Course Description: LAW 101 (Legal Method 1)

Legal Method has been designed as an introductory course for fresh students who are

commencing the law programme in the Faculty of Law in Nigerian Universities. This course

differs from other courses in the Faculty of Law because it is not confined to the study of specific

areas of Law such as Constitutional Law, the Law of Contract, Torts, Land Law, Company Law,

etc. Rather, it introduces students to the workings of Law within the society. In this regard,

students will be exposed to the nature and functions of Law in the society, the relationship

between Law and concepts like Order, Justice, Freedom, the State, Legitimacy and Sovereignty.

The course will also examine the different types and classes of Law, methods of social control

through Law, Legal reasoning and approach to problems, the language of Law and Judicial and

Legislative processes.

COURSE OUTLINE

• Nature and Functions of law in society

• Objectives of Law

• Aspects and Classification of Law

• Methods of social control through Law

• Legal reasoning and approach to problems

• Legal reasoning in judicial processes

Recommended Textbooks:

1. Introduction to Nigerian Legal Method

AbiolaSanni

2nd Edition, 2006

2 The Nigerian Legal Method

Ese Malemi,

2nd Edition, 2012

 THE MEANING OF LAW

Law has, over the years proved to be incapable of a universally acceptable definition though
there have been various attempts by Philosophers, learned authors and Lawyers, at proffering
one. These attempts have however not achieved universal acceptance as they have been
subjected to criticism for one reason or the other.

Some of the definitions of law are:

i. “A body of rules of rules for the guidance of human conduct which are imposed upon and
enforced among the members of a given state” –Prof. James.

ii. “That law is a command set by a political superior for a political inferior, which the inferior
has to obey or suffer sanction.” –John Austin.

iii. “The law of a given community is the body of rules which are recognized as obligatory by its
members.” –Teslim Elias.

iv. “System of rules.” –Hart

Some other definitions of law include “… the rules and regulations of a particular country,
usually made by the legislative arm of government which orders the way persons, bodies and
society should behave.”; “ The whole reservoir of rules from which judges draw their decisions”
among others.

FEATURES OF LAW

In the light of the difficulties encountered in arriving at a universally acceptable definition of

law, an alternative option towards an understanding of Law has been to describe what law does
in the society by examining its features and functions in the society. The following are some of
the features that are unique to law:

1. Law is a body of rules

Law as a body of rules cannot be found in a single document or source. The laws of a state are
found in multifarious sources and documents such as the Constitution of a country, Statutes and
case laws contained in the judgments of superior courts of record.

2. Law is man-made

Another unique feature of law is that it is generally man-made by the legislature or other
authorized law maker according to the system of government in operation in the society or state.
3. Law is dynamic in nature

Law is not static as it keeps evolving through time and space. Laws can either be amended or
reformed as the need arises to meet up with the changes in society. When necessary, new laws
can also be made in line with the social, political and economic needs and objectives of the
society.

4. Law is normative in character

Laws are made up of norms meant to regulate the conduct of members of the society. These
norms are a reflection of the values and beliefs of the particular society. In this sense, law
regulates the behavior of members of the society, setting out the „dos‟ and „don‟ts‟ of the society.

5. Law has an element of coercion

Another distinctive feature of law is the fact that it has an element of coercion in it. Most laws
are accompanied by sanctions for breach. In addition to provisions for sanctions, some bodies
have been established to enforce these sanctions for example the Police have the powers to
investigate and arrest offenders, who are thereafter arraigned before the courts established for
this purpose and if found guilty, remanded in prison for such term of imprisonment as prescribed
by the law. People are therefore compelled to act in an orderly manner in order to avoid running
afoul of the law and attracting sanctions.

6. Law has territorial limitation

Laws are usually binding on people within a clearly defined territory or society. Specific laws
regulating the conduct of people within such territory or society are not enforceable on people
outside such territory or society –for instance the provisions of the Constitution of the Federal
Republic of Nigeria, 1999 (as amended) only binding on people living within the territory of
Nigeria. The Constitution cannot regulate the conduct of people living in Chad or Niger
Republic.

FUNCTIONS OF LAW

In every society, there is the recognition of the need to regulate the conduct and behavior of
members of the society. Laws have therefore been put in place to regulate the conduct of
individuals and bodies for the overall good of the society. The importance of law in the society
cannot be overemphasized. In Nigeria, some of the functions of law include:

1. Law fosters public and social order in the society by ensuring that people behave in
organized, orderly and predictable manner because every member would be aware of the
acceptable conduct within such society and also conducts that are forbidden in the society.

2. Law serves the important function of protecting the interests of individuals and the society.
Law does this by balancing the interest of the individual with that of the society. Thus while
protecting the right of the individual, law equally ensures that such individual interest does not
override the general interest of the society.

