TABLE OF CONTENTS
Title page i
Table of contents ii
Characteristics and Functions of law in Traditional Societies 2
Customary Law 4
Functions of law in traditional society 15
Major areas of Dispute in Traditional Society 16
Outline of the Socio-Political Structure of the Igbo Society
and its impact on law making 21
Analysis of Dispute Settlement Technique and Procedural
Methods of Adjudication. 25
Levels and types of Offences in the Traditional Igbo Societies 28
Types of Punishment/Sanctions among the Igbo Traditional
Law Enforcement Agencies Among the Igbo Traditional Society 31
The Notion and Nature of Igbo laws in Primitive Society 34
Divine Justice 39
Igbo Human Positive Laws 40
The Influence of Igbo Religion on Human Positive Law. 43
ABOUT THE BOOK
The work provides lead materials that will definitely stimulate academic discourse. It is a reflection of the vehemence study of human kind; the study of man’s existence in his primitive society with which the study and appreciation of Anthropology of law revolves around.
The present book contains a detail analysis of the characteristics and functions of law in primitive societies, customary laws, major areas of dispute in traditional Igbo society, analysis of dispute settlement technique and procedural methods of adjudication, levels and types of offences in the traditional Igbo society, types of punishment/sanctions among the Igbo traditional societies, the nature of Igbo laws, the notion and nature of laws in primitive society, divine laws, divine justice, Igbo human positive laws, law enforcement agencies among the Igbo traditional societies, features of divine laws, characteristics of divine justice, as well as the characteristics of Igbo human positive laws, outline of the socio-political structure of the Igbo society and its impact on law making, which was then an egalitarian process and participatory system of governance rooted in mutual cooperation and respect for one another, alongside the underlying values of law making, implementation and adjudication to which it was predicated upon.
Thus we have argued and demonstrated the influence of Igbo religion on human positive law towards emphasis on law making.
The presentation of this work is in consonance with Prof. S.N Agu’s material on Anthropology of law. What we have striven to do here is to present to you Prof. S.N Agu raw and live, and in his own words.
We are not in doubt that this material will be of immense use for students preparing for examinations in this subject area.
Alagor, Tochukwu Daniel
CHARACTERISTICS AND FUNCTIONS OF LAW IN TRADITIONAL SOCIENTIES.
There are the features that define law in a traditional society and they vary according to different communities.
They are as follows:
1. It is oral in nature: It means that it is not documented and they are passed down from generation to generations. They are not written down because our fore fathers didn’t have the ability to read and write which caused their laws to be oral, in other words they were literates.
2. It is basically derived from the customs and traditions: This implies that any law that guides a community must be in accordance with the customs and traditions of the community. The customs and traditions validate the laws that are in accordance with it and invalidate the laws that are not in accordance with it.
3. Territorial limitation: This means that it guides only the community where it is made and cannot go further.
4. It is Dynamic: They are made to suit the accordance of the society, they are easy to change and suit prevailing conditions and they respond to man’s every day struggle.
5. Diversity: they are diverse because they vary from community to community.
N/B, Laws in traditional societies are called customary laws.
6. It is Obligatory: people naturally obey the laws of their community as a duty because the laws are in accordance to their customs and traditions.
Every indigenous society or group of peoples irrespective of its size or language, posses various rules, traditions or laws which regulates the affairs life. These laws are usually autochthonous, consisting of customs that are accepted as legal requirement or obligatory rules of conducts and practice are what are in legal parlance known as “customary laws.”
Ordinarily the word “customary” brings to mind something in accordance with the customs or usual practices, a way of life, a tradition, and a generally accepted way of doing things or a generally accepted behavior. Customary law is a law that has being developed over the years by different indigenous communities.
