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INTRODUCTION

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INTRODUCTION Powered By Docstoc
					 THE RELEVANCE OF THE SOCIOLOGICAL SCHOOL OF JURISPRUDENCE
                 TO LEGAL STUDIES IN NIGERIA

                                           BY

                           ETUDAIYE, MUHTAR ADEIZA

INTRODUCTION
Jurisprudence among its many definitions has been described as being concerned
with “the nature of law, its purposes, the means (institutional and conceptual)
necessary to effectuate these purposes, the limits of the law‟s efficacy, the relation
of law to justice and morality and the modes by which law changes and grows
              1
historically”. This is a definition that is almost apt when considered against the
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background of Professor A.A. Okunniga‟s proclamation at his inaugural lecture as
follows: “Nobody,” he says, “including the lawyer has offered, nobody including the
lawyer is offering, nobody including the lawyer will ever be able to offer a definition of
law to end all definitions”. It is this paper‟s view that the abstractness of the word
„law‟ and „jurisprudence‟ does not render them meaningless but rather amplifies their
meaning.

The definition of law has spiraled into many schools which have become subjects of
scientific enquiry. In the early days, the notion that principles which were scientific in
origin could be applied to diverse areas such as law and criminology owed much to
Benthamite utilitarians and was eventually given much importance by the French
philosopher, Comte (1798-1857) who gave a much encompassing approach to the
study of society and coined the phrase „sociology‟. This gave great illumination to the
fact that man like any other social animal was capable of being studied in a trajectory
that included observation, explanation and prediction.

It is the humble intention of this exercise to proceed into this enquiry, to teach as well
as to learn the meaning of the term „sociological school‟ (of jurisprudence), its scope,
what it portends, its scholars, its application to the study of law and its effect and
perhaps in some way, we could find a meaning that is as indelible to jurisprudence
as it is to our lives. After all, we remain social animals that can be studied and in the
same token, taught.

SCOPE
The sociological school‟s idea of law is a continuation of this persistent process of
enquiry into the origin of law as begun by the Historical School. This view of the
sociological school is in tandem with the knowledge of law with regard to society:
what it is doing; what it has done; and what it is expected to be doing. The
sociological school carries forward the mission of the historical school and rejects
the formal and logical idea of law according to the positivists on the ground that the
formal law presents only a partial portrait of the law. In effect, the pre-occupation
with the study of the science gave law a prominent place in the new studies and the
   th
19 century unearthed a number of leading sociologists in Europe (and America)
especially Germany who began to look to the newly found studies of society as a key
to a better understanding of law than had been gained from the Natural Law School
                     3
and the Positivists.
The contribution of the various scholars and jurists of sociological persuasion
highlighted several points which need mention:
    a. that law is not unique but only one of the social control norms;
    b. that the socio-economic problem of the present time cannot be solved by
       means of the existing laws;
    c. that the laws in the books and statutes containing formal rules, legislations
       and expositions of particular subjects is not where the real law in society is to
       be found;
    d. that the law is not an absolute and static body of rules in themselves but are
       relative to time, place and society;
    e. that there is such a thing as „social justice‟. However, views differ greatly as
       to what constitutes social justice and the achievement thereof.

Comte had stated that the advancement of knowledge could be through only
                                4
“observation and experiment” and he furnished a classification of the social
sciences that was hierarchical. Comte considered it most fruitful to apply the
scientific method to sociology despite the inherent difficulty. He compartmentalized
sociology into two i.e. social statics and social dynamics all emanating from his
description of sociology as the science of social order and progress. He saw society
as an object constantly in development which if viewed in a scientific way could have
its growth harnessed for one purpose: progress. The object of the sociological
school was to work out in a scientific way the process of determining the variables by
which society functioned with regards to law and vice versa.

