*TOWARDS AN APPLIED SOCIOLOGY OF LAW IN NIGERIA

By

Ahmadu Seidu Maliki (BSc, LLB, MSc, PhD)

Department of Sociology,
Ahmadu Bello University, Zaria.

Introduction: The Meaning, Development and Subject Matter of Sociology of Law

Sociology of Law is taught as a sub-discipline of Sociology, and to a less extent,

a sub-discipline of Law in most universities worldwide. A basic difference between
Sociology and other social science disciplines, which also study society, is that while
the others pick single dimensions of man in society to focus on, Sociology adopts a
holistic approach. To be wholistic is to see the interrelatedness of the different
endeavours and dimensions of man. Sociology of Law, for example, studies the legal
dimension of society by relating what happens in the legal sphere to the other major
spheres in society; whether political, economic, cultural, historical, and so on. Each of
these other spheres is in turn studied in its links and interrelationship with other
aspects of society, including the legal.

In carrying out investigations into social phenomena, sociologists proceed

according to the general requirement of the scientific method. This entails a
systematic and purposive gathering of facts, deductive reasoning (in translating
theory to practice) and inductive reasoning (in translating statistical result into
theoretical inferences) (Maliki, 2006). The basic concern of sociology is the issue of
social order. It shares with all other scientific disciplines the assumption that there is
an order in nature, which can be discovered, analysed and comprehended.

Law is the other parent discipline of relevance to this discussion. Law is

defined by John Austin (Cited in Hart, 1954:34) as a "rule laid down for the guidance
of an intelligent being by an intelligent being having power over him." John Salmond

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(Cited in Hart, 1954:35) also defines law as "the body of principles recognised and
applied by the state in the administration of justice”. Both Austin and Salmond are
jurists who subscribe to the Imperative or Command Theory of law, which
emphasise the existence of on an authoritative law-issuing body, before such
commands or rules, can be regarded as law. This is ostensibly because it makes
their subject more precise and amenable to study. In fact, Austin expressly excluded
primitive customary law from his conception of law and jurisprudence. Such a
conception has, however, been criticised for being inadequate for a sociological
study of law. Federick Von Savigny (1840) and Maine (1861), both of the Historical
School of Jurisprudence, maintain that law is not the creation of the legislator or any
sovereign, but emanates from the popular consciousness (or lived experiences) of a
nation (volkgeist), and exists for the purpose of regulating the action of individuals
and the whole community. Hence, they argue that customary law is even more a
legitimate focus of a study of law than the Austinian Positive law.

The exponents of the Realist School of jurisprudence such as Holmes (1949),

on their part stressed the empirical and pragmatic aspect of law, arguing that the law
is “what the courts will decide” and not what is enacted by the legislature, nor
nebulous notions of popular consciousness. The immediate and obvious problem
with such a definition is how to know what the law is before judges pronounce on it?
The problem is compounded by the positions of the Natural Law school of
Jurisprudence, which maintains that there is a natural law which is higher than, and
should be emulated by man-made law. For example, Aquinas (1270) argued for a
hierarchy of laws derived ultimately from the divine law of God. Furthermore, the
Sociological school of Jurisprudence argues that the law in action is not the same
with, and is more important than the law in the law books, and should therefore be
the proper focus of a study of law (see Pound, 1943).

From a sociological standpoint, law is conceived in broad terms to include not

only formally enacted rules, but also the various informal controls, as well as
instrumentalities for the enforcement and administration of laws, and correction of
offenders. The focus of a sociological study of law is, therefore, not just on law as it
exists in the books, but also on the internal normative regulations of various groups
and "communities", the behavioural aspects of law, and the legal sub-system in its
relationship with other subsystems within the context of societal whole. In short, law

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is viewed as an integral component of a compound whole of normative regulations
that cannot be understood outside the social context in which it is found. In this
regard the law in action is seen as more important than the law in the books (Pound,
1943). In recognition of the social nature of Law, most law faculties worldwide
require their students to take and pass courses in Sociology of Law.

Deflem (2007) argues that among the social sciences, sociological theories
have the most developed analytical perspectives that contemplate the role of law in
society. He added that not only is sociology unique in offering theoretical
perspectives on the place and transformation of the institution of law relative to the
whole of society, but that sociologists have offered most of the important
intellectual building blocks for other theories of law.

Max Weber (1864-1920) and Emile Durkheim (1858-1917), were two founding
fathers of Sociology, who developed elaborate theories of law. Law was to Durkheim
the measurable indicator of a society’s morality and social solidarity. He formulated
a theory of social change based on the character and nature of law. Hence,
repressive laws are characteristic of small-scale mechanical societies, while the
large organic societies of modern times are characterised by restitutive laws, which
allow for greater individual variation in thought and action. Weber, on his part argued
that central to the development of modern society is the formal rationalization of law.
For him, modern law is based on rational, impartial, written, and impersonal
procedures. Hence, the "legal rational form" of authority, which he holds up as the
best form of leadership, is not attributable to people but to abstract norms.

The Sociology of Law has been variously described as: (i). a sub discipline of
Sociology; lying between the two established disciplines of law and sociology; and
(ii). a field of research in its own right within a broader social science tradition
(Banakar, 2003). The debates notwithstanding, there is no denying that Sociology of
Law draws its materials, methods and approaches mostly from mainstream
Sociology, and to a less extent from other social sciences, in its social scientific
study of law. It also draws on research conducted within other fields such as
Jurisprudence, Law and Legal theory (Cotterel, 2007).

