Introduction to Legal Methods

Legal method is the study of law, and the legal methods of doing things,
so that law can be effectively used for the benefit of the individual,
society and state. Legal method is made up of two words: “legal” and
method. The word 'legal' according to the Merriam Webster’s dictionary
is something relating to law. It is also described as conforming to rules or
law. “Law” is a set of rules enforced through a set of institutions.

Nature of legal methods

A fresh undergraduate law student must first understand that legal
method does not concern itself with principles, doctrines and rules
comprising a jurisdiction's substantive law in a field. Rather, it does
concern itself with the mythology employed, principally by courts, to
create, elaborate and apply that substance. Legal methods is an
introduction to both the nature of the English legal system and its
sources and the techniques which lawyers use when handling these
sources. Studying legal method should be exciting, challenging and
rigorous. To fresh students however, it has the reputation of being
boring and mechanical.

Legal method is not a course that can be easily crammed or memorized

and it should not be crammed or just memorized, but should be
understood. If not, it will weaken the foundation of the student’s legal
education.

The study of law may be related to the study of a foreign language

because it proceeds in an orderly fashion. Students are not just
introduced to the study of law straight away. They, who are just coming
into the university to study law are not just introduced to specific laws
like law of torts, company law, law of evidence, etc., but are instead to
take the course of legal methods which revolves around the study of
basic principles, nature, sources, role of law and the methods of law
which can be effectively applied for a better understanding of the
subject matter and this can be compared to the study of foreign
language in the sense that for one to learn and understand, one has to
start from the scratch of the rudiments. For instance, in the case of
English language, one starts learning from the alphabets and then
proceeds to learning of two to three letter words and to vocabularies
and then masters the language to the extent of expressing oneself in
that language. Such is the same with the study of law by learning in an
orderly fashion, from the study of legal vocabularies, concepts,
definitions, principles, cases, statutes and from secondary materials to
primary materials. The study of legal methods provides the basis for the
study of law and this marks its comparison with the study of a foreign
language.

Importance of legal methods

The importance of the study of legal method cannot be overemphasized
and the importance of this course will be discussed here.

The main importance of the course is to provide a ground work on the

fundamental concept of law. The course is aimed both at students with
no previous knowledge of law and those with minimal knowledge of law.
The course is also to help students understand the logic of law, which is
captured in one of McLeod's introductory lines “legal methods when
properly understood is a creative process which provides a fascinating
study in reasoning and using language in order to achieve practical
results”.

Legal methods is a course, which amongst other things, exposes

students to the nature, language, technique and dynamics of law in the
early stage of their academic life in order to lay a solid foundation for
the proper understanding and application of the various substantive
principle and rules which they will come across as they advance in the
studies.

Legal methods provides a lively introduction to both the nature of the

English legal system and its sources and the techniques which lawyers
use when handling those sources. It is this that has made the course
popular for clear introduction to the subject of law.

With the study of legal methods, ideas revolving around the creation of
application are espoused. The processes of making court applications for
hearing are learned in the study of legal methods. Although it may not
go deep into it, it gives knowledge of it.

The study of legal methods lays a foundation upon which other law
subjects are built. With the study of legal methods, one is exposed to
other law subject like trust and equity, jurisprudence, etc.
What is law?
Law is basically that which is laid down, ordained, or established. A rule
or method according to which phenomena or actions coexist or follow
each other. “Law” is a solemn expression of legislative will. It orders,
permits and forbids. It announces rewards and punishments. “Law,”
without an article, properly implies a science or system of principles or
rules of human conduct, answering to the Latin “jus”, as when it is
spoken of as a subject of study or practice.

Features of law
The word “law” can be interpreted to mean a lot of things. For example,
we have the law of gravity, the law of demand and supply and we have
criminal law. How do we know the particular meaning of law that is
relevant to a law student? This would only be made possible if the
specific features of this meaning of “law” is expatiated:

Law is a body of rules: Law is not just contained in a single document. If

it were so, there would be no need for lawyers. Law can be found in an
array of sources. For example, in Nigeria, laws can be found in the
Constitution, statutes and case laws. All these together make up the
corpus juris of Nigerian law.

Law is man-made: This is one of the main distinctive features of law.

Other meanings of law, like the law of gravity, the law of
thermodynamics, etc., are not made by man; they are laws made by
nature. Even laws which are said to be divinely given need man in order
for them to be enforced. The laws of God would have no effect on man
except if the society of man chooses to abide by them.

It is normative in character: The purpose of law is to allow some actions

and criminalize some other actions. This feature of law is best described
as being normative; it prescribes the dos and don’ts of the society. An
example of law prohibiting an action can be found in the provision of
section 319 of the Criminal Code which prescribes the death penalty for
the act of murder. Another example of the law prescribing actions can
be found in section 143 of the Constitution of the Federal Republic of
Nigeria 1999(as amended) which provides for the procedure to be
followed in the removal of the president from office by the legislature.
It has an element of coercion: Before a prohibition can be said to be a
law, there has to be means by which it can be enforced in the society. If
there isn’t, the law would just be regarded as a moral rule at best. This is
why the state makes use of elements of force like the police in order to
enforce its laws and the judgement of the courts.

It is territorial in nature: Unlike the laws of gravity, which apply on the

whole surface of the earth, law in our context only applies within a
certain territory. This is in most cases the society that accepts the law to
govern them. Although in some cases, law can apply in another territory
through the use of conquest. In the case of Holman v Johnson (1775) 1
Cowp. 341, the plaintiff sold tea to the defendant in Dunkirk, with the
full knowledge that the tea was to be smuggled into England.
Subsequently the buyer refused to pay on the basis that the sale of the
tea was illegal. The court rejected this argument on the basis that it
would mean that the laws of England are also applicable in Dunkirk.

It is dynamic in nature: This means that law evolves over time in order to
meet the specific needs of the society in which it is operative. For
example, Nigeria has had a series of constitutions, ranging from the
Clifford Constitution of 1922, to the present 1999 Constitution.

Theories of law
Theories of law refers to the different schools of thought over the nature
of law, and they are observed below.

1. The Positivist Theory of Law

This theory of law was spearheaded by John Austin. He proposed the
command theory of law, which is also regarded to as the positivist
school. According to him in his book, The Province of Jurisprudence
Determined, he defined law as “a command set by a superior being to
inferior beings and enforced by sanctions.” By this definition, it means
that the only things that can be regarded as law are those that are
enacted as such by the person authorized to do so. The definition has
the following elements:

The existence of a definite sovereign.

