LAW, ORDER AND JUSTICE

(A) LAW

One of the most uncertain and unsettled discourse about law is the definition of law itself. This fact is captured aptly

by the caveat of Iavolenus, ―Omnis definitio in jure civili periculosa est.‖ – ―All definitions in law are precarious.‖

To define is to state with an acceptable degree of precision the sets of properties possessed by the phenomenon

which is to be defined, i.e., to determine essential qualities or characteristics.1 This is however, something of an

elevated impossibility when it comes to what exactly law is. As a consequence what is merely available in the body

of legal literature is the definition of the word or concept ‗law‘ by various philosophers and jurists whose perception

of what law is, is greatly influenced by their philosophical background or school of thought. Therefore, in order to

come to shore with what law is, the various definitions of law by different philosophers would be explored.

1. THE COMMAND SCHOOL

Jeremy Bentham (1748-1832)

The Command school is a sub-school of Legal Positivism.2 The father of legal positivism whose master was

William Blackstone, an exponent and advocate of natural law doctrine, was Jeremy Bentham. To him, law is

essentially a command issued by a sovereign to his subordinates or by a superior to his inferiors, who owe him

allegiance.3 He says

“A law may be defined as an assemblage of signs declarative of a volition conceived or adopted by the sovereign in a State,

concerning the conduct to be observed in a certain case by a certain person or class of persons, who in the case in question are or are

supposed to be subject to his power; such volition trusting for its accomplishment to the expectation of certain events which it is

intended such declaration should, upon occasion, be a means of bringing to pass, and the prospect of which it is intended should act

as a motive upon those whose conduct is in question.”4

When Bentham made reference to ―sovereign‖ he meant ―any person or assemblage of persons to whose will a

whole political community‖ owes loyalty and obedience. He saw law as essentially the command of a sovereign,

backed by sanction to act as coercive or alluring motives for compliance. Bentham‘s ‗command‘ theory was

propagated by his disciple, John Austin.

John Austin (1790-1859)

Austin also conceives law essentially in terms of command backed by sanction, like Bentham his master. Law, for

Austin is the command of a sovereign enforced by sanction and the purpose of sanction is to enforce obedience by

the threat of evil consequences for disobedience.5 Austin also conceives sovereignty in a Hobbesian way as one who

is obeyed by all while he owes obedience to no one. The command of a sovereign is law and since law is essentially

the command of a sovereign, it follows that only positive law can be law. As a result, natural law, international law,

customary law and constitutional law are not commands of a sovereign, and so they are not, according to Austin‘s

definition of law, laws in the proper sense of the word. Austin in saying that law is essentially a command backed by

sanction or the threat of punishment implies that anybody who is able to issue a command and is able to back it up

with force or the threat of punishment has, ipso facto, made a law. Thus, even the command of an armed robber is

1 L.B. Curzon, Jurisprudence-Lecture Notes, Cavendish Publishing Ltd, 2nd ed., chapter 1, page 1. 2 Legal Positivism, a school of legal philosophy, is the strongest objection to the natural law doctrine and it denies the existence or reality of the

natural law and claims to be able to fully explain law (both in theory and in practice) without any reference to the natural law. The word ‘law’

means for this school, only the positive law and nothing more. 3 Joseph Omoregbe, An Introduction to Philosophical Jurisprudence, page 129. 4 Ibid. Citing Jeremy Bentham, Of Laws in General, edited by Hart, Athlone Press, 1970, chapter. 1, page 1. 5 Ibid, at page 131.

law according to this theory each time an armed robber gives a command at gun point, for his command is law.6 It

has also been stated elsewhere that ―…not every command is a source of law.‖7

2. THE NORMATIVE SCHOOL8

Hans Kelsen (1881-1973)

Kelsen is of the view that legal studies should be freed or purified from all extra-legal considerations (such as

political, moral, psychological and metaphysical considerations) which are not part of law and he aims at an

objective science of law devoid of subjective and moral elements, of approval or disapproval, justice or injustice.9

Kelsen‘s pure theory of law is only concerned with positive law but he does not go along with Bentham and Austin

in making sanction an essential part of the concept of law for he maintains that sanction is itself stipulated by law,

which means that law is prior to sanction and can be separated from it. In other words, it is something attached to the

violation of law and is stipulated by law itself. In his words, ―law is the primary norm which stipulates the

sanction.‖10

Kelsen sees law primarily in terms of norm, not in terms of command like Bentham and Austin. In other words, law

is a system of norms.11

By norm, what is meant is that something ought to be or ought to happen, especially that a

human being ought to behave in a specific way. In his words, ―norm is that meaning of an act by which a certain

behavior is commanded, permitted or authorized.‖12

He also distinguishes between a moral norm and a legal norm

and says that while a moral norm does not stipulate sanction, a legal norm does stipulate sanction. He further said

that a law is valid if it has been created by a norm, which itself has been created by a higher norm within the legal

order. The logical connection of norms in this order will continue until we arrive at a non-law created entity which is

called the grund norm.13

He said that law is essentially a system of norms (or rules) in which one norm derives from

another and is justified by it. Thus the legal validity of one law derives from another law within the same legal

system. The entire legal system derives its validity from the ―grund norm‖. This grund norm is outside the legal

system itself, and it is the foundation of the entire system. Thus, to account for the validity of a positive legal system

Kelsen felt obliged to go beyond the empirical realm into the metaphysical realm. He realized that the foundation

and ultimate justification of a legal system cannot be within the system itself and one has to go beyond it.14

H.L.A. Hart

Hart criticizes the command theory of law on the ground that it does not account for all kinds of law, for not all laws

are commands. He pointed further that there is no essential difference between law as it is presented by the early

legal positivists, Bentham and Austin, and the threat of a gunman since both are commands backed by threats of evil

consequences in case of failure to comply. In his words, ―the only difference is that in the case of a legal system, the

gunman says it to a large number of people who are accustomed to the racket and habitually surrenders to it.15

For Hart, law is essentially a system of rules, and a legal system is the union of primary and secondary rules. Social

rules grow out of habit while legal rules in turn grow out of social rules. The process is described as there being first

6 Joseph Omoregbe, An introduction to Philosophical Jurisprudence, page VI. 7 Professor Akin Oyebode, Law and Nation-Building in Nigeria: selected essays, page 2. 8 The Normative school is also a sub-school within legal positivism. 9 Ibid, at page 135. 10 Ibid. Citing Hans Kelsen, General Theory of Law and State, Harvard University Press, 1945, page 61. 11 Abiola Sanni, Introduction to Nigerian Legal Method, page 13. 12 Joseph Omoregbe, An introduction to Philosophical Jurisprudence, page 135. Citing Hans Kelsen, Pure Theory of Law, University of California