As an academic course of study, the formal emergence of Sociology of Law is

put at the mid-twentieth century. In fact, it appears that it did not become

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established as a modern empirical science until 1962 when the International
Sociological Association (ISA) established the “Research Committee of Sociology of
Law”. Its mandate was to “act as a free association of scholars active in Sociology of
law or socio-legal studies all around the world, whatever their nationality, opinion and
scientific or methodological tendency” (ISA, 2011:1).

The roots of sociology of law, however, date back to the works of sociologists
and jurists of the 18th and 19th century. The relationship between law and society
was sociologically explored in the seminal works of: Charles Montesquieu (1748: de
I' esprit des lois), Emile Durkheim (1893: Division of Labour), William Graham Sumner
(1906: Folkways), Max Weber (1922: Law in Economy and Society), and Bronislaw
Malinowski (1926: Crime and Custom in Savage Society). The concern with the
relationship is also obvious in the works of early jurists such as Maine (1861:
Ancient Law), Jhering (1866: Law as Means to an End), Holmes (1897: The Path of
Law). In the mid-19th century, a number of eminent jurists, such as Leon Petrazycki,
Eugen Ehlich and Georges Gurvitch employed social scientific theories and methods
in an attempt to develop sociological theories of law.

In his book, Fundamental Principles of the Sociology of Law, Eugen Ehrlich

(1936) developed a sociological approach to the study of law by focusing on how
social networks and groups organize social life. He explored the relationship
between law and general social norms and distinguished between "positive law,"
(state made law) and "living law" (law that daily regulate peoples living irrespective of
formal enactment). He gave priority to the latter arguing that; the centre of gravity of
legal development lies not in the activity of the state, but in society itself. Leon
Petrazycki (1955) distinguished between forms of "official law," supported by the
state, and "intuitive law," consisting of legal experiences, which are a complex of
psychic processes in the mind of the individual with no reference to outside
authorities. Georges Gurvitch attempted to devise the concept of "social law" as a
law of integration and cooperation and in the process made sociological
contributions to the theory of legal pluralism. The American sociologist, Donald
Black (1972), developed a scientific theory of law based on a paradigm of pure
sociology, which rejects normative and psychological presuppositions.

The Sociology of law became clearly established as an academic field of

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learning and empirical research after the Second World War. Talcott Parsons (1951),
a foremost structural functionalist, conceived law as an essential mechanism of
social control and this remained the dominant conception of law in sociology for
decades. Critical sociologists (e.g. Taylor et al. 1973, Taylor et al. 1975), however,
later emerge to criticize functionalist sociology and developed a perspective of law
as an instrument of power. They were essentially neo-Marxists who echoed the
philosophy of Karl Marx, though Marx himself saw the economy as more important
than law in the power equation.

Towards establishing Sociology of law as a discipline, Philip Selznick

(1959:411), defined Sociology of law “as an attempt to marshal what we know about
the natural elements of social life and to bring that knowledge to bear on a
consciously sustained enterprise, governed by special objectives and ideals”.
Empirical research in sociology of law developed more strongly from the 1960s
onwards. In Norway empirical research in sociology of law was pioneered by Vilhem
Aubert (1963:421), who defined Sociology of law thus:

The sociology of law is in part a branch of the sociology of knowledge. It deals

with the relationship between a theoretical structure and a social structure. Its
main problem is not to trace the content of legal rules back to the interest,
pressures and clienteles existent in any particular society at a particular time.
Rather, the primary task is to relate the structure of legal thinking to the
recurrent types of social interaction on which it is brought to bear.

In Poland, the work of Adam Podgorecki (1974) was especially notable. He

defined sociology of law as concerned “not only to register, formulate and verify the
general interrelations existing between the law and other social factors (law could
then be regarded as an independent or dependent variable), but also to try and build
a general theory to explain social process in which the law is involved and in this way
link this discipline with the bulk of sociological knowledge”.

The definition by Alemika (1994:285), a Nigerian criminologist and legal

sociologists, is preferable for its simplicity and comprehensiveness. He defines
Sociology of Law as;

the application of sociological theories, insights and methods to the problems

of law in relation to society. This concern stems from the assumption made by

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 legal sociologists that law and legal systems are derivatives of social structure.
They are products of society as well as sources of its change.
In more recent years, a very wide range of theories has emerged in the
Sociology of Law as a result of the proliferation of theories in mainstream sociology.
Among the recent influences are the works of the French philosopher Michel
Foucault, the German social theorist Jurgen Habermas, Feminism, postmodernism,
neo-Marxism, and globalisation. The Law and Society Movement, another new trend,
does not see any need to theoretically ground law in any specific discipline. Instead,
it favours an interdisciplinary orientation, which will selectively draw its materials
from a plurality of intellectual traditions. The feminist movement also regards law as
one of the important sites of political struggle for its quest. In its early days,
Feminism opposed laws for entrenching gender inequality to the detriment of
women. Today, the movement has embraced law and rely on it as a major
instrument for bringing about reforms that benefit women (Maliki 2007).

There have been some attempts to distinguish sociology of law from similar
intellectual strands like “Law and Society” or “Sociological Jurisprudence”. The main
difference between the “Sociology of Law” and “Law and Society” is that the latter
does not limit itself theoretically or methodologically to sociology and tries instead
to accommodate insights from all social science disciplines. The Sociology of law is
also, often distinguished from sociological jurisprudence. The latter is more
concerned with debates within jurisprudence than debates within mainstream
sociology. As developed by Roscoe Pound (in America) and to a less extent by Eugen
Ehrlich (in Germany), it seeks to base legal arguments on sociological insights.
'Socio-Legal Studies' (a British trend) have also been presented as the applied branch
of the sociology of law, though frequently criticised for being empiricist and
atheoretical.