The sovereign is without legal limitation in the exercise of his power.
The subjects must be in the habit of obeying him because of his coercive
power to impose sanctions.
The positivist theory of law has been criticized on numerous grounds.
First, not all laws are couched as commands. For example, the provisions
contained in Chapter II of the 1999 Constitution which deal with the
fundamental objectives and directive principles of state policy are not
binding on the government of the nation. This is considering the fact
that they are not justiciable by the provision of section 6(6)(c) of the
1999 Constitution. Another criticism is the fact that positive law is only
concerned with the fact that the sovereign enacts a law. It is not
concerned with whether or not the law is moral or acceptable to the
society.

Also, the idea of an uncommanded commander, who has no legal

limitations, would not be applicable in today’s world. Even if it is a
military regime, the military is still bound by the provisions of the laws it
enacts. For example, in the case of Ojukwu vs Governor of Lagos State,
the action of the military governor in evicting the defendant off his
property without following due process was held to be ultra vires and
null and void by the court.

Finally, not all human beings obey the law because of the sanctions
attached to it. Some people just do not contravene the law because it is
their nature. For example, some people abstain from murder not just
because of its punishment but because they find the killing of a fellow
human being repulsive.

2. The Pure Theory of Law

This theory of law is led by Professor Hans Kelson. It is of the view that
law is a system of norms accepted by the society to be binding. Each of
these norms trace their validity to a higher norm until it gets to the
grunde norm. The grunde norm is the norm from which other norms get
their validity. For example, murder is unlawful because it can be traced
to the provision of section 315 of the Criminal Code. The Criminal Code
is valid because it was enacted by the legislature. The legislature’s
powers to make laws is valid because it is provided for under section 4 of
the 1999 Constitution. The Constitution is also valid because it originates
from the people and is accepted by them.

This theory of law has been criticized because it posits that a law is valid
if it satisfies the requirement of being backed by a higher norm. It does
not concern itself with the morality or immorality of the said law.
Another criticism of this theory is due to the fact that it is not always
easy to trace the grunde norm in a given society. The assertion that the
Constitution is the grunde norm is one based on false logic. This is due to
the fact that it is said that the constitution gets its power from the
people. But in the Nigerian situation, we are not sure if it is the people
that provided the constitution or the military government.

Also, a grunde norm is only effective as long as it is respected by the

people it seeks to govern. If it loses the confidence of the people
through a revolution or a coup d’etat, it would become ineffective. A
practical example is the fact that the 1999 Constitution provides in
section 1(2) that no one can operate the government of Nigeria except
in accordance with the provisions of the Constitution. However, when
there is a successful coup, this section and a host of others are removed
by the military government in power.

3. Natural Law Theory

The natural law theory of law is espoused by people like Zeno, Thomas
Aquinas and Grotius. They are of the view that law can be deduced by
man from reason as to what is right or wrong. This theory of law is of the
position that there is an innate tendency in all humans helping to
distinguish right from wrong. Natural law is simply what is “right, just
and fair”. Natural law has been the basis for an array of liberation
struggles. It was invoked by the Americans in their struggle of liberation
from Britain, by the French during their revolution, in the abolition of
slave trade and is now being used to justify homosexuality.

However, there are numerous criticisms for this theory of law. First is
the fact that unless natural law is promulgated as a law, it does not carry
the force of law and would not be enforceable. At best, it would be
considered as a moral rule. A very good example is the fact that the
Criminal Code which operates in Southern Nigeria doesn’t criminalise
adultery. However according to Section 387 and 388 of the Penal Code,
which operates in Northern Nigeria, adultery is an offence.

Also, the dictates of natural law are usually seen subjectively. What is
fair, equitable and just to one person may not be fair, equitable and just
to another person. This issue is what has made natural law to be
referred to as a harlot.
A very good example of this is in the clamour for homosexuality. The
homosexuals and their supporters are of the view that it is only fair and
just for them to be allowed to have sexual intercourse with anyone they
choose. Those who oppose it on the other hand are of the opinion that
homosexuality is against the order of nature and should thus be
prohibited. Thus, it would be problematic if everyone in the society is
left to choose what is right and wrong on the basis of how he feels.

4. Historical Theory of Law

This theory was propounded by Friedrich Carl Von Savigny, a German
aristocrat. The theory was propounded in order to counter the influence
of the natural theory of law in overthrowing monarchs in 17th and 18th
century Europe.

The theory is of the view that law should be made in accordance with
the custom of the people. This custom, referred to as volksgeist, is the
spirit of the people and what binds them together. Thus, attempts
should not be made to make laws that would deviate from the customs
and way of life of the people. Von Savigny was an aristocrat, and so it is
evident that he was interested in maintaining the status quo.

One of the criticisms against this school is the fact that if it is followed
dogmatically, it could hinder radical reforms which would turn out to be
good for the society. One can only imagine how backward the society
would be if strange customs like slavery and absolute monarchy were
not abolished. Another criticism of this theory of law is the fact that it is
not at all times that customs are fair and just. There are a lot of customs
that segregate a particular class of people. If this theory is to be followed
to the latter, it would put these people in perpetual bondage.

This could be seen as the reason for the Evidence Act to provide in
section 18(3) that a custom would only be applicable if it conforms to
public policy, natural justice, equity and good conscience.

5. Sociological Theory of Law

The sociological theory gained prominence from the mid nineteenth
century to the twentieth century. One of its most prominent supporters
was Eugene Ehrlich. According to this school, law is based on what could
be called the “facts of law”, how people acted. The way the society acts
determines the kinds of laws that would be laid down. If the society by
its actions fails to acknowledge a law, the law is doomed to fail as a
means of social control.

A very good example of this is the case of corruption in the Nigerian

society. Despite the enactment of many Acts like the Economic and
Financial Crimes Commission Act and a host of others, corruption is still
viewed as a way of life in Nigeria. Virtually everyone has at a point in
time given or received a bribe. The different measures put in place to
control corruption have obviously failed because the people do not
support the law by their actions.

The sociological school, however, also has its own share of criticisms.
First, it is not all the time that conduct influences the law. There are
situations in which the law influences the conduct of members of the
society. For instance, vehicle owners register their vehicles because of
the law mandating them to do so.

