reichenbach, and Otto Neurath. Their work laid the groundwork for legal positivism’s focus on objective analysis.
Key proponents of legal positivism, such as John Austin and Jeremy Bentham, insisted on separating law from morality and focusing on positive law (Austin, 1832, 10; Bentham, 1789, 15). H.L.A. Hart further developed this idea, emphasizing the importance of social facts and institutional practices (Hart, 1961, 20). Legal positivists prioritize objective analysis of legal texts and institutional practices, distinguishing law from morality. They argue that law consists of commands or norms created by human authorities. This perspective underlies many legal systems, including common law and civil law traditions. It informs human rights discourse, separating legal rights from moral entitlements.
Legal positivism’s influence on contemporary law is significant, shaping statutory interpretation, judicial decision-making, and human rights discourse (Dworkin, 1977, 25; Posner, 1990, 30; Finnis, 2011, 35). Its focus on institutional authority guides international law and global governance. By distinguishing law from morality, legal positivism provides a framework for analyzing complex legal issues. However, this separation also raises questions about the relationship between law and morality. Understanding legal positivism’s influence is crucial for informing jurisprudence and promoting justice. Reflecting on its consequences is essential for shaping legal systems.
In conclusion, legal positivism’s emphasis on objective analysis and human-made rules has significantly impacted contemporary law. Its influence raises important questions about the relationship between law and morality, and the consequences of their separation. As we move forward, it is essential to consider these implications and reflect on the role of legal positivism in shaping our legal systems. By doing so, we can promote justice, equity, and human dignity. Legal positivism’s legacy continues to shape our understanding of law and its role in society. Its impact will be felt for generations to come, guiding our approach to jurisprudence and human rights.
Questions for Further Reflection
1. How can law maintain autonomy as a distinct discipline while considering moral and philosophical frameworks?
2. What are the consequences of legal positivism’s separation of law from morality on human existence and societal well-being?
3. Can the judiciary effectively remedy defective laws passed by parliament?
4. In what ways does the convergence of law and ethics foster equity, peace, justice, and human dignity?
Law and moral neutrality
Madam Vice Chancellor, legal positivists view law as morally neutral and autonomous, obliging citizens to obey laws regardless of their moral content (Harris, 1980, 59). They consider natural law speculative and unscientific, rejecting moral ideals extraneous to positive law as nonsensical (Theodore Benedict, 1975, 61). Law is seen as a rule of behavior made and authorized by men, defined in terms of facts, not value judgments (Harris, 24). This approach frees law from subjective interpretations.
Legal positivists advocate for law devoid of emotions, emphasizing its independence from moral considerations (Harris, 1980, 59). Richard Wollheim notes that positive law should be judged by its characteristics, constituting a set of rules or precepts (Wollheim, 1972, 45). David Hume’s empiricism influences legal positivism, distinguishing facts from ideas and rejecting the derivation of normative propositions from factual ones (Hume, 1978, 20). Joseph Raz further develops this idea, arguing that legal theory should rely exclusively on value-neutral facts of human behavior.
Legal positivism encompasses diverse approaches, including utilitarianism, legal formalism, and realism (Raz, 1979, 39-40). These schools share the central objective of separating law from morality, emphasizing its autonomy. Despite differences, they converge on the importance of objective analysis and human-made rules. This philosophical foundation underlies contemporary law, shaping statutory interpretation, judicial decision-making, and human rights discourse.
Law in the courts of the utilitarians
Madam Vice Chancellor, Jeremy Bentham and John Austin, renowned utilitarian philosophers, perceive law as an autonomous entity operating independently of external moral standards (Ndubuisi and Nathaniel, 123). Bentham emphasized law’s utility in promoting the greatest happiness of the greatest number, considering a law good if it satisfies most people within a legal community. He exclusively recognized man-made law, dismissing natural law as irrelevant (Bentham, 1948, 20).
Bentham’s philosophical framework centers on the concept of pain and pleasure as sovereign masters guiding human action (Bentham, 1948, 20). He advocated for removing psychological and ethical factors from law’s province, focusing on empirical aspects (Sabine et al., 617). Bentham identified six essential elements of law: assemblage of signs, declaratory volition, conception by the sovereign, concern with subject conduct, reliance on specific events, and prospect of motive (Wacks, 46).
However, two persistent puzzles confront utilitarians in their quest to divorce law from morality:
1. The Majority-Minority Conundrum: How can utilitarians reconcile the potential for laws to promote the greatest happiness for the majority while simultaneously infringing upon the rights and well-being of minority groups or individuals?