3. Law ensures order, peace, and stability in the society by making provisions for the resolution
and settlement of disputes between individuals. Courts have been established and tasked with the
responsibility of dispute resolution, providing for restitution and reparation and also punishing
wrongs done by individuals to other members of the society through the imposition of fines or
terms of imprisonment.

4. It is an instrument used to effect political, social, economic changes in the society. Law is also
used as an instrument to restructure and reorganize critical sectors of the society.

5. Law has been described as been synonymous with Justice. Law therefore ensures that justice
and fairness prevails in the society.

OBJECTIVES OF LAW
1. Law and Order
The maintenance of order in the society is one of the main functions of government. Order is
necessary in the society so as to avoid chaos and anarchy. Government relies on law for the
maintenance of order. As a body of rules meant to regulate the behavior and conduct of
members of the society, the application of law without fear or favour by the institutions and
bodies set up to enforce these laws is critical to the maintenance of order in the society. Law
organizes the society and ensures that the individuals and bodies in the society perform the duties
assigned to them so as to ensure the maintenance of order in the society.

2. Law and Justice

Justice has been described as the correct and proper application of the law in such a way as to
promote equality and give an impression of fairness. This in turn prevents the resort to self-help
by those who have been wronged and ensures that wrong-doers are punished as provided for
under the law.

There are two main theories of justice:

 Formal Justice
 Substantive Justice

a) Formal Justice

Formal justice refers to the strict application of the law as it is by a judge, without any form of
consideration or influence outside the law. In this instance, justice is dispensed according to the
provisions of the relevant law without fear or favour or any other consideration. In arriving at his
judgment, the judge relies solely on what the law says, without room for any mitigating factors.
It has been described as “…a mechanical application of law” because of its heavy reliance on the
law without recourse to anything outside the particular law. The advantage of formal justice lies
in the fact that clarity and certainty of the law is assured since judgment is based entirely on the
provisions of the law as the judge is denied the power of attempting to modify the law through
his judgment. In this way, formal justice ensures that the law remains as made by the legislature
thus ensuring certainty of the law at all times.

b) Substantive Justice

This refers to situations where a judge adopts a liberal approach to the interpretation of the
provisions of the law. This approach is resorted to where a strict interpretation of the law will
lead to injustice or absurdity. Its main advantage is the fact that it encourages judicial activism
by the Judges since Law is interpreted flexibly.

3. Law and Freedom

Freedom refers to an individual‟s right to do or refrain from doing certain things as he pleases.
The individual‟s right to act or refuse to act is without restriction or any form of limitation. The
law however steps in under certain circumstances to curtail the exercise of this right by
individuals, especially where such intervention would further advance the general interest of the
society and protect the rights of other individuals. Examples of such intervention include:

a. Freedom of Contract

A contract is an agreement, usually written, between two or more persons in respect of carrying
out certain acts for which a payment (known as „consideration‟) is made. Individuals are free to
enter into any contract they choose to. The law has however imposed certain limitations or
restrictions on this right such that individuals cannot enter into a contract whose purpose is the
commission of a crime or which is against public policy.

b. Political Freedom

This refers to, among others, the right to vote and be voted for, the right to refuse to vote, the
right to belong to a political party of one‟s choice, the right not to belong to any political party.
The State can intervene to curtail this right under certain circumstances such as the denial of this
right to individuals below the age of eighteen and also to lunatics.

4. Law and the State

A state has been defined as “ a territorial unit containing a stable population under the authority
of its government, and recognized as being capable of entering into relations with other entities
with international personality.”A state is therefore composed of 4 basic elements:
i. a definite territory;

ii. a population;

iii. a government; and

iv. sovereignty.

Law is the instrument used in defining a state, its political structure and organization. In Nigeria,
for instance, Section 2 of the Constitution of the Federal Republic of Nigeria, 1999 (as
amended), provides as follows:

S.2 (1) Nigeria is one indivisible and indissoluble sovereign state to be known by the
name of Federal Republic of Nigeria.

Law also defines and provides for the powers of each organ of government and their relationship
with one another.

5. Law and Legitimacy

The legitimacy of a government and the country‟s legal system must be accepted by the people
in order to secure their obedience. Legitimacy is necessary to ensure the legality of the
government and its powers. Provisions for the lawful exercise of the powers of the state can be
found in the law. An example of such provision is Section 1(2) of the Constitution of the Federal
Republic of Nigeria, 1999 (as amended) which provides that:

The Federal Republic of Nigeria shall not be governed, nor shall any person or
group of persons take control of the government of Nigeria or any part thereof
except in accordance with the provisions of this section.

Thus a government can only be considered as legitimate and worthy of obedience by the people
only if it came into power through the means prescribed by this constitution. It is for this reason
that this section is always suspended by the Military upon the successful take-over of
government through a coup d‟état.