Another criticism is the fact that it is quite risky to “go with the flow”.
Just because every other person is disobeying the law would not excuse
an offender who is caught and is being made a scape goat. The present
Dasuki armsgate scandal is a good example of this. Assuming but not
conceding that he is guilty, it would not be a valid excuse that the
perpetrators should not be punished because virtually everyone in
government at that point was corrupt.

There is another variant of the sociological theory propounded by

Roscoe Pound, former Dean of Harvard Law School. According to him,
there are limited resources in the society and thus, numerous competing
claims to those resources. It is then the aim of the law to balance these
competing claims in such a way that it would cause the least harm. This
is done through the instrumentality of the courts.

6. The Utilitarian Theory of Law

This theory of law is championed by Jeremy Bentham. According to him,
the purpose of the law is to guarantee communal utility. Utility in this
sense means that which affects the happiness of the people. The law
should always seek to promote the utility that would positively affect the
larger part of the society.
According to this school, there are four basic utilities: security, equality,
liberty and abundance. The most important one is security, followed by
liberty and the remaining two. The law should always seek to balance
individual interest with that of the community. For example, the law
allows for the police to invade the privacy of a suspected armed robber,
robbing him of his liberty, in order to guarantee the security of the
society.

One of the criticisms against this school is that it does not specify a
method for balancing the interest of the individual and community.

7. The Functional Theory

This theory of law is championed by distinguished United States jurist,
Oliver Wendell Homes Jr. His view is that the law is what the courts say it
is. He says the law should be viewed from the perspective of the bad
man. According to him, the bad man doesn’t give two hoots about legal
theories, all he cares about is what the court would decide in his
situation.

Thus, notwithstanding what is contained in the statutes, since it is the

courts that interpret the law, the law would be what the court
pronounces it to be. This school also recognizes the power of the court
to make law when the statutes do not provide for a particular scenario
or they are vague about it.

One of the criticisms against this school is that it only concentrates on

the courts and ignores the legislative and administrative authority. This
is arguably erroneous, considering the fact that the court itself is a
creation of statute. Section 6 of the Constitution of the Federal Republic
of Nigeria 1999(as amended) establishes the judiciary.

8. The Realist Theory of Law

This school is of American origin, and is subscribed to by people like
Oliver Wendell Holmes, Justice Jerome Frank, John Chipman Gray and
Karl Llewellyn. This school posits that the law is not just what is in the
books and decided cases. They are of the view that the judge and jury, in
making their decisions, are influenced by extraneous factors. For
example, if a judge that has been a victim of rape or is close to a victim
tries an accused rapist, there is every likelihood that she would not want
him to go scot free due to her previous experience. Also, a judge who is
handling the trial of a former colleague or contemporary would be
lenient compared to the trial of an accused who is not related to him.

This school aims at reforming the judicial system. They are of the view
that judges should constantly try their best in order to be objective in
deciding a particular case.

Which of The Theories of Law is the Best?

The above numerous theories have been explained and it can be said
that all the schools are correct in their own right. This is due to the fact
that the definitions of law given are affected by the subjective
experiences of each of the jurist. A good example is Carl Von Savigny,
who supported the historical school because he was an aristocrat and so
has an interest in maintaining the status quo.

The main idea behind the different schools can be summarised in one
quick allegory of some blind men who were told to identify an elephant
by touching it. The one that touched the legs described it as a tree, the
one that touched the trunk called it a snake, the one for the body called
it a rock and the one that touched the tusk described it as a spear. All
the blind men were correct in their own right, however, they were also
wrong as their perspectives were limited to only an aspect.

In light of this, it would be best to quote Professor Mrs Okunniga who

stated: “Nobody, including the lawyer, has offered, nobody including the
lawyer is offering and nobody including the lawyer will ever be able to
offer a definition of law to end all definitions.”

Functions of law
1. Definition and Regulation of Social Relationships
This means that the law helps to define the kinds of relationship among
individual members of the society that would be recognised by it. For
instance, under the Marriage Act, a valid marriage is a union between a
man and a woman. Thus, unions between couples of the same sex are
not recognised in the Nigerian Legal System.

Furthermore, the Constitution provides in section 40 that there is

freedom of association between members of the society. However,
some other laws like the Company and Allied Matters Act, provide for
steps to be taken before a company could be registered as such and is
recognised by the law as a distinct legal person. In all, the law regulates
the relationship between members of the society in order to prevent
associations or relationships that would end up being harmful to the
society.

2. Identification and Allocation of Official Authority

Another function of law is that it helps to grant authority to those
chosen by the society, whether expressly or indirectly. For example, the
1999 Constitution establishes the Legislature, Executive and Judiciary in
the provisions of sections 4, 5 and 6 respectively. The provisions does
not only establish them, their specific duties are also provided for.

3. Dispute Settlement and Remedies

In the course of interaction amongst members of the society, there is
always bound to be strife between members. The law comes in
situations like this to provide for the procedures in which these issues
can be resolved and if need be, the provision of remedies for the breach
of the rights of members of the society. The law achieves this through
the instrumentality of the judicial system.

The method of dispute resolution adopted by the society depends on its

size and complexity. If it is a small and simple society, disputes would be
resolved in a way that would ensure continued relationship among the
members. If it is a complex society in which parties have no need for
further relationship, the disputes would be resolved in a way that
apportions blames and grants remedies as adequately needed.

4. Change of Law
Another function of law is that it provides methods by which the laws
can be modified in order to meet the needs of the changing times. For
example, the Constitution in section 4 vests in the legislature the power
to make laws for Nigeria. This means they can re-enact laws and correct
anomalies in them. The specific processes to be followed by the
legislature in enacting laws for the federation are provided for by the
Constitution in section 58.

Also, the Constitution provides in section 9 for the procedures to be

followed in amending its content. The provision of methods for
amending laws goes a long way to end ambiguity as to how the laws
should be modified to suit the needs of the society.

Types and Classifications of Law

Types of law

Eternal Law: The word eternal means something that would last forever.
Eternal laws are laws that have applied since the beginning of time and
would exist till the end of time. These laws cannot be changed. A very
good example of eternal law is the law of gravity. From the inception of
time, it has been understood that what goes up must come down. This
law would not be changed and it is right to be regard as eternal.
Divine Law: Divine Law is referred to as laws made by a deity to govern
the affairs of man. A good example of divine law can be found in Islamic
law as postulated in the Quran. These laws are said to be given by God
to the Prophet Muhammed in order to guide the affairs of man. The
logic behind the use of divine law stems from the fact that God,
accepted as all knowing and all wise, is in the best position to make laws
for the use of mankind.