The importance of the sociological school of law may be immediately noticed when
the attitude of law and state is compared. The previous attitude of the state was to
confine itself to law and order enforcement and thereby striving to enforce stability in
society by enforcing the norms regulating the existing relationship between
individuals and society as well as between individuals. This in many ways (which we
will evaluate) can be futile. Therein lies the allure of the sociological school: in the
failure of the laissez faire notion of law and state.
                                                          th
The social, economic and political problems of the 19 century has harassed the
state and law into casting off the cloak of neutrality towards the society. Bentham
has shown by his theory of utility how conscious and deliberate efforts could be
made by the law and state to reform the law. This was to allow for the emergence of
functional conditions in a society which had subscribed to the laissez faire view of
state and law but which did not however, it would seem, avert its mind to what
purposes the law must serve. The principle of utility and legislation expounded by
him had great influence in bringing about the welfare state law and economy. It was
this idea that sociological scholars expounded in insisting that the role of the law
must be seen as a creative one. The law is expected not only to maintain law and
order, enthroning the interests of individuals but also to formulate the objects and
purposes which society in its evolution or conscious and deliberate determination
must achieve. These are the objectives the law and the state must be used to
achieve.
    5
Dias postulates that of recent sociology still harboured the uncertainty of youth as a
subject that was in dire search for respect. In this vein, the author stated that
sociology was very much in need of the descriptive word „scientific‟ to justify this
search for acceptance and dignity. He postulated that there were five main reasons
for resemblance between sociological and scientific methods (more or less
                      6
reinstating Johnson) as follows:
    a. that sociology, like science proceeds from observation to hypothesis and
       deductions are checked against the background of reality;
    b. that sociology is theoretical and its main aim is synthesizing other disciplines
       such as history, economics and law;
    c. that it progresses cumulatively over a period of refinement and growth;
    d. that it is non-ethical i.e. the scholar must be impartial in his participation;
    e. that it seeks to describe, explain and predict. That, in essence means that law
       will be derived against the background of predicted social behaviour rather
       than laws that seek to decree social behaviour (that which „is‟ and not that
       which „ought to be‟).

The laws derived from a sociological investigation of society will be extracted from:
   a. social morphology: the form of social structures;
   b. social change;
   c. social pathology involving social disturbance and maladjustment e.g. the
      depression;
   d. social control including law, morality, religion, fashions etc; and
   e. group behaviour which deals with the interaction between individuals,
      individuals and groups and between groups.

The gains of the advent of the sociological school of jurisprudence remains
enormous. The school has opened new methods in examining the interaction
between law and society. The school has also shown that law is not a study of just
abstracts but plays a creative and dynamic role in a society. In that vein a lawyer‟s
role in society has been widened to encompass more creative and dynamic
functions. Lawyers are no longer warriors of just the rights of individuals but have
formed the vanguard for society as well. An inter disciplinary approach in law has
also come into the foreground with the emergence of the school. It has also affected
the concept of legal education in many countries e.g. the United States of America.

The sociological school of jurisprudence became inundated with its own array of
scholars who went on to build upon Comte‟s expositions. This brought about a
catalogue of ideas and terminologies rotating around the historical and economic
interpretation of society and law. While these were not exclusive of other factors,
they remained the pivot of the ideas of the sociological school.
IHERING (1818-1890)
Initially as a traditional member of the German Historical school, Ihering studied
Roman Law and published four volumes of a theme, The Spirit of Roman Law. He
became convinced that the origin of law was embedded in sociological precepts and
left the volume unfinished. He came to believe in his sociological treatise that the
basis of a right was an interest. His most influential work was Der Zweck im Recht
(Purpose in Law). According to Ihering who originally had belonged to the Historical
school, the individual acts in order to attain something. In effect he had stated that
there was always a distinctive relationship between the act of an individual and the
purpose such individual strives to achieve. It was impossible, so to say, to act in
vacuo. The basic springboard for laws that were to be found satisfactory by society
lay in this notion of purpose. In every society there were individual interests as well
as group interests. There was also the interest of the society. Inevitably, even in the
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most docile of societies, this catalogue of interests will conflict eventually. Lloyd
cites the example of an individual owner‟s right to hold unto his property for his
enjoyment and the community‟s interest in ploughing a road through it. It is the
obligation of the law and state to be in consonance with these interests and to
protect them. Where these interests conflict, the state and law is under a duty to
resolve them.

In the hierarchical position of animals, the man as a social animal enjoys a higher
and more influential position than most. In this regard, the cases of conflict of
interests vis-a-vis individuals and between the individual and society can be resolved
in a logical progression with the interest of society being paramount as against the
interest of the individual. This notion is most enhanced in the view in most statute
books that the individual‟s right to property is always subject to the overriding
consideration of the needs and requirements of the society.