These distinctions between various branches of the social scientific studies of

law contribute to an understanding of the development of the Sociology of law.
However, the social scientific study of law to transcend their theoretical and
empirical limits. Contributors to the development of Sociology of law and
Sociological jurisprudence, whose ground breaking works are reprinted in the more
readily available Lloyd (1979:374-450), include: Eugen Ehrlich (Fundamental
Principles of the Sociology of Law; 1936); Roscoe Pound (Philosophy of Law,

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Outlines of Jurisprudence, Contemporary Juristic Theory, Social Control through
Law); Rudolf von Jhering (Principles of the Sociology of Law); William Chambliss
(Models of Sociological Enquiry); Richard Quinney (The Social Reality of Crime);
Harry Bredeimeier (Law as an integrative Mechanism); Philip Selznick (The Sociology
of Law), Julius Stone (Law and the Social Services); Vilhelm Aubert (Researches in
the Sociology of Law); Jack Gibbs (Definition of Law and Empirical Questions);
Donald Black (The Boundaries of Legal Sociology); and Nonet Philippe (For
Jurisprudential Sociology).

The contemporary global thrusts of Sociology of law can be seen in the various
themes of the work groups formed under the 2010-2014 Board of the ISA Research
Committee on it (ISA, 2011). The Working Groups are on Comparative Legal Culture,
Gender and Law, Human Rights, Law and Politics, Urban Problems, Social Systems
and Legal Systems, Law and Popular Culture, Law and Migration, Civil Justice and
Dispute Resolution, Legal Professions. This is not to say that the traditional concerns
have been abandoned. A typical course structure for Sociology of law, would include
topics on classical and contemporary theoretical contributions to Sociology of Law,
Law and Social control, Law and Social Change, Law and social Inequality, Dispute
and Dispute Resolution Processes, Functions of Law, the Profession and Practice of
Law, Violence against Women, and Discretionary Justice. The goal is to introduce
students to the empirical and sociological study of law and legal institutions, and to
devise empirical methodologies capable of describing and explaining modern law's
interdependence with other social institutions.

Thus Alemika (1994:295) states:

Contemporary sociologists of law address themselves to various problems

associated with law such as law-making, enforcement and adjudications, the
origin nature and consequences of law in society. So also are they interested in
understanding the process of defining some behaviour as either approved or
proscribed, styles of law enforcement among different social groups,
communities and social classes. There is also a concern with comparisons of
judicial procedures, between civil and criminal cases, and with a view to
understand official perspectives of law together with its structure and
determinants. The list is not exhaustive...

In Nigeria, Sociology of law is viewed as a branch of Criminology and both are

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taught as sub disciplines of Sociology. The Sociology of law has no unique methods
of investigation. Rather it employs a wide variety of social scientific methods,
including qualitative and quantitative research techniques, to explore law and legal
phenomena. It is a small, but developing, sub-field of Nigerian sociology.
Unfortunately, despite its initial promise, it has remained a small field. Very few
published works exist in the field by researchers from Africa. Thus, the global spread
of sociological studies of law appears uneven and is concentrated in industrialised
nations.

The subject matter of Sociology of Law is, law and its social context. This sub-
discipline of Sociology regards law as a set of institutional practices, which have
evolved over time and developed in relation to, and through interaction with, cultural,
economic and socio-political structures and institutions. It seeks to apply
sociological insights to legal phenomena, particularly in their interrelatedness to
social conditions and the social structure. The sociology of law is concerned with the
nature of law, its sources and functions, its relation to other social control
mechanisms and the complex relationship between the legal system and the society.
It studies the materials from which laws are made, the institutions that make the
laws, and the influences on such an exercise. It is also concerned with the
institutions and processes of law enforcement, interpretation, adjudication and
administration. Components of the legal system such as the legislature, the police,
the justice departments, courts, prisons, social welfare agencies and so on, are all
examined with a view to sociologically unravelling and explaining their functions.
Questions are posed and answered as to the nature of the organisation of such
institutions, their underlying ideologies, their actual operations, their latent and
manifest functions, as well as their relationship with the social structure within which
they operate.

Functionalist theorists of law, such as Talcott Parsons (1951) and Harry

Bredemeier (1962) conceive of law as the major mechanism for ensuring social
integration by maintaining control and coordination among the constituent elements
of society. Thomas Hobbes (1651:34) was very emphatic that without the
instrumentality of law to restrain the evil nature of man, men will live in “continual
fear and danger of violent death and the life of man is solitary, poor, nasty, brutish
and short”. To functionalists, law is an embodiment of the agreed upon and

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cherished values and sentiments of the whole community. Overall, they view State
law as fair, impartial, benevolent, and beneficial to everyone.

