The Origin of Law( published first in 2004) Valentine Obienyem one of our academic discussions on the supreme discipline studied in the University, the philosopher appeared to get the better of the argument amidst protests from the lawyer, the engineer, and the social scientist. The kernel of the philosopher’s argument was that all other disciplines are the offshoots of philosophy. Specifically, the philosopher said that the foundations of sociology, psychology, jurisprudence, sciences, and medicine could only be traced to philosophy. The lawyer did not take this lightly. He satirized the philosopher and philosophy by his wry remark: “ Other disciplines took so much from philosophy to the point of leaving her empty-handed. She is now a miserable custodian of left-over problems”.1 Which of us will not support his profession in such a war for supremacy? Evidently, the grouse of the lawyer was the philosopher’s audacity in locating the foundations of law and jurisprudence in philosophy. Likewise, we may not be able to understand, except we take time off to pause and ponder and, perhaps, ask ourselves how jurisprudence came into being. Though this piece is not strictly a treatise on law, we cannot comprehend jurisprudence adequately until we have dismantled the institution of law via its meaning, origin, history, growth, development, and other factors that influenced it. All the disputations and prejudices that in other areas of philosophy surround the notions of definition and of meaning have contributed to the endlessly debated problems of the definition of law. Even as we recognize that no definition is wholly acceptable, let us succinctly define law as a set of enforced and enforceable rules under which a society is governed.2 In the process of making these rules, each epoch, civilization, nation, country, and peoples of the world have formed diverse legal systems peculiar to their social conditions. Because these social conditions continually change, these laws must also change or become outdated. Therefore, law is dynamic. The dynamism of law explains why law keeps its fundamental purpose and its foundations remain changeless. For emphasis, let us look briefly at these developments. Doubtless, law started with pre-historic people. We cannot deny them this credit simply because they left no record of their laws. The fault lay in that the art of writing had not been discovered them. The first civilization and the first system of writing appeared between about 3500-3000 B.C. This innovation made various civilizations to assemble their laws in codes. Among the first known codes were the Babylonian Codes, Mosaic Codes, Indian Codes, and Chinese Codes. These codes were taken to be directly sanctioned and revealed. Because of this belief of law, it made its reforms, abrogation, additions and growth difficult, if not impossible. With much critical insights provided by the Greek philosophers, the ancient Greeks came to believe that human beings have the power to make laws and to change them as the need arose. They respected law so much that somebody like Socrates had to die rather than disobey the laws of Athens. Plato’s The Laws, the earliest extant classic of European jurisprudence, contains a detailed discussion of a systematic code to govern the whole of man’s social life. Aristotle, though he gave no formal definition of law, discussed laws in numerous contexts. In hisNichomachean Ethics he invented the phrase “Equity is just”.3 He seemed to suggest, from the context of his book, that equity comes into play where there are gaps in the laws. He equally suggested that equity corrects the harshness of the law when adherence to the written law would work an injustice. This forms the basis of modern equity in British Jurisprudence. As law developed in ancient Greece the problems of authority, law and order, obligation, and self-interest became the central topics of speculations in the thought of a group of philosophers called the Sophists. They gradually attributed law to human invention and justified obedience to law only to the extent that it promoted one’s own advantage. During this time, attempts were made at a formal definition of law. Thus, Xenophon in hisMemorabilia reported that Alcibiades, who associated with both Critias and Socrates, remarked to Pericles that no one could really deserve praise unless he knew what a law was. Pericles replied that laws were those rules approved and enacted by the majority in assembly, whereby they declared what ought not to be done.4 How influential the Greek laws were could be judged from the estimation of Isocrates: “Everyone would admit that our laws have been the source of very many and very great benefits to the life of humanity”.5 This is not to say that the development of laws was all cosy in Greece. Because of what we call the “democratisation” of law, they became litigious. Because of this itch to litigate at the slightest provocations, their courts, like courts the world over, were usually behind the calendar. To reduce this, public arbitrators were chosen; the parties to a dispute submitted their