ABSTRACT
The elements of command by a sovereign and a breach of such command which attracts sanction has led to the creation of The Criminal Code, Panel Code, Terrorism Prevention Amendment Act EFCC ACT, Money Laundering Act, Constitution and the Same Sex Prohibition Act , which have all proven to be great legal framework of positivism in the fight against criminality in Nigeria, by protecting the values of the society, protecting lives and properties, leading the society towards perceivable development, and trying to provide a crime free environment. Moving ahead of the doctrines of Natural School of Law deeply rooted in Reasoning, Morality, Ethics, Metaphysical and Ultimate value which lack coercive physical enforcements and leaving every man to his conscience. Without drawing a line demarcation crime from moral wrong which positivisms disagrees with, law as it is (positivism) law it ought to be (Natural law).it is for this reasons that Jurist and scholars have put their legal and philosophical knowledge to use to provide solution to this issue to show that an adoption of the principles of both positive and natural schools in the fight against criminality in Nigeria is the only hope of eradicating crime. As Prof Harts stated “that law (positivism) should have a minimum content of morality (Natural law) in it”.
TABLE OF CONTENTS
Title page i
Approval page i
Certification iii
Dedication iv
Acknowledgement v
Abstract vi
Table of contents vii
Table of cases viii
Table of statutes x
List of abbreviations ix
CHAPTER ONE
- General Introduction 1
- Background of Study 1
- Statement of Problem 1
- Purpose of Study 2
- Scope of Study 2
- Significance of Study 2
- Methodology 2
- Meaning of Positivism 2
- Meaning of Sovereign 3
- Meaning of Criminality 3
CHAPTER TWO
- Theories of Law 6
- Natural Theory of Law 7
2.1.1. Elements of Natural Law 11
2.1.2. The Influence of Natural law in Nigerian Jurisprudence 12
2.1.3. Merits of Natural Law 13
2.1.4. Demerits of Natural Law 14
2.2. Positive theory of Law 14
2.2.1. Positivism 15
2.2.2. Locating the Sovereign in Nigeria 22
2.2.3 Positivism during Revolutionary Times 24
2.2.4 Elements of Positivism 26
2.2.5. Merits of Positivism 27
2.2.6. Demerits of Positivism 27
CHAPTER THREE
- Legal frame work fighting criminality in Nigeria
- Criminal code
- Penal code
- Terrorism Prevention Amendment Act
- EFCC Act
- Money laundering-Act
- Same Sex Marriage Prohibition Act
CHAPTER FOUR
- Comparative study of the impact of positivism in fighting criminality in
other jurisdiction
- BRITAIN
- INDONESIA
- LEBANON
- ITALY
CHAPTERFIVE
- Conclusion
- Recommendation
CHAPTER ONE
INTRODUCTION
- Background of the Study
The impact of positivism in the fight against criminality in Nigeria is a topic which looks at the effect and accomplishments of various Acts, Laws, Statutes and Court Decisions in combating crime.This topic is of interest to any would be lawyer as it enquires into the very nature of law and elaborates more on the relationship between law strictly speaking (positivism) and law as it ought to be (Natural theory of law).
It asks and gives answers to the very important question, has positivism alone eradicated crime in Nigeria as a case study, and what is the difficulty confronted by positivism in its fight against criminality in the Nigeria legal jurisdiction.
- Statement of Problem
Positivism as a theory of law is for several reasons not the most adequate theory of law because of its inherent shortcomings with the spirit and essences of the law, positivism establishes some ideas which contradicts what the law in its practical sense is
- Not always expressed in imperative language[1]
- Uncommanded commander[2]
- Laws are obeyed because of sanctions[3]
- Any law made by The Sovereign is law[4]
- Purpose of the Study
This research works intends to show how far positivism has assisted in the fight against criminality in Nigeria and the achievements so far recorded.
1.4 Scope of the Study
The scope of this research is to be limited to Impact of positivism in Nigerian jurisdiction alone, considering and differentiating/positivism from natural law.
- Significance of Study
The significance of this work is to provide relevant solutions to the problems inherent in positivism as it relates to fighting crime in Nigeria.