Conflict theorists view the society as characterised by many conflicting

interests and groups with conflicting values. As such, the values enacted as law are
the values of most powerful groups, not of the whole society. It follows therefore
that law is not the beneficial thing (at least not to everybody) that Functionalist
theories portray it to be. Marxist theories are most prominent amongst the conflict
theories of law. Although Marx himself did not explicitly articulate a theory of law, it
is implicit in his vast theoretical system. Marx and Engels had written in the German
Ideology that:

The ideas of the ruling class are in every epoch the ruling ideas: i.e., the class
which is the ruling material force of society is at the same time its ruling
intellectual force. The class which has the means of material production at its
disposal, consequently also controls the means of mental production, so that
the ideas of those who lack the means of mental production are on the whole
subject to it. (Cited in Anleu 2009:7).
Marxist theories of law depict it as an ideological instrument, which reflects
class interests, creates false consciousness, and distort reality. Since the two
classes in a capitalist society have opposing interests, the law cannot at the same
time embody opposite values. It ends up taking sides with one of the parties to the
conflict, namely the capitalist or dominant class. In Marxist parlance, the law
becomes, simply, an aspect of the superstructure twitching to the dictates of the
economic infrastructure. This attribute of the law is reflected by all the other
components of the legal system. That is to say, the police, courts, prison, and other
judicial agencies are on the side of the capitalist class and cannot be impartial,
neutral or benevolent (see Taylor et al 1973, 1975; Chambliss 1974; Spitzer, 1975;
Thompson, 1975, Quinney 1978).

Regardless of the debates over its character, law remains the most visible and
dominant social control mechanism in all modern societies. It is the policy
instrument that is most relied upon, by governments and society, to bring about
change and reforms in many areas needing intervention. Policy directions of
government ultimately have to be enacted as law to give policies some bite. The law,
in transforming policy into reality, however does not work in isolation. The enactment,
enforcement, interpretation, and sanctions of law are dependent on other social

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forces as well as on politics and power (both local and international). The nature and
character of these forces are in turn dependent on the overall social context.

The extent to which law, as a formal social control measure, is sourced, shaped,
and reinforced or undermined by other social control measures (especially informal
ones) to achieve obedience and conformity from societal members is a major
concern of Sociology of Law. It is interested in questions such as: what is the
relation of law to Morality, Custom, Justice, Freedom, Force, Rule of law, State, and
Sovereignty? How does the social, cultural, economic, and political milieu determine
the content, nature, and operations of law and its agencies? Is it the law that
determines social change or is it the other way round or is it mutual? What is the
nature of the relationship? What is the experience of various societies and in this
regard? In sum, what is the social context of law?

The Social Context of Law

The social context of law is the social environment (including political,

economic, historical, cultural, psychological), which influences and is influenced by
the nature, content, and operation of law. It manifests at major levels of social
control, particularly in law making, enforcement, adjudication and corrections.
According to Friedman (1967), rules devolve upon human operators, not machines.
The law-maker is under various pressures regarding the content of what is eventually
enacted as law. The police officer who stumbles upon a brawl between two men
may ignore the fight, break up the fight and say nothing further, arrest the two men,
detain or grant them bail, interrogate them by any of several methods, throw them
into cell, arraign them before a court or dispose the case at a police station. The
court judge may decide to let both of them go, or book them for trial. At trial, the
judge may dismiss the case if he wishes, or grant the minimum or maximum (or in
between) penalty available. The prison officer may employ subjective criteria in
running the prisons. So there is always an operating level, at which laws are
personally administered by criminal justice operators using criteria that may not be
visible or even reviewable.

The ideas and values that are codified as law must ultimately reflect the

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aspirations of the society and this is why laws are largely derived from the norms
and values of a society (at least of the more powerful groups in that society). Even
when laws are a product of a deliberately convened assemblage of people with the
express aim of legislating new laws to change society, the ideas that such a body
will codify as law can still not be divorced from their lived social realities and context.
Informal sources of social control serve as sources of law and continue to exist side
by side with law in every society. Usually they supplement and reinforce law in its
functions but they have their own separate identity and sometimes may function
independently of, or even undermine, the law. A brief examination of other sources of
social control and their relations with law is undertaken below.

“Morality”, usually rooted in religion, readily comes to mind in any discussion of

informal norms of social control. This is because it is pervasive and, quite often,
openly competes with law. It is a yardstick by which most people judge the validity of,
and decide on whether to obey, law. Anleu (2009) argued that in tribal societies,
religious systems and legal systems were so intertwined as to be almost
synonymous. Lloyd (1987) also noted that the notion of a natural or higher value,
which law must reflect is linked to morality. Quite often, the values that law
embodies are moral values, but they need not necessarily be so. Some things that
are legal may be judged to be morally wrong, or some things that are illegal may be
morally right. For example, the law may accept abortion, homosexuality between
consenting adults, and even same sex marriages as legal, but such acts stand
morally condemned.

“Custom” also sources and supplements law in social control. Both law and
custom are rules of conduct, which members of society recognize and consider
obligatory to observe. Their differences come from the nature of the rules, how they
are made, how they are enforced, who enforces them, in whose name they are
enforced, and who executes the penalty. Custom is the habits or practices of a
people that have been observed over a period and seen to be useful for their
corporate well-being. It becomes not just what ought to be done, but what must be
done and non-observance attracts sanctions. The major difference between law and
custom is that custom, unlike law, tends to be unwritten, and lack centralized state
organs to enact, enforce, interpret, and record it.

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 “Force”, as contemplated here, is characterized by the twin elements of
legitimacy and authority. It implies that the state has law enforcement and
administration agencies, that there are laws governing the operation of the agencies,
that the citizens recognise the legitimacy of the agencies, and so, feel obliged to
comply with the orders of the agents and not out of fear of force alone.

“Justice” is the ultimate purpose of law (Lloyd 1987). A core requirement for
attainment of justice is that the laws must comply with the formal attributes of
justice in addition to possessing a just content and aiming to conform to some
criterion of rightness, which reposes on values exterior to justice itself.

