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LEGAL EXAMINATION OF THE RELATIONSHIP BETWEEN LAW AND JUSTICE

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LEGAL EXAMINATION OF THE RELATIONSHIP BETWEEN LAW AND JUSTICE*

ABSTRACT

for a better feature of the duo Right from the ancient times, the relationship between law and justice

constantly appears to be one of the stimulating issues in the legal polity. Laws are made as an instrument

to achieve justice in society. Thus, all laws must indeed seem to be just. Also, for law to be useful and indeed

acceptable, it must serve the needs of the people. speaking, people require security, fairness, equality and

other moral needs. This the law can give if it is effective in servicing these needs, the law always aims at

substantial justice.” In the past there have been utterances, that courts should treat as void (but which

probably meant no more than side step or ignore) legislation which contradicts reason or is otherwise

repugnant. Although a by-product of this doctrine is that a statute never ceases to be law merely by reason

of disuse. Flowing therefrom, this work examined the nature of Justice, nature of Law, the Relationship

between the concepts of Justice and Law as well as possible Recommendations concepts.

Keywords: Justice, Law, Relationship.

1.0 INTRODUCTION

Law, without justice, is legitimacy of tyranny; justice, without law, is fraught with anarchy; justice

riding w1ith law, with a mission and a vision, arrives at its destination. This phrase goes to

underscore the very essence of justice to law. Though law and justice seem to be intertwined, the

relation between them in various practical situations in society has presented them as two

completely separate and distinct concepts.

*Godstime Otamiri, LL.B First Class(Hons),RSU, B.L (Lagos) in view. Email-

otamirigodstime1@gmail.com.
While law is the legitimate instrument through which people in society are controlled and

regulated, justice seems to be the endpoint and expected outcome of the application of law, for

without justice, law is seen to labour in vain.2

2.0 LAW

The concept of law is not one that is easy to grasp or explain. This is because of the proliferation

of ideologies on the source and essence of law. The idea of law itself has contributed more

controversies and diversities than clarity in semantic analysis. However, in this work, attempt shall

be made to describe law from the point of view of various schools of law, and if possible, give a

meeting point.

Law is a rule or body of rules made by the institutions, bodies and persons vested with the power

to make such rules which are binding and enforced among the members of a given state or society.

While this may seem like a most likely definition for law, it is problematic because it does not

incorporate other ideas of the essence of law. It will be impossible to define law without

considering the ideas of the different schools of thought on the definition of law. These schools of

thought form theories on the idea of what law is. A theory of law is an explanation of what the law

should be, or what we should regard as such. The schools of thought are: the natural school3, the

positivist school, the realist school, the sociological school, the historical school and the Marxist

school. While there are several other branches, these are the major theories on the definition of

law from whence other schools of thoughts derive their basis and their theories shall be discussed

hereunder.

2
Kayode Eso, Valedictory Speech (1999) S.C.N.J. pp. 9-15 at 12.
3
Reflected in Chapter iv, 1999 Constitution of the Federal Republic of Nigeria (As amended)
2.1 Functions of Law

From the foregoing on the nature and concept of Law, the following objectives and aims can be

distilled as the functions of law.

Firstly, law in all three senses of laws, system and process is one of a number of means of social

control fostering social order in modern society (footnote). This it does by putting policies,

sanctions and institutions in place to enforce public order. These policies are used to regulate

human conduct in society (footnote), and failure to adhere to them will lead to punishment which

is used as an enforcement mechanism. Examples of such policies and rules are the provisions of

the Criminal Code Act, Violence Against Persons Act, Penal Code Act, certain provisions of the

constitution like Chapter Four, etc. Successful regulation of human conduct brings about relative

peace and tranquility in society and this fosters development. In this light, law functions as a code

of conduct.

Law is also used as an instrument for protecting basic freedoms and rights of individuals. Thus

fundamental rights such as right to life, free speech, fair hearing, human dignity, movement, right

to own property, and more are entrenched in the constitution.

Another function of law can be drawn from the definition given by Herman Max Gluckman who

propounded that law is the whole reservoir of rules on which judges draw for their decisions. The

basic function of the judicial system is the administration of justice through the interpretation of

the law. Hence, Law serves as a guide for judges in their quest to do justice in cases brought before

them.

Additionally, law is an instrument of structurization. Law is used to structure society in a way that

enhances order and peace. Thus, each individual has rights and is allowed to exercise those rights
within the purview allowed by law; this is usually to the extent that it does not affect a third party

adversely. This structure states the extent to which people can acquire and own properties, the

exercise of personal liberties and most importantly, it creates the basis for justice in society.

Law serves a s a tool for attaining justice. Law is not the end in itself but a means to an end. The

end is a society that is peaceful and progressive. This can only be achieved through law which

serves as an instrument for entrenching social order.

