THE LEGALISTIC APPROACH TO THE STUDY OF POLITICS

1.0 INTRODUCTION

The legal approach is very important in political science because it focuses on the legal provisions which are usually contained in the Constitution and other laws of the land. Because disputes are likely to arise between different arms of government and different levels of government, there is need for a legal system that can interpret laws and reconcile likely disputes and conflicts between the various arms of government. The concern of the legal approach is about the administration of laws, its interpretation and enforcement.

2.0 OBJECTIVES

At the end of this unit, you should be able to:

1.  explain the legal approach to the study of political science. 

3.0 MAIN CONTENT

3.1 Law and Society

No modern society can exist without a system of laws. The institution of law is therefore crucial to the social organization of human beings. A modern society is not like the state of nature (primitive society) where life was ‘solitary, nasty, brutish and short’ – the state of anarchy according to Thomas Hobbes.

The concept of ‘the law’ connotes to the political scientist, the processes, principles, standards, and rules which govern the relationships and which help resolve the conflicting interests of men and institutions in a cohesive society.
It is impossible to conceive of a modern society operating without the benefit of law - without the carefully formulated principles, standards, and rules that keep our invalued social complex from disintegration. No rational person believes that the intricate problems arising in an urban society could be dealt with in the absence of statues, courts, legislatives, executives, administrators, policemen, and penalties. Such a society constitutes a seamless web of important and conflicting interests, and the concept of law is central to it.
Government does not rely solely upon the law to achieve its objectives, but government without the law does not have legitimate authority to rule. To govern means to control, and control in the political sense within a state requires principles of conduct embedded in legal principles, standards, and rules and enforced by sanctions, whether civil or criminal.
In democratic society, the goal of government is the attainment of justice, law exists to help reach this goal, although in practice results often fall short of this ideal.

Law also encompasses the do’s and don’ts of man’s routine experiences in everyday living. For example, if a man park his car on the wrong side of the road, dumped his rubbish/garbage in a forbidden area, insult or punch his neighbour in a fit of temper, or fail to file his income tax return, etc. and legal sanctions will fall upon his shoulders – heavily or according to the nature of his offence.

3.2 What then is Law?

The term is one of the most ambiguous and fluid known to man. There is little agreement as to its meaning and it may be that there is no final answer. A basic difficulty is that “law” means so many different things to so many different persons at so many different times and in so many different places. Justice Oliver Wendell Homes (American Jurists) once said: “A word is not a crystal, transparent and unchanged; it is the skin of a living thought and may vary greatly in colour and content according to the circumstances and the time in which it is used.” This is true of law.
Despite the above position about the ambiguity of law, let us define the law as a body of rules for human conduct that is backed by legitimate authority. The three components in this definition are:

1.  Body of rules 
2.  Conduct, and 
3. Legitimate Authority 

3.2.1 Body of Rules

Law can be expressed or conceived as doing things with rules. In other words, law is a technique of social ordering [W. Twinning and D. Miers (1979) To Do Things with Rules]. From this definition we could conclude that within the province of law we have rules and regulations, norms, values, codes, legislative enactments, edicts and decrees.

3.2.2 Human Conduct

A law regulates the behaviour of human beings in everyday activities and in their personal interrelationship. This explanation is important as we are aware of other forms of law, i.e. Mathematical laws, Biological laws, Mechanical laws, etc.

3.2.3 Legitimate Authority

A law either written or mere verbal proclamation is mere words unless it is backed by some form of authority; this authority could be traditional, legalistic/rational legal. Without legitimate authoritative backing, people will violate laws with impunity.

Law and society are related. Society survives because there are laws which regulate the behaviour of individuals. Indeed, the societal framework provides the premise upon which law are developed. On the one hand no society can achieve any measures of success/development unless there are established legal systems.

SELF-ASSESSMENT EXERCISE 1

Identify and discuss three components of the definition of law.

3.3 Features of the Legal Approach

The legal approach in the study of politics is concerned with the following areas:

(i) The Legal Basis of Political Institutions.
(ii) The Legal Basis of Political Rights
(iii) The Protection of rights
(iv) Legal Remedies.

3.3.1 The Legal Basis of Political Institutions

Political Institutions are usually created in the Constitution which is the fundamental law of the State. The Constitution also stipulates the relationship among the various institutions of government. For example, in the 1999 Constitution, of Nigeria, the following Political Institutions were created:
The composition and functions of the Nigeria Government must be in accordance with the provisions of the Constitution as specified in various chapters and sections.

3.3.2 The Legal Basis of Political Rights

Political Rights derive their source from the Constitution. Chapters 33 to 42 of the 1999 Constitution of the Federal Republic of Nigeria guarantees the following Rights:

1.  Right to life. 
2. Right to dignity of human person. 
3. Right to personal liberty 
4.  Right to fair hearing. 
5.  Right to private life 
6.  Right to freedom of thought, conscience and religion 
7. Right to freedom of expression and press. 
8.  Right to peaceful assembly and association. Chapter 41 - Right to freedom of movement 
9.  Right to freedom from discrimination. 

3.3.3 Legal Protections of Rights

Political rights enjoyed by the people in a democratic country/society are usually protected by certain legal devices such as:
- The Rule of Law
 The Right to Fair Hearing (Audi alteram Parterm)
- The Rule Against Bias (Nemo judex in Causa Sua).

3.3.4 Legal Remedies

It is inconceivable to think of legal rights without legal remedies. Thus, if a person has a legal right and the right is violated, then such a person should be entitled to some remedy. A remedy is therefore a compensation for the violation of legal rights. Remedies reverse wrong decisions and make appropriate decisions to correct legal injustices. These remedies include:

1. The Order of Habeas Corpus 
2.  The Writ of Prohibitions 
3. The Writ of Mandamus 
4.  The Writ of Injunctions 
5. Declarations 

In addition to the Constitutional Law, there are other legal instruments that influence the political process in a particular country. These include laws made by the Legislative Assembly and the System of Courts. Every state/country has its legal system which is made up of both the substantive and procedural laws and judicial organizational structure. For example, in Nigeria, we have the Criminal Code, the Penal Code, the Civil Procedure Code, the Sharia Laws, the Customary Laws and other enactment by the National Assembly. Also in Nigeria, we have various grades of Courts – Supreme Court, Court of Appeal, Federal High Court, the State High Courts, Magistrate Courts and Customary Courts.
Other features of the Nigeria legal system which are more or less political in nature include the Public Complaint Commission, The Code of Conduct Bureau, Public Commissions of Inquiry, The Economic and Financial Crime Commission (EFCC) and Public Tribunals, etc.

SELF-ASSESSMENT EXERCISE 2

What are the features of the legal approach to the study of Political science?

4.0 CONCLUSION

In this Unit, we have attempted to examine the legal approach to the study of politics. The relationship between law and society has also been explained.

5.0 SUMMARY

As can be seen from the above outline, no satisfactory explanation of the workings of the political system of any country can be provided without looking at the legal framework. Political institutions by and large derive their existence from the legal and constitutional system, hence the importance of legal approach in the study of politics.

6.0 TUTOR-MARKED ASSIGNMENT

1. Why is the Legal Approach so important in the study of Politics?
2.  Evaluate the Legal Approach to the study of Politics in relation to the 1999 Constitution of the Federal Republic of Nigeria