The state brings about the reconciliation of interests by means of sanctions which
may take many forms including satisfaction of economic wants and coercion. In the
harmonization of conflicts of interests, the state and law become a uni-sanction
because of its coercive powers to compel individuals to accept decisions based on
achieving harmony and which may not endear itself to the individual. In spite of this,
there remain altruistic impulses in the individual like the duty or sense of obligation or
love and affection.

The law for a very great part severs the individual from any choice in the coercive
method inflicted for this harmonization of conflicting interests. The position in the
ladder of success of a legal system remains the way in which this harmony is
brought about and the balance achieved in the exercise. This is the great
achievement of the basic purpose of law.

Rudolf Von Ihering has however been criticized for his inability to provide a scale of
values for achieving his conflict between the ideas of interest and purpose. He gave
very little insight into how this balance could be achieved through observation and
prediction. Some scholars posit that Ihering‟s genius was in the origin of laws rather
                         8
than in its application.
He died in 1892.

EHRLICH (1862-1922)
Ehrlich‟s „The Fundamental Principles of the Sociology of Law‟ laid stress on the
living law of the society as distinguished from the formal law encapsulated by
decided cases and statutes. To him the formal law as symbolized by judicial
decisions and statutes presented an imperfect picture of the real goings on in the
             9
community. The norms that govern society, according to him, always leave the
formal law in their wake with regards to the development of the society. The real law
is the actual law that governs the life of the society. He distinguished „norms of
decision‟ from „norms of conduct‟. The former were traditionally understood to be
laws while norms of conduct govern everyday life of the society. In this wise, a
commercial usage may with time develop, but it is only after a considerable period of
time that the court will incorporate it into contracts. In even further development, it
may eventually be embodied in statutes by the legislation making body at the time.
However, by the time these usages and practices find their way into judicial
decisions and legislation, they may have undergone changes or modifications. Also,
new usages and practices may have evolved and as such the process continues
perpetually.

There are social facts that are the basis of all laws and as such living law pre-exist
the formal law. The social facts which bring the law into existence are usually in the
form of usages, ownership, possession, and declaration. The formal law arrives to
recognize and give effect to the obligations and duties created by these social facts.
This is by validating them or vice versa and attaching sanctions for their
enforcement. The issue at hand, according to Ehrlich, was that the living law of the
society must be sought outside the available legal materials and the law maker must
journey into the society to codify living laws. Because only a minute faction of social
life comes before the law courts and this usually when dysfunctional, law relating to
education for instance must be found in the educational campus.

In the same token, the destination of any observer into how the existing laws have
been ignored, followed, modified and/or supplemented ends in the educational
institution in this particular case. The same goes for factories, merchants and so on.
The main obligation of formal lawmakers is to keep it as close to the living law as
humanly possible.

When it was asked how the living law is to be discovered, the answer according to
Ehrlich was a) judicial decisions which were only evidentiary; b) modern business
documents against which judicial decisions needed to be checked, and above all c)
observation of people, by living among them and noting their behaviour.

In the scheme according to Ehrlich, it becomes clear that the adjudicating arm of
state and the sanctioning arm are more or less aspects of what constitutes the living
law which must be discovered. He states that the living law is not a legislation that is
habitually disregarded by the society but that which is obeyed and given importance.
Further, the customs of a particular society as well as its morals etc. may play a role
in the society in which such custom or moral attains such devotion as to be termed
part of the living law of that society. The notion of obedience or disobedience of
formal laws as against living laws are deeply rooted in the psychology of the society.
This, in itself, is not immutable. The laws that are „living‟ and socially important may
change from society to society and in fact may change from time to time. It is this
change that must be reflected again and again in the formal laws of the society.

There is no gain reiterating again the importance of Ehrlich‟s thesis on sociological
jurisprudence. It was of profound influence in diverting the attention of jurists from
over dependence on formal laws and giving more insight into the problems and facts
of social life vis-a-vis the acceptance of formal laws and its obedience. However, it is
not clear whether Ehrlich‟s contempt for formal laws as it were, was too judgmental.
He did not endow formal law with any creative qualities and saw it as inscrutable,
and as such non-functional. While it is true that reforming legislation at the heels of
the tide of public opinion was important, it is also credible to state that in many
cases, statutes have been the vanguard of change for the society, and this mainly
through the state‟s enforcement. His distinction between norms of decision and
norms of behaviour had become a little belated even when he propounded it. The
formal law had become even more important because it had gained its own
effectiveness not merely on the back of the living law. At any rate he was not very
forthcoming in the relations between these two norms. Again it was fruitful to seek to
study law against society‟s happenings but the mode by which this study was to be
conducted according to Ehrlich would have erased the significance of formal laws
completely. This would not have been helpful.

