The word “rule of law” was not invented by President Umar Yar’adua of Nigeria. Like diamonds, words like these have made the writings of great philosophers such as Aristotle (384BC) forever relevant. Its relation to economic progressiveness is better understood when we reflect on the origin of law, rulership and why law has to rule.

Every time you throw a stone up, it comes down, under some kind force or law. Wise men called this the law of gravity. Likewise Scientist discovered laws in stones! That stones are composed of atoms, whose nucleuses have electron orbits surrounding them like the sun’s planet according to fixed laws. Scientists did not invent these laws but discovered and documented them giving rise to particular sciences such as physics, chemistry, etc. There are then physical laws of nature which all bodies are subject to. No physical body can disobey these laws, except by external force, and a change of nature e.g. water becomes steam when heat is applied, it is no more liquid but gas. There is order in the in the Universe.

The various theories of who or what put these laws into the Universe is not the subject of this discussion; we can only point out that, where ever there exist a “law”, there must be a “law giver”. The laws of the Universe demand a Supreme law giver

There is another law that applies only to man because of his intellect and will, written in his conscience. The knowledge of this law comes from experience. You hate it if someone steals from you, therefore it is wrong to steal from others. This is called the law of conscience or “fair play”. We recognize it as a law from outside of ourselves because it often compels us to act in spite of ourselves. I would very much like to punch my neighbor who offended me, but I am forbidden by my conscience.

The law of conscience has as its first premise on the common good. It is universal and valid for all time. Finnis (1980) said: “common goods are seven in number: knowledge, life, health, friendship, reasonableness, religion and play”. According to Thomas Aquinas, “common good are the objective evident and universal first principle that must guide the planning of every human act and all human acts contrary to common good are to be rejected”.

We are thus subject to two laws, the law governing our bodies and the law governing our conscience. But the law of conscience is different because we can, and often do, disobey it. This makes it difficult for us to live together.

But we must live together. We cannot procure all that we need to survive by ourselves. The farmer supplies food to the doctor who provides him with medical attention, while the policeman protects both. We are social beings and needs society, but society is a human jungle unless there are laws

Our tendency to disobey the law of conscience makes it necessary to create legal laws to govern life in society. Laws help all to identify the common good without error. For instance, the law against murder comes from the common good: Life. The law of conscience, standing on it, says “It is wrong to kill an innocent person”. This gives rise to the duty: all men have the duty to avoid killing the innocent, and the rights: the innocent have a fundamental human right to life. In Nigeria, the rise in cases of head injury in motorcycle accidents necessitated the law that all “okada” riders with their passenger should put on crash helmets from 1st January 2009; there has been reports of stiff resistance in Kano State with some of the “okada” rider donning plastic bowls to show their grievance. The common good here is identified as the safety and health of passenger and rider. How can we then explain the origin of laws that are unjust, such as laws permitting slavery in the Southern States of America prior to 1865?

 The human good and common good are universal and have to be determined for specific cases by someone with authority. This is difficult, often depending on circumstances, and situations. It is in the application of particular laws that injustice can creep in. Unjust legal laws arise from the fallible nature of men who are often swayed by partiality and ambition, such that they are no longer able to recognize the true common good... But such laws, according to Thomas Aquinas lack the condition of being a law; they are more like violence, with no binding power over the consciences of men, though they retain the name of law. Now how is law related to authority or rulership?

We have shown that law governs the Universe and that man possessing freedom can choose to obey the law of his conscience; if man chooses negatively he threatens society. Like the sign post on the highway, directing the wayfarer, laws marks the common good for all to see. But law is useless if it is not obeyed. Again, it is proper to every society to have goals and all must direct their actions toward the goal. This implies a certain level of organization; where someone commands and others obey. Hence, it is necessary to appoint a ruler to look after the common good and ensure respect for the law.

Many centuries ago, Plato wrote that the ideal society is the society ruled not by law but by wise rulers, convinced that the law being passive and unintelligent is unable to deal with the varying needs of men. Aristotle, however, disagreed with him, saying that the wise influenced by their passions and caprices, could misuse their powers unless they are guided and controlled by the law. Thus, an ideal society is that ruled not by wise men but by the law (rule of law). Here, ruler and follower are equally subject to the law, with the law as the basis of equality. The alternative would have made the followers, slaves to the ruler. He continued that, to compensate for the passivity and inflexibility of the law, there should be persons, vested with authority to deviate from the law, where there exist special cases not envisaged by the law. He called this equity

The “Declaration of Delhi” drawn up by the International Commission of Jurists in that city in 1959 said that the rule of law “should be employed to safeguard and advance the civil and political rights of the individual” and create “conditions under which his legitimate aspirations and dignity may be realized.” Friedrich Hayek, an Austrian economist, and Cass Sustain of the University of Chicago said that the rule of law includes elements of political morality.