Press, 1967, chapter 1, page 5. 13 Abiola Sanni, Introduction to Nigerian Legal Method, page 13. 14 Joseph Omoregbe, An introduction to Philosophical Jurisprudence, page VI. 15 Ibid, at page 138. Citing Hart, “Positivism and the Separation of Law from Morals”, Harvard Law Review, vol. 71, No. 4, page 602.

a social habit which is uniformity in behavior among a social group (1st stage) and at this stage each member of the

group simply behaves in accordance with the habit in a rather unreflecting manner, without thinking that everybody

in the social group ought to behave that way. Failure to conform to the habit, at this stage, attracts no criticism from

the members of the social group. Gradually, the habit develops into a social rule (2nd

stage). This happens when the

habit comes to be considered as a standard of behavior to which all members of the group ought to conform, and

failure to conform to it on the part of any member of the group attracts criticism. At this stage there is a critical

reflective attitude to certain patterns of behavior as a common standard and this is accompanied by demands for

conformity which then expresses itself in criticism whenever any member of the group fails to conform.

Social rules then become legal rules when they become part of a legal system, and the group passes from pre-legal

society to legal society (3rd

stage). It is at this stage that Hart believes one has law in the proper sense of the word

and a legal system is then the union of two kinds of rules, to wit, primary rules (under these rules, human beings are

required to do or abstain from certain actions, whether they wish to or not; duties are imposed) and secondary rules

(under these rules; human beings may by doing or saying certain things introduce new rules of primary type or

determine their incidence or control their operations). Hart then states that the vast majority of rules in a legal

system belong to the category of primary rules, and their validity comes from the fact that they derive from the

secondary rules; and any primary rule that can be shown to derive from a rule of the secondary type is valid.16

The

secondary rules constitute the foundation of a legal system; they are the ―rules of recognition‖ and they are used for

the identification of primary rules of obligation. Hart then says that it is this situation which deserves to be called the

foundation of a legal system and that the rule of recognition is the ultimate rule in a legal system.

3. LEGAL REALISM SCHOOL

Legal realism is a sub-school within legal positivism. This school takes a realist view of law and insists on de-

mythologizing or de-mystifying law.17

The proponents of this school see law for what it really is in terms of its

practical function in society, for law is not an abstract entity in the Platonic world of ideas. In a few words, this

school believes in being realistic for there is nothing mystical about law and should therefore not be shrouded in

mystery. This school of thought is of two types, to wit, American legal realism and Scandinavian legal realism due

to the fact that this school is particularly influential in America and Sweden respectively.

The founder and typical representative of American legal realism is Oliver Wendell Holmes who was a judge of

the Supreme Court of America and he disapproved of the confusion between law and morality in jurisprudence for

he believed this confusion obscures ones understanding of law. In other to understand law, he insists on their

separation. He thinks the best way to view law is from the standpoint of an immoral man who cares only for the

consequences which such knowledge enables him to predict; which ultimately led him to see law only in terms of

sanction. Law to Holmes is essentially a systematized prediction, that is, a prediction as to what will happen (in

terms of punishment) to a person if he performs certain actions or does certain things. In his bid to separate law from

morality, he eliminates the notion of obligation from the concept of law which then becomes nothing other than a

system of prediction or prophecy as to what will happen to a person if he does or fails to do certain things. To

Holmes, there is nothing like natural law, nor can there be any room for the concept of natural justice in his theory,

for law in his theory does not impose any obligation on man.

The typical representative of the Scandinavian legal realist school is Karl Olivecrona who sees law not as a

command coming from a sovereign (as Bentham and Austin see it) but as a system of imperatives which stand on

their own. He believed that law had a powerful grip on the minds of people that it becomes a reality in their minds,

for it is this psychological effect it has on the minds of people that constitute the essence of law rather than the

process by which it is passed or the authority from which it emanates. Thus, Olivecrona keeps the Sovereign at the

16 Ibid at page 140. 17 Ibid at page 128.

background and sees law as essentially a psychological phenomenon. He also sees law in terms of cause and effect,

that is, the effect it has in the minds of the people once they internalize it after which it is retained in their minds. At

the beginning, sanction may be necessary to enforce compliance with the new law, but as time goes on the idea of

the action comes to stay (internalized) in the minds of the people, marked by its prohibition; and it then comes to be

seen by the people as a prohibited (forbidden) action. At this stage sanction will no longer be necessary since the

imprint of prohibition now accompanies the idea of the action each time it appears in the minds of the people. He

further contends that this is the origin of the sense of morality, that is, that morality originates from law or, in other

words, it is the internalization of law that leads to the sense of morality.

4. NATURAL LAW SCHOOL

Nature intends man to behave in certain ways and to do certain things and the consequence of this is that nature does

not intend man, or to be more accurate, nature forbids man to do certain things or behave in certain ways.18

This idea

that nature intends man to do certain things or to behave in certain ways and on the other hand, to refrain from doing

certain things is the origin of the idea of the Law of Nature.19

The term ‗law of nature‘ is both prescriptive and

descriptive in meaning. In its prescriptive meaning, the law of nature is a universal precept or command intended by

nature to regulate human behavior. It is the universal law which enjoins all human beings to do good and refrain

from evil. The law of nature in this sense is synonymous to what Immanuel Kant termed ―Moral Law‖ for in its

prescriptive sense, the law of nature is a moral law, the basic moral law, and it applies only to human beings. The

law of nature in its descriptive sense, is simply a formulation of the regularity with which certain things happen

uniformly all over the world under certain conditions, e.g. the law of gravity, the law of relativity, etc. However, we

are more concerned with the law of nature in its prescriptive sense and what it meant to various philosophers of this

school of thought, natural law.

Plato (427-347)

Plato was one of the founders of the Philosophy of Law as well as the natural law philosophy. He saw law as an

expression of reason, and the ideal law as the law of Reason.20

For Plato, laws are necessary only when reason fails,

for the law of reason is the ideal law; and thus he is the originator of the natural law tradition which identifies law of

nature as a law of reason. To him, Positive laws are only expressions of the law of reason, they are needed only

because men are weak and cannot observe the law of reason without the help of positive laws. So in an ideal

situation where men are perfectly rational and willingly submit to the rule of the law of reason, positive laws would

be unnecessary. In addition, he believes that the law of nature, which is the law of reason, is the absolute norm of

conduct and the absolute standard of justice which positive laws imperfectly reflect.

Aristotle (384-322 B.C.)