These are laws which involves from the established practices, customs and ways of life of a people. According to the black law dictionary, customary law is the law consisting of customs which are accepted as lega requirement or obligatory rules of conducts,practices and beliefs that are so vital and intrinsically part of a social and economic system that are treated as if they are laws
As described by park, the term “customary law” is to be used rather as a blanket description, covering every many different system, and these systems are largely tribal in origin, and usually operate only within the area occupied by the tribe. The evidence Act, 2011 does not define customary law but it however defined custom as a rule which in a particular district has from long usage, obtained the force of law.
The Supreme Court in the case of Olabodun v Lawel defined custom or customary law to mean a set of rule of conducts applying to persons or things in a particular locality.
In the case of Oyerika v Uzoukwu Oha JCA relying on the immortal words of the supreme court in the case of Zaidan K v Mohessen FH defined customary law as any system of law not being a law enacted by any competent legislature in Nigeria, but which is enforceable and binding within Nigeria between the parties subject to its society.
In the light of the above definitions customary law is simply a law derived from the customs of the people, which by general acceptability and unvarying habit has become obligatory in respect to the place or the subject–matter to which it relates. Customary laws form a very important source of law in Nigeria. Its influence on Nigerian legal system is enormous.
This is basically so due to the fact that customary law regulates many issues in people’s lives. Examples of such issues regulated by customary law are land tenure disputes, chieftaincy matters, successions and inheritance.
ATTRIBUTES OF CUSTOMARY LAW.
From the various definitions above it is evident that there are several basic attributes of customary law.
Firstly, one basic attribute of customary law is its currency, that is, it must be in existence at the relevant time in other words, it must be the current and prevailing custom of the people and not that which is of the past, dead and bygone. Thus, this is what the court per Speed, Ag. CJ meant in Lewis v Bankole when it stated that
native law and customary law which the court enforces must be existing law and custom, and not that of bygone days. Therefore a custom which was once although accepted but has been abandoned has no legal validity whatsoever.
Secondly, the criteria for its validity also depends on it being generally accepted by the community whose affairs it regulates. In the words of Bairman FJ, it is a mirror of accepted usage.
In Eshugbayi Eleko v Government of Nigeria lord Atkin stated that “it is the assent of the native community” that gives a custom its validity; it must be shown to be “recognized by the community” whose conducts it supposed to regulate.
However, before a generally accepted custom translate into law, it must command obligatory adherence and must be regarded as absolutely necessary for the common good of the society. Customary laws are recognized not because it is backed up by some powers and authorities, but because each individual in the community recognizes the importance of such law, and also seeks to enjoy the benefits of behaving in accordance with those laws. Customary law is therefore the behaviorist pattern of any unit of people.
Thirdly customary laws are dynamic, flexible and changes with time. Webear J stated in Balogun v Oshodi that “the chief characteristics features of native laws are its flexibility.” In many respects and different communities, customary laws undergo significant changes. For example the concept of customary land law, transactions conducted in writing and human rights generally are areas where customary has displayed its flexibility.
In Re Abike and Ors the court affirmed that Yoruba inheritance custom of Ori-Ojori has involved as a more equitable alternative to the earlier Idi-igi custom. In lawis v Bankole Osborne CJ held that
“appear to have been always subject to natives of expediency, and it shows unquestionable adaptability to altered circumstances without entirely losing its individual characteristics.”
In the words of Thomas J in Edokpolor v Idehen “customary laws are not constant, it relatively varies within localities.
The flexibility of customary law allows it to remain a mirror of accepted usage and current way of life of the people. Accordingly it is not out of place to describe customary law using the words of the great formulator of the Historical school of jurisprudence, Carl Von Sarigny , as a law which “grows with the growth” of the society.
Also another characteristic of customary law is its vagueness and unwritten nature. Customary laws are largely unwritten and only remain in the mind of those who administer, and those who are subject to it.
Making comments on the characteristics of native laws and appraising its unwritten nature, Prof. Allot in his “Essays in African law” stated that
“ the law is unwritten, there is no memory of the Edicts and decisions of past legislators or judges…… there is no pondering over legal principles, no justice analysis…… Hence, no jurisprudence, no creative conscious evolution of legal principles and doctrines, no written processes in courts.”
