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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 historically”.1 This is a definition that is almost apt when considered against the background of Professor A.A. Okunniga‟s proclamation at his inaugural lecture2 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 19th 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. Dias5 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 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 most docile of societies, this catalogue of interests will conflict eventually. Lloyd 7 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 than in its application.8 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 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 preexist 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 reeducation 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 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. 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(18591928) 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 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 Taxation laws13 and the Bankruptcy laws14 are called to question. Prof. D. A. Ijalaiye cited15 other cases which include the ownership of land vested in the governor of states16, the law against smoking in public17, lynching of apprehended suspects18, bigamy laws19 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 man‟s sociology does amount to another man‟s “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. Bowen23 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 holding24: “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 instance, the trial of Bernhard Goetz25 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 as to give a retroactive bent to its decision, leaving that open. The San Francisco 9th 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.
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Encyclopaedia Britannica 5th Ed. at 150 (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

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Sociology: A Systematic Introduction by Johnson at p.2 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