BENTHAM (1748-1832)
Bentham‟s utility outlook of life and law has already been mentioned in passing. He
was said to be an individualist who sought to approach the problems of society on
that basis. Pain and pleasure was the great governor of man. As such the function
of law was the actualization of the greatest happiness of the greatest number. This
was one of the propositions of the Principle of Utility which measure the utility of
actions in the amount of happiness it gave people. It is the minuteness of detail that
brought about Bentham‟s importance in expositing the principle of utility for he was
by no means the creator. Hume would seem to be the originator. The happiness of
each individual eventually results in the happiness of the whole society. Law was
therefore most functional when it could achieve this. It was difficult however to ignore
that the pleasure of the individual in a simple form would ultimately run counter to
that of the community. It has been said that he may have had in mind the duality and
concurrence of the two analogies of the individual and the community. This is where
the community interest lay in the political and public domain while the individual
interest lay in strictly private matters.
In spite of the importance of Bentham‟s principle in his Introduction to the Principles
of Morals and Legislation and his subsequent influence in the annals of
jurisprudence, his propositions were not above criticism. And it turns out most of the
criticisms were apt. It has been found out that the pleasure and pain hypothesis
were subjective in nature and as such impossible to adjudicate on in an objective
way. Since conduct was not limited to pain and pleasure giving qualities, it was in
many cases simply a question of individual reaction. The consequence of an action
may also give rise to immediate pain with a promise of future pleasure etc. These
issues relating to uncertainty make observation and assessment tedious. Again, it is
not immutable that the happiness of the majority will lead to the happiness of the
whole society. These aptness of the criticisms of his principle may have arisen out of
Bentham‟s faith in the existence of the „average man‟.

However, Bentham‟s views are still of great importance. He insisted on mass re-
education as a vehicle of social happiness and that laws should be judged by their
consequences.

ROSCOE POUND
The jurisprudence of interest as propounded by Ihering was further expatiated upon
by Roscoe Pound, an American jurist of the present period. The basis of Pound‟s
theories lay in the search for the solutions to the problems of American society at the
time. This was with particular reference to what was perceived as equitable in the
distribution of the abundant natural resources in America at the time. His studies
believed in using the knowledge of the social sciences as an instrument of bringing
about social change. This change was grounded on control, adjustment of social
relations and general troubleshooting.

Pound‟s sociological jurisprudence placed a lot of importance on the study of law in
its direct relationship to the society. He believed the society must be made as a
prelude to the making, interpretation and application of laws. For legal enforcement
to be effective, the lawyer, jurist and legislator must study society. Pound espoused
the idea of having a justice ministry that was concerned with the psychology and
philosophy of judicial matter against the background of sociological studies so that
                                                         10
the purpose and object of the law could be achieved. This achievement could be
through only constant and consistent study of society.

Pound realized that the whole of the common law was filled by the impression of the
individual and posited that individual interest could be adequately protected and
enforced. As such:

       a. The jurists must have an inventory or catalogue of the interest of the
          individual, the public and the society;
       b. The jurists must select and recognize those interests as being worthy of
          protection;
       c. The jurists must determine the limits within which those recognized
          interests could be realized; and
       d. The jurists must select the means for realizing and giving effect to those
          recognized interests within the limits so determined.

The role of the lawyer is likened to that of an engineer and his aim being to build a
structure of society in such a way as to establish the satisfaction of the maximum of
wants while having the minimum of friction and/or waste. The law must try to bring
the various conflicting interests in society in tandem with each other.

Pound defines an interest as a demand, desire or an expectation which human
beings either individually or as a group seek to achieve. He went further to classify
these interests into:

       a. individual interest;
       b. public interest; and
       c. social interest.

