Law and religion
The nexus between law and religion, the influence of the latter on the former, dates back to the Biblical times. The Naturalists sought to focus on the discovering and evaluating the content of law as deducible by reason having universal and immutable concepts and values. Its outstanding features were its combination of ancient philosophy, the law as it was, the teachings and tenets of religion and contemporary pragmatism with skill.
Notable among members of this school of thought are St. Augustine and St. Thomas Aquinas, who postulated that ‘… any law which departs from natural law is no longer a law, but a perversion of the law’, ‘and therefore should not be obeyed’. At the time these postulations were made, there was little or no difference between the State and the Church which was the custodian of religious norms and values.
Much as this could be argued to be true of those Nazi laws of Adolf Hitler of Germany, and the laws of Uganda under the ‘Field Marshall’ Idi-Amin regime (who amusingly titled himself ‘CBE’ as meaning to him ‘the Conqueror of the British Empire’), the universality of such a statement could be in doubt especially in the modern day of multi-religious societies where certain areas of conflict in belief may exist. It would not make for the uniformity or coherence of laws, if some laws were to be seen as laws, and obeyed by a fraction of the society, while the same laws are seen as perversions of law that ought not to be obeyed.
It is not intended to go into a full critique or evaluation of the natural law school, but merely to show (with examples) the influence of religion on the law. The Sharia Law for instance, is a complete product of religious influence on the legal system of our society. Thus Cibb’s assertion that:
Islamic law was the most far-reaching and effective agent in molding the social order and the community life of Muslims…and the moral authority of the law.
This influence could be seen even in a secular state by the influence of a principle or value that is common to all the different religious sects in that society. “Thou shall not steal” and “Thou shall not kill” have no doubt been of almost universal application to most jurisdictions regardless of what religion is obtainable there, and appear in the various criminal and penal codes of most societies. The influence of religion again reveals itself in procedural law as can be seen in the Law of Evidence relating to the practice of putting a witness on oath before giving testimony in Court.
Law and Politics
It would be interesting to observe that socio-political considerations are most often one of the most influencing factors in the making of laws. The political circumstances of a society may dictate the type of laws to be obtainable in that society. For instance the Laws in a Federation may be geared towards the near independence of every State of the Federation, and may be such as to protect that character at the Federal level. The Fundamental Objectives and Directive Principles of State Policy states that:
National integration shall be actively encouraged whilst discrimination on the grounds of place of origin, sex, religious status, ethnic or linguistic association or ties shall be prohibited.
Thus the freedom from discrimination and the introduction of elements of representation reflect the ‘federal character.’ The ever changing political climate has (most times of necessity) led to the promulgation of several Decrees in that regard, the amendments thereto, the release of guidelines on after the other, to meet with these changes, are all but an affirmation that the political circumstances of a society affects/ influences the making and development of its laws.
Law and Economics
The law of a society is most times influenced, to a great extent, by the socio-economic circumstances and ideology prevailing in that society. Economics has been, and is still a major determining factor in the formulation of rules of conduct in a society. Leading theorists of the Economic Approach see Law as a superstructure on an economic system. Marx believed that economic facts are independent of and antecedent to the society, and that all other superstructures and ideologies have their essential background in the economic background.
The influence of the economy of a society on its laws stems from the general nature of the former in that it affects every member of that society, and therefore it is in the interest of the society to have its laws suited to the circumstances of its economy. Of course, it has been argued that laws influenced by economic considerations are often instruments used by the economic rulers or class of persons likely to benefit from the existence of the resultant state of affairs, to achieve those wants which though may not be detrimental in all cases to the society, are certainly beneficial to those persons or class of persons.
The then Indigenisaton Decree, the Nigerian Enterprises and Promotions Decree, the laws on Privatisation and Commercialisation, the Second-Tier Foreign Exchange Market (S.F.E.M.) Decree, the Central Bank of Nigeria Act, the Bank and Other Financial Institutions Decree, the Insurance Decree, the various laws on taxation; and above all the economic motivated reforms going on in Russia, and the states that previously constituted the defunct Soviet Union, are all but examples of laws and legal systems influenced and being influenced at one time or the other, by the prevailing economic circumstances of the time in the society. Thus the Economic Approach as propounded by Marx and Engels, in maintaining that a law founded on a social organisation can never serve its true ends in so far as there is a fundamental defect in the society which has not been remedied, more than affirms that economic systems are social determinants of law in any given society.
Law and Custom & Usage
When a group of people or perhaps the society has been doing certain things in particular ways, it could be said to form the custom of those people. It usually stems from the fact that the people often have a belief that such practice is the accepted code of conduct, and any deviation from that code of conduct regarded as a deviant behaviour. This often raises the question how factual subconscious occurrences develop into prescriptive models of behaviour. It has been said that “… it is not the development of a practice as such, but the growth of the conviction that it ought to be followed that makes it a model of behavior”.
The authority of usage however depends on the frequency with which it is implied into contracts, and transactions. The importance of custom as a determinant of law continuously diminishes as the legal system of a society develops. According to Salmond, Custom embodies those principles as they commend themselves to the society, by the public opinion of the general society.
In considering the effect of the customs of a society on its laws, we shall look at some of the views of the Historical School whose leading exponent is Von Savigny. Savigny believed that the nature of a legal system was a reflection law, and as such, was not something that should be made arbitrarily or deliberately by the law maker. All law is therefore, a manifestation of this common consciousness. According to him,
Law grows with the growth, and strengthens with the strength of the people, and finally dies away as the nation l its nationality.’
The influence of customs in shaping the law especially in West African countries in addition may lie in what seems to be the traditional mystical order. Disobedience of customs was believed to invite some undesired consequences on not just the deviant individual alone, but also to the rest of the society to which he belongs.
Certain customs have been passed into law, and our legal system in its pluralistic nature permits the enforcement of those native laws and customs yet to be passed into law, if they are not “… contrary to natural justice, equity, and good conscience, and not against public policy”. The Courts are to take judicial notice of, and enforce those customs that are notorious in a particular community. And if we adopt the Realists approach to law that “… the prophecies of what the courts will do … are … law,” then we would not be putting it incorrectly by saying that the enforcement of customs by the Courts shapes the law to an extent, apart from, and in addition to its influencing specific legislations.
It is therefore necessary that mental attitudes anchored in the customs and traditional ways of thinking of the society be further taken into consideration by the law makers in making laws that would govern and regulate the affairs of members of the society.