Similarly in Alfa v Arepo, Duffus J affirmed the unwritten nature of customary law where he stated thus; “I agree with the above passage from Lloyd’s book that it owes it authority to the fact that custom has been established from ancient days”
Commenting on the unwritten nature of customary laws, the court had in the case of Olobodun v Lawal stated that it is a well established principles of law that documentary evidence is unknown to native law and customs.
Finally customary law must enjoy coercive sanction and generally application among the people. Thus, custom must be applicable to every member of the community and not just a practice to be absurd according to ones volition. For instance, the payment of bride price is a custom that enjoys general application among the people of Nigeria.
It is important to stress that there is no customary law prevailing throughout the country. The customs to which these laws generate are many and diverse as there are ethnic groups. What is therefore important is that it possesses the basic characteristic discussed above.
CONSTITUTIONALITY OF CUSTOMARY LAW.
Commenting on the constitutionality basis of customary law, the learned author, Malemi Ese stated; and I quote “customary law is a law recognized by the Nigerian constitution”. The legal and constitutional basis of customary law which includes customary arbitration is an “existing law” which is enforce immediately before and after the coming into force of the 1999 constitution…. The Nigerian constitution makes provision for customary court of Appeal and also empowers the state to establish a customary court system. Thus, it is not the intention of our constitution to destroy customary laws or reduce it to the background in the Nigerian legal system.
It should be noted that the court will nullify a rule of customary law which is termed or found unconstitutional and against the three test of validity which includes;
The repugnancy test under which such custom is subject to the rules of natural justice , equity and good conscience
The incompatibility test
The public policy test
APPLICATION OF CUSTOMARY LAW
Nigerian being a heterogeneous society is made up of a multiplicity of cultures, religions, ethnic groups, languages and customary laws. In Nigeria customary laws are basically of two kinds, to wit; Indigenous customary law; and the Received customary law.
Indigenous customary law is also referred to as ethnic or non-Moslem customary law. It is indigenous to Nigeria and applies to the members of different ethnic groups. Ethnic customary law applies mostly in the southern part of Nigeria which is dominated by a population of non-Moslem.
Ethnic or indigenous customary law is unwritten, uncertain and difficult to ascertain. It is usually enforced by customary courts by magistrates or non-legally trained persons.
Received customary law on the other hand, applies in the northern part of Nigeria which is basically dominated by Moslems. It is also known as the Moslem law or Sharian law.
Unlike the indigenous customary law the received customary or Moslem laws are largely written with clearly identifications and articulated principles. It is a region based law which has its roots in Islamic faith, and it’s applicable to members of such faith. It emerged as a result of the successful process of islamizaion in the northern Nigeria. It is based on the Quran and the teachings of the prophet Mohammed (Hadith).
Nevertheless though customary laws are observed by people who are subjected to it, its application in Nigeria courts is limited. This is as a result of “foreign laws” on the Nigerian legal system which existed even before the arrival of the imperial masters. The Evidence Act, 2011 provides that a custom may be adopted as part of a law governing a particular set of circumstance if it can be judicially noticed or can be proved to exist by evidence. It further provides that a custom may be judicially noticed when it has been adjudicated upon once by a superior court of record.But where a custom cannot be established as one judicially noticed, it shall be proved as a fact.
FUNCTIONS OF LAW IN TRADITIONAL SOCIETY
This function includes as follows;
1. To maintain peace and order in every society.
2. It guides peoples conduct by specifying the things that are permitted and the things that are not permitted or ruled out.
Omenala; Acceptable laws,
Nsoala; Unaccepted laws, it is seen as an abomination (what the land forbids)
3. It helps to resolve conflict that arises in the society and also it settles disputes. It provides the guidelines for settling disputes or resolving conflict because naturally human being detests injustice.
