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IS LAW AND JUSTICE FRIEND OR FOE?
Written by furtune
Law
Sep 13, 2010
Is law and justice friend or foe?
By FRANK AGBEDO
Monday, 13 Sep 2010
The need to ensure that law and justice complement each other while the judiciary remains the last
hope of the common man confront legal analysts, FRANK AGBEDO writes. The title of this article was
inspired by the growing public concern, anxiety and apprehension, on the role of law as the avowed
instrument for the attainment of justice, equity and fairness in our ever dynamic and growing
society.
Every passing day we are assailed by a litany of complaints from both litigants and other genuine/
well informed critics and observers, on the parlous state of the justice system, even made worse by
the avalanche of conflicting judgments and decisions spewing from our various election petition
tribunals and other courts of competent jurisdictions in the country, all ascribing their rationale to be
founded on the rule of law as well as the over all interest of justice.
This debilitating anomaly and irreconcilable inconsistency leaves an unfortunate impression of a
system, that is apparently, at war against itself, a situation which if not well managed and properly
addressed, is capable of undermining the confidence and belief of the citizenry on the role of the
courts, as the last hope of the common man.
It is trite that the legitimacy and efficacy of any law is measured not in terms of the elegance or
quality of draftsmanship but by its ability to meet the yearnings, demands and expectations of
society, for justice and mutual harmony, as the veritable foundation of humanity.
By way of attempting a definition of the two concepts, law simply refers to a body of rules and
regulations, which guide and govern an organised society and are enforced by threat of sanctions or
punishment, upon any violation.
Justice on its own part represents an ideal state of moral rightness based on fairness, justness,
equity, natural law, rationality and abiding ethics. It is the quality of being fair and just, on the side of
truth, honesty, fidelity, impartiality and a fair representation that produces just and equitable
results. In short, justice acts as the conscience and moral binding force that holds a nation together,
without which, anarchy and chaos becomes the order of the day.
It is obvious from the above definitions that law and justice share a lot of common grounds and, as a
matter of necessity, ought to be seen as the two sides of the same coin, complementing each other,
as the twin pillars upon which a civilised society exists.
The key distinction between law and justice is therefore all in the process. While law is the process,
justice is the goal and centre point of all legislations.
Ever since the Egyptian Code of Hammurabi, reputed to be the first written constitution in recorded
history, dating back over 100 years ago, law has been deployed as a tool or instrument and process
used by those in authority for the attainment of justice, which is the ultimate goal of society.
But the forgoing never detracts from the undeniable fact that law does not always deliver justice to
the people. Unlike the law, justice, by virtue of its pristine nature tries to look beyond the letters of
the law to discover the spirit or moral compass behind the law, to enable the substance triumph
over form.
It is indeed highly regrettable that under our formal legal system of dispute resolution, which was
forced upon us by the colonial masters, (that refused to acknowledge the existence of our very
active traditional methods of dispute resolution), access to the law through the courts, approximates
to access to justice.
But the question, with an obvious answer, is whether access to law courts guarantees justice to
disputants or litigants at all times. The answer is definitely a capital No, and it is this irony that
propels the discontent and dissatisfaction of the populace with the system of administration of
justice in place, giving rise to the loss of confidence in the courts, as the last hope of the common
man, in quest for justice.
This dichotomy of sorts greatly owes its origins to the postulations of various schools of thought on
the science, meaning and origins of law. While a particular school posits that interpretation of the
law must be confined only to what is written down on the law books or constitution, another school
of thought insists that law must reflect eternal principles of justice and morality which exists
independent of governmental recognition and interference.
Expectedly, these divergent propositions on the meaning of law are not without some ardent
supporters, disciples or apologists, who find themselves at various levels of the administration of
justice, particularly the judiciary.
While the disciples of the first school of thought are called the positivists or conservatives, those
amenable to the latter are called the naturalists or judicial activists. The positivists see law as it is,
but the naturalists see law, as it ought to be. There exist other schools of thought on the meaning
and essence of law, also having their adherents amongst our policy makers and stakeholders in the
justice sector, with obvious implications.
It has been argued that the slavish adherence to legal technicalities by disciples of the positive
school of thought produces uneven justice, whereas the adherents of naturalist school of thought,
produces substantial justice which is more in tune with the expectations of the people.
From the above, one can safely surmise that the quality of justice available to a litigant lies not on
the provisions of the law per se but on the dispositions of the judge, seating in judgment over the
case. According to a learned law lord, ”The court is to administer justice according to law. Without
law, there is no justice but without justice, law labours in vain for law and justice are like two lions
tethered the same day, but whichever is stronger depends on the judge”.
Beyond the foregoing, there are other factors that militate against the quest for substantial justice as
opposed to technical justice, such as, corruption, overbearing and excessive executive interference
in the judicial process, delayed trials, high cost of litigations, poor human and physical infrastructure
and the entrenched intricacies and procedural inadequacies of litigation, as the formal legal system
of dispute resolution.
But the question is, can the society ever get to the point of absolute justice? This may never be
satisfactorily answered in view of the dynamic nature of human kind, which is always changing and
evolving.
For instance at the beginning, there was nothing like intention, motive or guilty mind, mens rea in
criminal law, with the result that once you are accused of any crime, you are presumed guilty until
contrary is proved, after trial, no matter your state of mind or motive at the time of the alleged
offence.
But as the society evolves, the law, which must change with changing times, saw the need to move
away from the above unfair and unjust rule of presumption of guilty, to the more humane and
justice friendly rule of presumption of innocence, until proved guilty.
It is very pertinent to state here that no matter the tempting and attractive features of justice as the
desiderata for the just and egalitarian society of our dreams, it is rather curious that justice as a
concept is incapable of a precise definition or objective characterisation.
This apparent drawback of lack of objective definition of justice makes it imperative for the law to be
applied as the safest standard for measuring its attainment in the society. In the thinking of Eso J.S.C,
”To leave the attainment of justice at large, and ignore the rules is to establish a subjective course of
action which could lead to judicial tyranny and the omnipotence of individual judges. Surely, such
course will end in chaos and certainly not an attainment of interest of justice according to the law of
the land.”
In the final analysis, law and justice are two inseparable phenomena, which can hardly survive
without the other. In their practical application to cases, they should not only be made to
compliment but also add value, essence and meaning to each other. A happier, safer, more peaceful,
just and progressive society will be the ultimate beneficiary.
Agbedo is a Lagos-based legal practitioner.
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However it is defined, a law is the product of the social conditions at the time it is made. The law is
not static. Just as relationships between people or between people and the Government are not
fixed permanently, so the law changes by responding to the current social and political values of the
dominant culture. As societies become more complex so too does the law. It governs our private
relationships through contract, tort, property, succession, trust and family law as well as our public
relationships with the State through criminal, constitutional and administrative law.