2. The Utility-Morality Dilemma: What moral limits, if any, should be placed on the pursuit of utility, and how can utilitarians ensure that the ends (greatest happiness) justify the means (enactment and enforcement of laws), particularly when individual freedoms are compromised?
These enduring challenges continue to test the utilitarian framework, highlighting the complexities of separating law from morality.
Teeth that can bite
John Austin, following legal positivists, distinguished between “laws properly so called” and “laws not so called,” emphasizing that laws are rules laid down by an intelligent being with power over others (Riddall, 19). He identified three basic features in jurisprudence: faith, hope, and clarity, viewing law as a technical instrument for government and administration. Austin argued for unconditional obedience to sovereign will, expressed in laws, with no room for discretion or questioning legitimacy. Laws, to Austin, consist of “a signification of desire by a party with a power to inflict evil, if the desire is disregarded” (Wack, 46).
Austin’s conception of law, outlined in “The Province of Jurisprudence Determined,” reveals law as the command of the sovereign, excluding non-command forms (Wack, 46). Only general commands count as law, emphasizing the sovereign’s authority as law’s source. His command theory highlights understanding law as the sovereign’s will manifestation. This definition comprises five key elements: wish, sanction, expression of wish, generality, and a sovereign-initiated command.
Austin’s map of jurisprudence categorizes laws into “laws properly so called” and “laws improperly so called,” including divine laws, human laws, and positive morality (Wack, 46). Laws properly so called are positive laws set by men as political superiors or in pursuance of legal right. Austin’s command theory emphasizes sovereign authority, but raises questions about customary, constitutional, and public international law’s exclusion.
Critics argue that Austin’s conception has unpleasant consequences, such as requiring “tacit commands” and “circuitous commands” and nullifying contracts as sanctions (Wack, 47). His insistence on sovereign illimitability and indivisibility raises further questions about legal authority’s scope and nature. Austin’s definition prioritizes sovereign power over individual discretion. This approach sparks debate on law’s relationship with morality and individual rights.
Sanctions
According to John Austin, sanction is a fundamental element of law, where the sovereign’s expressed wish is enforced by the power to inflict an evil (sanction) upon non-compliance (Austin, 1954, 55). This sanction creates a duty or obligation for individuals to act in accordance with the sovereign’s wish. Austin emphasizes obedience to existing laws, regardless of personal dislike, arguing that law is a mechanical tool for rulers to control the conduct of the ruled. Law’s existence, he believes, is not dependent on moral or ethical goodness.
Thomas Hobbes complements Austin’s view, positing that justice is determined by what the law decrees, rendering questions about laws’ justness absurd (Ndubuisi, 51). Through the social contract, Hobbes argues that the sovereign has the right of command, and subjects have a duty to obey. The sovereign, or “Leviathan,” holds absolute authority, unchallenged and uncommanded. This perspective underscores the importance of obedience to laws, regardless of their nature, emphasizing the sovereign’s unconditional authority (Austin, 1954, 188).
Between formalism and humanism
Vice Chancellor, HLA Hart’s contributions to legal positivism are pivotal. He views law as a social phenomenon, understandable through specific social practices of a community, emphasizing the importance of rules and procedures within a legal system (Wack, 61). Hart’s concept of “minimum content of natural law” recognizes laws necessary for a community’s survival. His work highlights the interplay between law and social context.
Hart identifies five fundamental human characteristics: (i.) Human Vulnerability, where everyone is susceptible to physical attacks; (ii) Approximate Equality, acknowledging varying strengths and weaknesses; (iii) Limited Understanding and Strength of Will, highlighting difficulties in cooperation; (iv.) Limited Resources, emphasizing scarcity; and (v.) Limited Altruism, underscoring human selfishness (Wack, 61). These characteristics necessitate rules to shield individuals and property, ensuring promises are kept. Hart’s perspective on human nature informs his legal philosophy. His ideas on limited altruism, particularly among those in power, underscore the need for higher authority.
Hart’s legal positivism focuses on social facts and rules acquiring legal character through primary and secondary rules. Primary rules encompass customs and habits, while secondary rules define authority and procedures (Wack, 61). This approach underscores the dynamic nature of law. Hart’s work influences contemporary legal philosophy, particularly in understanding international law. His concepts, such as the rule of recognition, remain essential.
