TYPES AND CLASSIFICATION OF LAW

SOCIAL METHODS OF CONTROL THROUGH

Course Title: LEGAL METHODS

Faculty of Law,
Obafemi Awolowo University, Ile-Ife,
Osun State.
TYPES OF LAW
1. Eternal Law
• Eternal is derived from eternity
• Literally, it means something that has always existed,
has never changed and will always exist
• Eternal laws are laws that are constant, everlasting and
universal
• E.G Law of gravity-objects attract each other with a
force proportional to their mass and distance
• The Law of Cause and Effect- Every action has a
consequence and every effect has a cause

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2. Divine Law
• Divine Law is principles, rules and guidelines that are
revealed or ordained by a divine being
• This divine revelation provides a guide for man’s reason,
allowing his nature to be perfected by divine grace.
• These laws are absolute and unchanging
• They apply to all areas of life
• E.g
• The Ten Commandments revealed by God to Moses
• The Sharia
• The Canon Law (laws governing the Catholic church)

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3. Natural law
• Every thing seeks the preservation of its own being
according to its nature.
• By reason of this inclination ‘whatever is a means of
preserving human life and warding off its obstacles,
belongs to the natural law’.
• Gilson writes, in The Philosophy of St Thomas Aquinas
(1929):
‘Man is a being. On this ground he desires the
preservation of his being, i.e, he desires to preserve
himself by securing the integrity of everything that
belongs by right to his nature.

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• Those things to which a man is inclined to do naturally
belongs to the natural law and among these it is proper
for man to act according to reason.’
• Humans have a certain conception of morality which is
intrinsic to them and to their nature.
• This morality, which sometimes manifests itself in the
form of conscience, is made up of basic principles
which form a basis for proper human action.
• These principles are identifiable through the
application of reason, which is a faculty or capacity that
all humans have.

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• Thus, if man is guided by observation and reason, one
can make good and just law to solve his problems
• Actions that are considered morally wrong will be
against the law. In addition, actions that are considered
morally right cannot truly and justly be against the law.

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4. Human or Positive Law
• The origins of legal positivism are usually taken to be with
Bentham (1748–1832) and Austin (1790–1859), but the tradition
can be dated as far back as Thomas Hobbes (1588–1679).
• Positive law does not concern itself with morality or ethical
principles
• Positivists concede that although law and morality are linked
together, moral principles are unenforceable and therefore
should play no role in the interpretation and application of
legislation.
• Thus, positivists conclude that as long as a written law has been
duly enacted by a branch of government, it must be deemed
valid and binding, regardless of whether it offends anyone’s
sense of right and wrong.

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• John Austin had his own brand of positivism. To him,
positive law consists of those commands laid down by
a sovereign to an inferior, which is backed by sanction
upon disobedience.
• The superior being is the sovereign while the inferior
beings are his subjects although the sovereign
authority may be vested in only one person, a group of
persons or many persons.
• Thus, according to him, three characteristics which
must be evident in every law are; command,
sovereignty and sanction.

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• Austin’s view of law has however been subject to criticisms.
• First, it is not true that all laws are commands as
propounded by Austin. For instance, rules relating to Wills
do not compel a person to make a Will.
• The same thing applies to marriage contract where an
individual can choose to marry either under the Marriage
Act or under Customary Law.
• Second, Austin’s view of law can lead to dictatorship, as it
does not subject rules that must be obeyed to whether
they are good or bad, as long as the lawmaker is the legally
authorized lawmaker.
• Third, nobody is above the law, even the law maker,
contrary to what Austin’s view claims.

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• Fourth, Austin missed the point when he stated that
everybody usually obeys the law because of fear of
sanction by the sovereign.
• Many obey the law not because of sanction, but
because it accords with their normal way of life or
because they see it as logical and agree with it in
principle.

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CLASSIFICATION OF LAW
1. PUBLIC AND PRIVATE LAW
• Public law is the branch of law that regulates the
relationship between the citizens and the state.
• It deals with situations that involves the direct interests
of the State, as well as the smooth operations of
agencies of the state.
• There are three main types of law that fall into this
category.
a. Constitutional law: this controls how the government
operates and is used to resolve any disputes over
constitutional matters, for example, who is entitled to
vote.

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 b. Administrative law: this controls how Ministers of
State and public bodies should operate and make
decisions. An important part of administrative law is a
type of court action known as judicial review.
c. Criminal law: this also comes under the heading of
public law because it involves the state. Criminal law is
part of public law because a crime is regarded as an
action against society and the state as a whole.
• Private law on the other hand, is the branch of law that
is concerned with the rights and duties of persons in
their interpersonal dealings with each other.