The “individual interest” are the claims, demands, desires and expectations that are
purely individualistic in nature. As such, individual interest could be said to be an
interest of substance, personality, domestic relations, honour, reputation, privacy,
physical person, belief, opinion and so on. “Public interest” refer to the claims,
demands, desires or expectation of the individual looked at from the standpoint of the
state. An example is property acquired by the state. In “social interest”, most of the
issue stated under individual life are the same except that this is held in a social
context. Also, there is the social interest of state in the general health etc. of society.
There is also the social interest in morals, religion and so on. The object of the
exercise is to balance these interests against each other by the jurists. However,
there may be difficulties when interests of different classes are in conflict e.g. the
individual interest against public interest. This “balancing” has mostly highlighted the
fact that law was a potent instrument for social progress.

Roscoe Pound has not been without his critics:

       a. Pound”s analogy of engineering has been said to be inept. This is
          because engineering was done with skilled ambience and it was possible
          to predict waste and stress as well as the quantity. This was not the case
          with law. At any rate, law and society changed too consistently for such a
          description.
       b. He assumed that interests were there for the law to recognize and protect.
          This is untrue as a lot of the times, it was the law courts that created the
          interest for the first time.
       c. The determination of interests cannot be done in a mathematical form. It
          only depends on the standard with which the interest is determined.
       d. Balancing interests in law is not the same thing as balancing two objects.

There have been other scholars who have had great impact in the studies of the
sociological approach to the field. Montesquieu (1689-1892) had propounded his
own theory laying great stress on the influence of the climactic and geographical
conditions of law of which history was a backdrop to this study. Duguit(1859-1928)
insisted that social life should be viewed as it is lived. He forged his idea based on
the interdependence of man and called it the principle of social solidarity. All these
scholars enthroned one idea, the study of law through the eyes of the society and
            11
vice versa.

SOCIOLOGICAL THINKING AND ITS RELEVANCE TO LAW MAKING
The sociological school of thought may be said to have made some inroads into
legislation making in Nigeria but its impact is felt more in trial proceedings than
anywhere else. It is unclear if this importation of sociology into law making is by
inadvertence or by design but its relevance for use in our courts may not now be
disputed by the discerning eye. This importation is by means of the Evidence Act
Cap. 112 Laws of the Federation 1990. That Act provides that:

       “Facts which are the occasion, cause or effect, immediate or otherwise, of
       relevant facts or facts in issue, or which constitute the state of things under
       which they happened, or which afforded an opportunity for their occurrence or
                                  12
       transaction are relevant.”

This may be illustrated in several ways but one would serve the purpose. A, a
nomadic Fulani cattle herdsman camps his herd of cattle in a bush in Ogbomosho.
B in attempting to steal one cow in the night thinks that he has succeeded in
tranquilizing it but the cow‟s moo rouses A from his slumber. By the time he gets to
his cow A finds his dead cow in B‟s hands. A, in a fit of rage launches himself at B
stabbing him with his dagger from which wounds B immediately dies. In a trial of A
for culpable homicide punishable with death A, who is relying on the defence of
provocation, would under this provision be entitled to introduce evidence to show that
a nomadic Fulani cattle herdsman places a lot more value (sometimes emotional) on
his cattle and that the sight of B remorselessly holding his dead cow had triggered
some fury in A. it would amount to a relevant fact that A killed B. The piece of
sociological evidence of the state of A‟s community would carefully fit both the bill of
“the occasion, cause or effect” or constitute “the state of things under which they
happened, or which afforded an opportunity for their occurrence” passing the test of
relevancy. Of course it is a different matter entirely whether the judge would find
evidence of that kind persuasive but the attitude would differ from one set of facts to
the next.

But the instance of the Evidence Act (and sometimes the Penal or Criminal Code)
would appear forlorn and further instances, while not entirely non-existent, are
something of a rarity.

The question will often be asked why trial proceedings in Nigeria for instance will
allow evidence derived from the sociological fields while such considerations are not
taken into cognizance in the codification of laws. For, in many countries, not least of
all Nigeria, legislation has not appeared to follow sociological precepts thereby
leading to laws being ignored or outrightly contravened. There are myriad reasons
adduced for this.

The most significant of which is the specific sociological setting in Nigeria that
allows for permissiveness. In many cases corruption has rendered laws ineffective
largely due to the fire brigade approach to legislation devoid of sociological
investigation and also coupled with an abundance of lack of enforcement. The
               13                      14
Taxation laws and the Bankruptcy laws are called to question. Prof. D. A. Ijalaiye
     15
cited other cases which include the ownership of land vested in the governor of
       16                                 17                                    18
states , the law against smoking in public , lynching of apprehended suspects ,
             19                                     20
bigamy laws and the offences against public health.