Aristotle sees reason as the ideal law of human conduct .He believes that a virtuous man is a man who is always

guided by ―the rule of reason‖, which is ―the right rule‖.21

He also distinguishes between natural, legal or

conventional justice. Whereas natural justice applies everywhere with the same force, legal justice depends on the

law or convention of the place in which it is being applied. He believes that man is a rational being, hence, the law

of nature as it applies to man is the law of reason or ―the rule of reason‖. Aristotle, the biologist, obviously derived

the teleological view of nature from biology.

18 Ibid at page X 19 Ibid. 20 Ibid at page 4. 21 Ibid at page 5

St. Thomas Aquinas (1224-1274)

Like Aristotle, Aquinas sees nature as teleological. Everything in it is basically oriented towards certain ends to

which it naturally tends.

He distinguishes between four kinds of law, namely, the eternal law, natural law, divine positive law and human

positive law. He defines law as ―An ordinance of reason, directed towards the common good, and promulgated by

the one who has the care of the community.‖22

Francis Suarez (1548-1617)

Francis Suarez defines law as ―a common, just, and stable precept which has been sufficiently promulgated.‖23

He

believes that an unjust law is no law. For a law to be regarded as just, three conditions must be met: First, it must be

intended for the good of the community and not for the private interest of some individual members of the

community. Second, it must be intended only for those who are under the jurisdiction of the legislator. Third, it must

not impose disproportionate burden inequitably on people, and what it commands must be practicable.24

Hugo Grotius (1583-1645)

Grotius distinguishes between three kinds of law, namely, the natural law, positive law, and the law of nations. He

defines natural law as ―a dictate of right reason which points out that an act, according as it is or is not in conformity

with rational nature, has in it a quality of moral baseness or moral necessity; and that in consequence such an act is

either forbidden or enjoined by the author of nature, God ‖25

Thomas Hobbes (1588-1679)

Thomas Hobbes defines law of nature as ―a precept or general rule found out by reason, by which a man is

forbidden to do that which is destructive of his life, or taketh away the means of preserving the same; and to omit

that by which he thinketh it may be best preserved.‖ 26

Richard Hooker (1553-1600) and John Locke (1632-1704)

Richard Hooker also distinguishes between four kinds of law, namely, eternal law, natural law, human positive law

and revealed law. Eternal law is ―that order which God before all ages hath set down with Himself for Himself to do

all things by.‖27

He said the natural law is that law that regulates the behavior of both non-rational beings as well as

human beings. But as it regulates human behavior it is the rule of reason, perceived by human reason and obeyed

voluntarily by man.

John Locke, on his part, believes that the law of nature is both the law of God as well as the law of reason,

discoverable by reason, and intended to regulate human behavior. He further stated that the basic principles of this

law are self-evident, and from these self-evident principles ―the measure of right and wrong‖ can be deduced ―by

necessary consequences, as incontestable as those of mathematics.28

‖

Immanuel Kant (1724-1803)

22 Ibid at page 14 23 Ibid at page 21 24 F. Copleston, A History of Philosophy, London, Doubleday, vol 3, part II, 1963, p.203 25 Hugo Grotius, Prolegomena 1,1,10,1; Copleston,p.145 26 Thomas Hobbes, Leviathan, chapter 14, Penguin Books, 1968, p.189 27 R Hooker, The Laws of Ecclesiastical Polity, 12. 28 John Locke, Essay Concerning Human Understanding, book 4, chapter 3 , sect. 18

Man, according to Kant, is subject to two kinds of law, namely, the physical laws of nature and the moral law. These

two are known as the laws of nature which are universal. The moral law is a categorical imperative, based on man‘s

rational nature. It is a law of nature which is intended to regulate human behavior, obliging him to live up to his

rational nature. He therefore posited that the union of all rational beings who are ends in themselves and who are

both subjects as well as makers of the universal law, a law which they make and impose on themselves.

Jean Jacques Rousseau (1712-1778)

Rousseau sees natural rights, especially the right to freedom as innate and natural. ―Man was born free, and he is

everywhere in chains.‖29

He maintains that all men are born free and equal. He also posited like the classical natural

law theorists that natural right (natural law) acts as a check to the ruler by setting limits to his powers, limits beyond

which he cannot legitimately go.

5. HISTORICAL SCHOOL

Friedrich Carl Von Savigny, a German aristocrat, who played a prominent role in developing this theory believes,

and according to this theory, that law should be a formal restatement of the customs prevalent in the society. This is

because customs usually evolve over time through informal enforcement processes until they become part of

everyday life or folkways.30

It is therefore difficult to change the customs of the society except the generality of the

people are in tune with the change. This theory recognizes what is called the spirit of the people, volkgeist, which

binds the people and distinguishes them from any other people. In addition, this theory favours the evolution of law

over a period of time as opposed to the concept of fairness, goodness and justice, etc., as espoused by the natural law

school, which can lead to revolution.

6. SOCIOLOGICAL SCHOOL

Eugene Ehrlich was the prominent out of the European Sociological Jurisprudents. According to him, law is based

on what he called ―facts of law‖, meaning how people acted. According to him, there is a relationship between law

and conduct and that each affected the other.31

The society‘s conduct determines the rule laid down in legal sources

such as statutes and decided cases. Therefore, it is the society‘s value and conduct that determines what law is and

not the rules laid down by the sovereign. If then, law is widely or significantly at variance with popular conduct and

the law is unsupported, it is doomed as an instrument of social control. Ehrlich‘s analysis was that one could not

know the law of the society by merely reading through the formal legal sources, rather one should go to the society

to appraise how that law is obeyed, ignored, executed, modified or supplemented by the society.

7. UTILITARIAN SCHOOL

The chief proponent of this school, Jeremy Bentham believed that the task of law is to promote communal utility.

For Bentham, the task of law is to promote communal utility and utility in this context means that which affects

people‘s happiness.32

Government by making the appropriate law should seek to promote the greatest good of the

greater number of people. He identifies four major utilities which are; Security, Equality, Liberty and Abundance;

and gives priority to Security among the four, places Liberty second and the other two last. In a bid to achieve its

objectives, the law must balance the individual‘s interest with that of the communal interests.

8. MARXIST THEORY OF LAW

29 Rousseau, The Social Contract, chapter 1,opening sentence. 30 Abiola Sanni, Introduction to Nigerian Legal Method, page 18. 31 Ibid. page 19. 32 Ibid. page 21.