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• Areas of law that fall under private law include:
employment law, property law, family law, the law of
torts and the law of succession.
2. CIVIL LAW AND CRIMINAL LAW
• Civil law is part of the law which governs conducts
which are not generally punishable by the state.
• It is concerned with the rights and duties of individuals
towards each other.
• It regulates relationship between private individuals by
enforcing obligation or compensating injured parties.

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• That is, the party at fault has to pay compensation or
comply with another suitable remedy, such as an
injunction.
• On the other hand, criminal law deals with acts
punishable at the instance of the state.
• Criminal law is about creating laws for the protection of
society as a whole and providing punishment for those
who break those laws.
• Criminal law sets out types of behaviour that are
forbidden within society and if the behaviour occurs,
then punishment will follow.
• If you commit a crime, you have offended against the
state and the state has the right to prosecute you.
• There are a number of differences between criminal
and civil law. These differences include the following.
• The purpose of each is different. Criminal cases are
brought to maintain law and order and to protect
society. Civil cases are brought to uphold the rights of
individuals and to provide redress.
• A criminal case is usually brought by the prosecution
on behalf of the state while a civil case is brought by an
individual or company or corporation.
• The standard of proof is different. Criminal cases must
be proven beyond reasonable doubt. Civil cases only
have to be proven on the balance of probabilities.
3. DOMESTIC AND INTERNATIONAL LAW
• Domestic laws are laws emanating from a particular
country and having the force of law within its territory’.
• It is the laws of a given nation, such as the laws of Nigeria.
• International laws, on the other hand, are binding norms
governing the relations between States.
• At the international level, the primary actors recognised by
public international law are States, while individuals are the
main actors in domestic laws.
• Sources of international law include; treaties, international
customary practices, judicial decisions and bilateral
agreements.
• The fundamental rights recognized for states are, first, legal
independence from other states and, second, exclusive
jurisdiction over activities within their own territory.
• The sovereignty of states implies that state consent is needed
both to create international legal obligations and to invoke
procedures for the settlement of international disputes.
• Thus, while international law aims to secure the cooperation of
states to address common problems, from maintaining peace to
protecting the environment, the resolution of such problems
depends upon states recognizing the need to draft and
voluntarily accept appropriate legal obligations, either by
concluding treaties or by engaging in common practices that
lead to the emergence of customary international rules.
• Means of enforcing international law include economic
sanctions, severance of relations, arbitration and the use of
force.
4. SUBSTANTIVE LAW AND ADJECTIVAL LAW OR RESIDUAL
AND PROCEDURAL LAW
• Substantive law is a body of legal rules which defines what
is lawful or unlawful to do.
• It comprises of rules of law and legal principles that define
the existence and extent of a right or liability in a particular
branch of law.
• It is concerned with the creation, definition and limitation
of obligations.
• Procedural laws on the other hand, is the procedure for
seeking reliefs or remedies for an aggrieved party.
• This is the body of rules which specifies the steps to be
taken or the procedure to be followed by a person who
intend an act.
5. CUSTOMARY LAW AND ENGLISH LAW
• The word ‘customary’ means a custom, way of life,
tradition, a generally accepted behaviour or way of
doing things.
• Customary law is law which evolves from the
established practices, customs and way of life of a
people.
• Customary law consists of the customs accepted by
members of indigenous groups in Nigeria as binding
upon them.
• It is the law of the various indigenous peoples in
Nigeria, before other systems of law came into the
country to displace or modify customary law.
• Customary law is a particular way of behaviour which
because it has long been established among members
of a social group or tribe can develop and acquire the
force of Law or right.
• For it to have the force of law, it must be approved by
those who follow it. See Ojisua v Ayebelehin [2001] 11
NWLR (PT 723) 44 at 52; Owoniyi v Omotosho [1961] 1
Al NLR 304
• Customary law is important because it governs many
issues of people’s lives.
• It crystalized from the numerous customs of the
various people in Nigeria.
• It is not enacted by the legislature in Nigeria; yet it is
enforceable and binding between the parties subject to
its sway. See Zaidan v Mobosen [1973] 11 FSC 1.
• English law is the law of England which was received
into Nigeria by virtue of local statutes which permitted
the application of English law in Nigeria.
6. WRITTEN AND UNWRITTEN LAW
• Written law means a rule that has been formally enacted
into a legislation or statute by the legislative arm of
government
• Written laws are usually subjected to some processes and
undergo various stages before they are eventually enacted
as law
• Unwritten laws could mean two things
• First, it may mean any principle that is not written down at
all. For example, customary laws
• It could also mean an unenacted law even if the principles
are reduced into writing like case law. An example is the
British Constitution
METHODS OF SOCIAL CONTROL THROUGH LAW
• Social order is an essential component of all legal
systems
• A society cannot develop without being orderly
• The establishment of order in a society is a
foundational requirement before the institution of any
system of control to regulate the conduct of various
groups in a society.
• All societies are held together by systems of common
