The integrity of law
Let me begin by paying homage to the personality in whose honour these lectures have been dedicated, Professor Alfred Bamidele Kasunmu, SAN, quondam Professor and Dean of Law in this University as well as Attorney-General of Lagos State, an inimitable lawyer and jurist who has left his imprint on legal education and human capital development so much so that the present generation can only marvel at the way and manner he has been able to make a success of practically every endeavour that Providence had thrust on his shoulders.
On a personal note, I wish to acknowledge and appreciate the courage he evinced forty-three years ago by deeming it fit to give a young graduate of law from the Kiev State University the honour and privilege of joining the ranks of arguably Nigeria’s pre-eminent Law Faculty as a teacher and researcher. I should not forget to acknowledge the fact that it was through his good offices that I was admitted to the Harvard Law School in 1974 and, through his international connections and goodwill, I was able to secure funding for my sustenance throughout my sojourn in that citadel of learning.
It was Prof. Kasunmu’s insightful intervention in my life that enabled me to embark on a most challenging and pioneering career that led me to where I am today. Prof, words fail me to salute you for the faith and confidence you had in me which, I believe, I have today been able to more than justify.
When Prof. Kasunmu first got in touch with me with a request to deliver this year’s lecture, I was still in hospital, recovering from surgery and was, therefore, not sure I could oblige. Besides, I was given a broad canvas as to the topic which further complicated things for me. In the event, I settled for today’s topic in the hope that such a recondite theme would facilitate exploration of novel insights and nuances of law. This is especially so in contemporary times when the poignancy and relevance of law are being called into question almost on a daily basis. However, we might, perhaps, begin with the basics.
The Concept of Law
As ubiquitous and critical as the law is in the scheme of things, it is somewhat paradoxical that there does not exist a universally acceptable definition of law. Answers to the simple question, what is law? are as varied as jurists who have striven to address the issue. Definitions of law are apt to be coloured by the ideological or value preferences of whoever is attempting to define it. Little wonder, therefore, that Professor Hart’s highly acclaimed book on law11 does not contain a definition of law. Instead, it only set out to describe the functioning of law, leaving the reader to visualize the nature of law.
The divide between naturalists and positivists permeates every discussion on the nature and role of law, be it that of perception or the relevance and functioning of law. Accordingly, the attitudinal chemistry of a scholar would need to be factored into the evaluation of his approach towards the vexed issue of law and its role in society. The Russian saying that two lawyers, three opinions, rings true regarding the multiplicity of views and attitudes of jurists on the vexed question of the meaning of law.
Whereas the trilogy of sovereign, command and sanction which constitutes the apotheosis of Austinian positivism2 can hardly be faulted despite its limitations as adumbrated by jurists such as Ronald Dworkin3 and others who consider the notion of law as merely a model of rules does not sufficiently take into account the role of principles, policies and standards in a well-functioning legal order. Nevertheless, it would be a sheer flight to fantasy to ignore the reality of law being essentially a complex of rules regulating human conduct. While the arguments continue regarding the meaning of meaning and the meaning of law, it is hardly disputable that law is a coercive apparatus under the control of a sovereign who wields it in order to ensure order, justice, regularity, certainty and other desiderata in the society.
In other words, while some scholars might continue to take delight in debating, like their medieval predecessors, how many angels can dance on the tip of a needle, a more rewarding and useful inquisition would be an interrogation of the teleological or purposeful role of law as an instrument of social control and regulator of social order. Inevitably, such discourse would impinge on the social utility and integrity of law as an epi-phenomenon.
The Autonomy of Law
Closely tied to the question of the nature or meaning of law is that of the autonomy of law as a discipline and legitimate subject of study. In the heydays of natural law, law was conceived as a part of theology or philosophy so much so that England’s first professor of jurisprudence, John Austin emerged only in the 18th century. In fact, England had to rely on jurists such as the Italian, Gentili to teach at Oxford in the 16th century. In continental Europe, however, law was a well developed discipline in the oldest universities like Bologna and Paris, where it was deemed to belong to and was seen as being very much part of the social sciences despite the overarching role and impact of Roman law on developments across the continent.
The need to coalesce the law as an instrument of empire-building and colonisation went a long way to assist the evolution of law and its recognition as an autonomous body of knowledge worthy of study. Accordingly, the French Code Civile promulgated by Napoleon Bonaparte as well as Otto von Bismarke’s BGB can, quite frankly, be considered as important landmarks in the evolution, consolidation and autonomy of law in Europe.
In Africa, Asia and Latin America, where Europe had tried assiduously to create colonised areas after its image, law became a veritable tool of expansion, domination and cultural hegemony. Law was imbued with race supremacist tendencies which denied the cultural authenticity of so-called natives whose laws became relegated to “native laws and customs” in an unholy co-habitation with imposed “superior” European laws under the theory of repugnancy which was accorded pride of place vis-à-vis the laws of the indigenous population. The primacy of the so-called “received law” over the authentic law of the African people cast a pall on the cultural authenticity of the people in the face of imposed European language, food, religion, mode of dressing, social mores and other features of civilisation.
Thus, the notion of law as an autonomous category formed part and parcel of the colonial bequest which the newly independent States had gobbled down without questioning. Not only did our universities imbibe the legal culture of the conquistadores, it was not considered necessary or desirable to interrogate the assumptions underlying the legal concepts we had been compelled to accept without regurgitation which became a notable hurdle along the path of the autonomy of African law. Africans that had trooped to Europe to study law became what Ayandele called “deluded hybrids” or “Afro-saxons” who became neither Europeans nor truly Africans4 and were essentially casualties of what Olayide Adigun once characterised as the tyranny of imposed paradigms.5
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