6. Law and Sovereignty

Sovereignty refers to power and its relations vis-à-vis the society. Law identifies and prescribes
what amounts to sovereignty within a particular state or society. Law ensures that the sovereign
powers of a state or society rests in the people, to be exercised by their representatives in the
government. It is for this reason that Section 14 (2) (a) of the 1999 Constitution provides that
“sovereignty belongs to the people of Nigeria from whom government through this constitution
derives all its powers and authority.”
The representatives are empowered to make laws for the good governance of the state while the
people retain the right to change their elected leaders during elections.

THEORIES OF LAW
Philosophers, through the ages, have come up with several beliefs to explain the origin of Law.
These views or beliefs are now referred to as the theories or philosophy of Law. Some of these
theories are examined below:

1. Eternal Law
The philosopher Thomas Aquinas defined eternal law as “the exemplar of divine wisdom as
directing the motions and acts of everything.” Eternal law is regarded as the foundation of all
laws, having its root in eternity, constant and never changing. It encapsulates all that God wishes
to do and all laws are traceable to it. Aquinas, stated further that "The natural law is nothing but a
participation of the eternal law in a rational creature. To him therefore, eternal law comprises
God-given rules governing all creation.” Thus the entirety of God‟s plans or projects is referred
to as eternal Law.

2. Divine Law
This refers to that aspect of Eternal Law that God has imposed on mankind through revelations.
Divine Law can therefore be regarded as God‟s Law. In this regard, the laws of God and Allah as
contained in the Bible and Koran respectively are divine laws because they were revealed by
God and Allah to the Prophets for the guidance of man.

3. Natural Law
These are laws derived from nature, and which people consider to be just and fair. Natural law
remains the same throughout the world because they contain certain truths acceptable by all men
–for instance, it is wrong to steal or to take the life of another human being. These basic truths
can be deduced from nature and can be seen by man as the truth by means of reasoning. Laws
can be made by man through the process of reasoning, and this way, solutions can be found to
the problems confronting the society.

4. Human or Positive Law

Positive law refers to the laws imposed by the rulers or people in the position to do so. Positivists
believe that law should be looked at as it is and not as it ought to be. As explained by Professor
HLA Hart, a positivist, "Law is a command and there is no necessary connection between law
and morals or law as it is (lex lata) and the law as it ought to be (de legeferenda)." Laws are
made by those legally empowered to make them while the people are under an obligation to obey
these laws in line with Bentham‟s view of law as essentially a command issued by a sovereign to
his subordinates or by a superior being to his inferiors. Austin sees law as a rule laid down for
the guidance of an intelligent being by an intelligent being having power over him. To them, the
command of the sovereign are backed by sanction.

CLASSIFICATION OF LAW

1. Civil law and Criminal law

Civil law refers to the branch of law which defines the rights of individuals to one another
and also establishes duties which individuals owe to one another. Civil law equally provides
a system for individuals to seek redress in the event of a wrong or injury suffered at the hands
of another person by making provisions for the aggrieved person to be compensated for the
wrong or injury he has suffered. Examples of civil laws can be found in the law of Contract,
law of Torts, Land law and Family law. The main objective of Civil law is compensation for
injuries suffered, recovery of property, money and the enforcement of an individual‟s right
which had been infringed upon by another. The standard of proof in civil law is upon the
balance of probabilities.

Criminal law on the other hand, is concerned with the protection of the society from the
actions of deviants. Criminal law makes certain acts “offences” by making provisions for
sanctions or punishment for such conduct deemed to be harmful to the wellbeing of the
society. Punishment for offences under Criminal law may take the form of payment of fine or
imprisonment for a term of months/years or both fine and imprisonment. Nigerian Criminal
laws can be found in the Penal Code applicable to states in the northern part of Nigeria, and
the Criminal Code applicable to states in the southern part of Nigeria. The standard of proof
in criminal cases is proof beyond reasonable doubt.

Public Law and Private Law

Public law deals primarily with the protection of the state and its organs. Public law is also
concerned with the relationship between the state and its citizens. This covers the rights and
duties of the citizens to the state and vice versa in areas such as how the government is
administered, security of the state and revenue that accrues to the state. Examples of public
law include Criminal law, Administrative law and Constitutional law.

On the other hand, Private law deals with the relationship between individuals and the
protection of their rights. Examples of private law include Law of Contract, Family law, and
the law of Torts.

Written and Unwritten Law

Written Law refers to laws or statutes enacted by the legislature. Written laws usually pass
though different stages such as Readings, hearings, debates before the final enactment by the
legislature followed by the signing into law by the President of the Country or the Governor
of the state as the case may be. These laws are mainly found in documents. Examples of
written laws include the Constitution of the Federal Republic of Nigeria, 1999 (as amended),
the Penal and Criminal Codes, Statutes, Acts, Decrees, Edicts, Laws, Rules and Ordinances.