Natural Law: In the legal sense, natural law can be said to be law as
espoused by the natural law theorists. This law is said to be the law that
is innate in all mankind and can be deduced through the use of reason.
For example, it is accepted in all cultures that murder is wrong and
should be punished. Natural law is said to be the guide which positive
law must follow in order for it to be valid. If positive law is at variance
with natural law, it could lead to injustice in the society.

Positive or Human Law: Positive Law can also be regarded as human law.
These are laws made by man in order to guide the conduct of members
of the society. They are laws made by persons given the authority to do
so either directly or indirectly by the society. Legal positivism does not
concern itself with morals. Once a law has been enacted by persons in
authority, it is valid. According to 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 law as it ought to be (de lege
ferenda).” Examples of positivist law include the 1999 Constitution,
Company and Allied Matters Act, Banks and Other Financial Institutions
Act and a host of others enacted by man.
Classifications of law
Public and Private Law: Public Law can be defined as that aspect of law
that deals with the relationship between the state, its citizens, and other
states. It is one that governs the relationship between a higher party -
the state- and a lower one, the citizens. Examples of public law include
Constitutional Law, Administrative Law, Criminal Law, International Law,
and so on. Private law, on the other hand, is that category of the law
that concerns itself with the relationship amongst private citizens.
Examples include the Law of Torts, the Law of Contract, the Law of Trust,
and so on.

Civil Law and Criminal Law: Civil law in this regard can be defined as the
aspect of law that deals with the relationship between citizens and
provides means for remedies if the right of a citizen is breached.
Examples of civil law include the Law of Contract, the Law of Torts,
Family Law, etc. Criminal Law, on the other hand, can be referred to as
that aspect of law which regulates crime in the society. It punishes acts
which are considered harmful to the society at large. An example of
criminal law is the Criminal Code Act which is applicable in the Southern
part of Nigeria. When treating a criminal case, the standard of proof to
be used is proof beyond reasonable doubt as stated in section 135 of the
Evidence Act 2011. Also, the burden of proof does not shift from the
prosecution. What this means is that before a conviction can be gotten,
the state has to prove the commission of the crime until it is beyond
reasonable doubt that the crime was committed by the accused. On the
other hand, in civil cases, the standard of proof is on the balance of
probabilities as stated in section 134 of the Evidence Act 2011. Also, the
burden of proof shifts between both parties when they need to establish
their case. Judgement normally goes in favour of the particular party
that has been able to prove its case more successfully.

Substantive and Procedural Law: Substantive Law is the main body of

the law dealing with a particular area of law. For example, the
substantive law in relation to Criminal Law includes the Criminal Code
Act and the Penal Code Act. Procedural law, on the other hand, is law
that deals with the process which the courts must follow in order to
enforce the substantive law. Examples include the rules of the various
courts and the Administration of Criminal Justice Act 2015, which is the
procedural law in relation to the Criminal Code Act and the Penal Code
Act.

Municipal/Domestic and International Law: Municipal/Domestic law is

the aspect of law which emanates from and has effect on members of a
specific state. An example of a municipal Nigerian law is the Constitution
of the Federal Republic of Nigeria 1999(as amended) which applies in
only Nigeria. International law, on the other hand, is the law between
countries. It regulates the relationship between different independent
countries and is usually in the form of treaties, international customs,
etc. Examples of International law include the Universal Declaration of
Human Rights and the African Charter on Human and People’s Rights. It
should be noted that according to the provision of section 12(1) of the
1999 Constitution (as amended), international treaties cannot have the
force of law in Nigeria except they are enacted by the Nigerian National
Assembly.

Written and Unwritten Law: A law would not be regarded as written just
because it is written down in a document. Written laws are those laws
that have been validly enacted by the legislature of a country. Unwritten
laws, on the other hand, are those laws that are not enacted by the
legislature. They include both customary and case law. Customary Law
as part of its basic characteristic is generally unwritten. Case law, though
written down in a documentary format, would be regarded as unwritten
law based on the fact that it is not enacted by the legislature. An
example of this is the good neighbour principle established in the case of
Donoghue v. Stevenson. The principle posits that manufacturers of
products should take utmost care in their manufacturing activities to
ensure that the consumption of their product doesn’t result in harm to
the consumer. This principle is not enacted in a statute but is a case law
which is applicable in Nigerian Courts. This is unwritten law.

Common Law and Equity: In the legal sense, the term common law
means the law developed by the old common law courts of the King’s
Bench, the Courts of Common Pleas and the Courts of Exchequer. The
English common law is regarded as such because it is law common to all
parts of England. It grew over time from the practices, customs and way
of life of the people. It is largely unwritten. The first common law judge
was the King himself. People who had disputes usually brought them to
the King to settle them.

However, due to matters of state, the king didn’t have time to settle all
cases. As a result of this, the king appointed members of his court who
were to settle disputes in his stead. These judges had the authority of
the king and any disobedience to them was treated as disobedience to
the king and so punishment was swift. These different judges traveled
the length and breadth of the realm to settle disputes. When they got to
a particular location, they applied the customary law in that location in
order to settle disputes. Regularly, these different itinerant judges would
come together to compare the different customary laws they
encountered on their travels.

They discarded customs that were thought to be insensible and

accepted those which were sensible. This led to the conglomeration of
different customs which were then applied all through the realm. This
then metamorphosed into the common law of England. However, the
common law was strict, formal and full of legalism. One example of this
was in its system of writs. If an action did not fit into a writ, there was no
remedy for such action. Also, the only remedy available in common law
was that of damages.

Due to the harshness of common law, the people petitioned the King
directly for judgement. The Lord Chancellor, as the King’s Prime
Minister, was the one that dealt with most of these petitions. His court
was called the Court of Chancery/Equity. The Lord Chancellor, usually a
bishop, applied the principle of fairness and natural law in making his
decisions. Subsequently, there was conflict between the common law
court and the court of chancery. This conflict came to its greatest height
in the Earl of Oxford’s case. In this case, the plaintiff was the assignee of
a lease and he built a house and planted a garden on the land.
Subsequently, the defendant/owner of the land sought to evict him from
the land. The assignee thus sued, lost at common law, and then
appealed to the court of chancery.

The court of equity accepted his petition and allowed him to stay on the
land. The reasoning of the Lord Chancellor, Lord Ellesmere, was that by
natural law, it was only fair and just for a person who builds a house to
be able to live in that house. This judgement prompted Lord Coke, the
Chief Justice of the King’s Bench, to accuse the Lord Chancellor of
frustrating the rules of common law. The matter was brought to the King
who referred it to Lord Francis Bacon. Francis Bacon supported the court
of equity and ruled that whenever there was a clash between common
law and equity, equity would prevail.

