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 laws
efficacy, the relation of law to justice and morality and the modes by which law
changes and grows historically.
1
This is a definition that is almost apt when
considered against the background of Professor A.A. Okunnigas proclamation at
his inaugural lecture
2
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 papers
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 schools 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 19
th
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 and the Positivists.
3

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
observation and experiment
4
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.

The social, economic and political problems of the 19
th
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.

Dias
5
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 reinstating Johnson)
6
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
lawyers 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 Comtes 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 most docile of societies, this
catalogue of interests will conflict eventually. Lloyd
7
cites the example of an
individual owners right to hold unto his property for his enjoyment and the
communitys 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 individuals 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 Iherings genius was in the
origin of laws rather than in its application.
8

He died in 1892.

EHRLICH (1862-1922)
Ehrlichs 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
community.
9
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 Ehrlichs 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 Ehrlichs 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 states 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
societys 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)
Benthams 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 Benthams 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 Benthams 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 Benthams faith in the existence of the
average man.

However, Benthams 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
Pounds 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.

Pounds 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 the purpose and object of the law could be
achieved.
10
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. Pounds 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 vice versa.
11


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 transaction are relevant.
12


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 cows moo rouses A from his slumber. By
the time he gets to his cow A finds his dead cow in Bs 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 As 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 Taxation laws
13
and the Bankruptcy laws
14
are called to
question. Prof. D. A. Ijalaiye cited
15
other cases which include the ownership of
land vested in the governor of states
16
, the law against smoking in public
17
,
lynching of apprehended suspects
18
, bigamy laws
19
and the offences against
public health.
20


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 policy.
21
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 mans sociology
does amount to another mans personal view of utopia
22
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 the strict construction argument can however be graphically illustrated.
Bowen
23
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 Agencys 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 holding
24
:

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 (Nigerias 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 framers 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
xes. 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 instance, the trial of Bernhard Goetz
25
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 Cantys 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 Goetzs 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.
Goetzs mind he didnt feel the threat was over. It happened rapidly. I dont 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 as to give a retroactive bent to its decision, leaving that open. The San
Francisco 9
th
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 Montana
26
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 can be harnessed.
27



Etudaiye, Muhtar Adeiza is a lecturer at the Dept. of Jurisprudence and
International Law, University of Ilorin.

1
Encyclopaedia Britannica 5
th
Ed. at 150
2
(1983) Series 62 at p. 207
3
The Idea of Law, Dennis Lloyd at p. 207
4
Dias-Jurisprudence 4
th
Ed. at p.581
5
Dias-Jurisprudence 4
th
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 4
th
Ed. at p.588
9
Law in a Changing Society, W. Friedman 2
nd
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