rules, norms, ideas and values which are required to
guarantee their further existence and it is thus
important that all societies establish a system of
common social principles
• This is done through the disapproval and
condemnation of actions that violate rules and laws
that have been enacted to regulate various aspects of
the society
• It is by these means that the fabric that binds the
society together is strengthened and each society gives
expression to its individuality and identity
The idea of social control
• Social control is the control of social behaviour, that is
behaviour that affects others
• Edward A. Ross, one of the fathers of American
sociology refers to social control as regulative
institutions which function to ensure that individual
behaviour is in conformity with group demands-
supernatural beliefs, ceremonies, public opinion,
morals, art, education, law, etc
• Nigerian sociologists Otite and Ogionwo refer to social
control as the various means by which a society
exercises its authority over its members and ensures
conformity to its norms
• Their will always be deviants in the society.
• Prevalence is higher in some places than others
1. Penal Technique
• This technique is achieved by the use of criminal law
• The state plays an active role in this regard
• It involves the use of rules prohibiting certain deviant
behaviors and providing punishments for non-compliance.
• Furthermore, the maintenance of the police force for crime
detection, prosecution and a system of courts to adjudicate
on questions of criminal liability, are all part of this
technique.
• Other parts of the technique includes the maintenance of
correctional facilities, custody centers and other such
places.
• All these are part of the criminal justice system, which was
specifically created for the purpose of applying the penal
technique.
• The existence of the technique incurs to the benefit of the
society in two ways:
(1) It deter persons from committing crimes: Some are deterred by
the public enactment of penal rules, others by public
announcement by law enforcement agencies that offenders will
be brought to trial and punished, and yet others by the physical
presence of the police and law enforce agencies.
(2) It rids the society of deviants with criminal behavior who are
kept away in police cells and prisons. The society thus remains
safe from such deviants. There are also attempts in the reform
homes and prisons to reform the deviants and teach them
different trades.
• Because of the revulsion of the society against criminal
behaviours and the dangers such acts constitute if
allowed to go unchecked, the penal technique is
expected to be scrupulously applied to all citizens, no
matter how highly placed they are
• Also, the statute of limitation does not run against the
commission of some crimes e.g murder, sexual
offences against minors, kidnapping, etc
• This is unlike the position in civil cases where there is a
limitation of certain years to institute some actions
before the person seeking for justice becomes barred
from doing so.
• The extent to which the penal technique has been effective
in curbing deviant behaviour has been the subject of
discussions
• To this end, alternatives to the penal technique has been
suggested as follows:
(a) Non-intervention:
• It is not possible for the society to criminalise every
conduct that is socially reprehensible
• The legislators have been mandated to select which
conduct the society wishes to discourage through the
application of penal sanctions
• E.g in Aoko v Fagbemi, it was held that adultery is not an
offence because no written law says such
• Section 36(2) of the Constitution abolished customary
criminal law because of its unwritten nature
b) Warning or Causation e.g petty offenders, making
noise in the courtroom, medical practitioners
c) Reciprocity and self-help
In those days when there was no formal legal system,
the victims of deviant behavior might be left alone to
seek revenge if he wished. The consequence might be
anarchy and violence like jungle justice
d) Compounding
• This consists of the receipt of some property or other
consideration in return for an agreement not to
prosecute someone who has committed a crime
• Thus, the victim of the crime agrees not to press
charges upon the fulfillment of certain conditions by
the perpetrator of the offence
• E.g. relatives of the victims of an accident
• A burglar who is the relative of the house owner
• An employee who commits fraud may be summarily
dismissed instead of prosecuted
(e) In the present formal system, the victim may decide
to sue for compensation for the injury or damage caused
by the deviant. In this case, he may make use of the
grievance-remedial technique or agree with the deviant
for compensation using the private arrangement
technique.
2. Grievance-Remedial Technique (GRT)
• Unlike the penal technique, which deals with issues
concerning criminal law, the GRT is concerned with civil
cases
• This technique defines remedial grievance, specifies
remedies and provides for enforcement of remedial
awards.
• It involves a statement of substantive legal rules, principles
and standards which creates rights, duties and remedies to
back up those rights which can be invoked in case of
breach.
• It further involves the existence of civil courts to process
claims and establish remedies.
• Substantive areas of law like the Law of Contract, Family law,
Commercial law, Law of Torts, Law of Property Equity and the Law of
Trusts and Labour Law employ the GRT.
• Remedies available to aggrieved persons under this technique include:
general damages, special damages, specific performance, injunction
and restitutio in integrum
Alternatives to GRT
a)Penal techniques
• Some conducts constitute both a crime and civil wrong
• E.g assault, false imprisonment and defamation
• Thus, the perpetrator may be both prosecuted and sued for damages
• The rule in Smith v Selwyn states that when a particular act is a felony,
no action in tort can be brought against the defendant until he has
been prosecuted for the felony or reasonable excuse has been shown
for non-prosecution