This ruling however, did not help to completely solve the problem
between the two courts. This was due to the fact that the common law
courts could only grant the remedy of damages and thus, anyone
seeking a different remedy would first pass through the common law
courts before going to equity. Over the years, the two systems were
merged till finally, in 1875, the Judicature Act fused the two systems into
one court. However, although they are applied in one court, the rules of
common law and equity can be distinguished from each other. This is
what prompts the statement “Although the two streams now flow into
one, their waters do not mix.”

Social Control Through Law

Before a society can be said to be sane, there have to be means by
which that society regulates the conducts of its members. If everyone in
a society is left to do as he wills, there might end up being no society.
This is due to the fact that the absence of regulation would breed
anarchy, making life “nasty, brutish and short”. It is because of this that
every society has means by which it regulates the conduct of its
members. This regulation of conduct is known as social control.

Methods of social control could either be formal or informal. Law is a

formal method of social control, while informal methods include
ostracism, ridicule, gossip and censure. What is going to be discussed is
the formal method of social control. Thus, the methods of social control
through law would be the focal point of this write-up.
According to Farrar and Dugdale, the following are the methods of social
control through law:

1. The Penal Technique

The word “penal” has been defined by the Black’s Law Dictionary 9th
Edition as “Of, or relating to, or being a penalty or punishment,
especially for a crime”.
From the meaning of the word “penal”, we can deduce that the penal
technique is the one which involves the regulation of crime in the
society. The penal technique is one in which the law pronounces some
actions as prohibited, and it provides punishment for engaging in such
actions.
Thus, examples of laws in relation to the penal technique include the
Criminal Code, Penal Code, Economic and Financial Crime Commission
Act and so on. For instance, the Criminal Code in section 315 pronounces
that murder and manslaughter are offences. It further provides in
section 319 that the punishment for the crime of murder is death, while
in section 325 it provides that the punishment for manslaughter is life
imprisonment.
There are some alternatives to the penal technique which are: non-
intervention, warning or caution, reciprocity and self-help,
compounding.
Non-intervention occurs in a situation in which the act, although
frowned upon, is not punished by the state. For example, in some
societies, adultery is not a crime. In others, it is regarded as a crime. In
the case of Aoko vs Fagbemi (1961) 1 ANLR 400, the court, while trying a
case in southern Nigeria, held that adultery was not a crime since it was
not prescribed as such by a written law. Adultery is only a crime in the
North due to the provision of section 387 of the Penal Code.
Warning or caution occurs in a situation in which it is more expedient to
warn the offender instead of punishing him. This occurs in the instance
of juveniles and first offenders.

Reciprocity and self-help is a situation in which, instead of reporting a

matter to the police, the aggrieved parties decide to mete out justice on
their own. This could lead to jungle justice and could result in the
punishment of innocent persons. This step is frowned upon by the law
and thus, anyone who engages in this act would be liable.
Compounding occurs in a situation in which, instead of prosecuting the
crime, the aggrieved parties decide to settle it out of court upon the
fulfilment of some conditions by the offender.

2. The Grievance Remedial Technique

The grievance remedial technique, unlike the penal technique, is not
related to criminal law. It deals with civil matters. It has been defined by
Professor Summers as a technique which “defines remediable
grievances, specifies remedies … and provides for enforcement of
remedial awards.”
What this means is that this technique provides for instances in which a
person would be held to have breached another’s right, it provides
compensation and it also accounts for means for enforcing these
compensations. The grievance remedial technique is used in areas of law
like Law of Contract, Commercial Law, Law of Torts, Law of Property and
so on. Some of the remedies under this technique include: damages,
specific performance, injunction, restitutio in integrum, etc.

Alternatives to this technique include the penal technique, private

settlement, insurance and arbitration. The penal technique could be
regarded as an alternative to the grievance remedial technique due to
the fact that a number of grievances are also regarded as crime.
Examples include assault, battery, false imprisonment etc. Thus, when
any of these grievances occur, the aggrieved party can choose to either
pursue the case criminally or take a civil action.

Private settlement occurs in a situation in which the parties, at the time

of the contract, have already spelt out means by which an aggrieved
party should be compensated.

Insurance is relevant, especially in developed economies. In these

countries, when there is an injury suffered, like motor accidents, instead
of suing, the aggrieved party(s) can decide to refer the matter to their
insurance companies.
Arbitration occurs in a situation in which, instead of going to court, the
parties decide to refer the matter to an arbitrator. The arbitrator is
usually skilled in the area of business under issue. Arbitration is a more
effective and less time consuming alternative. Arbitration processes
could take days, compared to litigation which could take months or
years before conclusion.

3. The Private Arranging Technique

This occurs in a situation in which the law does not bind every member
of the society. This particular law only binds those who choose to be
bound by its provisions. An example of this is the Marriage Act which
regulates legal marriages. A person has a right to either marry under the
act, customarily or in the Islamic way. If he however chooses to marry
under the Marriage Act, he has to abide by its provisions. For example,
the Marriage Act provides in section 47 that whoever contracts a
customary marriage after contracting a marriage under the Act would be
liable for five years of imprisonment. Thus, anyone who doesn’t subject
himself to the provisions of this act, can decide to act contrary to it
without any repercussions. But for a person who decides to be governed
by the Act, such person must abide by its provisions or face the
repercussions.

4. The Constitutive Technique

The constitutive technique is the one that concerns itself with the
formation of legal personalities. It encompasses all laws that deal with
the registration of companies and organizations. An example of this law
is the Company and Allied Matters Act, which deals with the
incorporation of companies in Nigeria. According to the provision of
section 37 of the Company and Allied Matters Act, when a company is
incorporated, it becomes a legal personality.

The concept of a separate legal personality of companies was mentioned

in the case of Salomon vs Salomon (1897) AC 22. In this case, Salomon
incorporated Salomon & Co Ltd and he sold his leather making business
to this company. The only shareholders were members of his family.
Salomon borrowed the company he incorporated some amounts of
money.
Subsequently, the company went into financial crisis and it was to be
determined who was to be paid first, Salomon, who was a secured
creditor, or an outside creditor. If Salomon was paid first, there would be
nothing to pay the outside creditors. The solicitors for the outside
creditors argued that Salomon & Co ltd. was a sham and was the same
with Salomon. Salomon lost at the trial court and the court of appeal.
However, on appeal to the House of Lords, the decisions of the lower
courts were reversed. The House of Lords held that Salomon & Co Ltd.
was a different person from Mr. Salomon. Thus, since under normal
circumstances, Mr. Salomon was to be paid first, he should be paid first.

