INTRODUCTION
The impact of positivism in the fight against criminality in Nigeria is a topic which looks at the effect and accomplishments of various Acts, Laws, Statutes and Court Decisions in combating crime.This topic is of interest to any would be lawyer as it enquires into the very nature of law and elaborates more on the relationship between law strictly speaking (positivism) and law as it ought to be (Natural theory of law).
It asks and gives answers to the very important question, has positivism alone eradicated crime in Nigeria as a case study, and what is the difficulty confronted by positivism in its fight against criminality in the Nigeria legal jurisdiction.
Positivism as a theory of law is for several reasons not the most adequate theory of law because of its inherent shortcomings with the spirit and essences of the law, positivism establishes some ideas which contradicts what the law in its practical sense is
This research works intends to show how far positivism has assisted in the fight against criminality in Nigeria and the achievements so far recorded.
1.4 Scope of the Study
The scope of this research is to be limited to Impact of positivism in Nigerian jurisdiction alone, considering and differentiating/positivism from natural law.
The significance of this work is to provide relevant solutions to the problems inherent in positivism as it relates to fighting crime in Nigeria.
The scientific approach adopted or employed for this research is the doctrinal and comparative method.
1.7.1 Positivism
The word “Positivism” means “to put” or “to place”. Positivism is therefore the law put or placed or imposed upon the situations by the rulers[5].
The chief protagonist of this theory is John Austinwho propounded his “Command Theory” of law in his celebrated but controversial book The Province of Jurisprudence where he defines law as “a command set by a superior being to inferior beings and enforced by sanctions”[6]. The superior being is the sovereign, while the inferior beings are his subjects.
The word sovereign was defined by the Oxford Advanced Learners Dictionary as the greatest in status, authority, power or influence acting or done independently and without outside interference in a particular jurisdiction[7]
Sovereign in jurisprudence means the full right and power of a governing body to govern itself without any interference from outside sources or bodies. While in political theory sovereignty is a substantive term designating supreme authority over some polity. The meaning of sovereign used in this research work is the meaning of sovereign in jurisprudence.
1.7.3 Criminality
Etymologically speaking the word crime is derived from the Latin word crimen–iniswhich has two categories of meaning
The Greek expression of crime is Krimoswhich is synonymous to the word Kramawhich means “social order” so it can be said in common parlance that the word crime is applied to those acts that go against social order and are worthy of condemnation (Public law)[9].Black stonedefines b crime as an act committed or omitted in violation of a public law either forbidding or commanding it[10].The public law referred to by Black Stone is synonymous to constitutional law. Positive law, or municipal law made by the state.Hence, crime as a creation of government policy is anything that the state has determined as being criminal and punishable[11].
However, Nigeria jurists like C.O. Okonkwo stated that in both the criminal code and the penal code the words “offence’ and “crime” are used indiscriminately[12].Accordingto Doherty crime is an act or omission which under any written law is deemed to be a crime thus attracting punishment. The hallmark of a crime thereof is the singular criterion of the act or omission complained of or alleged, being designated in a statute be it an act of the federation, law of a state, an edict of a state or a by-law of a local government[13]. According to Doherty, one common feature of a crime is that it must be so regarded or so called by a written law. In other words, crime or an offence is what a statute says it is[14].
However the constitution went further to state “subject as otherwise provided by this constitution, a person shall not be convicted of a criminal offence unless that offence is defined and the penalty therefore is prescribed in a written law and in this subsection a written law refers to an Act of the National Assembly or a Law of a state and subsidiary legislation or instrument under the provisions of a law”[15].By this constitutional provision, a written law will not only define the offence but most equally prescribe the penalty for it. In other words, an act or omission is not a criminal offence unless the definition and punishment for it are contained in a written law, the only exception to this being the offence of contempt of court[16].