On the other hand, unwritten law refers to laws that are not documented in writing. Examples
of unwritten law include the customary laws of the different communities in Nigeria and the
British Constitution.

Municipal or Domestic Law and International Law

Municipal or domestic law refers to the internal laws of a particular country. It is concerned
with all the laws in force in the particular country which regulate the relationship between the
state and its citizens and also between individual members of the state.

International law on the other hand, refers the laws that govern the relationship between
States and also between States and International Organisations. Examples of international
law include treaties, international custom, general principles of law recognised by civilized
nations.

Substantive and Procedural or Adjectival law

Substantive law refers to the rules of law themselves. It defines the rights and duties of
individuals, clearly states what conduct can be regarded as lawful or unlawful, and makes
provision for penalty for violation of these rules. These penalties include fines, compensation
or a term of imprisonment. Examples of substantive law include the Penal Code (applicable
to the states in the Northern part of Nigeria) and the Criminal Code (applicable to states in
the Southern part of Nigeria) which have created offences and also prescribed punishments
for violations.

Procedural or adjectival law is concerned with procedural rules which govern the prosecution
of criminal cases in the courts and also the procedure to be adopted in civil cases such as
those for the enforcement of rights and duties. Procedural law sets out the procedure to be
followed for example in the commencement, prosecution, mode of evidence, examination of
witnesses, judgment and the enforcement of the judgment of the court amongst others.
Examples of procedural law include the Evidence Act, 2011, the High Court (Civil
Procedure) Rules of the various State High Courts, Recovery of Premises Laws and the
different states, the Administration of Criminal Justice Act, 2015.

Methods of Social Control through Law

One of the primary duties of government is the maintenance of order in the society. The
absence of order hampers development and also leads to chaos and anarchy in the society.
Social control has been defined by the American sociologist, Edward A. Ross, as referring to
certain regulative institutions which function to ensure that individual behaviour is in
conformity with the group (or society‟s) stipulations in areas such as the belief system,
morals, ceremonies, laws amongst others. The government relies on law for the maintenance
of order in the society. Law performs the function of an instrument to control the behavior of
members of the society in numerous ways such as:

1. The Penal technique

2. The Grievance-Remedial technique
3. The Private Arranging technique
4. The Administrative Regulatory technique
5. The Constitutive technique
6. The Conferral of social benefit technique

1. The Penal Technique

The penal technique is applied mainly in criminal law. In order to ensure that members of the
society behave in manners that would foster peaceful co-existence and order in the society,
the state prohibits certain acts or conducts and prescribes penalties or punishments for
disobedience. Through the penal technique, the state apart from prohibiting and penalizing
certain conducts, equally establishes certain institutions for the detection, enforcement and
maintenance of the law. The institutions include:

i. The Police Force with a mandate to detect and prevent the violations of the
criminal law;

ii. The courts for the prosecution of persons who violate the provisions of the law;

iii. The prisons and other approved detention centres.

The penal technique is used as a tool for social control under criminal law by a process which
begins with a report by an aggrieved person to the Police. The police thereafter makes
arrests, conducts investigations and charges the alleged offender before a court of competent
jurisdiction. Upon arraignment, he is prosecuted by the Police or the State for the alleged
offence, with the prosecution calling witnesses to prove its allegation against him. At the
close of the prosecution‟s case, the alleged offender is given an opportunity to defend himself
by also calling witnesses if he wishes to. At the conclusion of the trial, the Judge delivers his
judgment either finding him guilty or not guilty. The alleged offender if found guilty, may be
ordered to pay a fine, be imprisoned for a specific term or both fine and imprisonment. In this
 way, the penal technique deters people from committing offences through the application and
enforcement of penalties for criminal offences.

2. The Grievance Remedial Technique

The grievance remedial technique is used mainly in civil law cases. This technique works by
defining what amounts to grievances, providing for remedies for these identified grievances and
ensuring that compensations for breach are enforced. This technique depends on the existence of
legal rules creating specific legal rights, duties and remedies in the event of a breach. A breach of
these rights and duties are enforceable through the courts. The grievance remedial technique can
be applied in cases relating to the Law of Torts, Contract and Family Law. The breach of a legal
right or duty, for example the breach by one party to act in line with the provisions of a duly
executed contract agreement, will give rise to remedies such as general damages, special
damages and specific performance amongst others. This technique controls social behavior by
ensuring that a person whose right has been breached is adequately compensated by the party in
breach thereby ensuring that he does not need to take the laws into his own hands in a bid to get
justice for the wrong done to him.