5. Administrative Regulatory Technique

This method of social control is one in which the government, in order to
protect the citizens, regulates the activities of private businesses. If
there is no regulation, there is every likelihood that the capitalists would
exploit the citizenry.

The government does this through the establishment of some regulatory

agencies like the National Agency for Food and Drug Administration and
Control (NAFDAC), the Nigerian Communications Commission (NCC),
Standard Organisation of Nigeria (SON) and so on. For example, NAFDAC
is established by the provision of S.1 of the National Agency for Food
and Drug Administration and Control Act.

6. The Fiscal Technique

This method of social control involves the government using taxation to
control the behaviour of citizens. For goods that the government wants
to discourage, it imposes higher tax rates on them. It also involves the
use of fines in order to discourage some actions. For example, in 1998, in
order to reduce the rate of gas flaring, the fine for gas flaring was
increased by 1900 percent.

The government uses the fiscal method through the enactment of

statutes like the Personal Income Tax Act and the Custom and Excise
Management Act.

7. The Conferral of Social Benefit Technique

This occurs in a situation in which the government, through the
instrumentality of the law, strives to provide basic amenities for the
populace. It does this by establishing schools, hospitals, building roads
and so on. For example, the University of Ilorin was established by the
provision of section 1 of the University of Ilorin Act. This Act provides the
basis on which the administration of the university is operated. It can be
seen as a way in which the government tries to make education
available for the populace.

Legal Reasoning and Approach to Legal Problems

Before delving into the main subject matter of the topic, it is important
to first understand what is meant by legal reasoning. While legal has to
do with the law, reasoning is to think is an orderly or sensible pattern.
Legal reasoning is therefore the pattern of logical and persuasive
thoughts in the presenting of issues relating to the law. It is important to
know what legal reasoning refers to as the average person may see the
reasoning pattern of legal practitioners, judges and law makers as vain
and unnecessarily complex. This is why it is important to understand the
thought process of these individuals and the motivations for that
particular kind of thought process. There are several reasoning methods
and approaches to solving legal problems. However, it is important to
understand the language of the law before being concerned with the
approaches.

The language of the law

The language which is being referred to in this sense is not the lingua
franca of the law, but instead refers to how words and phrases are
joined together to create the intended meanings. This also includes the
characteristics of the language used in law which sets it apart from
ordinary language.

The characteristics are as follows.

The law is expressed in general terms: The law is usually worded in
general terms, although this is not always the case. The reason for this is
because the lawmakers realize that laws apply to a large spectrum of
people in different circumstances, and so there is the need to phrase the
law in such a way that it covers all possible situations. The lawmakers try
to do this to the best of their abilities. Giving the laws a narrow and
specific language would cause trouble if a varying situation comes up,
and this is why even Farrah says that such specific language would not
be helpful. The laws are general to enable the courts have room to do
justice, as was the case in Donoghue v. Stevenson where it was held that
a manufacturer of ginger beer had the duty to not let snails get into the
product. However, the law can be specific when it is necessary to
achieve the purpose of the law, and a law should not be so general that
the purpose cannot be found.

The use of abstract concepts: Ordinarily, a lawyer is not allowed to

create words. Lawyers have however been known to do this when there
is no word in existence for the idea the lawyer seeks to convey. Abstract
concepts are used to avoid long and verbose explanations. Such words
which have special meanings in law include “contract”, “possession”,
“company”, “fee simple”, etc. The concept of rule of law, instead of
being explained in so many sentences, may be described as the
supremacy of the constitution, equality before the law and fundamental
human rights.

There is also the use of common words with uncommon meanings. An

example is that while a layman may say he has a case in court, a lawyer
may say he has a matter or a lawsuit. A lawyer may say “it is submitted
that…” instead of saying “the court should hold that…”
There is the use of latin words and phrases in the legal language. Phrases
like nemo judex in causa sua, ubi jus ibi remedium, ultra vires, etc. may
be used in law depite not being part of the English Language. Britain has
begun departing from this practice, and it is possible that other
jurisdictions will soon follow.

There is the frequent use of archaic English words in law. Such words
include “hereinbefore”, “aforementioned”, etc.

The same way a lot have professions have their jargons, law also has its
own jargons which are spoken by legal practitioners and are often not
understood by those outside the profession. “My brief has not been
perfected” may mean something else to a layman, when the real
meaning is that a lawyer’s fees have not been paid.

There is the frequent use of resonant formal words which might be seen
has the repetition of the same idea in different words by some. An
example of this is “the truth, the whole truth and nothing but the truth.”
The greatest influence of the language of the law is the history of legal
development. In addition to the language, there is also the habit of
wearing robes and wigs in courts of record. This is seen as unnecessary
by a good number of people, as it in no way improves seriousness and
only serves to mystify the profession from the public.

Methods of legal reasoning

Since law is usually framed in general language, the meaning of the
words may sometimes be ambiguous. Parties often try to take
advantage of the ambiguity and the judges are stuck with the duty of
deciding the proper interpretation. It becomes necessary to study the
different methods of reasoning in the legal field.

Principles and rules

Principles of law are established legal truths or prepositions that are so
clear that they cannot be reproved except with the proposition of
another principle which is clearer. A principle is an established ideal or
value and legislations and judicial decisions are judged either valid or
invalid based on principles. Some of the principles of constitutional law
are separation of powers, rule of law, supremacy of the constitution,
etc., while a principle of administrative law is the principle of natural
justice. A rule is the instance of application of a principle, and may be
seen as the aspects of a principle. For example, the principle of natural
justice states that a party should not be a judge in his own case (nemo
judex in causa sua) and both parties should be heard before judgment is
given (audi alterem partem).

The two rules make up the principle which is natural justice.