Karl Marx had no developed theory of law nor did he see any positive contribution that law makes to the well-being

of the people. However he has references to law which show Marx‘s negative view of law as an instrument of

oppression in the hands of the capitalist rulers in the exploitative capitalist system. Marx sees law as part of the State

machinery with which the capitalist rulers exploit the masses. Thus the Marxist theory of law is part of its theory of

State. It sees law not as an expression of the people but the will and interest of the capitalists. This theory of law is

quite similar to the adage more popular during the prevalent international law that approved of the outrage of

colonialism, that the law is a necessary and useful tool in the hands of the strong and powerful for the enforcement

of their will against the poor, weak and defenceless.33

(B) ORDER

There is not so much of the definition of the concept of order but only the stating of its essential qualities or

characteristics. For instance, Francisco Pi y Margall (1824-1901), a Spanish politician and author, in his La

Reaccion y La Revolucion, said, ―True order supposes cohesion, yet not a cohesion obtains by the presence of

exterior causes, but an intimate and spontaneous cohesion which you with all your restrictions inevitably inhabit.‖

In other words, he did not attribute the attainment of order by man in the society to exterior causes like laws or rules,

but to the fact that such order arises from ones innermost self as a result of something unavoidable. Also, Samuel

Smiles (1812-1904), a Scottish writer, in the thrift described order as ―A place for everything, and everything in its

place.‖ Other existing descriptions of what Order is have a much more inclination towards nature. For example,

Alexander Pope (1688-1744) an English poet said, ―Order is heaven’s first law.‖34

Also, Thomas Browne (1605-

1682), an English physician and writer, in The Garden of Cyrus said, ―All things began in order, so shall they end,

and so shall they begin again; according to the ordainer of order and mystical mathematics of the city of heaven .‖

In addition, Camilo Jose Cela (1916-2002), a Spanish writer, is noted to have said in the following words, ―Things

are always best seen when they are a trifle mixed-up, a trifle disordered; the chilly administrative neatness of

museums and filing cases, of statistics and cemeteries, is an inhuman and antinatural kind of order; it is, in a word,

disorder. True order belongs to Nature, which never yet has produced two identical trees or mountains or horses.‖35

However, our concern is not on order according to nature but according to laws which are devised by man for man.

LAW AND ORDER

In everyday life, the sequence of people's political desires is well defined. First of all, people desire order. Without

order, life is chaotic and people die. Next comes law, so people can predict what will happen. Law is not necessarily

just. The key is that it provides enough predictability for people to survive.36

It has once been noted in a legal

literature, Introduction to Nigerian Legal Method edited by Dr. Abiola Sanni, that the classical function of

government is to maintain law and order, protect lives and properties within its territory and ward off external

aggression; and this could be described as the foremost justification for modern government.37

The act of protecting

lives and properties and also warding external aggression are also forms of maintaining order for where there is

habitual loss of lives and properties and foreign invasion, it would inevitably lead to anarchy and chaos which is the

opposite of order. There is a remarkable relationship between law and order, for order in most modern societies

cannot be attained except through law. When there is order in a country it results in favourable situations such as

economic growth and development, for foreign investors would avoid investing in a country where there is constant

political and social unrest as this endangers their investments, mostly in the form of assets, in various ways.

33 Akin Oyebode, Law and Nation-Building: selected essays, chapter 2, page 14. 34 An Essay on Man. 35 Journey to the Alcarria. 36 Supra, at footnote 33. 37 Page 31.

According to Edmund Burke (1729-1797), an Irish-born British statesman and political philosopher, ―Good order

is the foundation of all good things.‖38

According to Professor Akin Oyebode, law is a technique for social ordering, and in borrowing the words of

William Twining, law is doing things with rules.39

This ultimately implies that in order to condition people‘s

behavior or attain order in the society, the most guaranteed way is to do this through the instrumentality of the law.

For since law is imperative in nature and imposes on the individual irrespective of whether that individual is happy

with the law or not, he or she is nevertheless obliged to behave or act in that prescribed way (modus operandi) for

law even instills order in the way people live (modus vivendi). For the purpose of illustration, Dirk Bogarde (1921-

1999), a British actor and novelist in An Orderly Man said, ―I am an orderly man…. Being orderly, as a matter of

fact, can be excessively tiresome and it often irritates me greatly, but I cannot pull away.‖ However, some believe

that order comes in irrespective of the presence of the law. In other words, order is not dependent on the law. For

example, Raymond Radiguet (1903-1923), a French writer, has once put something similar in the following words:

“In the long run, order imposes itself on things.”40

Also, wherever men or people gather for whatever reason,

especially to live together in a society, there must be law41

for the purpose of regulating the behavior of man towards

man which indicates or spells order.

Finally, a society without order is synonymous to a society without law (although there could be disorder or chaos

even where there is law, especially where there is a breakdown of that law such as when people refuse to obey such

laws) or a lawless society. This has been aptly described as a society in the state of nature, where ‗Man was an

enemy of man‘, Homo homili lupux est, and the question of or the existence of law was totally unrealistic. This kind

of society is mainly concerned with the survival of the fittest to which Thomas Hobbes noted that life in a state of

nature was solitary, poor, nasty, brutish and short. Hence, the need for human society to be regulated in order to

eliminate a system analogous to ‗might is right‘.

(C) JUSTICE

Lady Justice depicts justice as equipped with three symbols: a sword symbolizing the court's coercive power; a

human scale weighing competing claims in each hand; and a blindfold indicating impartiality.42

Justice is an

accepted limitation on the arbitrary rights of a ruler; Injustice means that a ruler `has the right to swing his fist'

anywhere; Justice means that the ruler's right to swing his fist `stops at the end of the subject's nose'.43

As the

concept of justice means different things to different people, there are variations of justice. One of them is

Utilitarianism which is a form of consequentialism, where punishment is forward-looking justified by the ability to

achieve future social benefits resulting in crime reduction. The moral worth of an action is determined by its

outcome. Another variation is Retributive justice, which basically regulates proportionate response to crime proven

by lawful evidence, so that punishment is justly imposed and considered as morally correct and fully deserved. The

law of retaliation (lex talionis) is a military theory of retributive justice, which says that reciprocity should be equal

to the wrong suffered; "life for life, wound for wound, stripe for stripe."44

Another variation is the Restorative

justice which is concerned not so much with retribution and punishment as with making the victim whole and

reintegrating the offender into society. This approach frequently brings an offender and a victim together, so that the

38 Reflections on the Revolution in France. 39 Akin Oyebode, Law and Nation-Building in Nigeria, chapter 1, page 2. 40 Devil in the Flesh. 41 Ubi societas, ibi jus. 42 Luban, Law’s Blindfold, 23. 43 The innovator’s Solution: Creating and Sustaining Successful Growth, by Clayton M. Christensen and Michael E. Raynor, 2003, Harvard

Business School Press, ISBN 1578518520. 44 Exodus 21, verses 23 – 25.

offender can better understand the effect his/her offence had on the victim. One other variation of justice is the

Distributive justice which is directed at the proper allocation of things — wealth, power, reward, respect — among

different people. Understandings of justice differ in every culture, as cultures are usually dependent upon a shared

history, mythology and/or religion.45

Each culture's ethics create values which influence the notion of justice.