3. The Private Arranging Technique

This is another means by which the state regulates the behavior of members of the society.
Although individuals are at liberty to conduct their private activities as they deem fit, the state
sometimes intervenes to regulate these activities through the provision of legal frameworks
within which individuals are expected to conduct their private affairs. The legal frameworks
determine the validity or otherwise of such private transactions while the individual has the
option of deciding whether to act in line with the appropriate legal framework so provided by the
state. The private arranging technique applies mainly such areas of civil law like family law, the
Law of Contract, Commercial Law and law of succession. In family law for example, while an
individual is free to decide whether to get married or not, and what system of marriage to enter
into, appropriate provisions governing the procedure for the celebration of marriages have been
made in the laws. Thus once an individual decides to get married, he must ensure that he acts in
accordance with the provisions of the law. This has the effect of determining the validity or
otherwise of his marriage. Three systems of marriages are recognized under Nigerian law –
namely statutory law marriage, customary law and Islamic law marriages. An individual who
contracts a statutory law marriage under the Marriage Act cannot marry another person during
the subsistence of the marriage under the Act. The individual‟s private right to enter into a
marriage is in this way regulated by the law.

4. The Constitutive Technique

This technique is similar to the private arranging technique. The Constitutive Technique
sometimes acts by conferring legal personality on companies in order to free their owners and
investors from liability. While there is no obligation on individuals to form companies, if they
decide to form one, they must ensure that they act in accordance with the provisions of the law.
Once this is done, the newly formed company is clothed with a separate legal personality and
perpetual succession. This frees the members from liability in respect of the actions of the
company. This is important in company law as it encourages the formation of companies.

Administrative Regulatory Technique

The Administrative Regulatory technique is used by the government to set standards and regulate
the activities of individuals and groups rendering services to the public. The government does
this through the application of rules and regulations by government agencies charged with the
responsibility of regulating such. The agencies have the powers to issue operating licenses,
inspect business premises and take administrative or legal action in the event of non-compliance
with laid down rules and regulations. This applies in areas such as establishment of private
schools, hospitals or water factories. The relevant agencies would inspect the premises and issue
licenses if satisfied that the facilities, equipment and personnel are adequate for the purposes.
The administrative regulatory technique for instance tries to safeguard the interest of consumers
in Nigeria by ensuring that consumable goods are produced and manufactured under proper
hygienic conditions and safe for human consumption. In this way, the activities of manufacturers
and producers of goods and services are regulated in the general interest of the public. The
regulatory agencies equally have the powers to revoke the licenses of producers and
manufacturers who fail to comply with the necessary regulations. Examples of such agencies
include NAFDAC, NUC, SON, NCC.

5. The Conferral of Social Benefit Technique

One of the duties of government is the provision of social amenities to the people. The social
amenities include education, roads, power, potable water, health sevices, housing etc. The
conferral of social benefits technique is an attempt by government to ensure the provision of
these amenities for members of the society so as to reduce discontent among the people and also
imbue them with the spirit of patriotism, foster harmony, peace and order in the society. As a
means of doing this, successive governments in Nigeria have developed programmes aimed at
providing some form of social benefits to citizens. Examples of such programmes include N-
Power; Low Cost Housing Scheme; National Primary Health Care System, National Economic
Empowerment Development Strategies (NEEDS) etc.

Legal Reasoning and Approach to Problems

Legal reasoning can be defined as a systematic, logical, coordinated, convincing or persuasive
thinking, argument or presentation of points or issues relating to law. The discipline of law is so
peculiar and multi-perspective that issues have been raised about the reasoning method of
lawyers and those connected with the formulation and implementation of law.
THE LANGUAGE OF THE LAW

Language is one of the most frequently used tools of lawyers. Lawyers rely on the use of

language in its oral and written form. Language has been defined as the combination of words,

phrases etc. for purposes of communication, the best invention for verbal or written

communication and also as the vehicle for conveying thoughts and reasoning.

CHARACTERISTICS OF LEGAL LANGUAGE

1. Law is expressed in general terms

It is not possible to draft laws that would cover every conceivable circumstance. Law is therefore

commonly expressed in general language form in order to ensure that it applies to a wide range

of people in different circumstances. If a law is specifically worded, its application would be

restricted and ultimately the aim of that law would be defeated. It then becomes necessary for

laws to be worded in such ways as to be applicable to diverse circumstances that may arise in

future. For instance, section 220 of the Penal Code (applicable in Northern States of Nigeria),

provides thus: “whoever causes death –

(a) by doing an act with the intention of causing death or such bodily injury as is likely to
cause death; or
(b) by doing an act with the knowledge that he is likely by such act to cause death; or
(c) by doing a rash or negligent act to commit the offence of culpable homicide.”
.

The above provision is wide enough to cover the unlawful killing of a human being by another

human being provided the person who killed acted intentionally or with the knowledge that death

was likely to result from his action.