4. It is flexible and allows the elders and authorities to change the laws at certain circumstances.
MAJOR AREAS OF DISPUTE IN TRADITIONAL SOCIETY.
1. Land disputes: Land is one of the major areas of disputes in the traditional Igbo society. The reasons why land is regarded as a major area of disputes includes as follows;
a. Scarcity: The scarcity of land and also the unlimited wants of the people to make use of it make it a major area of dispute. Because the land available in a particular community can not be enough for the whole in that community. It leads to dispute as people will like to claim ownership of the few ones available.
b. Inheritance, this arises when ancestors of a particular community failed to share their lands between their children or tell them about the boundaries between their lands and those of others. The children of those ancestors will grow up without knowing the particular land which belongs to them. This will lead to war between the families or communities involved. This can also be caused when a man does not share his landed property very well between his children, the children will grow up and have conflicts because of this.
c. Land Boundary: Land boundary issues arise as a result of issues between villages, lack of education (some of the lands are not documented) etc.
d. Jealousy: Because of some resources which a land has can lead to land disputes. If a land has oil, you will find out that people will become jealous of the person that owns the land and they will try everything by all means to take away the land from the owner and this will lead to conflict.
e. Fertility dispute: When a land is so fertile and yield crops very well, people will like to get the land and this will lead to disputes between them and the land owner.
f. Land location; mostly where a land is situated leads to conflict a between individuals.
g. Land is precious: Land in the Igbo traditional society is seen as very precious that is why the earth goddess is respected among the Igbo’s. Because land is a precious fixed asset, people try by all means to have one, even if it means having a dispute with someone.
h. Farming activities.
2. Marriage Dispute: Marriage is also another major aspect of dispute in the traditional Igbo society. The reason for this are as follows;
a. Infertility: When a woman is unable to give birth to a child/children (procreate), a lots of disputes arise in the family. Generally, the major aim of marriage is for procreation. So, when a woman fails to give birth to children, she will be rejected by her in-laws. In extreme cases, she might even be sent back to her Father’s house. Her husband will be forced to marry another woman; she will also be called all sorts of names like OGBANJE e.t.c. When these things happen, dispute has occurred in such a family and marriage.
Also having many children and inability to share your properties between them can also lead to family disputes, if it is in a family where a man got married to many wives, each wife will want her children to get the lion share and this will lead to dispute in that family. Superstitious belief may also lead to dispute among families.
b. Favoritism: Also, the favoritism of a man towards a particular wife in a polygamous family can bring about a lot of disputes in that family. Jealousy and hatred, quarrels will be the order of the day in such a family. This will also cause the children of the other women who are not well taking care of to hate their father because they will feel that he does not love them.
c. Extra marital affairs: extra marital affairs can also lead to marriage disputes. Extra marital affairs can sometimes lead to having children outside the marriage which can cause conflict between the man and the woman as the mother of the child that was born outside the marriage will be fighting for her child to have a father, and women who cannot bear this can decide to leave their husbands.
d. Economic Status of a man: When a man is not able to take good care of his children and wife or wives, the wife/wives will not have any respect for him, he will be insulted by his wife /wives every day. This can lead to dispute in a marriage as some men cannot bear the wagging tongues of their wife/wives.
3. Leadership Tussle: Leadership problem arises in traditional Igbo societies due to Ezeship title, autonomous community conflicts and also due to the undocumented nature of laws in operative in such society. This can make the Eze’s to be despotic at times.
4. Customary Disputes: Due to religious faith, people tend to look down on their customs and try to destroy their traditional place of worship or stop certain customs. This can lead to conflict between the adherents of the traditional religion and the adherents of Christianity or any other religion.
SOCIO-POLITICAL STRUCTURE OF THE IGBO SOCIETY
The Igbo’s had developed and were practicing a unique but participatory and egalitarian system of government prior to the colonial intervention.