Although there can be found some justice principles that are one and the same in all or most of the cultures, these are

insufficient to create a unitary justice apprehension.

Injustice according to Thomas Hobbes is the non-performance of one‘s covenant and whatsoever is not unjust is

just.46

This is so as he stated that where no covenant hath preceded, there hath no right been transferred, and every

man has right to everything and consequently, no action can be unjust. Aristotle in the Nicomachean Ethics on the

concept of justice, defined justice to be of general justice and particular justice. Aristotle‘s general justice is a form

of universal justice that can only exist in a perfect society; while particular justice is where punishment is given out

for a particular crime or act of injustice; and this is where he says an educated judge is needed to apply just decisions

regarding any particular case for this is where we get the concept of the scales of justice, the blindfolded judge

symbolizing blind justice, balancing the scales, weighing all the evidence and deliberating each particular case

individually. Aristotle basically considers justice as what is fair and equal. However, Aristotle being an apostle of

Plato (who was an opponent of egalitarianism along with Aristotle) was of the view that ―some people are, by

nature, slaves, and since nature itself has made them slaves, it is right to make them slaves.47

To Anaximander,

justice is the ultimate principle, tending towards the physical world.48

Heraclitus in reasoning along the same line

said, ―The sun will not overstep his measures if he does the Erinyes, the handmaids of justice will find him out‖

(Sabine, 1973:39). The concept of justice according to Immanuel Kant is that justice requires every action to be in

accordance with a universal principle. The pragmatist Jeremy Bentham states that justice consists of the greatest

good for the greatest number. According to John Rawls, justice can be realized only by normative choices made

behind the veil of ignorance. Geoffrey C. Hazard, Jr. opined that the concept of justice, stated negatively, is the

avoidance of injustice.49

Plato’s conception of justice centres on his theory of strict division of the state into classes with the guardians (the

philosopher kings) as leaders.50

He believed that nature endowed individuals differently and that when each

individual does what he or she is naturally fitted to do, he or she would have a peace of mind which will invariably

reflect on the larger society. In his thinking therefore, when each person does what he is naturally suited to do there

will be peace, justice and stability, both to the individual and the state.51

Similarly, he was noted to state in his the

Republic that ―the state which we have founded must possess the four cardinal virtues of wisdom, courage,

discipline and justice. It will have wisdom because of the knowledge possessed by the rulers, courage because of the

courage of the Auxiliaries, and discipline because of the harmony between all the three classes and their common

agreement about who ought to rule. Finally, justice is the principle of one man, one job of moulding one’s own

business, in the sense of doing the job for which one is naturally fitted and not interfering with other people.‖ Also,

in Plato‘s the Republic, he employed the term ‗just‘ for that which is in the interest of the best state, for he believed

that the state is ―genuinely wise, for its judgment is good.‖52

Karl Popper’s53

conception of justice was based on a humanitarian definition of justice and the salient parts of this

definition are that: (a) justice could be seen as equal distribution of the burden of citizenship; (b) justice could also

45 Luca Giordano, Justice. 46 Thomas Hobbes, Leviathan, ‘Of other Laws of Nature’, chapter 15. 47 F.N. Ndubuisi, Man and State, page 54. 48 F.N. Ndubisi, Man and State, ‘Justice’, chapter 3, page 44. 49 Geoffrey Hazard, Law and Justice in the Twenty-First Century, Fordham Law Review, vol. 70, page 1740. 50 Dr. F.N. Ndubuisi, Man and State, Logomedia publications, page 49. 51 Ibid, page 48. 52 Ibid , page 51. 53 Karl Popper sees Plato’s conception of justice or a state founded on justice as purely totalitarian (a rigid class rule) and anti-humanitarian.

be seen according to humanitarians as equal treatment of the citizens before the law provided that (i) the laws show

neither favour nor disfavour towards individual citizens, groups or classes (ii) impartiality of the courts of justice

and (iii) an equal share in the advantages, and not only in the burden, which membership of the state may offer to its

citizens.54

However, Dr. Ndubuisi in his Man and State opined that if Plato‘s conception of justice meet all Karl

Popper‘s requirements then it is wrong to see Plato‘s philosophy as immoral, for, actually, his philosophy is

anchored on humanism. In Plato drawing his final conclusion that any changing or intermingling within the three

classes55

must be injustice and that the opposite therefore is justice, Popper argued that for Plato, justice has to do

with class rule and class privilege, ―for the principle that every class should attend to its own business means briefly

and bluntly that the state is just if the ruler rules, if the worker works, and if the slave slaves.‖56

Popper thus believed that Plato‘s concept of justice is different from its common meaning as seen in the

humanitarians‘ definition for while the humanitarians see justice as ―the absence of privilege‖ Plato sees it as ―class

privilege‖. Egalitarianism is the demand that everybody should be treated equally without privileged classes or sects

for it posits that the circumstances of one‘s birth, family connection, wealth or influence should not be determining

factors in the application of the laws of the state; hence, egalitarianism does not recognize natural privileges, but this

is not to say that citizens cannot confer privileges on those they trust.57

It is noteworthy that the egalitarian principle had been markedly formulated by Pericles, before Karl Popper, in the

following words: ―when a citizen is in any way distinguished he is preferred to the public service, not as a matter of

privilege but as the reward of merit. Neither is poverty a bar, but a man may benefit his country whatever be the

obscurity of his condition.‖ Thus, no man is seen as born for a particular office, no office can be bought by a person

from a privileged class but within the atmosphere of equal opportunity, people are given positions based on their

talents.58

Pericles‘ position contrasts with that of Plato which favoured the pre-eminence of natural privileges, hence

his dictum, ―equality for equals, inequality for unequals.‖

Like Plato, some other philosophers were opposed to egalitarianism. For instance, Bodin believed that in spite of the

stipulations of the law, equality is impossible. For him, ―whatever the structure of rights and obligations some

people will always continue to do better than others, becoming much richer and more powerful than their

neighbours, so that if equality is to be maintained, it will always be necessary to change the laws and to tamper with

rights and obligations to the detriment of the rich and the exalted and to the advantage of the poor and the lonely.‖59

Bodin not only believed that inequality is impossible but he also contended that it is undesirable. He defended

inequality and inherited privileges and stated further that, ―it is not enough to ensure that men are rewarded

according to their talents, if they are not allowed to pass on their rewards to their children…. Deprive them of this

hope, and you weaken society by weakening a motive that caused men to make the best of their talents.‖60

He

reasoned that this kind of privileges is good for the community for it makes for progress and equity.

