By Hameed Ajibola Jimoh Esq.

There has been a clause since time seemingly immemorial that ‘the law is an ass’. This in a way is saying of the application of the law that is contrary to common sense or in another words, “the law is an ass – an idiot”. This paper is of the view that if the law is truly ‘an ass’ as general assumed, then, our courts and the legal practitioners should not be ‘an ass’! Hence this topic. This is also important because both the court and the lawyers have greater roles in ensuring that the law which binds the common man and of course the citizenry must uphold justice and equity at all times.

Historically, according to my research on https://www.phrases.org.uk/meanings/the-law-is-an-ass.html, the clause has the following historical background thus

‘This proverbial expression is of English origin and the ass being referred to here is the English colloquial name for a donkey, not the American ‘ass’, which we will leave behind us at this point. Donkeys have a, somewhat unjustified, reputation for obstinance and stupidity that has given us the adjective ‘asinine’. It is the stupidly rigid application of the law that this phrase calls into question.

It is easy to find reference works and websites that attribute the phrase to Charles Dickens, who put it into print in Oliver Twist, 1838. When Mr. Bumble, the unhappy spouse of a domineering wife, is told in court that “…the law supposes that your wife acts under your direction”, replies:

“If the law supposes that,” said Mr. Bumble, squeezing his hat emphatically in both hands, “the law is a ass – a idiot”.

In fact, ‘the law is an ass’ is from a play published by the English dramatist George Chapman in 1654 – Revenge for Honour:

Ere he shall lose an eye for such a trifle… For doing deeds of nature! I’m ashamed. The law is such an ass.

‘Published by’ doesn’t necessarily mean ‘written by’. In 1653, Chapman’s play was registered, as The Parricide, or, Revenge for Honor, to fellow playwright Henry Glapthorne. Some scholars contend that the play was the work of neither gentlemen and was written around 1620.

Whoever the author was, we can be sure it wasn’t Charles Dickens. However, it was Dickens who brought the phrase to the general public. Oliver Twist was an enormous success when it was first published as a serial and has become one of the world’s best selling novels.’.

Also, according to my research on https://www.goodreads.com/quotes/22816-it-was-all-mrs-bumble-she-would-do-it-urged,, Charles Dickens > Quotes > Quotable Quote, the clause was quoted as follows

“It was all Mrs. Bumble. She would do it,” urged Mr. Bumble; first looking round, to ascertain that his partner had left the room.

That is no excuse,” returned Mr. Brownlow. “You were present on the occasion of the destruction of these trinkets, and, indeed, are the more guilty of the two, in the eye of the law; for the law supposes that your wife acts under your direction.”

If the law supposes that,” said Mr. Bumble, squeezing his hat emphatically in both hands, “the law is a ass — a idiot. If that’s the eye of the law, the law is a bachelor; and the worst I wish the law is, that his eye may be opened by experience — by experience.” ― Charles Dickens, Oliver Twist.

Furthermore, according to a research on https://dictionary.cambridge.org/dictionary/english/law-is-an-ass the clause was explained as follows

‘The legal system or a particular law is wrong or not good enough, and should be changed:

If that is against the law, then the law is an ass.’

From the above meanings of the words ‘the law is an ass’ as depicted and publicized in the well celebrated literature ‘Oliver Twist’, it is such a situation where the application of the law as it is would likely result in absurdity or in other words when the interest of justice is concerned, strict application of such law enacted to a particular circumstance would result in miscarriage of justice or where the application of the law in strictness would lead to unimaginable injustice when such matters or cases are brought before a court of law to decide. I am of the respectful view and recommendation that the court of law as well as the lawyers in any of such instances or circumstances, whether civil or criminal cases, must utilize its discretion and the roles of a Minister in the temple of justice respectively where it they both have to ensure that the interest of justice or the justice in a case prevails. In my humble submission, even where the court (ably symbolized by the Honourable the Presiding trial judge or the appellate court) is not conferred with discretion, the court having considered the interest of justice in a case, should consider devising ‘judicial activism’ in order to arrive at that which is just, fair and or reasonable in the circumstance, rather than strictly applying the law as it is which according to the judgment or reasoning of the court, is likely to lead to miscarriage of justice. This is a rudimentary or primary role that I view that a court of law should be concerned with. Laws are made by man and man enforces the same law. So, there should be a certain risk bearing in the application and enforcement of the law. Law enforcement agencies that are to enforce the law too should consider justice in the enforcement of the law, else, an ordinary man in the society might devise means to seek self-help or jungle justice as substitute for justice! The fear which I have is that ‘if the common man should see law as ‘an ass’ or ‘unconscionable’ or ‘idiot’ i.e. lacking mental reasoning while seeing or viewing both the court and the lawyers as a ‘camouflage’ or ‘deceit’, just as it was depicted in the above quoted words extracted from the literature ‘Oliver Twist’, then, that common man in the society would likely avoid the court of law and also bypass the law and even rubbish the lawyer and make his own law (without considering whether his act and or omission is lawful or unlawful or rational or irrational) and pass his jungle justice as a form of justice’.

Section 6 (1), (2) and (6) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended)-herein after referred to as the Constitution-, has conferred judicial roles (and discretion) on the court of law as follows

‘6.—(1) The judicial powers of the Federation shall be vested in the courts to which this section relates, being courts established for the Federation.

(2) The judicial powers of a State shall be vested in the courts to which this section relates, being courts established, subject as provided by this Constitution for a State.

(6) The judicial powers vested in accordance with the foregoing provisions of this section—

(a) shall extend notwithstanding anything to the contrary in this Constitution, to all inherent powers and sanctions of a court of law ;

(b) shall extend to all matters between persons, or between government or authority and to any person in Nigeria, and to all actions and proceedings relating thereto, for the determination of any question as to the civil rights and obligations of that person;

(c) shall not, except as otherwise provided by this Constitution, extend to any issue or question as to whether any act or omission by any authority or person or as to whether any law or any judicial decision is in conformity with the Fundamental Objectives and Directive Principles of State Policy set out in Chapter II of this Constitution; and

(d) shall not as from the date when this section comes into force, extend to any action or proceedings relating to any existing law made on or after 15th January, 1966 for determining any issue or question as to the competence of any authority or person to make any such law.’. Also, Rule 1 of the Rules of Professional Conduct for Legal Practitioners, 2007- herein after referred to as the RPC- provides for the general responsibilities of a lawyer thus ‘General responsibility of a lawyer.

A lawyer shall uphold and observe the rule of law, promote and foster the course of justice, maintain a high standard of professional conduct, and shall not engage in any conduct which is unbecoming of a legal practitioner.’ Finally, therefore, I humbly recommend the following recommendations for a just legal system in this instance as follows:

In the interest of justice, when the law seems or is likely to become ‘an ass’ the court of law should always be guided by the need to always do justice hence by the use of its judicial discretion to achieve justice in a case regardless of the litigants before the court and lawyers must also assist the court to do the said justice; To make law humanly adaptable whenever the court is called upon to interpret the law (this ‘law’ referred to here is not the normal law making but judicial activism which portrays the interest of justice in a particular circumstance); To utilize its judicial activism in the interest of justice at all times; The judicial discretion must be used for ensuring that justice prevails and for public good and or benefits; The law should (through judicial discretion) be prevented from being portrayed continuously as ‘an ass’. Lawyers should always uphold and observe the rule of law, promote and foster the course of justice, maintain a high standard of professional conduct, and should not engage in any conduct which is unbecoming of a legal practitioner, regardless of how or no matter the ‘ass’ in our laws, the interest of justice should be the guiding tool! Email: hameed_ajibola@yahoo.com