It was a political system rooted in mutual cooperation and respect for one another.
When the British came, they introduced warrant chiefs who acted as the heads of the different village groups in Igbo communities, in which the affairs of each village group were managed respectively.
Law making and its implementation in Igbo socio-political structure.
The various levels of participation in the Igbo society, at the socio-political structure of the Igbo community, allowed people to make, implement and execute laws.
Every member of the society was allowed to be members of the various groups as this permitted everyone to partake in the governance of the community. It was an egalitarian process, as everyone was allowed to participate in governance of the community.
The age grades, secret societies and youth organizations helped in law enforcement and the security of the community. The various associations allowed members of the society to participate in the governance of the society at different levels. This was to ensure that every one participated in the day to day activities of the community.
There was no clear-cut separation of powers between the executive, legislature and the judiciary as the law making body could also function as the administrative body and better still enforce the laws as well. The socio-political structure of the Igbo’s allowed everyone to play a role in governing the society. The Igbo socio-political structure was based on law making, implementation, execution and adjudication.
Note: the land goddess is the most potent or prominent in Igbo land because Igbo’s sees the land as being sacred.
In Igbo socio political structure, the symbol of authority was reposed in the hands of the elders in council otherwise known as the AMALA which acted and looked in the matters concerning the kindred and community, ensuring the regulation of conducts among individuals. But ultimately reposed in the hands of the General Assembly or Oha.
Law making and adjudication was in other words based on the traditions, customs, norms and values of the society. For instance the council of elders on behalf of the Oha as the law enforcement organ only delegates to groups and associations like the Age grades, secret societies, and youth’s e.t.c.
The Umuada was also allowed to make their own laws, regulating the affairs and well being of the women.
The impact of law making, implementation and adjudication on the Igbo socio-political structure.
Laws in pre-colonial Igbo land provided the basic principles for regulating social conducts and relationship. In other words it provided the basic principles for ensuring comic order, in that:
- The conducts of the people were regulated.
- Conflicts and disputes were limited
- There was peace and harmony in the society as very one participated in governance.
ANALYSIS OF DISPUTE SETTLEMENT TECHNIQUES AND PROCEDURAL METHODS OF ADJUDICATION.
Various means of handling various types of conflicts have been derived by various communities in terms of crimes.
There are ways of carrying out distributive justice; this ways includes the following;
- Permanently through death
- Temporarily through imprisonment and
METHODS OF DISPUTE SETTLEMENT TECHNIQUE.
PUNISHMENT (PUNITIVE METHOD): Society sees crime as an offence and they believe that punishment is the best option for an offender there by afflicting pains on the offender in order to stop him/her from committing a crime again and there are different theories of punishment to restrain an offenders from committing a crime, they range as follows;
Death penalty and
Restitution: It is the way of placating a wronged party. If someone is to go against an agreement with a person, they are always concerned with placating the offended and not punishing the offender but they may tell the offender to settle the offended in a way of compensation so that next time he (offender) will take precautions before acting
Reconciliation: the aim is not to placate the offended or punish the offender but rather it aims at restoring normalcy between the relations/friends, neighbors e.t.c
Self help mechanism: Self help mechanism is used to settle disputes. The parties that are involved tries to settle their dispute without a third party and it usually involves stages such as; the parties involve usually; bear grudges.
They will ignore each other If the problem persist you appeal to the person to choose between peace (green leaf) and conflict (Dry leaf) i.e. it involves the process of dialogue.
If the aggressor accepts peace then its fine but if he accepts conflict then you tight it out with each other.
Mediated procedural mode:
Parties involve try to talk to elders but if it does not work out then they take it to the Amala and a date and place will be appointed for the parties to be heard, also their witnesses will testify, and after then, the Amala will then give them dates to come back for the judgment or they will settle it immediately but you will bring some things to be brought for the Amala, things like money, wine, kola etc. during the time of judgment. The judgment may be wrong which might be caused by favoritism. If the other party is not satisfied with the ruling, then he can go to the General Assembly.