LAW AND JUSTICE

54 Dr. F.N. Ndubuisi, supra at footnote 39, page 50. 55 Plato apportioned responsibilities or duties to the different classes in the state with (i) the Herdsmen or the guardians assigned to rule, (ii) the

soldiers to protect the state and (iii) the workers to work and ensure that food and other necessities of life are not lacking in the state.

Therefore, when each person does what he is naturally suited to do there will be peace, justice and stability, both to the individual and the

state. 56 Dr. F.N. Ndubuisi, supra at footnote 39, page 51. 57 Ibid, page 52. 58 Ibid. 59 Ibid, page 53. 60 Ibid.

When it comes to issues on the concept of law and justice, various questions come to bear. Are law and justice

synonymous? Is justice to be achieved through or according to law or some other extra-legal consideration? And

should law be according to justice?

There is always difficulty in forging a consensus in matters like justice for they are by nature, particularistic or

relativistic61

and the concept has strong psychological force because everyone has suffered injustice and feels such

suffering deeply and lastingly but, a private and subjective sense of injustice, although entirety real, is insufficient

material with which to construct a system of justice.62

Also, the concept or idea of justice is ever controversial or it

is rather an ever recurring subject/area of controversy as every enactment (including subsequent amendments and

policy reforms) or judicial pronouncement of positive law does not foreclose further debate about the merits of the

provision in question and the legal rules through which justice is administered at any given time are themselves the

product of political controversy and disputation among various constituents in a particular political regime.63

Even

the idea of justice changes from time to time as the justice of a particular case might not be the same justice of

another case based on similar facts. In other words, the idea of justice changes in a sort of inter-periodical

continuum. To this effect, the French saying becomes apposite: Plus ça change, plus la même chose! (The more

things change, the more they remain the same!)64

Law is not synonymous to justice for not every law is a just law or has the element of justice embedded in it.

However, in situations whereby there are just laws, and not merely the Nazi juristic ideology of legalism – gesetz als

gesetz (the law is the law), justice and law could be said to be synonymous in ordinary parlance where justice was

begotten from the correct application of such a law as opposed to arbitrariness. It was indeed noted by some writers

that ―It is often assumed that by the laity that compliance with the law leads to justice.‖65

Most writers however

believe that law is remarkably different from justice. For example, Yvonne Malan and Paul Cilliers noted that the

law consists in the positive structures that make up judicial systems…that in virtue of which actions are said to be

legal, legitimate, or properly authorized; while justice, however, cannot be bound to a ―system‖, it exceeds the limits

of the system or more correctly, it disrupts (or deconstructs) the system by demanding from it that which it cannot

provide. In other words, justice exists outside or beyond the law.66

The authors also stated that law‘s function is to

calculate between competing clams: it weighs and measures, and gives judgment, for the law is a coded system and

the law can calculate correctly that according to a rule/law a person deserves a certain punishment or reward (which

however does not mean that it is just); while justice on the other hand is not a mere calculation for if it were, it

would not recognise the impossibility of making a perfect decision here and now, for it would then be simply the

application of a rule/law, unhaunted by the ghost of the undecidable. Justice is not a matter of knowledge or

theoretical determination, it is an ordeal triggered by the ethical demand constituted by the presence of the other.67

They also noted that law is a call to order while justice is a call to action and that while the former deals more with

duty, the latter deals with responsibility.

On the issue whether law should be according to justice or justice according to law, Professor Akin Oyebode,

speaking on ‗From the Rule of Law to the Rule of Just Law,‘ noted that the propriety and relevance of law would

have to be located in social praxis for in fact, the troublesome antinomy between justice according to law and law

according to justice must of necessity be resolved in favour of the latter; and granted that there might be some

difficulty in forging a consensus in matters like justice which are, by nature, particularistic or relativistic, swinging

the pendulum to the other extreme of crass legalism seems escapist in view of vital issues of the human condition

61 Akin Oyebode, Law and Nation-Building in Nigeria: Selected essays, page 41. 62 Geoffrey Hazard, Law and Justice In The Twenty First Century, Fordham Law Review, Vol. 70 Pg. 1739 63 Ibid, page 1742. 64 Akin Oyebode, Law and Nation-Building in Nigeria: Selected essays, page 128. 65 Yvonne Malan & Paul Cilliers, Deconstruction and the Difference between Law and Justice. 66 Ibid. 67 Ibid.

such as mass poverty, alienation and self-actualisation which remain unaddressed by the rule of law.68

He also noted

in the following the words:

―Most Nigerian judges perceive their role as applying justice according to law rather than law according to justice. Accordingly, they

are not stricto sensu sensitized to the needs and conditions of the litigants before them. Whether the substantive law is fai r, just or

equitable is not for them to decide so long as the demands of formal or procedural justice have been met. Yet, the task of making

judges more conscious of the existential conditions of litigants, it seems, must begin with a re-examination of the justice of the

applicable law itself. Of course, this touches on the larger question of democracy and social justice which some might wish to

consign to the realm of law reform or legislative activity rather than adjudication. Nevertheless, it is important to bear in mind that

without a shift in legal ideology from legal formalism or strict construction to judicial activism and liberal or purposive interpretation,

any effort aimed at bringing justice nearer the people would come to naught. Indeed, barring a social revolution, the most optimal

means of alleviating the living conditions of the poor and underprivileged is through courts providing a forum for ventilating their

grievances.‖

In summary, Professor Oyebode is of the view that judges should adopt a more liberal or purposive approach in the

interpretation of laws especially when the laws appear to be manifestly unjust or could deny justice to be done to the

party based on a technical ground or procedure. In support of this, an example is the issue of locus standi in

environmental litigation. However, there has been quite recent intervention on the part of the judiciary through the

making of the Fundamental Rights (Enforcement Procedure) Rules 2009, which provisions are similar in content to

the 2008 Rules,69

made in pursuance of the powers of the Chief Justice of Nigeria in section 46(3) of the 1999

Constitution. A summary of its provisions is as follows:

Order 1 Rule 2 provides that the Constitution, especially Chapter IV, as well as the African Charter, must be

expansively and purposively interpreted and applied, with a view to advancing and realising the rights and freedoms

contained in them and affording the protections intended· by them.

Order 1 Rule 2(3)(e) provides that the Court must pro-actively pursue enhanced access to justice for all classes of

litigant, especially the poor, the illiterate, the uninformed, the vulnerable, the incarcerated, and the unrepresented.