Legal rhetoric
Rhetoric is the art of persuading the minds of men with the use of
words. Plato defined it as the art of winning a man’s mind with words. It
is important that a lawyer possesses rhetoric to convince the judge to
accept his argument. Language is important to the lawyer as a hammer
is important to a carpenter, it is a vital tool of his profession. Aristotle
was of the view that rhetoric could either be forensic or deliberative,
and that forensic rhetoric was the more noble one for a statesman.
Generally, lawyers use forensic rhetoric while judges use deliberative
rhetoric. Lawyers represent the interests of their clients and their goal is
to convince the judge to accept their point of view, while judges are
more concerned about arriving at a rational decision which is justifiable
in the overall interest of the parties and the society. The principal
rhetorical instrument used in law is appeal to authorities. In Nigeria and
other common law countries, these authorities include earlier cases and
statutes. It is these authorities that the legal man seeks to use in
convincing whoever his words are directed at. It can be seen that the
lawyer requires essential knowledge of the laws and principles and how
to apply them.
Legal logic

It is not enough for a lawyer to know the facts of his case and the
applicable authorities. It is also necessary that the lawyer presents his
argument in a logical manner. Through the use of logic, a lawyer can
reason clearly and put his thoughts across firmly. The understanding of
logic would also help a lawyer prevent the presentation of faulty
arguments and to spot the fault in the arguments of others. Logic may
either be deductive, inductive or analogical reasoning.

Syllogism or deductive logic

Syllogism is a deductive form of argument. There is usually a major
premise which is a general statement, a minor premise which is more
specific to the issue at hand, and a conclusion drawn from the two
premises. It is a connection of propositions whereby the conclusion
draws from the two premises. An example is as follows.
All men have short hair.
Ade is a man.
Ade has short hair.

The conclusion of Ade having short hair is based on the first premise that
all men have short hair and the second premise that Ade is a man. This is
deductive logic, and it moves from the general to the specific. If a lawyer
wants to use deductive logic to arrive at a conclusion, he usually starts
by identifying the law, proceeds to his client’s specific case, and then
draws a logical conclusion.

An example is as follows.

Whoever takes another’s property with the intention to permanently

deny him of it is guilty of stealing.
Gbemi took Fisayo’s property with the intention to permanently deny
Fisayo of it.
Gbemi is guilty of stealing.
However, the major problem with syllogism is that it is concerned more
with validity than truth. Once a wrong premise has been established, the
conclusion shall be wrong and false, and yet the argument would still be
logical. This is why a lawyer should learn to know when a premise is false
so that he may point out the flaw in the argument.
Inductive logic
Inductive logic is a kind of argument whereby there is a movement from
the specific to the general, as opposed to the deductive logic which
moves from the general to the specific. While deductive logic is usually
used by lawyers when a statute is being consulted, inductive logic is used
when case law is being consulted. The lawyer then moves from specific
situations to draw his conclusion. An example is as follows.
The court held that damage should not include whatever is remote
in Hadley v. Baxendale.
The court also held in Adetoun Oladeji v. Nigerian Breweries Ltd. that
damages should not include whatever is remote.
All these cases have similar features with the case at hand, and so Mr.
Obinna should not pay damages for what is remote.
Inductive logic is also used by the judges
Analogical reasoning
It was stated by Lord Diplock that in reasoning, a person must identify
what he is looking for and look for similar cases. This is what is used by
the courts to differentiate between cases or to conclude that cases are
similar.

It should be noted that judges do not always follow authorities which

lawyers have appealed to. A judge may not accept a lawyer’s argument
despite the backing of authority for various reasons. It might be because
it contradicts some other authorities, because it shall do injustice,
because it is against common sense and the supposed view of a
reasonable man or because it is against public policy, i.e. against public
good. The court stated in Chinwendu v. Mbamali that courts should not
do injustice because of technicalities. This shows that a judge might
refuse to accept an authority if it is a technical guise to lure the judge
into doing injustice.