Another is the all too lengthy intermissions of military dictatorship in Nigeria during
which a supreme military body that considers itself under no duty, moral or legal, to
consult or consort with society churns out decrees and edicts. Ironically, in the post-
colonial era, these are the periods in which the bulk of Nigerian laws are
promulgated. Not too far removed from this, is the often lazy, reckless, uninspired
and pusillanimous legislatures that Nigeria has been “blessed” with during the short
“interregnums” of constitutional government. The contribution of these legislatures
have been restricted to passing the odd “socially challenging” bills as the annual and
eventually routine Appropriation Bills.

On the other hand, the Evidence Act, like most of the Nigerian legislation with any
modicum of sociological input, is part of the received English law.

Notwithstanding, law and legislation must take cognizance of non-legal and extra-
legal considerations. The Sociological school thinkers are not alone in advocating
this phenomenon. The American courts have since 1907 accepted evidence derived
from sociology, psychology and other sciences in adjudicating on issues of law and
       21
policy. Of course this provokes a virulent controversy of a different kind relating to
the question of giving meaning to constitutions and other statutes.

CONSTRUCTION OF CONSTITUTIONS – STRICT CONSTRUCTION VERSUS
LIBERAL CONSTRUCTION.

One contentious controversy is often lost sight of in the agitation for the application
of sociological jurisprudence as the courts are clearly entitled to. And that is the
larger question of the construction of the constitution especially and other statutes.
Should the law be construed narrowly and in terms of a “jurisprudence of original
intention” as the strict constructionists like former United States Attorney General
(under President Ronald Reagan) Edwin Meese would prefer or should it be
construed liberally in all its breadth, sociology, psychology and all? The strict
constructionists insist that it leads to judicial activism (allegedly usually on behalf of
various constituencies and interests) which in turn leads to judicial law making for
such social judgments are best left to the elected representatives of the people or
the democratic process. Without original intention and strict construction, there
would be only one surviving law and that is the whims and caprices of the judge. For
what is one man‟s sociology does amount to another man‟s “personal view of
       22
utopia” in the words of former American President Ronald Reagan.

These views were expressed with a view to the construction of the American
constitution. But what may at once be a criticism of the infusion of sociological
jurisprudence into law making turns out to be a cul-de-sac. For the shortcomings of
                                                                                 23
the strict construction argument can however be graphically illustrated. Bowen
observes thus:

       “One has to wonder whether the Attorney General (Meese) has considered
       the kind of genie that can rise from the constructionist bottle. Strict adherence
       might have prevented his boss from making war in Grenada. Keeping the
       Central Intelligence Agency‟s favourite secrets would be impossible. There
       could be no federal minimum wage. The Air Force could not be funded (the
       Constitution mentions only an Army and a Navy), the Federal
       Communications Commission, if it existed at all, could not assign television
       channels. The fact is that virtually every genuine constitutional question has
       unique complexities that do not lend themselves to the slam bang simplicity
       espoused by Reagan and Meese. For as Jefferson noted two centuries ago,
       the founders „laid their shoulders to the great points, knowing that the little
       ones would follow of themselves‟ “

One should add that there may never have been a Central Bank (or the Federal
Reserve Board) in America since it was not expressly provided for under the
Constitution. For when the Congress created the Bank of the United States in 1791
the constitutionality was in doubt as the Constitution never gave Congress power to
create corporations. Mr. Chief Justice Marshall was his usual erudite self in
       24
holding :

       “Among the enumerated powers, we do not find that of establishing a bank or
       creating a corporation. But there is no phrase in the instrument which, like the
       articles of confederation, excludes incidental or implied powers; and which
       requires that everything granted shall be expressly and minutely described…
       A constitution, to contain an accurate detail of all the subdivisions of which its
       great powers will admit, and of all the means by which they may be carried
       into execution, would partake of the prolixity of a legal code, and could
       scarcely be embraced by the human mind. It would probably never be
       understood by the public. Its nature, therefore, requires, that only its great
       outlines should be marked, its important objects designated, and the minor
       ingredients which compose those objects be deduced from the nature of the
       objects themselves. That this idea was entertained by the framers of the
       American constitution, is not only to be inferred from the nature of the
       instrument, but from the language…. It is also in some degree, warranted by
       their having omitted to use any restrictive term which might prevent its
       receiving a fair and just interpretation. In considering this question, then, we
       must never forget, that it is a constitution we are expounding… intended to
       endure for ages to come, and, consequently, to be adapted to the various
       crises of human affairs”.