Order 1 Rule 2(3)(f) provides that the Court must encourage and welcome public interest70

litigation in the human

rights field, and no human rights case may be dismissed or struck out for want of locus standi. In particular, human

rights activists, advocates, or groups, as well as any non­governmental organization, may launch human rights suits

on behalf of any potential applicant. In human rights litigation, the applicant may include any of the following: (i)

anyone acting in his own interest; (ii) anyone acting on behalf of another person; (iii) anyone acting as a member of,

or in the interest of a group or class of persons; (iv) an association acting in the interest of its members or other

individuals or groups.

Order 1 Rule 2(3)(g) provides that the Court must, in an agile manner calculated to advance Nigerian democracy,

good governance and human rights civilisation, pursue the speedy and. efficient enforcement -and realisation of

human rights.

Order 1 Rule 2(3)(h) provides that under no circumstances shall the Court allow procedural formulae or arid

legalism to hamper, hinder, impede, inhibit, obstruct or stall human rights enforcement or advancement.

68 Akin Oyebode, supra at footnote 64, page 41. 69 The Rules are not the only' system for enforcing human rights in Nigeria,' but are highly recommended to litigants in this field of law. See

Order 2 Rule 2. 70 Public interest was defined by Order 1 Rule 1 as including the interest of Nigerian society or any-segment of it in promoting human rights and

advancing human rights law.

Order 1 Rule 2(3)(i) provides that Human rights suits-must take precedence and priority (including temporal

priority) over all other business of the Court and all other items on the Court's daily or other agenda or docket,

including constitutional cases which are not also human rights suits, criminal cases, electoral cases, and cases in

which Attorney General or Senior Advocates of Nigeria appear.

Order 1 Rule 2(3)(j) provides that where there is any question as to the liberty of the applicant or any person, the

case must be treated as an emergency.

Order 1 Rule 2(3)(k) provides that fees for filing human rights cases must be made as low as practicable, and at any

event must be the lowest' among all classes of litigation at all levels of the judicature all over the country.

However, in this area of ‗justice according to law‘ or ‗law according to justice‘ most commentators and jurists

choose the former for the major reason that justice according to law would be more predictable and certain instead

of according to the whims and caprices of judges or tribunals. According to Geoffrey Hazard, ―justice‖ in real-world

terms necessarily include rules and regulations as actually administered in courts of law; that ―law‖ is what courts

will do in fact,‖ as Holmes had it.71

He also noted that “‗Justice’ that is not embedded in a legal system,

administered by duly appointed magistrates according to rules of procedure and in accordance with legally

prescribed substantive norms, is at most an idealized aspiration and at worst merely a shibboleth.”72

Also, it was

stated in the following words that ―…law is problematic and violent, but we still need law since we cannot reinvent

strategies to cope with (not control) the complexity of the world every day. Above all, justice needs law….Law and

justice even if they contradict each other, need each other. In other words, law’s focus is on duty, which has a far

narrower scope than responsibility, which justice emphasises.‖73

Also, Roscoe Pound in his Justice According to Law noted at length in the following words:

―For we must bear in mind that law is not logically essential to the administration of justice. Justice may be administered according

to the will of the individual who administers it for the time being, it may be administered according above. Probably it is true even in

the earliest and rudest justice the will of the judge is not exercised entirety as such, wholly free from the constraint of acknowledge

rules of action or principles decision. On the other hand it is equally true that in no legal system, however minute and detailed its

body of rules, is justice administered wholly by rule without any recourse to the will of the judge and his personal sense of what

should be done to achieve justice in the cause before him. Both elements are to be found in all administration of justice.

From time to time more or less reversion to justice without law becomes necessary in order to bring the administration of justice into

touch with new moral ideas or changed social or political conditions.

If left to act freely in individual cases, without rule or standard, no will, either of the king or of the people, is sufficiently set and

constant to insure a uniform administration of justice. Judicial or magistrate caprice is incompatible with the paramount social interest

in general security.

„ In an agricultural society, where the economic existence is simple, justice without law is at its best. In a commercial and industrial

society, where the economic existence is extremely complex, and delimitation of individual interests is demanded by the social

interest in security of acquisitions, justice without law is pushed to the wall by the demand for a maximum of certainty.

Administration of justice according to law means administration according to standards, more or less fixed, which individuals may

ascertain in advance of controversy and by which all are reasonably assured of receiving like treatment. It means an impersonal,

equal, certain administration of justice, so far as these may be secured by principles of decision of general application.

71 Geoffrey Hazard, Law and Justice In The Twenty First Century, Fordham Law Review, Vol. 70 Pg. 1743. 72 Ibid, page 1741. 73

Yvonne Malan & Paul Cilliers, Deconstruction and the Difference between Law and Justice.

„When in certain periods of legal development, some reversion to justice without law has been necessary, as a means of libera ting

an over-rigid body of rules, an evolution of new rules has always followed hard upon its heels. Thus, in Anglo-American law the

origin of equity may be referred to the same power of dispensing with the law in particular reasons that afterward helped to bring

about the downfall of the Stuarts. Equity began as a reaction toward justice without law. It became a system of rules wherein the

element of judicial discretion was given greater play and the circumstances of particular cases were more attended to than the practice

of the common law would permit. But as soon as it began to be a system, the scope for discretion began to narrow steadily. Hence,

the development from the roguish equity of which Selden spoke, which he said varied with the chancellor’s foot, to Lord Eldon’s

equity, which was made up of doctrines “as well settled and uniform almost as those of the common law, laying down fixed

principles, but taking care that they are to be applied according to the circumstances of each case.”

From the above, it could then be submitted that even though detrimental to an individual in a particular case, justice

should be according to law, apart from the subjectivity or relativity of the concept justice, but because of the societal

norms or values which is much higher and more objective because there is a need for certainty and predictability in

the legal process in a complex and modern society where investors would want to invest based on the certainty of

the laws of a country. In fact, Oputa, J.S.C. has once opined in his dictum in the case of Josiah v. State74

the

following observations about justice:

―…Justice is not a one way traffic. It is not a place for the appellant only. Justice is not even a two way traffic, it is real ly a three way

traffic: justice for the appellant accused of a heinous crime of murder, justice for the victim, the murdered man, the deceased whose

blood is crying in heaven for vengeance, and finally justice for the society at large - -the society whose social norms and values had

been desecrated and broken by the criminal act complained of. It is certainly in the interest of justice that the truth of this case should

be known and that if the appellant is properly tried and found guilty, that he should be punished. That justice seeks only to protect the

appellant will not be even handed justice. It will not even be justice tempered with mercy.‖

On a final note, we would like to attempt the issues whether Justice without Law is possible and vice versa; which is

superior between Law and Justice; and whether it is possible to achieve a perfectly just society through Law. With

respect to the issue whether Justice without Law is possible, it would be apposite to state that the existence of Justice

without law may be seen as a contradiction in the light of the fact that Justice itself was in history, an offshoot of

law. The analysis will be inchoate if reference is not made to the existence of society in the state of nature, which

was a society characterized by the concept of ‗survival of the fittest‘. Man was an enemy of man (Homo homili lupux

est), and the question of or existence of law was totally unrealistic. Thomas Hobbes noted that life in a state of

nature was solitary, poor, nasty, brutish and short. Hence, the need for human society to be regulated in order to

eliminate a system analogous to Might is right.