complaints and defence to them. If any party did not accept its judgement, it was free to appeal to higher and regular courts. This considerably influenced our own justice system, especially the recourse to arbitral tribunals. There was no public prosecutor in Greece. Government relied upon private citizens to accuse before the courts declared anyone guilty of serious offence against morals, religion, or the state. Thus, a class of sycophants arose who made such charges a regular practice, and developed their profession into an art of blackmail. They earn a good living by bringing – or, better, threatening to bring – actions against rich men. Crito, rich friend of Socrates, complained “it was difficult for one who wished to mind his own business to live in Athens. For at this time there were people bringing actions against me, not because they have suffered any wrongs from me, but because they think that I would rather pay them a sum of money than have the trouble of law proceedings”. 6 The barbarous aspect of Greek law was its recognition of torture in case of non-citizens and slaves. Penalties took the forms of flogging, fines, disfranchisement, confiscation, exile, and death. Death could be avoided before trial by voluntary exile and the abandonment of property. Death was inflicted as painlessly as possible by administering hemlock, which gradually benumbs the body from the feet upward, killing when it reaches the heart. In slaves, death was effected by a brutal cudgelling. The law of Greece, as well as other aspects of Greece life, continued to flourish. With the increase in communications, trade and contact, ideas were exchanged. In this cross-fertilization of thoughts and customs, and with the aid of philosophers such as Panaetius of Rhodes, Greek ideas were transplanted to Roman soil.7 Thus, the ancient law reached its peak under the Romans. Roman law, even at this time, included all the main branches of public and private law that exist today. In fact, the scientific classification of the law began with the Roman jurists inspired by their philosophers. Eventually, the whole body of these laws became extremely complex. The task of interpreting, again, fell to a group of highly skilled lawyers called Juris Prudentes, a Latin term for experts in law. Since that time, the philosophy (science) of law has been known as jurisprudence. Let us use a selective excursion into the laws of Rome to demonstrate its complexity and Rome’s contributions. One of the greatest influences on Roman jurists was the philosopher-orator, Cicero. Cicero, a pupil of one Quintus Scaerola, wrote eloquently on the philosophy of the law. His aim was to make logic of the law and reconcile the different contradictory laws in existence in his time. In this task his debt to the stoic philosophy is hereby acknowledged. The Stoics believed that law should accord with morality, and that guilt lay in the intention of the deed (mens rea), not in the results. Antoninus, a product of the Stoic School, decreed that cases of doubt should be resolved in favour of the accused, and that a man should be held innocent until proved guilty8 – two supreme principles of modern Jurisprudence. With this subtle work of philosophers in law, they were greatly befriended by successive emperors. This, in turn, nurtured a succession of philosopher-lawyers. Salvius Julianus, Roman of African birth, wrote a work on jurisprudence, known asResponsa. This, for many years, was acclaimed for its logic and clarity. Another Roman known only to us by his first name, Gaius, contributed to jurisprudence in his famous Institutiones. His was the fullest authority for Pre-Justinian Roman Law. Sixty years later, Papinian, Paulus, and Ulpian, all of them philosophers, brought Roman jurisprudence to its height. As the terminology of science and philosophy came mostly from the Greeks, betraying their source, so the language of law came mostly from the fall-outs of Roman philosophers in Latin language. Law in general was ius, justice or right; Lex meant a specific law. Ius included unwritten law (custom) as well as written law. The latter was composed of ius civile the “Law of (Roman) Citizens” and ius gentiun the “Law of the Nations”. The right of voting enjoyed by citizens was (ius suffragii); of holding office (ius honourum); of engaging in commercial contracts (ius commerciali); et cetera. The law of property, problems of ownership, obligation, exchange, and contract took up the largest part of Roman law. Ownership (dominium) came by inheritance or acquisition. The making of wills was recognized and often hedged in legal phraseology. Every testator was compelled to leave a specified portion of his estate to his children, brothers, sisters and ascendants. No heir might take any part of an estate without assuring all debts and other legal obligations of the deceased. Where a man died without children and without a will, his property and his debts passed automatically to the nearest “agnate”, or relative descended from a common ancestor, exclusively through males. In the later years this male “omnipotence” abated