As a scholar of jurisprudence and philosophy, it’s clear that Hart’s doctrine opposes the autochthonous status of law, positioning him as a liberal positivist leaning towards naturalism. His acknowledgment of discretionary judges’ power advocates for an all-inclusive perception of law as a social, dynamic institution. Hart’s work continues to shape legal philosophy, encouraging nuanced understanding of law’s relationship with morality and social context. His ideas remain relevant in international law discussions, emphasizing law’s role in addressing human limitations.
The contentious issue of grundnorm and the search for unadulterated law
Vice Chancellor, Hans Kelsen’s Pure Theory of Law is considered the most refined development of analytical positivism (Dias, Jurisprudence, 258). As a neo-Kantian, Kelsen applies formal categories to understand law, emphasizing the Grundnorm or basic norm at the heart of the legal system. His theory aims to raise jurisprudence to a scientific level.
Kelsen’s pursuit of legal purity excludes psychology, sociology, ethics, and political theory, focusing on objective knowledge. He views law’s social purpose as the monopolization of force, but critics argue this overlooks modern weaponry and the principle of self-help. Revolution, for Kelsen, is a change of government through unconstitutional means.
Kelsen defines norms as “something ought to be” or “ought to happen,” requiring authorization from higher norms for validity (Kelsen, 4). The separation of law and morality means legal norms’ validity stems from other legal norms, not moral ones. All norms are relative, reflecting Kelsen’s value-free, relativistic theory.
The hierarchy of legal norms traces back to the Grundnorm, distinguishing legal norms by their prescribed sanctions and state coercion. Kelsen differentiates between validity and effectiveness, illustrating this with the tax collector and robber analogy. The robber’s coercive order lacks lasting effectiveness and a presupposed basic norm, rendering it invalid (Kelsen, 47).
A hierarchy of norms
Madam Vice Chancellor, Hans Kelsen’s hierarchical model of law posits that norms derive validity from higher norms, culminating in the Grundnorm. This systemic approach explains the dynamic creation of legal norms, where membership in the legal system is determined by other norms (Wack, 73). Each norm’s validity rests on the Grundnorm, interpreted as a state’s constitution.
However, Madam Vice Chancellor, the issue is complex, as the people remain the repository of power in a democracy. Parliament can amend the Constitution, while the judiciary interprets its provisions, raising questions about the ultimate source of power. If the people’s powers predate and supersede the Constitution, do they not also supersede the Grundnorm?
The judiciary’s role as “de facto sovereign” transcends Constitutional provisions, with powers to interpret statutes and make laws. This raises questions about the source of the judiciary’s power beyond the Constitution. The executive’s law enforcement powers also highlight the limitations of the Constitution as the sole Grundnorm.
Madam Vice Chancellor, considering international laws that bind signatory states, it’s clear that the Grundnorm extends beyond the Constitution. Domesticated international laws become binding, yet they are not part of the Constitution. Therefore, it’s essential to look beyond the Constitution to identify the true Grundnorm, acknowledging the complexities of power dynamics and the role of international law (Wack, 73).
De facto status of law and the judicial sins of legal positivism
Madam Vice-Chancellor, legal realists view law as the pronouncements of judges on legal controversies, with judges as “de facto” sovereigns having the final say. Justice Holmes stated that law is “the prophecies of what the courts will do in fact, and nothing more pretentious” (Holmes, 1897: 461). This perspective emphasizes law’s practical application, considering the impact on individuals, including the “bad man” who only cares about consequences (Ndubuisi & Nathaniel, 2020: 153).
Roscoe Pound’s concept of law as social engineering highlights its dual role in punishing wrongdoing and organizing society for humanity’s benefit. However, assigning judges the status of “de facto” sovereigns is contestable, as their function is to interpret law, not create it. Judges’ pronouncements constitute the real meaning and interpretation of law, but this does not equate to absolute sovereignty.
The judicial sins of legal positivism lie in its flawed metaphysical assumptions, prioritizing law over humanity and neglecting the spiritual aspect of human nature. This approach, rooted in logical positivism and 19th-century capitalism, reduces humans to servitude and separates “is” from “ought” (Wack, 1997). Professor Fuller’s “The Morality of Law” emphasizes the necessary connection between law and morality, highlighting eight principles of internal morality, including generality, promulgation, and non-retroactivity, which laws must adhere to promote the common good.