The concept of social contract (propounded by the trio of Thomas Hobbes, John Locke, and Jean Jacque Rousseau)

was to the effect that Government is the trustee of interest of the people, thus subjecting human conduct to

regulations to be made by a certain group of people empowered by the people in general, who reserve the right to

revolt in the event of failure by the government. This signified the emergence of a society governed by law. Thus,

Ubi societas ibi jus (where there is a society, there must be law). Law then became the tool of ordering the society.

In the process of law regulating human conduct, conflict may arise and law has to settle the dispute. Also, in the

process of resolving the dispute, there has to be an outcome/a decision. Then, the question is, are the parties to the

dispute satisfied with the result produced by the application of law to the resolution of the dispute? Or in the words

of the learned, has justice been done in the matter? This takes us to the analysis of justice.

Justice, like beauty is in the eyes of the beholder. Arriving at a decision is the duty of an umpire/arbitral/judge. Thus,

the question whether the decision is JUST or not is an issue that occupies the thought of jurists, and not within the

74

(1985) 1 NWLR 125.

scope of this question. Be that as it may, the foregoing inter-relationship between the application of law to the

resolution of disputes, vis-a-vis the attainment of justice is the basis of the contention that justice cannot exist

without law, because assuming but not conceding that it does, then, what will be the guiding principle/standard for

people vested with the power to do justice.

On the question of the existence of law without justice, it is assertive to state that this is a certain possibility in the

light of the positivist school of thought, which believe that law is what was posited by men for men and the question

of whether the law will advance the cause of justice was never an issue. Thus, Gesetz als gesetz the German way of

saying law is law. In Nigeria, it has been argued that the 1999 Constitution of the Federal Republic of Nigeria is

bereft of legitimacy because it lied against itself. Whether that is a law without justice is left for the jurist to

extrapolate. Also, the recently passed Tenancy Law 2011 of Lagos State is a law which expressly excludes some

areas from its application and in our opinion is unjust because it is tantamount to an ad hominem legislation for law

should be general in character, applying to a generality of people without any special preference or dislike for any

class.

Also, on the issue on which is superior between Law and Justice, it is our view that Law is superior to Justice only in

the sense of its application for when a law has been validly made or passed (the positivists‘ view) it is law and it is

imperative on its subjects irrespective of whether the law is just or not. However, for the Utilitarians or Moralists

who believe in the goodness or justice of a particular law, if such ideology informs the law makers in the making of

every law (of which this is unrealistic or not always probable) then justice is superior to law only in its making. This

is so, as once a law has been passed, it would not be invalidated by the judiciary or the courts based on the ground of

that law being unjust because such a power to invalidate every unjust law is not a power known to the courts and

definitely not conferred by the Constitution. In Justice in the Philosophy of Law: An Encyclopaedia75

it was noted in

the following words:

―Justice is certainly not part of the criterion of validity of legislation. Parliaments are free to enact laws of their own choice, although

many states require that the statutes comport with the state's constitution. Constitutions do not contain a "justice clause" that would

serve to invalidate laws that are not just; to have such a clause would be to make the judiciary into a super-legislature (for it would be

the task of the judiciary to determine which laws are just). Hence the test of constitutionality of a statute is not a justice test.

To be sure, under Blackstone's conception of law, there are certain kinds of legislative enactments that are so blatantly unjust that

Blackstone would deny them the status of "law," such as laws that command people to do the impossible. But Blackstone's

conception with its overtones of natural law has not survived to the modern era. Today, any law enacted by the legislature is a "law,"

leaving the citizenry with the limited choice of either criticizing a given statute as unjust or opposing the reelection of the legislators

who enacted it.‖

However, since legislation is primarily devoted to the general allocation of valued goods in a society, "justice" is an

appropriate critique of such legislation, for as David Hume pointed out, ―claims of justice arise because of the

competition for scarce goods in a society.‖ In evaluating particular statutes, we therefore operate within the general

rubric of "distributive justice." The fact is that in nearly every contested case opposing lawyers will challenge the

applicability to the facts of a given set of legal rules, the uncertainty as to what the facts are, and the question of

which particular rules should be chosen from among many relevant statutes and precedents. Hence the judge or

other decision-maker has three tasks: what legal rules to adopt, what version of the facts to apply the rules to, and

whether those rules are indeed applicable. None of these questions can be decided mechanically or by resort to the

command of the legislature (which itself would have to be "interpreted"). As a result, most judges make their

75

C. B. Gray, ed. pp. 465-467, (Garland Reference Library of the Humanities, v.1743) Garland Publishing, (1999)

(code A956).

choices by considering what, in the circumstances, would be most fair and most just to the contesting parties. In this

way, justice becomes part of nearly every case (excluding only the distinct minority of cases where the judge, for

reasons of politics or personal interest, decides to ignore justice).

Also, on the issue whether it is possible to achieve a perfectly just society through Law, it is our view expressed in

very little words that it is not entirely possible to achieve a perfectly just society through law due to the fact that not

all laws are in themselves perfect. However, a just society can be achieved to a very large extent or degree but never

to the point of perfection. In fact, the natural school theorists like Plato is of the opinion that law of reason is the

perfect law but because men cannot ideally attain such reason that is why positive laws are made for them.

In conclusion, there is a remarkable connection or relationship between Law, Order and Justice. Apart from the fact

that law is the means to the attainment of order and justice, it is our view that where in a particular case based on

special circumstances and there is the existence of a conflict between order and justice, the former would prevail for

it is the concern of the law through the courts to maintain order even where the decision is considered to be adverse

on one of the parties to the dispute. For instance, the courts might be reluctant to grant a remedy to a party to a

covenant where the effect of that remedy would lead to chaos or disorder in the society. In fact, it is our view that

‗justice cannot exist in an orderless or chaotic society‘.