If further justification is needed for the so called judicial activism (such a
conservative-orchestrated stigma the misinformed man cringes from it) of the courts,
it is to be found in the use of terminologies in constitutions especially and statutes
(Nigeria‟s inclusive which the strict constructionists admit are meticulously worded)
such as “fair hearing”, “reasonable time”, “if a reasonable man would”, “public
safety”, “public morality”, “adequate time and facilities”, “reasonably justifiable in a
democratic society”, “reasonable suspicion” etc. For one thing these statutes could
not, for ominous reasons, have employed such terms as for instance “unreasonable
suspicion” or “subjective suspicion” or for that matter just plain “suspicion”. For
another, such words compel the courts to their solemn calling which terminates not
at merely deriving meaning from the words of a constitution or a statute but stretches
to infusing meaning into them. What those words require is interpretation, not strict
construction.

In employing words like those referred to, the framers of constitutions (even those
whose selfish instinct is not disposed to giving) come to realize the inevitability of
those words. To the embarrassment of the strict constructionists who conveniently
gloss this over when they canvass strict construction and original intent, the framer‟s
original intent is contained in those mathematically unascertainable words which call
for the importation of sociology, psychology and other sciences in expounding laws.
The framers were a bottomless vessel of wisdom and knowledge and in that
knowledge they knew only one thing – they did not know everything. Ascribing today,
therefore, farcical intentions to the framers (who were not in a position to envisage
cellular phones, the Acquired Immuno-Deficiency Syndrome, the computer, stem
cells replacement, cloning, gay adoption etc – how could they) was but one step
short of fraud.

In a manner of speaking, strict construction cannot be found in words that are
themselves loose; that are themselves not strict.

These words are put in there to give these documents that are meant to endure,
abide, and survive for the entire life of a nation the necessary flexibility to weather the
labyrinthine storms that come usually in the form of incalculable “x”es. A constitution
is much like the chameleon meant to show the apt colours at the apt times;
constantly stretching its disposition to meet constantly changing times. Like the
constitution then, the chameleon may not be persuaded to part with its green. Or its
red. And the constitution may not be persuaded to part with this in-built camouflage;
these in-built mechanisms that are essential to its survival.

Thusly, sociological jurisprudence is not something to be taken back from the courts
and handed over to the elected representatives of the people or the legislature. The
courts never usurped this power and they cannot give back what it never took in the
first place. The exercise of the so called social engineering by the courts is thus with
the leave of the framers; not in isolation or defiance of them. The words of a
constitution (such as its mathematically unascertainable words) insist on their social
expounding.

It is suggested that one weapon of sociological jurisprudence would be trial by jury
for such a trial is one of the parties before their peers who either by their number or
their diversity or their collective experiences are closer to the parties than a single
arbitrator of legal knowledge who pretends to know something of everything. For
                                           25
instance, the trial of Bernhard Goetz is instructive. There, the jury had been
unanimous in acquitting Goetz for shooting four black youths on a subway car. In his
confession, Goetz said one youth had asked him for five dollars. When Goetz looked
up and saw a smirk on Troy Canty‟s face, he believed that the youths were about to
rob him. He pulled out his gun and shot them down. Goetz had previously been
twice mugged and physically abused. On legal grounds Goetz‟s defence of self
defence would have appeared shaky given that he saw the first three youths tumble
to the floor from his shots – did he have an excuse to shoot the fourth? But his peer-
jury from New York where young black men were responsible for the overwhelming
number of robberies on New York City subways (according to the Transit Authority
Police, of two thousand six hundred and seventy four (2,674) robbery suspects,
seventy (70) were white, five hundred and eighty four (584) Hispanics and two
thousand and twenty (2,020) blacks) came back with the verdict that Goetz had
used deadly force reasonably believing that he was about to be robbed. Juror
Michael Axelrod, in none of the long-winding legalese you suffer at the hands of
jurists, told Newsweek, “In Mr. Goetz‟s mind he didn‟t feel the threat was over. It
happened rapidly. I don‟t think he had time to think”.

