According to H.L.A Hart in his book, ‘The Concept of Law,’ few questions concerning human society have been asked with such persistence, and answered by serious thinkers in many diverse, strange and even paradoxical ways as the question: ‘What is Law?’
Generally speaking, the concept of law may mean different things to different people. The physicists speak of the law of gravity or Newton’s law of motion, the economists - the law of supply and demand, the biologists - Darwin’s law of evolution, inter alia.
According to John Austin, laws are general commands issued by a sovereign to members of an independent political society, and backed up by credible threats of punishment or other adverse consequences (sanctions) in the event of non-compliance.
The German jurist, Von Savigny, opposed this definition which, according to him, is a condition precedent to the right understanding of the science of all law. To him, law is derived from the SPIRIT of the people (the volksgeist) just like language and culture. In other words, law developed from popular consciousness and traditional values of the society.
Austin was an English lawyer who was the first lecturer of Jurisprudence at this the University of London and thus the most influential figure in English jurisprudence for the last third of the 19th century and for much of this century. He was a positivist. Positivist school, though deals basically with human laws, derived its ideas from the biblical command by God to the first man and woman not to eat from the tree planted in the middle of the garden, and he backed it up with credible threats of punishment which was death as in Genesis 2:16 & 17.
They flouted the order and faced the consequence.
Similarly, He gave the Ten Commandments in Exodus 20 and listed sanctions in Exodus 21 & 22. As a matter of fact, the punishments for murder and manslaughter are contained Exodus 21:12; for kidnapping in Exodus 21:16.
Most of these laws were as strict as the common laws of England. The common laws of England were the origin of most laws of the common law countries which established Savigny’s definition of law. I am not particularly concerned about definition: according to Felix Cohen, ‘good deal of fruitless controversy has arisen out of attempts to show that a definition of law… is either true or false. A definition of law is useful or useless. It is not true or false, any more than a New Year’s resolution or an insurance policy.’
The Common Laws of England were strict, formal and full of legalism. They were judges-made laws. These were itinerant judges who moved from one region to the other to administer justice. As a historical fact, England had no unified system of law prior to the Norman conquest of 1066 and the subsequent enthronement of King Williams I. Actions were originated through royal writs which were inadequate and ineffective since some rights were not entrenched in the writs which were expected of any applicant to obtain. Even those that were entrenched could not provide the aggrieved party adequate remedies. The only forms of remedy were damages in form of monetary compensations just as death was the only form of punishment for whosoever sinned in the old testament of the Christian Bible.
As a result of this obvious harshness, grace was introduced by God as contained in the New Testament while equity was introduced to mitigate that of common laws of England. Grace means unmerited favour which was inaugurated following the crucifixion of Jesus Christ. Equity was introduced following the decision of Earl of Oxford’s case (1615)1 Rep. Ch. 1. In that case it was ruled that in the event of conflict between a doctrine of equity and a rule of common law, equity should prevail. Similarly, with grace comes mercy, and according to James 2:13 mercy triumphs over judgement.
One would think that equity has come to destroy the law, whereas, equity follows the law. Maitland wrote, ‘the two streams have met and still run in the same channel, but their waters do not mix.’ Cardozo in Graf v. Hope Building, 254 N.Y.I at 9 (1930) states that ‘equity works as a supplement for law and does not supersede the prevailing law.’ Similarly, in Matthew 5:17, ‘do not think that I have come to abolish the Law or the Prophets, I have not come to abolish them but to fulfil them.’ Jesus said this so as to bring to the attention of his people that obedience to law is expected of them while cautioning them not to get carried away by abundance of grace.
Finally, both equity and grace have limitations. A maxim states that, ‘he who comes to equity must come with clean hands.’ This shows that equity will not favour whosoever has his hands soiled. Just as every law has its exception(s), equity does as well. Hence, the question raised in Romans 6:1 that, ‘… shall we continue in sin, that grace may abound?’ Then the next verse, ‘God forbid.’
Keep God’s commandments and endeavour not to abuse His grace!
ADESOKAN AKINADE
[Dove]
LL.B 5
Faculty of Law
Obafemi Awolowo University