and by the time of Justinian, “agnates” and “cognates” (relative through male and female lines of ascent) inherited with equal right. Obligation to perform was compelled by law. It could arise by contract. Torts,non-contractual (then) wrongs committed against a person or his property were in many cases punished by an obligation to pay the injured person a sum of money in compensation. The law guarded transactions carefully: It warned the seller with a Caveat Venditor, as well as the buyer with a Caveat Emptor, against the myriad forms of cheating natural to civilized life. All these developments in Roman jurisprudence, inspired by the philosophers, could be observed in all modern jurisprudence. In the law of procedure, Romans were equally at the forefront. Of all the ancient peoples, seconded by the Greeks (as I have noted before) the Romans were the most prone to litigation, despite the discouraging complexity, technicality, and confusing requirements of their procedural law. Doubtless, our own legal action would have seemed to them equally devious and prolonged. The older the civilization, the longer the law suits. In litigation, one was required to follow a form called legis actio, or process of law, and the slightest deviation invalidated the action. “Thus”, says Gaius, “a man who sued another for cutting his vines, and in his action called them ‘Vine’ lost his case because he should have called them ‘trees’, Since the Twelve Tables speak generally of trees, and not particularly of vines”.9 Each party to the case deposited with the magistrate a sum of money (sacramentum), which was forfeited by the losing party to the state. The defendant also had to seek bail (vadimonium) as security for his subsequent appearances. Sometimes the judge issued an interim (interdictum), requiring one or more of the parties in the case to perform or refrain from certain actions. Parties to a dispute usually sought the aid of trial lawyers (advocates). There was no lack of legal talent, for every fond parent yearned to see his own son as an advocate, and the law, then as now, was much respected. Law rather than the discretion of the judge fixed penalties. They varied with the rank of the offender, being severest for the slave; he might be crucified, the citizen might not; and no Roman citizen, as every reader of the Acts of the Apostles knows, would be scourged, tortured, or put to death over his appeal to the emperor. The most difficult problem of Roman law was to adjust itself as an intelligent master to the administration of vast lands that Roman arms or diplomacy had won. Rome ruled them by ius gentium, “the law of the Nations”. This was not international law because before then, certain common customs were honoured in peace and war – the mutual safe guarding of international merchants and diplomats, the granting of truce for burial of the dead, abstention from the use of poisoned arrow, etc. Philosophers made every attempt to identify this “law of the Nations” with the “law of Nature”. The stoics defined the latter as a moral code implanted in man by “natural reason”.10 Nature, they held, was a system of reason, a logic and order in all things. This order, spontaneously developing in society and coming to consciousness in man, was natural law. Cicero put it thus: “True law is right reason in agreement with nature, world-wide in scope, undying, everlasting…. We may not oppose or alter the law, we cannot abolish it, we cannot be freed from its obligations by any legislatures, and we need not look outside ourselves for an expounder of it. This law does not differ for Rome and for Athens, for the present and for the future; it is and will be valid for all nations and all times… He who disobeys it devises himself and his nature”.11 In the medieval period, St. Augustine made his own contribution to the doctrine of natural law. The culmination of the natural law tradition was the theory of St. Thomas Aquinas, who integrated stoic, Christian, and Aristotelian elements within a comprehensive philosophic system. Laws, he concluded, “are ordinances of reason promulgated for the common good by the legitimate sovereign”12 Four types of law, according to Aquinas, may be distinguished: eternal law, an expression of God’s rational ordering of the universe; divine law, which guides man towards his supernatural end, natural law, which guides man towards his natural end, and human law, which regulates through the prospect of punishment the affairs of man in a given community in the light of that community’s requirements.”13 The era of St. Thomas Aquinas was followed by the emergence of nation-states. This brought the problem of the foundation of modern International law to the forefront of philosophico-legal thinking. Francisco de Vitoria aThomists, did important works in this respect. However, it was Hugo Grotius who gave a new expression to the doctrine of natural law, which laid the foundation of modern International law. In his book, De Jure Belli Ac Pacis(“The law of war and peace”) Grotius derived from the nature of the human intellect the desire for a peaceful