Adjudication: the matters are adjudicated upon by the council of elders, the General Assembly or the Guild of title men.
The Igbo traditional society was a liberal society were people have freedom to engage in every activities in the society whether political, social or economical.
LEVELS AND TYPES OF OFFENCES IN THE TRADITIONAL IGBO SOCIETIES
The offences in the traditional Igbo society are of two types and they are:
Nso ala; (abomination or taboo)
Nso ala (abomination or taboo): This is a situation whereby a person goes contrary to the customs and traditions of their society and when it happens, the land has to be cleansed by the offender to avoid the anger of the gods from affiliating pains on everyone in the community in the expense of one person’s abominable behavior./action etc.
Aru (Crime): This is when a person does something that is against the society’s law/norms or rules and the land must be cleansed because it has been soiled with uncleanliness or evil.
TYPES OF PUNISHMENT/SANCTIONS AMONG THE IGBO TRADITIONAL SOCIETY.
The primary aim of punishment in Igbo traditional society is to restore order, normalcy, peace, compensating the victim of a crime and to reconcile conflicting parties. Punishment is therefore determined by the nature and type of offence alleged to have committed. These punishments include the following;
Death Penalty: It was very rare because the Igbo’s believed that blood is sacred so they will not soil their hands with blood by condemning the offender to death however the offender may, out of frustration, shame and embarrassment commit suicide, having in mind that the pressure of the society is on him and also the anger of the gods upon him is unbearable. This is the highest type of punishment but it is very rare amongst Igbo traditional societies.
Banishment: This is when an offender who has committed a terrible crime in the society is disgraced out of the village forever to go and live in the evil forest because he has desecrated the land. This type of punishment comes mostly when one commits murder.
Ostracism: This is when someone is excommunicated or they are not to be involved in the socio-economic matters of the community. They are seen as people that have desecrated the land and therefore should be punished by allowing them to live on their own without neighbor, or friends. They will not have anybody to talk to or the person will automatically; join him/her in the punishment.
Slavery: This is a situation where an unrepentant and habitual criminal are thrown into slavery where they belong to a master and they serve them for life they are like property to their masters and can never be returned.
Fines: This is when money or something valuable is placed on a particular crime. The offender is being punished through paying of fines and sometimes when the fines are payed, it will be used to buy something’s to cleanse the land in the name of the offender.
LAW ENFORCEMENT AGENCIES AMONG THE IGBO TRADITIONAL SOCIETY.
There are certain agencies that have the authority to enforce laws in the community in order to ensure peace and stability and they are as follows;
The Youths: In some society, the youths are the ones that constitute the law enforcement organ as they help to carry out the punishment that are stipulated for an offender to ensure peace and tranquility in the society.
The Age Grades and Associations: The Age grade constitute of people of the same age bracket of 2 to 3 years when judgments are given to an offender they also are the ones to make sure that the judgment is carried out well.
Secret Societies: They are also good at enforcing the laws so made and when they want to enforce these laws they put on mask so that their face will not be seen because it is forbidden for their face to be seen. And also women are advised to stay in doors to avoid being hurt by them. They are known generally as masquerades.
The General Assembly: this is the highest law making and adjudicating body among the Igbo’s. It is also known as the Oha; it is a kind of adhoc gathering of adult men and sometimes women. It is constituted by men of common sense, experience and wisdom. The General Assembly of the people did not meet frequently or regularly to make laws. They met when laws or cases are of utmost or extraordinary importance
The council of elders : this is also called the Amala which meet regularly to make laws and settle disputes. This council or Amala is constituted by all family heads, title holders and other distinguished men in the village kindred. This body looked into matters that involve the whole village, the kindred or family as the case may be.
