It is believed that [Legal] academic critics are seldom themselves creative. They are trained to dissect, differentiate, take a stand, and distant themselves, if need be. Hence, they primarily, carp and hedge their views with reservations and wise afterthoughts, whether or not on any platform, they are expected to be unemotional, authoritative, and precise in their assertions.
Although, this is a debatable position: Whilst some school of thoughts (like Lord Denning, Justice Eso Kayode, Oputa, among others.) thunder that ‘creativity’ is a necessary tool for effective critiquing, others hold the view that there is no need to manufacture or recreate existing principles when its relevance has not been outlived.
In the light of the latter position we have seen formidable intellectual display of strict applicability of the law as it is – a positivist approach to [legal] issues as espoused by Hans Kelsen. One may wonder whether or not the technicists are in themselves void of creativity. A snapshot of the legal dint and stint of the late Legal Titan, Chief F.R.A William, tends to suggest that, he was more of a ‘Legal Mechanic’.
In our legal industry, the holding(s) of the court sails from the premise of the merit of a case and, not necessarily the orbita dicta of the judges. Although, there are times when the dictum of a judge may form the reason for the decision so reached. According to the realist, to submit loosely, “law is the prophecy of what the court will say” – a thought-process this writer admires and shares wholeheartedly in its philosophy. Again, one may wonder whether or not the court is not towing and borrowing from the positivist when it gives its decision based on the statutory or judicial authorities emanating from its breast.
Again, the judiciary is constitutionally saddled with the responsibility of safeguarding the rights of the common man, balancing, protecting freedom and social rights. To my mind, these judicial-shots are more positivitorial in nature, than the realist veil in tends to portray. According to Lord Denning in his book, Freedom Under the Law (Pg. 15) – He postulates that “There must be judges in the land who are no respecter of persons and stand between the subject and any encroachment on his liberty by the executive”.
For this writer, positivists are rare breeds of the creativity industry, and are saddled with the responsibility of protecting, preserving and project the society in the fit and proper perspective. Adding to that, they show the contradistinguishing feature between ‘critiquing’ and ‘criticising’. Whereas the former is an academic concept for weighing issues and proffering pragmatic solutions to the identified issues, if any and where necessary, the latter, is a tool for misinforming, misleading the polity, expressing bias as against the backdrop of sound reasoning.
It therefore follows that if positivists are guardians of the legal industry, then, they have power. It is the power to stand against tyranny; power to stop external threats; power to prevent the abuse of the legal profession; power to protect, preserve and project the legal industry. The question begging here, to this writer’s mind is straightforward: are positivists the only custodians of our legal industry?
A negative or affirmative communication may suggest or lead to a different route altogether. However, an appreciation of Justice Oputa’s three-way-justice-traffic, may give the reader an insight to the answer, if any who developed the trinity of justice developed from Lord Denning’s view on criminal trial. According to Lord Denning, a criminal trial must be fair to both sides – the prosecution and the defence. He went further to state that there must be equitable justice for both sides – justice for the defence and justice for the prosecution.
The “three way traffic justice system” is a direct fulfillment of justice. The import of it is that Justice must not only be seen to have been served to the parties whose matter is in court, but must also must not be incompatible with public policy. On matters bordering on ‘public policy’, Lord Denning’s judgment on criminal matters has always been in favour of public policy: criminal trial must be fair to both sides – the prosecution as well as the defence.”
It is an error to hold that positivists or [legal] academician are not creative. Such contention and sister assertions that may tow same path are altogether untrue, misleading, and carries no element of truism in them. In strict legal sense, the proposition will not survive even for a nano second. Again, this writer finds it pertinent to submit that whether or not one is a realist or positive or naturalist, to be an academician is not a child’s play. Hence, it requires great amount of creativity. Creativity, also includes going beyond what was obtainable yesterday, adapting and simplifying the complexity of today’s challenges in order to create an accessible tomorrow.