“Freedom” is another aim of law. While, ordinarily, it means the ability to do

what one wishes without restraint, in law freedom is the liberty to do whatever one
wants within the limits imposed by law. The idea of legal freedom is aptly captured in
the aphorism by the famous English Law Lord, Lord Denning, that: “your right to
swing your fist ends where my nose begins”. Chapter 4 (Sections 33 to 46) of the
1999 Constitution of Nigeria contains provisions on Fundamental Rights or freedoms.

The concept of “rule of law” is closely linked with that of legal freedom. It
requires that things are done in society according to law rather than by the whims
and caprices of man or arbitrarily. Dicey (1915) reduced the concept to the presence
of three elements in any society: absolute supremacy or predominance of regular
law over arbitrary power; equality of every one before the law; and independence of
the courts in administering the laws as the custodians of peoples’ right. These
requirements have been expanded to include; a system based on law and order, the
existence of a democratic system of Government, a separation of powers between
the three major arms of government, and operation of the twin principles of legality
and due process.

The content of law is also influenced by power equation in society and the
pressure that groups and individuals bring to bear on the legislature. In modern
societies, lobby groups are formed around various interests to exert pressures
relating to the enactment, repeal, and content of legislation. The content of law may
therefore vary from society to society to reflect the dynamics of social context and
power play. According to Lloyd (1987:187) “supreme legal power is purely theoretical
since no legislator that ever lived has been able in practice to pass any law he

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wished in disregard of the moral values, traditions, sentiments and prejudices
prevailing in the community”.

There is also an intertwined relation between the law, sovereignty, and the state.
The concept of sovereignty has tended to undermine the notion of law as
possessing autonomy and not dependent on anything outside itself. The situation is
further compounded by the fact that, in the modern world, the sovereignty of the
“supreme national legislator” is increasingly being subordinated to international rules
not derived from any superior state or authority, through the phenomenon of
international law. The state is a more general notion than the sovereign and all the
wielders of official power in the community are organs of the state. The state is a
personification of legal authority ultimate power is regarded as derived from the
state itself.

Reciprocity of Law and Social Change

The concept of “social change” is used to denote modifications in the way

people go about and seek ultimate meaning in life. In some instances, the changing
ethos and mores in society have laid a basis for reforms in law, and law lags behind
changed circumstances in society. In others, law itself has taken a lead, laying a firm
basis for changed morality in society. There is, therefore, a noticeable degree of
symbiotic relation and interdependence between law and social change. According
to Maliki (2006:54),

determining which comes first between law and social change is as difficult as
determining which come first between the egg and the chicken. But what is
incontrovertible is that they tend to consolidate and reinforce each other. A
change in one without a corresponding change in the other creates tension and
may in effect mean no change at all.
To Minnow (1994), the phenomena of African colonialisation and
decolonialisation provide glaring examples of the symbiotic nature of the
relationship between law and social change. Colonial territories were created by
treaties and their independence was given shape and reality by so called
“independence constitutions”. These legal instruments brought home with them new
ethos and mores in independent African states. Maliki (2006) also notes that the

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history of the Nigeria legal system has been one of an intricate and closely linked
relationship between law and social change..

Prior to 1861, there was no country called Nigeria, talk less of a Nigerian legal
system. There were just relatively autonomous tribal societies with no sense of
nationhood. The signing of the Treaty of Cession by king Dosunmu of Lagos was a
legal act which effectively ceded Lagos to Britain and made it a colony. The
subsequent creation of the Southern and Northern protectorates and their
amalgamation into Nigeria in 1914 were all legal acts whose effects are profound.
Those events illustrate in clear terms, how the law can effect, or at least give
recognition to social change (Obiolade, 1985; Ahire, 1991).

The capability of law to effect changes, however, depends on its social context.
The customary rules of pre-colonial societies were a by-product of the lived
experiences of the people. As such, they could not really create social change. For
law to be at the forefront of social change, formal legal machinery is needed. This is
precisely what the colonialist did. Formal agencies, like the police, arose to enforce
law instead of the hitherto informal methods of enforcement by self-help, age-grades
and secret societies. The elders, family heads, priests, chiefs and others who
handled dispute gave way to courts and trained lawyers. Prisons were constructed,
laws were written. By simple proclamations, courts, laws, government agencies,
protectorates, and several hitherto unknown relations and institutions, including
whole countries were created. New laws also emerged to regulate new relations of
commerce hitherto unknown to customary law.

As Oloruntimehin (1984:212) puts it:

The colonial authorities, realizing the importance of the legal system as an

instrument of social change, had used their powerful position as rulers to
establish and operate a legal system, which would function for the achievement
of effective government, which was considered a necessity for the derivation of
maximum economic interests.
Nigerian’s political independence was both a significant social change and an
opportunity for using the law to create compatible social changes in other spheres.
However, the changes brought about by political independence were not profound,
probably, because the new indigenous masters had similar interests with the
erstwhile colonial masters and there was no economic independence. Nevertheless,

14
the law was needed to consolidate, reinforce and reproduce independence across
the whole spectra of social, economic and political institutions throughout the land.
The Nigerian Independence Act of 1960 abolished the colonial laws Validity Act of
1865. No Act of the British parliament passed after independence could extend to or
be deemed to be applicable in Nigeria any more. Furthermore, the British Crown lost
power to legislate for Nigeria. The Nigerian parliament became empowered to repeal
or amend all the Acts of the British Parliament that had hitherto extended to Nigeria.
Many British laws were in fact, repealed or amended, though in reality most of these
laws were simply re-enacted as local legislation. Furthermore, the 1963 Republican
Constitution of Nigeria removed the British Queen as Nigeria’s Head of State and
abolished the Judicial Committee of the Privy Council in London as the highest court
of the land.