Fact Finding and Dispute Resolution

Disputes are practically unavoidable in the relationship of man, and this
is why it is necessary to have an existing structure to settle such
disputes. In the past, there were other methods like trial by ordeal,
which the criminal code has now made unlawful. An example of trial by
ordeal is when a baby whose legitimacy is in doubt is thrown into a river.
The people usually believe that God would intervene if the baby is
legitimate. The modern processes of settling disputes are the
adjudicatory and non-adjudicatory methods.
Adjudicatory method
This method is popularly known as litigation and it involves the trial of a
dispute in a court of law. A party, known as the plaintiff, usually
complains to the court of an act and brings an action against the
defendant. A judge then presides over the trial and the decision of the
judge is binding on both parties. There are usually facts as to what
caused the dispute, and the judges employ different processes in fact
finding. Fact finding refers to the process of deciphering what happened
to cause a dispute between two parties. The two main approaches of
fact finding are the adversarial method and the inquisitorial method.
The adversarial method
This method gives the lawyers and their clients the privilege to decide
the direction in which the case goes. This is because the judge is not
allowed to descend into the arena. Each party is to assemble his
witnesses and try to prove their case. Each party calls on his witness one
after the other, and this is known as examination-in-chief. After this, the
other party may cross-examine the witness in an attempt to reduce the
force of the witness’ statement or have it dismissed. If a witness is not
cross-examined, then the judge shall assume that everything said was
true. The party may re-examine his witness after he has been cross
examined to settle any discrepancies.
The judge is like an umpire who cannot descend into the arena. Even if
the judge feels that the right questions are not being asked, he can say
nothing about it. He may only ask questions to clear discrepancies or
clarify an ambiguity in the answers of the witnesses.
Criminal procedure: In a criminal prosecution, the two parties are usually
referred to as the prosecution and the accused. The prosecution is
obligated to reveal his evidence to the accused before the trial to enable
him prepare a defense, while the accused does not have to reveal his
defense. The accused may choose to remain silent all through the case,
and this is provided for in section 35(2) of the constitution. Furthermore,
the prosecution is required to prove beyond reasonable doubt that the
accused is guilty. The House of Lords stated in Woolmington v.
D.P.P. that while the prosecution is obligated to prove the accused’s
guilt beyond reasonable doubt, the accused has no need to prove his
innocence. The only time when the accused would have to prove his
innocence is in a case where the facts create a presumption that he is
guilty. This is called a case of res ipsa loquitur, and it means “the facts
speak for themselves”. If, for example, a surgical knife is found in a
patient after a surgery, the facts point at the surgeon having left the
knife in that patient. Erle C.J. stated in Scott v. London and St. Katherines
Docks Co,
Where the thing is shown to be under the management of the
defendant or his servants, and the accident is such as in the ordinary
course of things does not happen if those who have the management
use proper care, it affords reasonable evidence, in the absence of
explanation by the defendants, that the accident arose from want of
care.
Advantages of adversarial method
It reduces the element of bias, since a judge is to reach is conclusion only
on what the parties present and not descend into the arena. Therefore,
it is easy to detect when a judge has perverted justice if he descends into
the arena.
It gives both parties the opportunity to present their cases while trying
to discredit the other party’s case. This means that a party with an
apparently weaker case may win if his lawyer is diligent and committed
to the case.
The method gives both parties an equal playing ground, and so it gives
both parties an equal chance to win.
Since the lawyers are in charge of directing the case, it may help in the
development of the law as lawyers may come up with ingenious
arguments.
The decision of the court is binding and so does not require the parties
to go to another tribunal.
Disadvantages of adversarial method
The most obvious flaw is that those with the best lawyers, which are
most often the rich, are most likely to win.
It tends to be a way of continuing a legal fight instead of reaching a
peaceful resolution.
Since it is based on evidence, some lawyers may go to any length to
provide evidence to support their case including getting witnesses to
perjure themselves. In Whitehouse v. Jordan, the court had to criticize a
lawyer for doctoring the evidence produced by an expert.
There is often a long delay of cases which makes it frustrating for a
claimant/plaintiff to have his rights enforced. In Ajani v. Giwa, Oputa
J.S.C. criticized the fact that a case had been before the court for 16
years for a party to know whether or not he was the owner of a piece of
land. This may also be a delay tactic by the defendant who has no real
defense.
The long delay may impair the fact finding process as some witnesses
may have died, some unable to recollect the facts, and some important
pieces of evidence lost.
The inquisitorial method
In an inquisitorial method, the judge is allowed to descend into the
arena and guide how evidence is collected and may personally question
the witnesses. This is why it is known as the inquisitorial method,
because the judge is allowed to inquire into the facts of the case. Some
Nigerian tribunals are inquisitorial in nature.
Advantages of the inquisitorial method
Trials conducted through the inquisitorial method are usually faster and
provide for speedy trials.
The procedure is simpler and less formal, requiring less money than the
adversarial method. A party usually has to file a prescribed form and
does not have to go through the formality of issuing a writ of summons
and filing statement of claims as in the adversarial method.
It promotes equal access to justice as the result does not depend on the
quality of the lawyers but instead on the investigative capability of the
adjudicating body.
The decisions of the court are binding and do not require the
rectification of any tribunal.
Disadvantages of the inquisitorial method
Justice may not be done because of the speedy trials. While trying to
meet up with the deadline for resolving a case, some details might be
ignored.
The quality of the trial depends on the adjudicatory body. There are
some facts which may escape the adjudicatory body and may not escape
the lawyers. And also, there is no opportunity for ingenious arguments
by the lawyers. This problem is compounded when the administrative
body is lazy.
Many inquisitions are done in camera and not in public. This prevents
the public from scrutinizing and so justice may not be done.
Non-adjudicatory method
It is not every dispute which is settled in a court of law. Sometimes,
parties have their disputes settled without going to a court of law or
going through the adjudicatory process. This method of dispute
resolution is referred to as the non-adjudicatory method or alternative
dispute resolution (ADR). This method does not involve the appearance
of parties before formal institutions, the calling of witnesses and it rarely
ever apportions blame. In this method, it is rarely ever said that one
party is completely right while the other party is completely wrong.
Although it is not done in a court of law, this non-adjudicatory method is
recognized by the law. The four main forms of the non-adjudicatory
form of dispute resolution are reconciliation, conciliation, mediation and
arbitration.
Reconciliation: In this form of non-adjudicatory dispute resolution, the
parties involved in a dispute come together to reach an agreement on
how to restore harmony to their relationship. The Matrimonial Causes
Act, 1973, states in section 6 that a solicitor acting for a petitioner for
divorce must certify that he has discussed with the petitioner the
possibility of a reconciliation. Parties cannot be forced into
reconciliation.
Conciliation: this form of dispute resolution is done through the effort of
a third party as an intermediary. This third party is referred to as the
conciliator. The conciliator brings the two parties together and they all
participate in the negotiations. The conciliator discusses the issues in the
dispute and makes a proposal on the possible terms of settlement. It
should be noted that except when the law says so, the agreement
reached with the conciliator is not binding. The conciliator’s proposal is
only a suggestion.

Mediation: A mediation is usually done by a mediator. The mediator

rarely inquires into the facts of the dispute and is more concerned with
the settlement. The mediator’s decision is not binding on the parties.
Although it seems similar to conciliation, the mediator meets with the
disputing parties separately in a mediation while the conciliator meets
the parties together in a conciliation.

Arbitration: An arbitration is the only non-adjudicatory method in which

one party is pronounced right and the other party wrong. It is the only
one in which the decision reached is binding on both parties. Before an
arbitration can happen, both parties must have agreed to resolve the
dispute through arbitration or to resolve any dispute which arises out of
a contract through arbitration. Once such an agreement has been
entered into, the parties cannot go back on the agreement and so it is
binding. The arbitrator probes into the facts of a dispute and then gives
a binding decision, also deciding who is right and wrong.
Advantages of non-adjudicatory method
It avoids the win or lose feature of the adjudicatory method and in this
way makes the possibility high for future harmony between the two
parties.
It allows the parties to decide their own fates, instead of relinquishing
the power to an adjudicator. In all the methods besides arbitration,
decisions are not binding and it can also be seen that the parties take
active parts in the settlement of the dispute.
Being faster than the adjudicatory method, it saves time.
The processes are free from formalities in the fact finding process and
collection of evidence, formalities which make the adjudicatory method
more complex and technical.
In the arbitration process, arbitrators are usually individuals
knowledgeable in the subject matter. In adjudicatory method, judges
might sometimes be ignorant of some technical issues.
The non-adjudicatory method is usually sponsored by the parties, while
the adjudicatory method is sponsored by the state. By sponsoring the
process, the parties pool money together and may feel more involved in
the process.

Disadvantages of non-adjudicatory method

It is necessary to hire rooms for meetings and hearings, instead of

making use of public facilities like the courts of law. The fees would have
to be paid jointly by the disputants, and they would also have to pay the
fees and expenses of the arbitrator.

The decisions are not always final, as appeals may be made to courts to
set aside the decisions where there was an error of law.
Parties cannot be forced into the method and must be willing to
participate in the non-adjudicatory method.

The method may be discredited as it often does not punish wrongdoers

and lets them go free.

The decisions reached are often not binding, and so the parties may
either choose to accept the decision or refuse it.