Guild of titled men/The Ozo Society : this is another law making and adjudicating body among the Igbo’s. They made laws and settle disputes for the smooth running of their society and exerted a lot of influence in the laws made for the entire village.
Umuada : they adjust conflicts among follow women; ensuring the well being of the women. It is usually constituted by married women. Note however, disputes in primitive societies are often settled in an open square so that everybody could freely attend.
THE NOTION AND NATURE OF IGBO LAWS IN PRIMITIVE SOCIETY.
Law is one aspect of culture as described by Sampson and Fied. The Igbo traditional society have their ways of organizing their society and one of these ways is through laws, and these laws which are made promotes peace, harmony, and stability in the community. In Igbo traditional society, the primary goal of law and authority is to prevent the extension of quarrels and to limit disorder. The elders intervene to ensure peace. The very important point to note is that there were no formal court, counsel, legal code and even law strictly formal trial.
Nonetheless public opinion made it felt and public wrong was condemned. As a rule, punishment was seldom more than a strong general disapproval and certain degree of ostracism both of which functioned as an effect deterrent.
The fact is that the primary of law in primitive societies was not punishment but rather settlement and indemnification or compensation of the injured party to restore peace and avoid disorder.
In resolving conflicts and settling disputes, elders follow precedents as contained in their customs and traditions thereby taking new factors into account.
In resolving these problems and grievances what is required more anything else is a public opinion rather than code rules which expresses not the sectional interest of individuals or minor groups. But the common interest which links them together.
In Igbo traditional society, the instrument of such public opinion is more often than not; the General Assembly represented by the council of elders which heard looked into and settled grievances and disputes. The council was usually constituted by men of experience, common sense and wisdom none of whom is appointed but attained their position by age and common consent. Each council was usually headed by the oldest person among them.
Most of their decisions were guided by customs and traditions, public opinions, wisdom and common good. The most general moral principle that guided them in their judgments is justice, as symbolized by the “Ofo”.
The presence of the Ofo stick symbolizes sacredness, uprightness and truthfulness. Very often Ofo goes together with Ogu, the principle of innocence. When the elders want to entertain any complaint, they swear to abide by the principle of Ofo na Ogu; that is justice and truth. Igbo laws can be divided into two types and they are:
- Divine Laws and
- Igbo Human Positive Law.
DIVINE LAWS: They are laws made by God and they are received from God. They govern the natural events and processes and its effects on human being and the way they live in the society. These divine laws are further sub-divided into two segment and they are:
The laws of nature and the;
The Laws of Nature: It governs natural events and processes. For example the laws of motion which determines the movement of things. They are descriptive, they describe the way natural events and processes work. The events they govern cannot do more than the way they are structured by nature. Laws of nature also control the rotation of the earth.
Natural Laws: They are applicable to humans. They are prescriptive because they prescribe to us how we should live our lives as human beings, we have the will to obey or disobey them. However the benefits of obeying natural laws are peace, good health and stability. But if disobeyed, there are punishments involved which can be in form of natural disaster etc.
The above laws are part of divine law because they are made by God and they are not manmade neither are they written down. Sometimes their punishments can be predicted, the sin might not be severe but the punishment might be severed.
FEATURES OF DIVINE LAWS
- They are not barred between space and time
- Divine laws are eternal, not subject to change
- They are unpredictable
- They are supernatural, not made by man
- Divine laws are prescriptive in the sense that it prescribes to us how we should live our lives
- Its sanctions are heavy
- Divine laws in primitive societies are however based on the customs and traditions of the people.
Divine justice means the way the gods/supernatural beings decide cases, to determine who violated the law or not as well as the punishment melted out for offender.
CHARACTERISTICS OF DIVINE JUSTICE
It is absolute: The judgment of the gods is usually absolute in the sense that you cannot do anything to stop or change the judgment of the gods.
It is impartial; but can be capricious: Divine justice is impartial in the sense that the culprit of a crime is duly punished but it is capricious because the scope of punishment is not predictable.