society that manifests itself in the principle of natural law. Following Aristotle, he held that man is social, altruistic, and rational. Therein lies the origin of law, which would be binding whether or not God exists. This statement has been regarded by historians as epoch-making. They claim that Grotius separated jurisprudence from theology as represented by the scholastics. The distinction between the state of nature and the state of civil society was used by many philosophers in differentiating between natural and positive (or civil) law. Such philosophers included Thomas Hobbes, Benedict Spinoza, John Locke, Montesquieu and Jean Jacques Rousseau. They recognize that the laws that govern men living in the state of nature were natural in the sense of being instinctive, whereas the civil law originated with specific acts of legislation by a political power, vested in a sovereign person, in a representative assembly, or in the whole body of the people. Hobbes defined the law of nature as “not properly laws, but qualities that dispose men to peace and to obedience”.14 Thus, Hobbes identified society with positive law; it is the command of the sovereign. His unfinished Dialogue between a philosopher and a student of the common laws of England examines various doctrines of the English law as put forward by Sir, Edward Coke. Another philosopher who greatly influenced jurisprudence was Immanuel Kant. With Fichte, Kant led the German metaphysical school, which developed a legal philosophy based on the indestructible freedom of the individual. Kant’s philosophy of law is contained in his obscure book, The Critique of Practical Reason. He sought a systematic understanding of the principles underlying all positive laws, which would enable us to decide whether the laws are in accordance with moral principles. He influenced Hegel as seen in Hegel’s Philosophy of Right and such other modern jurists as stammer and kelsen. These people, in turn, influenced Cesare Bonesana, Blackstone, Jeremy Bentham, and the founder of legal positivism, J. L. Austin. With the end of the 19th century a new attitude began to gain ground. This time it was lawyers, influenced by some philosophers or by persons influenced by the philosophers, which started to break new grounds in Jurisprudence. Lawyers now began to link the law that they were taught and practised with other fields of human thoughts. Jurisprudence is now divided into many schools. We still have a school called the Philosophical School, which looks at the reasonableness of and justice; Analytical Jurisprudence, which deals with the definitions and analyses of legal concepts; Functional or Sociological Jurisprudence; this explains the working of legal concepts in their social-context; Comparative Jurisprudence, which studies the legal system of different countries and attempts to resolve conflicts in law. There is Historical Jurisprudence; the study of legal institutions and ideas, in the light of history; Ethical or Ideological Jurisprudence, which is concerned with legal ideals, or the law “as it ought to be”. As can be inferred from the foregoing discussion, the task of legal theory or jurisprudence in general, no matter which school, can be defined with a modern German philosopher, Radbruch, as the “Clarification of legal values and concepts and postulates up to their ultimate philosophical foundations”.15Thus, the main source of jurisprudential thoughts and experience emerged from antiquity as fall-outs of the philosophical speculation of the Greeks and the legal and administrative practice of the Roman jurists as postulated by Roman Philosophers. These philosophers examined fundamental legal questions so thoroughly that it is hard to find instances of contemporary speculation that escape the bounds set by them. It is partly because of this pervasive and enduring influence that jurisprudence is known chiefly as the philosophy of law. Most of what we do invent and say about Jurisprudence today are continuing debates from ancients Greece and Rome, especially from their philosophers and other philosophers elsewhere. REFERNCES: 1.Alaekwe R., Informal Discuss 2.The definition is mine 3.Aristotle, Nichomachean Ethics, cited by Mullin Bonde in My Idea of Equity (London: Bethros) publications, 1979, P.71 4.Xenophon, Memorabilia, trans. Watson (Philidelphia, 1899) P.29 5.Socrates, Antidosis, cited by Alfred Jemmey in TheAncient Notion of Law (London: Bethros Publications, 1983) P.64 6.Ibid. P.99 7.Fundamentals of General Studies, edited by Noah A.O.K., (Lagos : Rex Charles Publications, 1995) P.440 8.Bury J., History of the Roman Empire, (New York, 1904) P.529 9.Mullin Bonde, Opt. Cit., P. 101 10.Ibid., P.51 11.Cicero, De Republica, iii, 22 12.Aquinas T., Great Books of the Western World. Edited by Robert Hutchins. (William Benton’s Publication) P. 205-337 13.Ibid., P. 205 - 337 14.The Encylopaedia of Philosophy, volume 5 and 8, Ed. by Paul Edwards (Macmillian Publishing co., 1972) P.259 15 Alfred Jemmey, opt. Cit., P.137
Posted on: Thu, 21 Aug 2014 07:12:07 +0000
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