• This rule has however been described as being archaic and
anachronistic
b) Private Settlement
• Parties may also, in the alternative, provide their own
private systems to deal with disputes such as liquidated
damages clause in a contract which is an agreement to
pay a specific sum as damages should a right be
breached
c)Insurance
d) Arbitration
• Where there is an arbitration clause in a contract,
parties are mandated to submit their dispute to
arbitration first before moving ahead to litigation
• Advantages of arbitration include
• Amicable resolution of disputes
• Quicker procedures
• Familiarity of arbitrator with the technical background
of the dispute
• Informality
• Secrecy
3. Private-arranging technique
• This is the exact opposite of direct governmental action
• All the law does, using this technique, is to provide a framework
of rules for determining the legal status of arrangements or
agreements between persons or among persons.
• The arrangements or agreements are left to individual discretion
or initiative but the law determines whether they are valid.
• The law also provides for methods of enforcement of the
transactions and the determination of liabilities under them.
• This technique operates essentially in civil law
• Private-arranging technique is most visible in the areas of the
laws of marriage, sales and purchases, gift, wills, contracts
generally and formation of clubs, associations and companies.
4. Constitutive Technique
• The method closely resembles the private-arranging technique.
• Under this technique, the law recognizes a group of people as constituting a legal
person separate and district from its constituent members called “corporation”.
• This is advantageous in a number of ways. The corporation has perpetual succession,
and it enables ownership to be separated from management.
• The principle of legal personality was established in the famous case of Salomon v.
Salomon
• The principle of legal personality forms the bedrock of company law as without the
principle, it would have been difficult to have large companies as we have it today
since investors would have been less willing to bear the risk of failure which such
ventures might entail.
• Further, members can escape bankruptcy on the corporation failing. It thus
encourages forms of business enterprise. The most common forms of business
enterprise today are the limited liability companies constituted by the Companies and
Allied Matters Act.
• Governments also set up some corporation by law such as the Nigeria electric Power
Authority, Nigeria Ports Authority and so on. These laws and complex system of case-
law regulate and govern the constituted bodies.
• The constitutive technique is also utilized for the formal establishment of
bodies like religious, educational, socio-cultural and other organisations that
are constituted into incorporated trustees
• This technique is not only available to private individuals, but it is also
employed by government in the establishment of corporate bodies like
statutory corporations, universities and other administrative and regulatory
agencies
• Although the creation of a new legal person is the distinctive characteristic of
the constitutive technique, the law now provides a legal framework for
recognizing certain collective interests or groups without vesting them with
legal personality
• Examples of such groups include partnership, labour union, political parties,
professional bodies, etc
5. Administrative-Regulatory Technique
• Governments now play an increasing role in regulating activities
that were once considered outside the purview of the state
• This is with the aim to prescribe minimum standards in the
overall interest of the public
• This system exist to regulate wholesome activities rather than
prohibit anti-social behavior which the penal technique takes
care of.
• Its aim is not to punish offenders but to regulate trade, services
and distribution of scarce resources.
• Under this technique, officials adopt regulatory standards,
communicate these standards to those subjects to them and
take steps to ensure compliance.
• The steps may include a system of licenses, disqualifications or
suspensions, and the bringing of administrative proceedings,
litigation or criminal prosecution as a last resort.
• Regulatory bodies include the Joint Admission and
Matriculation Board (JAMB), National Universities
Commission, Securities and Exchange Commission, and
the Standards Organizations of Nigeria.
• This technique is different from the grievance remedial
in three basic ways. First, it operates preventively, not
curatively. Secondly, Its enforcement is by government
(not the court) on the initiative of the aggrieved.
Thirdly, it need not identify a victim, as the rules are
applied without waiting for a complaint.
6. Fiscal Technique
• Government needs money to finance its spending
• To enable it raise the money, it therefore adopts a
technique called the “fiscal technique” which,
especially, means the use of law to impose a variety of
taxes such as personal income tax and company tax,
and levies
• Some are indirect and fall on property while some are
based on consumption of goods and services like the
Value Added Tax and import duties.
• The bodies set up by law to enforce the tax laws
include the Customs service, the income Tax Board and
the Federal Inland Revenue Service.
• This technique has also been used to achieve other
economic goals like the redistribution of income and
stimulation of economic growth
• It has also been used to discourage certain anti-social
behaviours thereby helping to bring about a measure
of social order
• E.g the federal government in order to check the rate
of gas flaring in Nigeria increased the penalty for gas
flaring by 1,900 per cent
7. The conferral of social benefit technique
• This technique aims at ensuring improvement in the
welfare of the members of the society in the
expectation that this will in the final analysis bring
about order and peace
• This technique is effectively used by the developing
countries because they are always seeking to create
more conveniences for their people
• Many programmes have been introduced in this regard