Military incursion into Nigerian politics marked bolder attempts to use the legal
system to effect changes, as they were less constrained by principles of due process
and legality. The first military regime in January 1966 converted Nigeria, overnight,
from a federation into a unitary state through a decree. The second military regime,
which came barely six months later, reverted the country back to a federal structure
by a decree. As part of efforts to forestall war, the existing four regions were
increased by decree to 12 states overnight in 1967. (Today Nigeria has 36 States, all
them courtesy of military decrees). Other areas in which the military used the law to
effect changes included the "Nigerian Enterprises Promotion Decree of 1972" which
reserved certain small businesses exclusively for Nigerians, and the Land Use
Decree of 1978 designed to bring social justice in the use of land.

As the world increasingly becomes a global village, there are also global
influences on law and social change in various countries. The United Nations
Organisation (U.N.O) and its agencies have enacted several Conventions and
Treaties, which serve as models of laws for ratifying members to domesticate. The
issues range from human rights to gender discrimination, labour, environment, rare
animals, nuclear proliferation, drug trafficking, child and women trafficking, terrorism,
arms smuggling, corruption, money laundering, and several other transnational
crimes. Nigeria has domesticated many of such international instruments.

In conclusion, Nigeria’s emergent legal system bears the bold imprint of its

15
colonial past, the influence of global developments, and the continuing attempt to
weld its diverse peoples and cultures into one. Its system of law subordinates
indigenous law to foreign ones. In the arena of criminal law, the criminal code
borrowed from Australia during the colonial period is still the major criminal code of
Southern Nigeria, while the Penal Code borrowed from Sudan remains operational in
the North. Since customary law do not apply in the area of crime, it follows that
virtually the whole of Nigerian criminal law is imported. In the civil law arena, virtually
all the extant statutes are mere verbatim re-enactment of English statutes. The
application of Nigerian customary and Islamic law is largely in cases of marriage
contract and dissolution, child custody, inheritance, etc. For law enforcement,
contemporary Nigeria relies mainly on formal agencies created during colonialism.
Adjudication and administration of justice is also formalised, though informal modes
of arbitration, such as elders’ council, workers union, family headship and village
heads court continue to operate side by side. Imprisonment is the most frequently
pronounced sentence by the courts. There are other options such as fines, canning
and death penalty, which are less often used.

Several new laws and legislations have recently been enacted in Nigeria (most
of them within the last decade) to reflect, if not effect, social changes, which pre-
existing laws either did not anticipate or inadequately contemplated. For example
increasing sophistication in drug trafficking, corruption, economic crimes, women
and child trafficking, Child abuse, money laundering, terrorism have led to the
emergence of the following corresponding new legislations: NDLEA, CPROA, EFCC,
NAPTIP, CRA, AML, (see full meanings of abbreviations under References: Statutes)
and Anti-Terrorism laws of Nigeria respectively. In most of these, Nigeria simply
followed the global trend. The Administration of justice Act (2015) is a new federal
law on criminal procedure enacted to bring criminal justice administration in Nigeria
(hitherto governed by the CPA and CPC) in tune with current realities. The obsolete
Police Act of 1943 is the most recent to be repealed and replaced by the Police Act
of 2020 which is more in tune to modern policing policies and practices.

On culture/religion and social change, Maliki (2013) found that the vast majority
of the residents of the preponderantly Muslim inhabited Zaria-city, Kaduna State
accorded superiority to Islamic precepts over statute. For example, marrying under
the Marriage Act did not prevent them from marrying additional wives (contrary to

16
the provisions of the Act), nor did they accept that making a will under the Wills Act
precludes the overriding application of Islamic rules on the devolution of their
property upon their death. Yet the supposedly superior provisions of the Acts
expressly oust the operation of the legally subordinate “customary” Islamic laws in
such situations. Even the courts are helpless in the face of such violations. For
example not a single case of bigamy has been successfully prosecuted in Nigeria,
notwithstanding the rampancy of this crime that can attract as many as five years
imprisonment term (see Section 47 and 48 of the Marriage Act). The new Kaduna
State Wills Law recognizes the pre-eminence that Muslims accord religious
prescriptions and though still essentially a statutory law reflecting English principles
on Wills, it has moved quite close to the Islamic position by subjecting itself to
Islamic Laws of testate succession in Section 4 and going further in section 5 to
enact the spirit of Islamic law of intestate succession.

The foregoing discussion demonstrates that law cannot be fully understood

outside its social context. Its nature, content, and operation are influenced by the
social and historical realities of its existence even as it, in turn, influences these
variables. Sometimes the law merely reacts to or reflect elements in the social
context. Sometimes law is the instrument that is used to induce desired social
changes (whether of the social whole or a section of it) by those in power. At other
times, it is very difficult to know which is influencing which, especially in a complex
multi-cultural society like Nigeria where there are sub-legal systems within the larger
legal system catering to cultural peculiarities. For example, drunkenness and
adultery are criminal offences in the northern Nigeria but not so in the south, where
drunkenness can even be a defence against criminal liability. Bigamy is an offence
under the marriage Act but not so for marriage under customary law, especially
under Islamic law, which allows Muslims to marry up to four wives. A child under the
CRA (below 18 years) is protected from contracting marriage but that law may as
well not exist for many Nigerians, particularly in the North. Although the federal Wills
Act is legally and theoretically superior to Islamic law of succession, many Northern
states in re-enacting that Act, as State Law, have conceded grounds to religious
reality by enacting Islamic principles where there is conflict. It has also been
demonstrated above that discretionary latitude in decision making, sometimes not
guided by strict legal criteria, is indeed a basic feature of the operations of CJS

17
agents. Understanding law in its social context is necessary for achieving the social
re-engineering role of law, as an instrument of social control and change. This fact
has for long, been appreciated by lobbyists of law-makers, custodians of morality
and custom, international bodies and above of all by Sociology of Law.

