BAIL: A RIGHT OR A PRIVILEGE?: ANOTHER VIEW

Obumneme Aloysius Ezeonu, Emmanuel O.C Obidimma

Abstract


This article interrogates the conclusion by a named writer in a scholarly journal to the effect that bail is a privilege and not a right. A major plank of that conclusion is the resort to the jurisprudential thought of the American jurist, Wesley Newcomb Hohfeld. Relying on Hohfeld’s square of jural relations to the effect that right attracts a correlative duty, the writer argues that since, in an application for bail, the duty to grant or refuse bail depends primarily on the judge’s discretion, the applicant’s position in this regard is a privilege. This article offers a critique of this logic and, after an adequate exposition of Hohfeld’s conceptual analysis, observes that the question under review is in itself a travesty of Hohfeld’s square of jural relations. The article further finds that the question of whether bail is a right or a privilege cannot be raised in a Hohfeldian context. The proper Hohfeldian question would be whether bail is a right or a no-right or whether a judge has the duty or privilege to grant or refuse bail. The article also argues that the fact that bail is a conditional right cannot lead to the conclusion that it is a privilege. After exploring the definitional contours of privilege, the article concludes that bail is a right and not a privilege.

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References


Ikenga K.E. Oraegbunam, “Critical Reflections on some issues on Prosecution, Sentencing and Execution of Capital Offences in Nigeria” in The Premier Bar Journal (PBJ), Vol.2, No.2, 2015, p. 49

See A. Adetifa: Bail in Nigeria (3): A Matter of Right or Not. Website: www.legalnaija.com/2016/05/adenike-adetifa-bail-in-nigeria-3.html?m=1. Accessed on 20/8/2016 by 1.08pm.


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