Similarly, Joseph Raz’s theory of authority posits that the law is an authoritative social institution, the de facto authority. However, he also opines that it is essential to law that it be held to claim legitimate authority. According to Raz, the essential role of authorities in our practical reasoning is to mediate between the accepted subjects of the authority and the right reasons which apply to them in the relevant circumstances. Legal authority is therefore legitimate if and only if it helps citizens to comply better with the right reasons relevant to their actions that is, if they are more likely to act in compliance with these reasons by following the authoritative resolution than they would be if they tried to figure out and act on the reasons directly (without the mediating resolution). For example, there may be many reasons that bear on the question of how fast to drive on a particular road- the amount of pedestrian traffic, impending turns in the road, etc. –but drivers may comply better with the balance of those reasons by following the legal speed limit than if they tried to figure out all the trade offs in the moment.
In interpreting our laws, therefore, a Judge must balance the law as it is with the prevailing social circumstances. In this sense, a Judge may give effect to stated Government policy as reflected in their laws where it impacts upon the wider society as a whole. As such, a court will enforce speeding penalties because of its wider social impact upon other citizens. This is easier than can be imagined, given the need to ensure “the greatest good for the greatest number of people”, while doing justice. In order to best give effect to this interpretation, a Judge will need to arm himself with essential cannons of legal interpretation.
- LEGAL INTERPRETATION OF THE LAW
I will begin with Abraham Lincoln’s thoughts on ‘bad law’. Lincoln was America’s sixteenth president and its first to be assassinated. He was also a lawyer. In his Lyceum address, which was in defence of political institutions, Lincoln has firmly held on to a literal approach to interpreting law. According to him “although bad laws, if they exist, should be repealed as soon as possible, still while they continue in force … they should be religiously observed”.
It is a truism that a Court must examine the text of the law, what it addresses and also what the intendment of the law was when the Legislature enacts same. Therefore our Judges will, in the right circumstances, apply certain tenets or cannons of interpretation.
The traditional Canon of interpretation is the literal interpretation . Certainly, our Nigerian jurisprudence provides a history of strict “constructionism”, If I may coin that phrase. This attitude is based on the idea of non interference with the will of the Legislature. Indeed, the American statesman Alexander Hamilton noted “liberty can have nothing to fear from the judiciary alone as the legislature, not the judiciary has the power to make laws”.
In the Nigerian case of Attorney General of Abia State V. Attorney General of the Federation (2006) 16 NWLR (PT.1005) 265, for example, my learned Brothers of the Supreme Court warned against courts going out on ‘an unguarded voyage of discovery’ thus seemingly giving the nod to al literal interpretation of the Constitution. Suffice it to say, I agree with their crudite determination. Certainly, it accords to common sense that laws be followed as they were enacted . Judicial activism must mot be used as a cloak for retroactive or erroneous application of laws. The text of the law must be adhered to as this engenders certainty. It is this certainty that allows for fairness and fairness is an essential component of a good judgment.
However, even literal enthusiasts realize that strict literal interpretation can lead to illogical absurdities . For example, a law that punishes a person who draws ‘blood in the streets’ cannot extend to a surgeon who opened the vein of a person who fello down in the street, to cite the US Case of K MART COPR. V. CARTHER INC. 486 YS 281 (1988). While this may be an extreme example, it does not remove the fact that strict construction can often lead to absurd consequences. Language is, after all, in Denning’s words, ‘not an instrument of mathematical precision. As such, a Judge will apply a purposive interpretation using what lawyers term the “Golden Interpretation” Rule.
Like the literal rule, the golden rule gives the words of a statue their plain, ordinary meaning . However, when this may lead to an irrational result that is unlikely to be the Legislature’s intention, the golden rule dictates that a judge can depart from this meaning, examining what will be the interpretation that best gives effect to the intendment of the framers of the said law. This is where consideration is given to the spirit of the law.
Nigerian jurisprudence is also rich on interpretation of statutes. We have been cautioned again and again to first begin with a literal interpretation except where the provisions are unclear. Here, the Mischief Rule is applied so that we may be able to peel back the layers of obscurity and reveal the problems that such law was enacted to address. Niki Tobi JSC’s metaphor in GLOBAL EXCELLENCE COMMUNICATION LIMTED AND 3 ORS V. DONALD DUKE SC. 313/2006 is helpful: “where the provisions are unclear… (t)he court is expected to apply a compass in a ship to navigate the waters to arrive at the intention of the makers of the Constitution”. Other judgments echo this and so it would not be necessary to expound on them.