Law and morality have always been contentious issues. A few people claim that law is different from morality, that the existence of the law is one thing and its merit or demerit is another. The important thing, on their account, is that law provides stability, and may not necessarily be moral or promote human rights. These views account for slavery laws in America prior to 1865, and thereafter segregation laws in the South under Jim Crow. In his book, Jurisprudence, Professor John Elegido showed that where appropriate legislations against immorality are enacted, the men who commit them tend to change or at least recognize that they are wrong. When laws against slavery were passed in America, an increasing number of people stopped having slaves until it eventually ceased. He further emphasized the complimentary relation between law and morality. The law acts as a determinant to the requirements of morality which moral reasoning leaves partially undetermined. For example, the duty to keep promises is determined by the law of contracts.

A study by the Center for Global Development (CGD) in Washington reveals that the better the rule of law the richer the nation. The link between economic growth and the rule of law is seen by the rise in both foreign and local investment in countries with stable predictable laws and an increase in enterprise and industry exhibited by citizens living in countries, with guaranteed human and property right protection.

According to The Economist, countries that have achieved some level of economic growth without improving their rule of law, have subsequently fallen back (Argentina used to be one of the richest countries), reasons being that without a rule of law, well-connected crooks can grab an unfair share of the spoils of growth, especially if these include windfall gains from oil and raw materials. This is the situation in Nigeria.

This existence of “state capture” by robber barrons argues for primacy of rule of law over economic development, since economic development does not necessarily strengthen the rule of law, but rule of law can strengthen and sustain economic development. Law and order creates the needed confidence for investments.

In conclusion, according to Dr Peter Kreeft, just as you can flout gravity only temporarily before you fall, so you can flout the law of conscience only temporarily before you fall. Great tyrants like Adolph Hitler flourished for a day, like the mayfly, and perished. Great saints experienced apparent failure, and emerged into triumph and joy. The same is true of nations as well as individuals. Thus law rules the universe; if men were to allow law to rule they, in turn, would rule the jungle and the jungle will be eventually a great city.

Chinwuba Iyizoba

Enugu

Robot  # 1 | 27.01.2009 20:35

The same is true of nations as well as individuals. Thus law rules the universe; if men were to allow law to rule they, in turn, would rule the jungle and the jungle will be eventually a great city. ...Read the full article.

Iyke  # 2 | 27.01.2009 23:07

Hi Chizoba, well written. but am not sure which Finnis you are quoting. you put that as 1940, i think you are trying to quote Natural law and Natural right which is 1980. by 1940 Finnis has not written such stuff. Now your allusion to the helmet rule with that of protecting life is a bit complicated. Aquinas holds that proecting life is not enough rather human flourishing, finnis also attests to that. what that means is that it is not enough to protect life at all cost while denying the freedom of the human person. Lon Fuller in the morality of law attest to the fact that man is a reponsible agent. so he must also take responsibility of his life in certain situations. Allowing goverment to churn out all kind of policies in the name of protecting human life will on the long run deny freedom. Aquinas analogy of the ship at harbour shows that though the protection of the ship is good but if that is the ultimate, the ship will not sail off. Good policies that promote human flourihing and ultimately protecting life is good. but our experience shows that most of the policies of our goverment are products of immorality. the helmet case for instance shows a lack of simple wisdom in policy formation and implementation. how can the goverment issue such order without making sure that adequate measures are put inplace to ensure that there is a steady supply of such helmets. perhps they have issued the licence of importation to their cronies alone. no sociological studies before poilicies are crafted. poor governance canot be justified on the basis of protecting lives.

chinwuba.iyizoba  # 3 | 28.01.2009 13:10

Thanks Iyke,Typo error. I stand corrected, The Finnis I quoted is John Finnis, Finnis's Natural Law and Natural Right (Oxford: Clarendon Press, 1980). I do agree also that the policies of Nigeria are often rushed, and poorly implemented, but you are incorrect when you say that, enforcement of helmets negates freedom, just as it would be wrong to say that the laws restricting drivers to their own lane or laws against over speeding takes away the freedom of Nigerian drivers. I am sure no one thinks that. The government can intervene when there are good reasons; for the health and safety of many. You only need to visit an orthopaedic clinic near you to agree with me that helmets are necessary for Okada riders.

Iyke  # 4 | 28.01.2009 21:43

i am not saying that the helmet policy negates freedom per se, but to an extent. i am questioning the intention behind such policies. making an analogy with motorists lanes is inadequate since the motorists lane is basically a policy for coordination and not necessarily to protect life. of curse coordination in the long run protects life, but the helmet issue is neither that of coordintion nor road safety.