Be it as it may, present trends are suggestive that the infusion of sociological,
psychological and other scientific content into decision making by the courts by
means of jury trials, rather than be of diminishing value, is on the rise elsewhere.
Sometime in 2002, the United States Supreme Court held that death sentences
passed by judges and not by juries were unconstitutional though it did not go so far
                                                                                      th
as to give a retroactive bent to its decision, leaving that open. The San Francisco 9
Circuit Appeals Court has followed suit in holding that it was unconstitutional for a
judge and not the jury to deliberate on and pass a death sentence thereby resolving
the fate of hundreds of convicts on death row in the states of Arizona, Idaho and
          26
Montana in favour of, in the minimum sentencing by a jury of his peers with all the
afflictions inflicted on the accused by his environment or in the maximum trial de
novo.

The motives behind the decisions by a jury indeed suffers constant scrutiny but so
does that before a single judge. Perhaps within the confines of this peculiarity, better
one to be a victim of a conspiracy than of arbitrariness.

In conclusion, it must be said that the role of the sociological approaches to
legislation has gained a lot of following in contrast to the positivist approach and as
society moves into the next millennium, it needs even newer ways of creative
investigation into society. Globalisation has brought to the fore the issue of a smaller
world where the world is gradually coming closer to a common culture because of
economical, political and cultural interaction. Never has society had more information
gathering technology at its behest and for its application with the emergence of the
internet and mobile telephony as well as satellite technology. It is possible that a
century down the line, the sociological input into jurisprudence may become more
predictable and more uniform from one one country to the other. It becomes
poignant to note therefore that social investigating methods will become more
accessible and more universal.

One can only hope that society will not balk at taking the next logical step forward
into social investigation as foreseen by the sociological school scholars - a step, like
the Americans, into democracy and justice as humanly possible in effectiveness as
                    27
can be harnessed.


Etudaiye, Muhtar Adeiza is a lecturer at the Dept. of Jurisprudence and International
Law, University of Ilorin.
1
  Encyclopaedia Britannica 5th Ed. at 150
2
  (1983) Series 62 at p. 207
3
  The Idea of Law, Dennis Lloyd at p. 207
4
  Dias-Jurisprudence 4th Ed. at p.581
5
  Dias-Jurisprudence 4th Ed. at p.581 to 583
6
  Sociology: A Systematic Introduction by Johnson at p.2
7
  The Idea of Law, Dennis Lloyd at p. 207
8
  Dias-Jurisprudence 4th Ed. at p.588
9
  Law in a Changing Society, W. Friedman 2nd Ed. at p.20
10
   The American Jurisprudence Reader-Thomas A. Cowan at p. 133
see also The Brandeis Brief i.e Muller v. Oregon 208 u. s. 412 at p. 419 (1908)
11
   D. A. Ijalaiye-The Sociological Jurisprudence and the Nigerian Order at p. 33
12
   Section 8
13
   Income Tax Management Act (1961) (as amended) Cap 173 Laws of the Federation
14
   The Bankruptcy Act, Cap 30 (1979) Laws of the Federation
15
   Lectures: Obafemi Awolowo University, Ile-Ife Jurisprudence and Legal Theory Class, 1997
16
   The Land Use Act, 1978
17
   Tobacco Smoking (Control) Decree, 1990
18
   Section 30(1) Constitution of the Federal Republic of Nigeria, 1979
19
   The Criminal Code S. 370
See also R. v. Princewill (1963) NNLR 54 and (1963 All N. L. R. p. 31
20
   The Criminal Code S. 246
See also S. 30 of the Public Health Act Cap 165 of 1960 Laws of the Federation
21
   The “Brandeis Brief” in Muller V. Oregon, 208 U.S. 412 (1907)
22
   Radicals In Conservative Garb, Time Magazine August 11, 1986 Essay, Ezra Bowen.
23
   Op. cit.
24
   Mc Culloch V. Maryland 4 Wheat 316, 4 L. Ed. 579 (1819)
25
   A Trial Without End, Newsweek Magazine, June 29, 1987
26
   British Broadcasting Corporation World Service News Bulletin, 5 hrs-5.30GMT on September 3, 2003
27
   The Natural Law Reader, Brendan F. Brown at p. 195

				
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