Under certain circumstances, it may be necessary for the law to be expressed in specific rather
than general terms. An example of such is section 6(1) of the Constitution of the Federal
Republic of Nigeria, 1999 (as amended) which vests the judicial powers of the Federation, "In
the courts to which the section relates being courts established for the Federation" while Section
6(5) then specifically mentions the names of the courts:

This section relates to:-

(a) The Supreme Court of Nigeria.

(b) The Federal Court of Appeal.

(c) The Federal High Court.

(d) A High Court of a State.

(e) A Sharia Court of Appeal.

(f) A Customary Court of Appeal

2. Use of abstract concepts

A second characteristic of legal language is the use of technical words or concepts capable of
meanings that are different from their ordinary usage. Lawyers are careful in their use of words
and are not at liberty to use words carelessly. Lawyers rely on words already in use but where
there are no appropriate words to use, lawyers may use the words in existence to convey a
different meaning. For example "contract," "ownership," "possession," etc. These are words
which have a more technical meaning in law.

3. Unique use of words

Another characteristic of the language of law is the fact that lawyers have a unique way of using
words to convey meanings not understood by the ordinary man. For example “I have a matter in
court” (meaning “I have a case in court”) or “my brief has not been perfected” (meaning “my
client has not paid my professional fees”).

4. Frequent use of Latin and French words and phrases

Lawyers are fond of using Latin and French words and phrases. The frequently used Latin and
French words and phrases include 'consensus ad idem,' 'ultra vires,' 'audi alterem patem,'
'nemodat quod habet.'

5. Use of archaic English words

The frequent use of archaic English words by lawyers is another characteristic of the language of
law. More than any other group, lawyers still clings to the use of archaic English words in
carrying out their business. Examples of such archaic, old-fashioned English words include
'hereinbefore,' 'aforementioned,' 'hereinafter' etc.
 6. Use of ritualized word forms

Lawyers frequently use resonant formal words in ritualized forms for instance "the truth, the
whole truth and nothing but the truth." The repeated use of words in this form, make them stand
out in the consciousness of listeners.

In addition to the unique language of law, lawyers and judges are required to dress in long dark
robes and wigs when appearing in court and for other formal public hearings and ceremonies.
This adds to the mystique of the legal profession in the eyes of members of the public.

METHODS OF LEGAL REASONING

The legislature is saddled with the responsibility of making laws which are thereafter interpreted
by the judiciary whenever disputes arise over such laws. Judges are often called upon to explain
the meaning of certain words or phrases used in a statute or law. Lawyers to both parties in the
dispute and the judge have the task of determining whether the law in question applies to the
specific circumstance in dispute. This takes the form of the application of practical reasoning by
the lawyers and the judge. This can be done through the following methods:

1. Principles and Rules

A principle of law can be defined as an established legal truth or proposition that is so clear and
unambiguous that the only way it can be disputed or contradicted is by bringing forward a much
clearer proposition. Principles which have stood the test of time serve as a guide in the law-
making process of the legislature, interpretation of the law by the judiciary and its execution by
the executive arm of government. Principles are also used to test the quality of laws. Examples of
principles include the principles on the rule of law, separation of powers, supremacy of the
Constitution, etc. If a particular line of reasoning or argument is advanced contrary to any of the
established principles, such a reasoning or argument immediately becomes suspect and open to
legal attack or criticism.

A principle can therefore be regarded as a comprehensive legal proposition or truth which serves
as the basis or origin for the development of legal rules. Legal rules on the other hand refer to the
specific application of a legal principle. Thus while principles serve generally as guides, the
application of principles to specific cases become legal rules. To illustrate this point, the
principle of natural justice has two vital components:

(i) the first is that a party must not be condemned without being heard (audi
alterem patem); and

(ii) the second is that a party should not be a judge in his own cause (nemo judex
in causa sua).

These two components now serve as rules developed from the principle.
 2. Legal Rhetoric

Aristotle defined rhetoric as the universal art of persuasion, while Plato defined it as 'the art of
winning men's mind with words.' Rhetoric can be regarded as the art of trying to convince or
persuade another, either through the medium of writing or speech, to accept one's position or
view. Rhetoric plays a great role in the language of law and underlies the importance of the study
and usage of language by lawyers and law students.

Rhetoric can be divided into two broad categories:

i. Forensic rhetoric; and

ii. Deliberative rhetoric.

Forensic rhetoric is mainly used by lawyers in trying to persuade the court on the justness of
their clients‟ cases and to accept their viewpoints. Judges on the other hand rely on deliberative
rhetoric in arriving at decisions that would best serve the interest of both the parties and the
society at large.

The application of rhetoric by lawyers involves reliance on legal authorities. Lawyers generally
cite existing laws relevant to the particular case. The laws may either be statutory laws or case
laws. The laws and cases are cited by lawyers to back up their arguments on issues brought
before the court. In order to successfully do this, it is important that lawyers have a good
knowledge of the current law on the issues canvassed before the court and also on the application
of the relevant legal principles.