It is Immutable: This means that divine justice cannot be changed it remains the way it is and it will always take its course. Human beings cannot amend or change it.
It is transcendence in nature: Divine justice is transcendence because it is not bound by space and time. It comes across or cuts across different societies by both time and space.
IGBO HUMAN POSITIVE LAWS
Igbo human positive law are laws made by human beings which guides the conduct of the society and its members. Laws in Igbo primitive societies are called “IWU” while laws of the land are called “Iwuala”.
CHARACTERISTICS OF IGBO HUMAN POSITIVE LAWS
They bear the stamp of legitimacy: Igbo human positive laws bear the stamp of legitimacy because they are made by authoritative bodies, Bodies that are responsible for law making. Example of which is the General Assembly [Oha], they make laws that concerns the whole community while secret societies make laws that concerns some segments of the community.
They must have to pass the test of Reasonableness: Such laws must be seen as laws that are ethnically and morally sound; they must be laws that promote the society, they must be seen as laws made for rational beings.
They Must be Sufficiently Promulgated: This means that such laws must be well publicized. There should also be awareness for such a law and the reasons why such law is made. The ways of creating awareness for such law is as follows;
Through men that were present when such laws were being made. They are required to go home and relate to the members of their family/relatives about the law being made.
Through the village town crier that will inform the people about the existence of such law.
They are intended for the common good of the society: Such laws are intended to promote the well being/interest of the people living in such community and also to promote people’s activities in the society. The laws being made should not only promote the interest of the leaders alone, but should also be made to promote the interest of the whole community. Such laws must be seen to be in accordance with the established customs of that particular community where the law is in operation if not it may bring about supernatural wrath on the community.
THE INFLUENCE OF IGBO RELIGION ON HUMAN POSITIVE LAW.
This simply means the roles Igbo religion plays on Human Positive Laws. It influences on these laws through the following ways;
Law making: (The role of rituals and ratifications) before a law can be regarded as a law, it must pass through ritual ratifications. Without this ritual ratification, the law cannot be seen as binding on the people. This ritual ratification makes the people see the law as being sacred and continue to obey the law. The laws are being ratified with the Ofo stick. The elders and priests possess this Ofo stick. The Ofo stick is used to ratify the laws that has being made. It is also used to ensure that such laws are in line with the Omenala. Laws must have some backing and divine approval (Ritual ratification).
Maintenance of the law: Because laws are naturally ratified, people try to obey the laws which if not obeyed, amount to disobeying the gods.
Laws in Breach: When the laws are breached, human beings look for who breached the law, if the person(s) is not found they appeal to the gods to intervene on their behalf.
Adjudication: When elders gather to adjudicate on an issue, they make use of the Ofo stick to sanctify the parties involved in the issue. E.g. “whoever knows the truth and does not say it, may the person be struck dead. The people are asked to abide by the principles of Ofo na Ogu, symbolizing justice and truth and innocent. Law making and adjudication was in otherworlds based on the traditions and customs of the people.
ABOUT THE AUTHORS
Francis Udoh is a 400 Level law student at the University of Uyo where he is known for his strides in academics. He is currently the President of Firm of Justice Udo Udoma Chambers, University of Uyo and also doubles as the Logistics and Operations Officer of the Law Students Association of Nigeria (LAWSAN), South-south Zone. Among other interests, he is into volunteering for humanitarian causes.
Daniel Alagor (CIArb) is a student judge and a 400l law student of the Abia State University. He is the founder and the Lead partner of The Legal Issues(TheLI), a leading student law firm in Nigeria & a virtual resource hub for law students and lawyers across Nigeria and Africa. Member of the Chartered Institute of Arbitrators(CIArb)UK (Nigerian Branch) & the Young practitioners’ Group of Asian International Arbitration Center(YPG AIAC). He has over 20 publications to his credit.
For knowledge and Justice