The Nigerian Constitution, as many other constitutions, does not state the rules for interpretation. It is because a Constitution is an organic document, intended to endure for ages’ to be adapted to various crisis of human affairs. It is not meant to be interpreted with stultifying narrowness’ or with a meaning that will effectuate rather than defeat its purpose. Indeed, the true meaning of a legal text almost always depends on a background of concepts, principles, practices, facts, rights and duties which the authors of the text took for granted or understood , without conscious advertence, by reason of their common language or culture. Interpretation must therefore depend on what the Court in Ag Federation V. Abubakar (2007) 10 NWLR (PT. 1041) I put as the circumstances of our people’, seemingly a nod to the social interpretative theory of law.
VII. Bridging diverse yet convergent views
With these considerations in mind, it is important to consider, like Wittgenstein, the following poser:
A rule stands there like a sign-post-does the sign post leave no doubt open about the way I have to go” Does it show which direction I am to take when I have passed it; whether along the road or footpath or cross-country? But where is it said which way I am to follow it; whether in the direction of its finger or (e.g) in the opposite one?- And if there were, not a single sign-post, but a chain of adjacent ones or of chalk marks on the ground –is there only one way of interpreting them? –So I can say, the sign post does after all leave no room for doubt?
There are many sign posts as to how a Judge should interpret the law as it applies to the case before him. Indeed, there are cases where the Judiciary has acted as the custodian of the morals of society as well as being a regulator of social conduct, while applying a legal interpretation to law. A case that is usually seen as representing this idea is the case of Regina V Shaw, which is widely regarded as having revived the common law offence of conspiracy to corrupt public morals. Frederick Shaw had begun production of a Ladies Directory in the autumn of 1959 and contained around forty ads for female prostitutes in Soho, Mayfair, Bayswater and Notting Hill, in London, while featuring some black and white photographs of the women concerned in various stages of undress. Shaw was tried on three counts,. First for publishing an obscene article, second for conspiring to corrupt public morals, and third for living on the earnings of prostitutes via the ads in the Directory. He was convicted on all three counts and sentenced to nine months in prison.
Shaw appealed against his conviction on the grounds that ‘there was no such offence at common law as the conspiracy alleged , and he also contested his conviction for living on immoral earnings. Broadly speaking two conceptions of conspiracy to corrupt public morals were put forward at his appeal. The Crown argued that conspiracy to corrupt public morals was a single offence that grouped together particular kinds of immoral conduct over which the courts had long asserted jurisdiction. These were, primarily, obscenity, procuring prostitution, keeping a disorderly house (for illicit sexual activities), public indecency and public mischief. Although these could be offences in themselves, they could also be construed as conspiracies against morality where an agreement to do them had taken place. It was that interpretation of the common law which permitted the prosecution of Shaw for arranging what was considered an illegal activity. Shaw argued to the contrary that each of these forms of conduct constituted separate offences and could not be seen as aspects of a single substantive offence known as corrupting public morals.
The main argument against the appeal was that the courts had long been custos morum (guardian of morals) . This doctrine, it was maintained, was first articulated by Lord Mansfield in 1763 in Rv. Delaval and relied on a series of cases dating back to 1663 to show that the courts had long asserted their right to prosecute conduct of various kinds held to be against public morality. In the first of these, Sir Charles Sedley’s case, from 1663, he had exposed himself on a balcony at Covent Harden and urinated on the people below. They also referenced the cases of Rv. Berg, Britt,Carre and Lummies (1927), involving keeping a disorderly house for the purpose of corrupting those who went there by encouraging homosexual acts. The court of Appeal therefore decided in Shaw’s case that all of these could be held, by analogy, to constitute conspiracies against public morals, and that therefore an offence with that name did exist. The Court concluded that it was an established principle of common law that conduct calculated or intended to corrupt public morals (as opposed to the morals of a particular (individual ) is an indictable misdemeanour’. The law reports showed that ‘The conduct. To which that principle is applicable may vary considerably, but the principle itself doses not, and in our view the facts of the present case fall plainly within it’. At Shaw’s appeal, Sedley’s case was held to be evidence that the secular courts, rather than the ecclesiastical ones, had asserted a right to prosecute such conduct. Two other categories of conspiracy were used to support the decision in Shaw on the question of conspiracy against public morals: those that related to causing a public mischief and those concerning outrages against public decency. These cases were used to give force to the view that the courts had maintained an ability to punish immoral and mischievous offences as conspiracies against the public.
Here, we see the courts not only being a custodian of morals, but giving a social interpretation of the acts that were complained of although widely practiced in the Country at the time. Nevertheless, the social ramifications as well aas the moral implication bound the justices together in legally interpreting the provisions of law and statute, respectively.