3. Legal Logic

In addition to having a good knowledge of his client‟s case, mastery of relevant legal principles
and authorities, a lawyer must be able to present his argument before the court in an organized
and logical manner. There are two types of logic:

i. Deductive Reasoning or Logic

This refers to the deductive form of argument that involves arguing from a major premise,
moving down to the minor premise before ending with the conclusion. This has been explained
as Syllogism which refers to a "triad of connected propositions, so related that one of them,
called 'The conclusion', necessarily follows from the other two, which are called the Premise".
The following is an example of Syllogism.

All men are mortal –Major Premise

Musa is a man –Minor Premise

Musa is a mortal –Conclusion

Applying this to law, here is another example:

Any person who takes property belonging to another person will be imprisoned –
Major premise (emanating from the provisions of the Penal code).

Amina has taken a bag belonging to Fatima. Minor premise (based on the facts of
the case)

Amina must be imprisoned – Conclusion

These examples of syllogism constitute what is referred to as deductive reasoning or deductive

logic because one can deduce or infer the conclusion of a minor premise from the major one. Put
in another way, deductive logic or deductive reasoning is the process of arguing from the general
to the particular and ending in a logical conclusion.

ii. Inductive Logic

It is important to note that the application of deductive logic or reasoning is dependent on the
existence of a clear major premise such as a statute. If the premise of the argument is based on
case law, it will be difficult to get a major premise from a single court decision. In such an
instance, the Lawyer will be expected to conduct further research to get other cases where the
superior court had arrived at a similar decision. Such similar decisions will establish a binding
legal principle which will later constitute the major premise for that argument. Thus inductive
logic involves arguing from the particular (that is, case law) to the general; or from the minor
premise to the major premise.

Where, for example a Lawyer wants to rely on a case law, and cites as his authority the decision
of a court in a particular case, he is said to be using inductive logic or reasoning. The lawyer will
be expected to examine and analyze his case in the light of the facts of, and decisions in the other
cases covered by the major premise in order to identify and explain their common features or
characteristics. If all the cases he examined have the same features or characteristics, the
lawyer‟s argument will be that they all fall within the major premise or proposition thus leading
to the establishment of a legal principle.

An illustration of inductive reasoning is a case where Hassan through his negligent act caused
injury Aliyu. Barrister Garba is Aliyu‟s lawyer and his argument (using relevant judicial
decisions as basis) is to the effect that his client is entitled to damages based on the decisions of
the courts in the following cases:

(a) In the case of Donoghue v. Stevenson (1932) UKHL 100 a party that suffered injury
as a result of the negligence of another person was awarded damages.

(b) A similar position was held by the courts in the cases of Dulie v. White & Sons (1901)
2 KB 669, Scarsbrook v. Mason (1961) 3 All E.R. 767, among others.
Aliyu‟s lawyer therefore argues that the cases cited above have similar features or characteristics
with the case of his client, Aliyu, and as such, the court should order Hassan to pay damages to
Aliyu for the injury done to him through the negligent act or conduct of Hassan and also in view
of legal authorities cited and relied on.

LEGAL REASONING IN JUDICIAL PROCESSES

Legal reasoning in judicial process refers to “the process of careful thinking by a judicial officer
in the course of resolving legal issues presented by parties to a legal action before his court for
determination.” The resort to legal reasoning by judicial officers is to ensure that justice is done
in all cases brought before the court for adjudication. This fact has been emphasized in several
cases –for example in the case of R v Sussex Justices, Ex Parte McCarthy (1924) 1KB 256 where
Atkin L.J., stated that:

"Justice should not only be done but should manifestly and undoubtedly be seen
to be done and next to the tribunal being in fact impartial is the importance of its
appearing to be so."

Legal reasoning in the judicial process involves the shifting of fact and Law in courts, ratio
decidendi and precedents.

SHIFTING OF FACT IN COURT

The shifting of fact refers to the process whereby the responsibility of proving certain facts in the
particular case moves from one party to the other. “Facts” have been defined by Section 2(1) of
the Evidence Act as referring to:

(a) anything, state of things, or relation of things capable of being perceived by

the senses;

(b) any mental condition of which any person is conscious. .