The rescue mission of natural law
Madam Vice Chancellor, law plays a vital role in modern civilization, substituting battlefields and armaments, aligning with the United Nations’ mission and international laws. Just as food sustains the body, law sustains society, but bad laws can harm society, as seen in the biblical account of King Solomon and Jeroboam (1 Kings 12:14). Natural law serves as a tempering doctrine, ensuring laws promote public good, considering human nature and desires for freedom, liberty, and human rights (Ndubuisi and Nathaniel, 33).
The concept of natural law has ancient roots in Greek and Roman philosophers, such as Thomas Aquinas, St. Augustine, Hugo Grotius, Thomas Hobbes, John Locke, and Jean Jacque Rousseau. Alf Ross likened natural law to a “harlot” available to everyone (Wack, ‘Law and Justice’, 261), but I view it as a “gentle breeze” availing all humanity, regardless of background or status. Natural law has shaped the contemporary world, influencing legal systems, politics, ethics, social relations, international affairs, economics, and religion.
Thomas Aquinas’ seminal work, ‘Summa Theologica’, distinguishes four categories of law: eternal law, natural law, divine law, and humanly positive law. Hugo Grotius secularized natural law, stating that natural law remains valid even if God did not exist (etiamsidaremus non esse Deum) (Wack, 103). Sir William Blackstone’s Commentaries on the Laws of England cemented natural law’s role in the English legal tradition, emphasizing that positive laws derive authority from natural laws and are nullity if conflicting (Wack, 101).
Natural law in political revolution
Madam Vice-Chancellor, natural law doctrine has been instrumental in shaping political revolutions, human rights, and racial equality, as seen in the American and French Revolutions. The Declaration of Independence (1776) and the Declaration des droits de l’homme et du citoyen (1789) embody natural law principles, asserting that all men are created equal with unalienable rights (Ndubuisi and Nathaniel, 65). This ideology continues to influence contemporary political thought, particularly through contractarian theories like those of John Locke, John Rawls, and Thomas Hobbes.
John Locke’s account emphasizes man’s rights and obligations under God, recognizing the right to resist tyranny and overthrow unjust governments. Locke views rebellion as a means to restore a violated political order, stressing the trust element in political offices and the fiduciary relationship between leaders and citizens (Freeman, 105). His labor theory of property holds that individuals have a natural right to the fruits of their labor, and government exists to protect this right, making him a foundational figure in democratic thought and capitalism (Wack, 105).
The Nigerian experience highlights the need for a return to natural law principles, particularly in resource control and governance. Laws like the Land Use Act of 1978 and the 1969 Petroleum Act have been criticized for perpetuating state-backed oppression and disenfranchisement (Pat Utomi, The Guardian, March 17, 2013, 15). A national conference or restructuring, based on the “general will” concept of Jean Jacques Rousseau, is imperative to create a more inclusive and democratic framework for governance, rectifying historical injustices and cementing a proper social contract between the government and the people.
Between fidelity to law and fidelity to justice
Madam Vice Chancellor, legal positivists argue that law is a science with its own mechanisms for change, unaffected by external influences or moral considerations. This aligns with the doctrine of stare decisis, which emphasizes adhering to decided cases (Black’s Law Dictionary, 6th edition, 1406). However, this approach has limitations, as it relies on inductive logic, drawing conclusions from given premises. The principle of precedent can lead to flawed reasoning, ignoring the dynamic nature of law and society. As Heraclitus noted, “You cannot enter the same water twice,” emphasizing the need for judges to approach each case pragmatically.
Judges utilize various principles for interpreting statutes and deeds, including the primary rule, mischief rule, golden rule, and purposive rule of interpretation. Despite these tools, judges must consider environmental and other factors affecting justice. The celebrated case of Leopold v Loeb, defended by Clarence Darrow, illustrates the importance of considering heredity and environment in determining responsibility (Ndubuisi, Freedom and Determinism, 140). Darrow’s passionate argument led to a life sentence instead of the death penalty, demonstrating the impact of effective advocacy. This highlights the significance of judicial discretion and the role of context in shaping justice.
The limitations of legal positivism give rise to judicial activism, rooted in Natural Law. This approach recognizes that law is dynamic and evolving, requiring judges to consider unique circumstances and humanity’s needs. Judicial activism seeks to address the flaws in strict adherence to precedent, incorporating moral and social considerations. By doing so, judges can ensure justice is tailored to individual cases, reflecting the ever-changing nature of society. Effective advocacy, as seen in the Leopold and Loeb case, can significantly influence the outcome of a case, underscoring the importance of judicial activism (Lawhead, 262).