3.0 JUSTICE

Justice is not only a pre-requisite but the cornerstone upon which peace and harmony in any society

is built. It is ironic that an important concept like justice has no unified definition yet for any law

to have any meaning, it must have as its goal the attainment of justice. This is because law is not

an end in itself, but justice is.4 Just like most important concepts in law, Justice does not have a

unified definition but can be construed in a number of ways for different purposes. Hence, a

descriptive meaning which exposes the essence of the concept is preferred. Justice has been used

to synonymously connote fairness, equality, legality, and in some cases legitimacy. Thus, when

the phrase “in the interest of justice” is used, it denotes fairness, rightness, correctness.

Justice is derived from the Latin word “Justus” which means that which is right, just, honest,

appropriate or correct. It can be inferred that justice is the legal or philosophical theory by which

fairness is administered.

4
T.M., Aguda, A New Perspective in Law and Justice in Nigeria (Being the distinguished Annual Lecture delivered
at the National Institute on October 25, 1985).
Aristotle regarded justice as the sovereign virtue and the major purpose of the state. According to

him, in the perfect republic, justice was explained as the constant performance, by each member

of the state their own particular function in the state. Justice is treating equals equally and unequal’s

unequally and in proportion to their relevant differences.5

The learned editors of the Black’s Law Dictionary define Justice as “the fair treatment of people;

the system by which people and their causes are judged; the fair and proper administration of

laws”. Under this definition, there are quite a number of different forms which justice could take

ranging from corrective and distributive Justice (as espoused by Aristotle), retributive justice, civil

justice, natural justice (also known as moral justice) and retributive justice, amongst others.

As has been overtime, when the statutes do not provide a clear definition of a term, the courts have

stepped in to fill the lacuna and provide clarity to ensure certainty of the law. In the early case of

Josiah v. State6, Oputa JSC expounded the meaning of justice when he stated that: “Justice is not

a one-way traffic. It is not Justice for the appellant only. Justice is not even only a two-way traffic.

It is really a three-way traffic- justice for the appellant accused for a heinous crime of murder;

justice for the victim, the murdered man, the deceased, “whose blood is crying to 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.”7 The different types of justice

are explained in the above famous dictum. Retributive justice which seeks to repay the accused

person in the same coin, civil justice which is used to atone the society and the victim for the wrong

which they have suffered and even corrective and natural justice.

5
Aristotle, Ethics. Trans. by J.A.K. Thomson. England: Penguin Books Ltd. 1976.
6
(1985) 1 N.W.L.R. (Pt. 1) 125 SC.
7
At 140.
Additionally, in legal proceedings, the achievement of Justice is based on two cardinal pillars, to

wit:

(a)Audi alterem partem, translated to mean, “hear the other party”: This maxim, which means

hear the other party is the primary basis of fair hearing and also one of the pillars of Justice.

Its importance was established in the case of Olatubosun v. N.I.S.E.R.8 and recently restated

in the case of John Holt Plc v. Nwabuwa

(b) Nemo Judex in Causa Sua, translated as, “one cannot be a judge in his own case”. This

is to the effect that a person who is a part to proceedings cannot also be the person with

whom the final say and judgement of such proceedings lies. This is to avoid bias and

sentiments and to allow for the application of logic and objectivity in the adjudication of

cases.9

4.0 RELATIONSHIP BETWEEN LAW AND JUSTICE IN NIGERIA

The relation between Law and Justice is a systematic one10. A legal system operating on the
tenets and bedrock of the Law must ensure that justice romances and shapes the Law painstakingly
because Law and justice are twin in the actualization of their aims in the society. Whilst the Law
must be just in the application, there cannot be dispensation of justice without Law. This emphasis
is premised on the existence of some laws which cause great injustice to the populace as well as
the society. For example, the military Decrees that annulled some parts of the Constitution, so as
to legalize a military takeover. Such laws we all know are unjust and enacted with negative
intentions defeating the dispensation of justice. Thus, every law in the society must be fair or else
that law will not have the legitimacy it desires.

Law on the other hand is seen as an instrument of achieving justice .Commentators from Plato to

8
(1988) 3 N.W.L.R. (Pt. 80)25.
9
Fawehinmi v. N.B.A. (No. 2) [1989] 2 N.W.L.R. (Pt.105) 558
10
C.C Wigwe, Jurisprudence and Legal theory (Readwide Publishers,Ghana)p.89
Derrida have called on Law to account in the name of justice, to ask that the law provide a

alanguage for justice, and demand that it promotes ,in so far as possible, the attainment of a just

society. For example, certain features of justice such as equality and provision of freedom are all

enforced by Law. In this sense, one can clearly mention that the society is more better with the

provision and enforcement of these features of justice by the Law. In section 42 of the 1999

Constitution (as amended) it provides thus;

(1) A citizen of Nigeria of a particular community, ethnic group, place of origin, sex, religion
or
(2) political opinion shall not, by reason only that he is such a person:-

(a) be subjected either expressly by, or in the practical application of, any law in force in
Nigeria
(b) or any executive or administrative action of the government, to disabilities or restrictions

(c) to which citizens of Nigeria of other communities, ethnic groups, places of origin, sex,
(d) religions or political opinions are not made subject; or

(b) be accorded either expressly by, or in the practical application of, any law in force in Nigeria

or any such executive or administrative action, any privilege or advantage that is not accorded to

citizens of Nigeria of other communities, ethnic groups, places of origin, sex, religions or political
opinions.