TO BE CONTINUED NEXT WEEK
In Nigeria, the causa bellum is currently the scourge of corruption. In tackling same, I would strongly opine that where a Judge is faced with clear cut evidence of corrupt practice or serious crimes that offend public morality or engender public discontent or opprobrium, then one is bound to be a custodian, bearing those considerations to mind in sentencing the convicted person. This is because a Judge cannot divorce his own destiny from those of the average citizen.
This is why the law affords us some principal canons of interpretation, which guide the reading of the law as it stands, irrespective of the surrounding circumstances and social pressures. Like the House of Lords, now United Kingdom Supreme Court, stated in the case of DPP v SHAW, we are in a unique position which makes us bound to interpret the law in accordance with the dictates of the law and good conscience.
VIII. CONCLUSION
I wish to use this medium as well to address the question-is a Judge a public servant? I make bold to state that though judges are servants of the public, they are not public servants. The tenure which we enjoy, the lengthy procedures required to remove a Judge, and our institutional separateness from the executive arm of government, are all aimed at securing our independent position. The essential obligation of a public servant is, consistently with the law, to give effect to the policy of Government . On the other hand, contrary to what you might read in the press of have conceived, the duty of a Judge is different.
The duty of a Judge is to administer justice according to law, without fear or favour, affection or Local Government. Judges, by their decisions, may give effect to the will of the legislature as expressed in Statutes, but their duty is to be impartial in conflicts between a citizen and the State. In doing this, there may be a divergence between the will of Government and the laws and rights of citizens. Here, the Judge acts as the umpire to decide which side has prevalence over the other.
I know that most of you and the wider community may regard Judges as public servants. Judges, however, should know better. There may , on occasion, be inordinate pressure from some quarters for Judges to be treated as though they were public servants. Sometimes, politicians and public commentators express irritation or resentment a the refusal of Judges to conform to the wishes and policy of the Government. It merely reflects the institutional repugnance with independence of any organ of state. This is not surprising as independence of any kind is likely to be regarded as a threat to a government’s capacity to govern effectively. This is reflected where the government begins to regard the Judiciary as a “headache” or “the trouble with Government”.
Doubtless, Government may, in some cases, be more efficient and life for those in power would be easier, if judges were obliged to show due deference to government policy. However, such efficiency is not the primary aspiration of a democratic society. Those considerations are however overridden by the demands of justice, and our community’s idea of a just society is one in which the judiciary determines its cases, independently of the Government.
The image of the just judge as one who favours neither the rich nor the poor but gives a true verdict according to the evidence without partiality. It is essential for a judge to maintain, in court, a deportment which gives to the parties an assurance that their case will be heard and determined on its merits, and not according to some personal predisposition on the part of the Judge. Unfortunately, some Judges may fall short of this and modern lawyers, litigants, and witnesses, and the public generally, are much more ready to criticize judges whose behavior departs from appropriate standards of civility and judicial detachment. This is a good thing. If Judges behave inappropriately, they should be criticised. Of course, on occasions, some judges are exposed to wrongheaded, extravagant, or unfair criticism. That is the price that has to be paid to remind all judges of the necessity to conduct themselves with dignity and decorum.
Ronald Dworkin, the foremost legal theorist, maintained that the Law consists of Rules (enacted law such as Legislation, Rules of Court, etc), which apply in an “all or nothing fashion.” If the rule applies to the circumstances, it determines a particular legal outcome. If it does not apply, it is simply irrelevant to the outcome. Conversely, principles do not determine an outcome even if they clearly apply to the pertinent circumstances. Principles provide judges with a legal reason to decide the case one way or the other, and hence they only have a dimension of weight. I would posit that moral, social considerations may run through both types of law but the moral is most likely to be reflected in the principle and more social considerations in the law.
Ladies and Gentlemen, we must remember that a Judge is still a citizen of the Federal Republic of Nigeria, who shares the same fears, concerns, optimism or otherwise about the Country in general and the actions of criminally minded persons in particular. They are liable to be kidnapped, robbed and indeed murdered as several global and local examples have shown. As such, though they interpret the law as it is and not as certain sections of the society may like it, they are also swayed by the same concerns as other Nigerian are. In passing Judgment, they may wish to sentence as a deterrent, or choose to acquit in order to protect the fundamental rights of a wrongly accused person. They may choose to sentence to long terms of imprisonment for public policy reasons, or because of the impact of such crimes on the wider society. However, these considerations are bridged uner the umbrella of Ubi Jus Ibi Remedium- where there is a right, there is a remedy. The Law is the supreme consideration and all other considerations flow therefrom.
With these final words, permit me to once again express my sincere gratitude to the Vice Chancellor, Management and Staff of this great institution. I also wish to thank the members of the Press, invited guests and you, our distinguished ladies and gentlemen, for you rapt attention.
Thank you and May God bless all of us.