Judicial activism
Madam Vice Chancellor, an activist judge’s approach in adjudication prioritizes justice, equity, and fairness over strict adherence to the law, considering the social issue or mischief to be addressed. Unlike restrained judges who focus on the original meaning of the Constitution, activist judges view the Constitution as a living document requiring broad interpretation to suit contemporary needs (Michael Kb Wambal, 47-48). By doing so, they utilize precedents as guides, reinterpret them, and address exigencies of the time, upholding the Constitution’s underlying values and purposes.
An activist judge seeks to address lacunae in the law undetected by legislators, promoting the common good and social justice for all. This approach ensures fairness, equity, and justice, positioning the court as the last hope of the common man, not a sanctuary for the privileged. By challenging the status quo, activist judges sustain the common law tradition, recognizing that some form of judicial activism is not only permissible but also necessary to uphold the principles of democracy and ensure justice is seen to be done (Michael Kb Wambal, 47-48).
The american origin of judicial activism
Madam Vice Chancellor, judicial activism originated in the United States, where the judiciary has long emphasized checking the abuse of power by the Executive and Congress. Chief Justice John Marshall’s progressive approach in Worcester v. Georgia (1832) 6 Peters 556-62 (US) declared Georgia laws dealing with Cherokee Indians unconstitutional. This decision incurred President Andrew Jackson’s wrath, leading to his infamous statement, “Well, John Marshall has made his decision, now let him enforce it” (49). Marshall’s legacy continued with Chief Justice Earl Warren, who addressed complex issues like school desegregation in Brown v. Board of Education (347 US 483, 1954). Warren’s judgment held that “separate educational facilities are inherently unequal.”
The Brown v. Board of Education decision revolutionized the fight for equality in the US, overturning Plessy v. Ferguson (1896), which had allowed racial segregation. Anthony Lewis of the New York Times described Warren’s tenure as “years of legal revolution,” bringing about significant social changes (Oputa, 52). The Supreme Court’s interpretative role is crucial in ensuring equity and fairness, as legislators create laws in abstract, while courts apply them to real-world problems. This process allows courts to make new laws and rules promoting justice, public good, and morality. Through interpretation, courts “act with creativity and depth, be vocal and audible” (53).
Activist judges like Earl Warren and Lord Denning advocate for courts to reflect and initiate changes in social values. They believe courts should not only respond to changes but also induce them (Oputa, 53). The judicial function requires high ethical standards and intellectualism to rescue society from oppressive laws. Sir Frederick Pollock emphasizes that court decisions “add to and alter the law” (53). Scrutton LJ’s statement in Ellerman Lines Ltd v Read (1928) 2 KB 144 at 145, “If there is no authority for this, it is time we make one,” underscores the need for judicial innovation.
Lord Denning LJ’s observation in Packer v Packer (1954) p. 15 at 22, “if we never do anything which has not been done before, we shall never get anywhere,” highlights the importance of judicial activism. The law must adapt to changing circumstances, and courts must invoke their aid to address novel situations. Failure to do so would render the law stagnant and ineffective (Oputa, 53). Judicial activism ensures the law remains dynamic and relevant, promoting justice and social progress. By embracing this philosophy, courts can address the complexities of modern society and uphold the principles of equality and fairness.
Judicial activism in india
Madam Vice Chancellor, India’s experience with judicial activism offers valuable lessons for Nigeria. The Indian Supreme Court has passionately espoused redefining its boundaries within India’s local circumstances due to the country’s governance regime’s weaknesses (Michael Wambali, 49). This has led to landmark decisions on fundamental rights, including privacy, travel, speedy trials, and protection against handcuffing and public hanging. The court has also promoted public interest litigation, allowing it to act on letters or newspaper articles concerning public interest and human rights. This approach has introduced informality into the judicial process, dispensing with formal petitions.
The Indian Supreme Court’s interpretation of Section 21 of the constitution, guaranteeing fundamental rights, has been significant in access to medical treatment cases. In Paschim Banga Khet Mazdoor Samity v State of West Bengal (1996) 4 SCC, the court held that providing adequate medical facilities is the state’s primary function and obligation (Femi Falana 344-345). Similarly, in Consumer Education and Research Centres and others v Union of India (1955) 3 SCC 42, the court ruled that the right to health is a fundamental right and integral to the right to life. The court maintained that the government has a constitutional obligation to provide health facilities. These rulings demonstrate a dynamic interpretation of fundamental rights.