Insights from Sociology of Law reveals that, for a more symbiotic relation
between law and social context that will translate to the development of Nigeria,
there is a need to educate the public and relevant policy actors to understand the
intricate and inextricable link between law and social context. The legislator needs to
be trained to appreciate this in making laws to bring about social change. such an
exercise will ensure that researches are conducted on the temperament and mind
set of the populace, knowledge is elicited on the relative merits of alternative control
norms and policy intervention instruments, and mass sensitization is undertaken,
before change-inducing (or change-reflecting) laws are unleashed on the people, no
matter how well intentioned. The legal scholar and practitioner, the law enforcement
officer, the judicial officer, and the correctional officer must all be trained to
understand and appreciate that the law in books is not always the same as the law in
action. In recognition of this, training in Sociology of Law is a core requirement for
the law school and law enforcement training curricula in most advanced countries of
the world. Nigeria needs to follow suit. The effectiveness of legislation will ultimately
depend on the cooperation, integration and effectiveness of the CJS agencies. This
is because laws do not enforce or interpret themselves.

Towards mobilizing the populace to support law reforms, it must be recognized

by government that major fetters on ability of law to effect social change in Nigeria
include widespread: poverty, illiteracy, religious bigotry, and weak governmental
institutions. These issues must therefore be addressed and the burden of tackling
them need not rest on government alone. Non-Governmental, Civil Society,
Community-based, and Faith-based organisations, as well as significant social
institutions and public spirited individuals all have interventionist roles to play in this
regard.

The Nigerian Legal System and Nation Building in Nigeria

18
 The focus here is on the integrative, developmental, and national building roles
of the law, more specifically the Nigerian legal system in consolidating
amalgamations and nationhood since 1914, to date. From the very inception of
colonial administration in Nigeria, the law and the legal systems have been at the
forefront of forging nationhood. It is by the instrumentality of the legal system that
the colonial and post-colonial states of Nigeria were created, sustained and
continued to be sustained. It is by law that colonialism began without a shot being
fired to conquer the indigenous people. This was in the form of the Treaty of Cession
signed by king Dosunmu of Lagos and four of his chiefs on 4th August 1861. It is
also by law that Britain introduced the various measures it needed to modify and
formalize the existing legal system to conform it to its requirements. It imposed its
own laws, called them “Received English Law”, and proceeded to use the legal
machinery to introduce far reaching social changes. It was also a series of
amalgamation via legal documents or proclamations that culminated in the 1914
amalgamation.

Maliki (2006) observes that the colonial government instituted formal agencies
like the police to enforce law and to largely replace the hitherto prevalent methods of
self-help remedies and reliance on age-grades and secret societies in the southern
part of the country, or the sharia legal apparatus in the Muslim north. The elders,
family heads, Qadis, priests, chiefs and others who had hitherto handled disputes,
gave way to courts and trained lawyers. Prisons were constructed and laws were
given pre-eminence over the unwritten indigenous customary law and Islamic law. To
make all these things possible, including the application of English laws, and
imposition of English legal system, it is again on the law that the colonialist relied.

By simple proclamations, courts, laws, and whole protectorates were created.

New relations of commerce, hitherto unknown to customary law also emerged. New
laws were needed to regulate such relations and again English laws were relied upon.
The economy was monetized and trade by barter and, later exchange by cowries had
to give way. The colonial government, also by law/proclamation changed the
ownership structure of land overnight. It took all the land of the colony and vested it
in the crown. For example, the Land and Native Rights Proclamation of 1910 stated:
“All native land and all rights over same are hereby declared to be under the control
and subject to the disposition of the government and shall be held and administered

19
for the use and common benefit of the natives” (cited in Obilade 1985: 43). It is
instructive to note that this 1910 proclamation formed the foundation of the 1916
Land and Native Ordinance, as well as the Land Tenure Law of 1962, and the Land
use Act of 1978 currently in force. They all have the effect, by mere pronouncement
of law, of divesting citizens of ownership of land, and vesting ownership of same on
government.

The importance of law can also be seen in the centrality given to constitutional
developments in the history of Nigeria. Hence the 1922 Clifford's constitution
replaced the Legislative Council of 1862 and enlarged its membership. This
constitution introduced the elective principle. The 1948 Richard's Constitution
brought the North and South under a single legislative authority for the first time. It
created a single legislature for the country with three groups of provinces for the
North, Eastern and Western Nigeria. The MacPherson constitution in 1951 gave
legislative authority on specific matters to the Regional houses contrary to that of
the Richards constitution. It also introduced political parties and the first elected
legislature and government in Nigeria. The Lyttleton Constitution of 1954 introduced
the fundamental element of federalism and pro¬vided for the office of Prime
Minister of the Federation, and for the police to continue to be a federal function.
Under it Nigeria became a truly Federal nation with three regions: North, West, East
and a Federal Capital Territory of Lagos. In that year also, WACA was abolished, and
the Nigerian Federal Supreme Court became second in hierarchy after the Judicial
Committee Privy Council (JCPC).