(2) No citizen of Nigeria shall be subjected to any disability or deprivation merely by reason of
the circumstances of his birth.

The above Law was also enforced by the court in the popular Mojekwu v Mojekwu11, the
Nigerian Lord Denning Niki Tobi, JCA (as he then was) departed from the rule that deny
women the right of inheritance the father’s property by virtue of sex. According to the Learned
Justice of the Court of Appeal (as he then was):

11
(1997) 7 N.W.L.R(Pt.883) 283
‘All – male and female – are born into a free world, and are expected to participate
of freely, without any inhibition on grounds of sex; and that is constitutional. Any
form of societal discrimination on ground of sex, apart from being
unconstitutional is antithetical to a society built on the tenets of democracy, which
we have freely chosen as a people. We need not travel all the way to Beijing to know
that some of our customs, including the Nnewi “Oli-ekpe” custom are not
consistent with our civilized world in which we all live today. In my humble view, it
is the monopoly of God to determine the sex of a baby and not the parents.
Accordingly, for a custom or customary law to discriminate against a particularly
sex is to say the least an affront, I have no difficulty in holding that the “Oli-ekpe”
custom of Nnewi, is repugnant to natural justice, equity and good consciences.
Also, justice influences the interpretation of the Law in a bid to ensure fairness and protection of
citizens right in the society. This is particular where the literal interpretation will result into
absurdity, the courts do apply the justice of the case in interpreting such words. In Abioye v.
Yakubu12, the Supreme Court while interpreting the provision of Section 36 of the Land Use
Act, 1978 on the customary tenants vis-à-vis customary owners, was of the view that although,
customary tenant has right to obtain a certificate of occupancy over land in which he is in
possession and need for agricultural purposes but such right does not divest the customary owner
of his ownership of the land or extinguishes same.
The provision of Section 36 of the Act was strictly construed to preserve the right of the
customary owner. In Bello v. Diocesan Synod of Lagos13, the Supreme Court declared as
oppressive the action of the Respondent a statutory body in abuse of compulsive powers for
taking over the property of the Appellant. The object of the principle is that where there is any
ambiguity in the construction of a statute, that construction which preserves the individual’s
right to his property is to be preferred. Another implication of this approach to construction of
statutes is the presumption that a person’s right to his property will not be taken away without
provision being made for adequate compensation.

The relationship between law and justice can be sum up as follows:

1. Law is a tool to serve justice

12
(1991) 6 SCNJ p. 69
13
(1973, 1 ALL NLR 176)
2. Justice is a concept that stands for everything fair and right
3. Justice has a moral backing while the law has a legal backing
4. Laws are enacted, repealed and modified while justice is a universal value
5. Justice is abstract while the law is concrete 6. Sometimes justice and the law can be seen in
contradiction to each other
7. Justice is sometimes seen as divine while the law is always according to rules and regulations

5.0 CONCLUSION
From all spheres, there is an absolute conclusion that justice is only a judgment about law or has
offered no reason to support a conclusion that justice is somehow part of law. This work attempts
to reason toward such a conclusion, arguing that justice is an inherent component of the law and
not separate or distinct from it. Thus, law and justice are seen to be merely two different aspects
of the same thing. The concepts of justice and law are so intertwined that it is hard to imagine one
without the other. It is also believed that law should provide inner harmony and justice in the state,
and that law and justice could be used as moral educators. Any persuasive theory of justice, should
logically engage in an explanation, which would spring from the legitimate, valid, and enforceable
standard of law. To be precise, “law is justice” or better put “what is meant by Justice is Law.

6.0 RECOMMENDATIONS

Based on the above findings made by this writer within the course of this work, the following

recommendations are proffered as a way forward.

1. Firstly, it should be established as a statement of fact that every society which intends to

grow and develop needs the principles of justice to be woven into the fabric of its legal

system. The reasons for this have been exhaustively expounded in the course of this

research work. Apart from the laws establishing the state and its machinery which requires

that subsequent laws be just, it is a basic sine qua non for social interactions. The

importance of this cannot be over emphasized. The chain of connection between law and

justice then is, when laws are just, the citizens obey; when they obey, there is social
 cohesion, peace and thus, development. The starting point therefore is that lawmakers need

to have the ingrained awareness that justice is an essential content of every legal system

and it should be

2. Furthermore, drawing from the above step, the legislature has to ensure that all laws made

by it are laced with justice, to ensure effective administration and in order for them to carry

out their constitutional duty of enacting just laws.

3. Lastly, it is recommended that the court should aim more at doing substantial justice in all

cases brought before it, rather than focusing on the technicalities of a case, in order to not

pervert the course of justice.

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