- Methodology
The scientific approach adopted or employed for this research is the doctrinal and comparative method.
- Definition of Terms
1.7.1 Positivism
The word “Positivism” means “to put” or “to place”. Positivism is therefore the law put or placed or imposed upon the situations by the rulers[5].
The chief protagonist of this theory is John Austinwho propounded his “Command Theory” of law in his celebrated but controversial book The Province of Jurisprudence where he defines law as “a command set by a superior being to inferior beings and enforced by sanctions”[6]. The superior being is the sovereign, while the inferior beings are his subjects.
- Sovereign
The word sovereign was defined by the Oxford Advanced Learners Dictionary as the greatest in status, authority, power or influence acting or done independently and without outside interference in a particular jurisdiction[7]
Sovereign in jurisprudence means the full right and power of a governing body to govern itself without any interference from outside sources or bodies. While in political theory sovereignty is a substantive term designating supreme authority over some polity. The meaning of sovereign used in this research work is the meaning of sovereign in jurisprudence.
1.7.3 Criminality
Etymologically speaking the word crime is derived from the Latin word crimen–iniswhich has two categories of meaning
- An accusation or charge
- The fault or guilt with which a person is charged[8].
The Greek expression of crime is Krimoswhich is synonymous to the word Kramawhich means “social order” so it can be said in common parlance that the word crime is applied to those acts that go against social order and are worthy of condemnation (Public law)[9].Black stonedefines b crime as an act committed or omitted in violation of a public law either forbidding or commanding it[10].The public law referred to by Black Stone is synonymous to constitutional law. Positive law, or municipal law made by the state.Hence, crime as a creation of government policy is anything that the state has determined as being criminal and punishable[11].
However, Nigeria jurists like C.O. Okonkwo stated that in both the criminal code and the penal code the words “offence’ and “crime” are used indiscriminately[12].Accordingto Doherty crime is an act or omission which under any written law is deemed to be a crime thus attracting punishment. The hallmark of a crime thereof is the singular criterion of the act or omission complained of or alleged, being designated in a statute be it an act of the federation, law of a state, an edict of a state or a by-law of a local government[13]. According to Doherty, one common feature of a crime is that it must be so regarded or so called by a written law. In other words, crime or an offence is what a statute says it is[14].
However the constitution went further to state “subject as otherwise provided by this constitution, a person shall not be convicted of a criminal offence unless that offence is defined and the penalty therefore is prescribed in a written law and in this subsection a written law refers to an Act of the National Assembly or a Law of a state and subsidiary legislation or instrument under the provisions of a law”[15].By this constitutional provision, a written law will not only define the offence but most equally prescribe the penalty for it. In other words, an act or omission is not a criminal offence unless the definition and punishment for it are contained in a written law, the only exception to this being the offence of contempt of court[16].
[1]AbiolaSanni, Introduction to Nigerian Legal Method, 2006, p11
[2]Lakanmi c A.G. West and others. (1971). V.I.L.R
[3]AbiolaSanni, Introduction to Nigerian Legal Method: 2006, )p.12
[4] B.D. Fisher. Ibid, p10.
[5]AbiolaSanni, Introduction to Nigerian Legal Method: 2006, p10
[6]Ibid p. 1
[7] Oxford Advanced Leaner’s Dictionary
[8]D.P Simpson, Cassell’s Latin Dictionary, Page 158, 1959.
[9] K. Glory Nirmala& I. SerkaddisZehaye “the concept of crime”.
[10] W. Blackstone, Commentaries on the laws of England, 4 vols, (1765), L,V,S, Oxford.
[11] Criminal law.hubpages.com/hub/An0introduction-to-uk-criminal law.
[12]Okonkwo and Naish on criminal law in Nigeria, 2nd ed., 2005, pp.18-19.
[13] Ibid.
[14]J.A. Agaba, Practical Approach to criminal litigation in Nig, 1st ed., Abuja:2011, p.1.
[15] Section 36 (12) constitution of the Federal Republic of Nigeria 1999 (As Amended)
[16] A.O. Obilade, The Nigerian Legal system, Ibadan: 2005, pp.5-6.
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