India’s judicial activism has ensured accountability from the government regarding health rights. The Supreme Court’s decisions have expanded Article 21 to encompass access to healthcare, medical facilities, and a clean environment necessary for maintaining good health . Bandhua Mukti Morcha v Union of India is another notable case where the court ruled that the right to health falls under Article 21 of the Constitution . These cases highlight India’s commitment to upholding human rights and the rule of law. By studying India’s judicial activism, Nigeria can gain valuable insights into promoting justice and protecting human rights.
Nigerian experience with judicial activism
Nigeria’s judicial system has faced numerous challenges, including technicalities, court congestion, delays, and locus standi issues, leading to questionable interlocutory injunctions that pervert justice. The landmark case of Lewis v Bankole, which took 104 years to resolve, is a stark example . However, the Supreme Court has shown signs of activism in cases like Attorney General v Akilu, upholding the locus standi of private prosecutors, and Essien v Edet, Governor of Lagos State v Ojukwu, Olaniyan v University of Lagos, and Fawehinmi v Akilu (No 1), demonstrating the court’s willingness to promote justice (Ibidapo-Obe, 2008, 54).
Nigeria urgently needs judicial activism to address legislative impunity, executive lawlessness, and the arrogant display of wealth and power. Public interest litigation, rooted in social contract theory, can provide a powerful voice for the people and keep the government accountable (Ibidapo-Obe, 2008, 31). Lawyers must advance the cause of justice, ensuring that the basic principle of justice is maintained, and institutions are established to promote fair treatment (Steiners, 259). The experiences of Chile under General Augusto Pinochet’s dictatorship serve as a cautionary tale, where judges failed to protect basic rights, leading to devastating consequences.
The Nigerian judiciary must learn from these examples and prioritize justice over technicalities. Recent decisions, such as SkyPower Express Airways Limited v UBA & Anor (2022), highlight the need for judicial activism to prevent delays and ensure justice is served . By promoting judicial activism, Nigeria can create a more just society, where the rule of law and social justice prevail, and the judiciary truly serves as the last hope of the common man.
Conclusion and Recommendations
Good laws are essential to a just and happy society, but achieving this ideal often remains elusive due to humanity’s inherent self-interest. The judiciary plays a critical role in intervening to bridge the gap between law and justice. Unjust laws inevitably give rise to an unjust and oppressive society, fostering suspicion and mistrust among citizens.
The desire for happiness is inherent in mankind, and society is formed to promote this happiness. However, laws governing the state can be a burden, and legislators must strive to remove doubts about the propriety of any law. Law should not operate in a vacuum, but rather in the context of society.
To achieve justice, law must be sensitive to human joy and happiness, and courts must prioritize justice, equity, and fairness. The “might equals rights” ethic must be avoided, and courts should remain the last hope of the common man. A close affinity between law and morals is essential to achieving this ideal and promoting a just and happy society.
Recommendations
Flowing from the foregoing, the following recommendations are suggested:
1. Connect Law and Morality:
We must recognize the necessary connection between law and morality in national affairs. This connection promotes humanity, preserves mankind, and upholds pious values. By doing so, we ensure laws align with moral principles.
2: Reinterpret Chapter Two of the 1999 Constitution Pragmatically
The Apex Court should give Chapter Two of the 1999 Constitution a pragmatic interpretation, making it justiciable. This move supplements fundamental rights and promotes fairness, equity, and social justice. It ensures the Constitution’s objectives are realized.
3. Make Ethics Mandatory in Education
Ethics should be mandatory for tertiary institution students to foster a sane and healthy environment. Knowledge is virtue, and universities should offer Philosophy, Politics, and Economics (PPE) programs. This equips leaders with a solid moral compass.
4. Abandon Harmful Cultural Practices
We must jettison cultural values and practices that offend natural justice, equity, and good conscience. This aligns with the Repugnancy doctrine and promotes civility. Harmful practices hinder progress and undermine human dignity.
5. Prioritize Merit over Sentiments
National affairs should be conducted objectively, prioritizing merit over primordial sentiments. The federal character and quota system have done more harm than good. These practices violate the Constitution and promote discrimination.
6. Adopt Equal Protection Principles
We should adopt equal protection principles, banning policies that promote discrimination. This aligns with international standards, such as the US Supreme Court’s ruling against affirmative action. Equal protection ensures fairness and justice for all citizens.
• Prof Ndubuisi delivered this as his inaugural lecture at the University of Lagos.