The law, justice and national development (1)
I WANT to thank the Executive Arm of the Nigerian Bar Association, and especially the committee charged with organising this Annual Conference for asking me, a simple priest who has never attended even a “Law 101” class to address this distinguished body of Legal Luminaries, Senior Advocates of Nigeria, Revered Jurists, Teachers of Law, and other Learned Gentlemen and Ladies, on the Role of Law in National Development.
On account of being perhaps the least qualified to pontificate on the topic of Law before such an intimidating audience of practitioners, I have decided not to approach the topic from the perspective of an academic. Instead I will speak simply as a layman who has a passion for social justice, and one who over the years has been a critical observer of the practice of law, the conduct of lawyers and judges, as well as the administration of the various institutions, processes, and machineries that make up the Nigerian Legal System.
The Role of Law in the human society.
Law, understood as the complex mechanism of rules, codes, pacts and conventions for governing human social interactions, is aimed pre-eminently at the attainment of justice – justice, that quality of social equilibrium that makes for peace, stability, and consequently, progress or development. Justice is expressed in rights and duties, and arranged in codes, pacts and laws that may not be infringed. They ensure the stability of society, as well as wholesome economic and cultural relations between peoples. Justice is the natural goal or objective of law. Thus, if law is what it ought to be, and if it is administered in the manner it ought to be administered, the resultant state of affairs is justice. This is why St. Thomas Aquinas says that “an unjust law is no law.” From very ancient times, Western legal traditions recognise three broad domains of justice. They include:
(i). Distributive justice, which is concerned with how society will distribute finite goods, such as honour and property, or in modern societies, the right to vote, which ensures that “each should count for one and no one for more than one,” or equitable taxation which ensures that the burdens of society are distributed in all fairness. Thus distributive justice works to enforce fair division of social benefits and burdens among the members of a given community. This is perhaps the most fundamental domain of justice.
(ii). Corrective justice, which is concerned with how to correct the situation when one person hurts another, and the social balance or order is upset. When one member of the community hurts another, redress is sought for the victim. The redress is in the form of corrective measures that will help ensure that the right order is restored.
(iii). Commutative justice, which is concerned with ensuring equitable exchange of goods, and fulfilment of contractual obligations.
When in modern societies we speak of Law, we refer to those rules and codes that are backed by the coercive power of the state, which we are bound to obey or face appropriate sanctions, such as fine or imprisonment for criminal offences, and damages or money compensation for civil offences. Law seeks to secure justice, to resolve social conflict, to protect interests, to moderate or control social relations, and to facilitate the means of social exchange. Law is supposed to serve the ends of justice and fair play at all times, if it is to be an effective tool for attaining a well-ordered society. Furthermore, law as a species of social engineering seeks to maximize the fulfilment of the interests of the community and its members and to promote the smooth running of the machinery of the society.
Laws like a living organism are a dynamic enterprise. Laws are constantly evolving to meet the demands of a growing sense or consciousness of justice and equity in the human community. In addition to giving flesh to such fundamental and inalienable rights as the right to life, modern laws embrace such political and civil rights as are aimed at curbing possible abuses in the execution of law enforcement by callous and overzealous agents of the state, as the guarantee against unreasonable searches and seizures, freedom of expression, the right to bail, the right to due process and equal protection, the right to speedy trial, and the right to be free from torture, or cruel, degrading and inhuman punishment among others.
Violation of these rights is expected to result in government action, such as fine or imprisonment, when the injured party obtains legal judgement against the offender, even if such offender claims to be acting in the name of government. Laws serve to maintain the proper balance between the authority being wielded by the state on the one hand, and the constitutional rights to be enjoyed by its citizens on the other. Laws should therefore be a potent instrument of justice, especially when rights are exercised within the framework of legitimate laws, and conversely, when laws are enacted with due respect to human rights.
Although as we have stated above, the over-riding purpose of drafting, codifying and administering law in the human society is generally understood to be the attainment of justice, history however shows that laws have not always been designed and managed in such a way as to promote greater justice. Laws have not always been designed and managed in such a way as to promote the priority of the common good over and above individual and group interests. Laws have not always protected the poor and the weak against the excesses of the rich and the powerful. Laws, rather than always promoting justice, have often helped to secure the dominant and privileged class with their undue advantage over the rest of society. Indeed experience has shown that laws and their administration can be a tool of oppression or an instrument of liberation, depending on who the practitioners are and what they make of them.
Yes, the whole mechanism of law making and administration can, and has often been manipulated by the dominant, powerful class in society to subvert justice and to subjugate, to impoverish, to marginalise, and to disenfranchise or further exclude the lowly poor. Examples include the 1890 “Equal but separate” law that instituted racial segregation in the United States of America; the 1911 Aborigines law of Australia that authorised the state to forcefully take away from their mothers any child suspected of being of mixed blood; the 1948 Apartheid law that accorded Black South Africans only second-class status in their own country; and the 1984 Decree 4 of the military regime of our now democratic President which effectively removed the freedom of expression of Nigerians at the time.
Thus, when written and administered by good leaders that are servants of the people, laws tend to promote justice, but when written by tyrants, laws are invariably unjust. We must add here that the legal practitioners who helped the dictatorial leaders in the course of history to draft such unjust laws, and the jurists whose unjust rulings upheld those oppressive regimes in power, often belonged to the dominant class themselves, and cannot escape condemnation for the evil cause to which they applied their privileged learning and expertise.
To be continued tomorrow
• Rev. Fr. George EHUSANI Executive Director, Lux Terra Leadership Foundation, delivered this paper, The Role Of Law In The Promotion Of Justice And National Development
at the 2015 Conference of the Nigerian Bar Association,at the International Conference Centre, Abuja, on August 24, 2015.