The facts of a case refer to the versions of the story which the court accepts as haven been
satisfactorily proved by the party on whom lies the burden of proof. The principle of shifting of
fact therefore refers to the process wherein the responsibility of proving certain facts move from
one party to the other and is based on the principle that he who asserts the existence of particular
facts must prove that those facts actually exist.

i. Shifting of Fact in Civil Cases

In civil cases parties are only expected to prove the relevant "facts in issue" and these have been
defined in the Evidence Act as:

"All such facts that a plaintiff in a civil case must prove in order to establish his
claim if they are not admitted expressly or by implication by the Defendant.”
In civil cases, the initial burden of proving facts lies on the Plaintiff if the Defendant denies the
facts as stated in the Plaintiff‟s statement of claim. Thus the burden of proving the facts denied
by the Defendant lies on the Plaintiff. If the Defendant admits the facts stated in the Plaintiff‟s
statement of claim, then those facts would be accepted by the court. In effect, the burden of
proving any fact lies on the party asserting and seeking to rely on the existence of such fact.

ii. Shifting of Fact in Criminal Cases

The general rule in criminal cases is that the burden of proving the fact rests solely on the
prosecution and does not normally shift to the accused. This is based on the presumption of
innocence of all persons charged with a criminal offence as provided for under section 36 (5) of
the Constitution of the Federal Republic of Nigeria, 1999 (as amended) which states that:

"every person charged with a criminal offence shall be presumed to be innocent

until he is proved guilty."

Generally, criminal cases are prosecuted by the government (State or Federal) and the prosecutor
in each case, does so on behalf of the state or government. Thus the burden of proving all the
facts in a criminal case rests on the prosecution. In the case Okagbue v Commissioner of Police,
(1969) NMLR 233, the court held that it is not for the accused to prove his innocence.

Note however that there are exceptions to this general rule and under these exceptions, the
burden of proving facts in criminal cases will shift to the accused. These situations include:

(a) Where the accused raises a defense of exemption or qualification from the
provision of the law creating the offence with which he is charged.

(b) Where the onus of proving certain facts is specifically imposed on the accused
by statute.

(c) Where special facts are within the knowledge of the accused.

(d) Where the accused raises the defence of intoxication or insanity.

Once the prosecution is able to prove the facts of the commission of the offence by the accused,
the burden of creating a reasonable doubt in the mind of the court or proving his innocence shifts
to the accused.

SHIFTING OF LAW IN COURT

The general rule is that any party to a dispute who alleges the existence of a law must cite such a
law appropriately. In other words any party who claims the existence of a law relevant to the
resolution of a dispute has a duty to bring such a law to the attention of the court. If he is
unaware that the law he had cited had been amended or repealed, the burden of informing the
court of the amendment or repeal of that law shifts to the party who has that knowledge. Where a
party fails to cite a relevant case, the burden shifts to the Judge to cite such case because he is
expected to know the law as expressed by the Latin maxim, Juria novit curia ( meaning that “it
is for the court to know the law.”) At all times it should be noted that ignorance of the law is not
an excuse as conveyed in the Latin maxim Ignorantia facti excusat: Ignorantia juris non excusat
(literally meaning that ignorance of fact excuses; ignorance of the law does not excuse.)

JUDICIAL PRECEDENT

Judicial Precedents or stare decisis refer to circumstances where a decided case furnishes a basis
for determining later cases involving similar facts or issue. It is also referred to as Case law or
Judge-made law as the decision of the Judge on a question of law becomes binding on that court
and lower courts whenever cases with similar facts are brought before them. The judgment
therefore establishes a rule or authority for the determination of any identical case with similar
facts which may come before the court in future, or in respect of a similar question of law.
Precedents could either be binding or persuasive. Precedents are regarded as binding when they
are given or made by a higher court and all lower courts are bound to follow the reasoning
inherent in such decision. On the other hand, precedents are regarded as persuasive when they
are given by a court of concurrent or coordinate jurisdiction. For example, the decision of a State
high Court remains a persuasive and not a binding precedent for other State High Courts because
they are courts of concurrent jurisdiction. Similarly, judgments of foreign courts are persuasive
precedents in Nigerian courts.

Ratio Decidendi
This refers to the specific legal rule upon which the judgment of the court is based. When a
decision is said to be binding, what is meant is that the principle of law on which the decision of
the court was based or the reason for the decision is binding. This principle is what is regarded as
the ratio decidendi – “the reason for deciding” or the “reason for the decision”.

Obiter Dictum
Obiter dictum refers to judicial comments made during the course of delivering a judgment, but
one that is unnecessary to the decision in the case and therefore is not regarded as precedent,
though it may be considered persuasive. It is the statement of law, made by the judge, but which
is not relevant to the issue before the court. It has been described as 'words of an opinion entirely
unnecessary for the decision of the case. A remark made, or opinion expressed, by a judge, in his
decision upon a case, "by the way" that is, incidentally or collaterally, and not directly upon the
question before him, or upon a point not necessarily involved in the determination of the case, or
introduced by way of illustration, or analogy or argument."

REFERENCES:

1. Introduction to Nigerian Legal Method

 AbiolaSanni

2nd Edition, 2006

2 The Nigerian Legal Method

Ese Malemi,

2nd Edition, 2012