Independence came from a legal act, by signature and handing over of

documents, reminiscent of the 1861 Treaty of Cession, not war. The law was needed
to consolidate, reinforce, and reproduce it across the whole spectra of social,
economic and political institutions throughout the land. In terms of changes in the
legal system itself, the Nigerian Independence Act of 1960 abolished the colonial
laws Validity Act of 1865 as far as Nigeria was concerned. By the fact of
independence, no Act of the British parliament passed after independence could
extend to or be deemed to be applicable in Nigeria any more. Furthermore, the British
Crown lost power to legislate for Nigeria. The Nigerian parliament became
empowered to repeal or amend all the Acts of the British Parliament that had
hitherto extended to Nigeria. Many British laws were in fact repealed or amended,

20
though in reality those some laws were simply re-enacted (most times verbatim) as
local legislation.

Though the British Queen remained the Head of State, while the Judicial
Committee of the Privy Council in London remained the highest court of the land, the
1963 Republican Constitution of Nigeria corrected both anomalies and for the first
time, the Nigerian Supreme Court became truly supreme. A fourth region, the mid-
west region was also created. The legal education Act of 1962 ensured that
practitioners of law in Nigeria do not just regurgitate British ideas by introducing a
local content in legal education. Various laws were also enacted to establish various
corporations such as Electricity, Railways, Ports, Defence, Airways, Shipping,
Insurance, Petroleum, and Security Printing and Minting (Oloruntimehin 1984).

On the whole however, the development of the legal system and the conscious
use of the law to effect changes in Nigeria have been more pronounced under
military regimes, probably because they are less hampered by legal bottlenecks. In
fact, the very take-over of power by military men is illegal and it is not surprising that
one of the first casualty after any successful coup is the Constitution, which is
suspended. The military however must still place reliance on law, particularly
legislation (decrees and edicts) for the far reaching changes that it effects. Hence, it
was easy for the head of the first military regime in Nigeria military junta (Aguiyi
Ironsi) to wake up one day and turn Nigeria from a federation into a unitary state by
enacting decrees. When a counter-coup came six months later, it was again simply
citing a new decree that the new head of state (Yakubu Gowon) reverted the country
back to a federal structure. Furthermore, as part of the effort of the new government
to forestall war, it was again easy to use a decree to create 12 States out of the
existing four regions.

The military has also used the legal system to effect changes in the national
economy. For example, the "Nigerian Enterprises Promotion Decree of 1972" which
was later amended in 1977 was employed to reduce the stranglehold of foreigners
on Nigeria's economy and create room for indigenous people to own parts of the
larger business organisations. Under the decree, certain small businesses were
reserved exclusively for Nigerians. Larger business organisations were opened to
foreigners provided the paid-up share capital is more than Four hundred thousand

21
Naira or the turn-over of the enterprise is more than one million Naira and the equity
participation of Nigerian citizens or association in the business is not less than 40%.
The amendment in 1977 transferred more shareholdings to Nigerians by raising
equity participation of Nigerians to 60%. As a result of this, the notorious Royal Niger
Company which was and is still around, took the name UAC of Nigeria Ltd in 1973
and allowed 40% of the company’s share capital to be acquired in 1974 by Nigerian
citizens and associations. In accordance with the 1977 amendment of the Act, an
additional 20% of UAC’s share capital was publicly offered in 1977, increasing
Nigerian equity participation to 60%. Today, UAC of Nigeria Plc (UAC) is a leading
diversified company, operating in the food beverage, real estate, paint and logistics
sectors of the economy. The name UACN Plc was adopted in 1991.

Other military laws which intendment was to create new relations overnight and
thereby enthrone social justice and social change included decrees on Rent Control,
Price Control, Income Tax Management, Insurance, and Failed Banks. The military
has also used the law to effect changes, instituted some development of the legal
system which have proved helpful to the legal system whether under civilian or the
military. For example, the reform of the Native Court system which saw their (i.e.
Native Courts) abolition and replacement by Area Courts in the north, and customary
courts in the south, was done by the military in the late 1960s. Furthermore, the
establishment of an Appeal Court as the second highest court of the land was also
done in 1976 by the military. So the military has been decisive in fashioning out the
hierarchy of the Nigerian judicial system (Oloruntimehin 1984).

The legal system has been used to intervene in wages payable to workers in
Nigeria through fixing, by law, a national minimum wage. Any wage below is illegal.
The latest is the Minimum Wage Act of 2019. These Acts have been difficult to
enforce but the spirit behind them remains commendable. Laws have also been
used to control trade disputes and curb strikes. The land use decree (called Land
Use Act under civilian regimes) of 1978 was a bold legislation meant to bring social
justice in the use of land. This decree vested the ownership of all land in the country
in the government. As a result, overnight, everybody in Nigeria became a tenant. This
law has achieved some measure of success but it is also a subject of severe
criticism.

22
 Law enforcement at inception of colonialism was conceived to forcibly create
an obedient citizenry conducive to the needs of colonialism. The colonialist went out
of their way to recruit disgruntled people (ex-slaves, ex-convicts, ex-soldiers,
strangers) to police colonial settlements (see Tamuno 1970, Omolewa 1986, Ahire
1991, Maliki 2006). Hence majority of the personnel of the first armed police force
established in Lagos colony were of Hausa extraction and its change of name from
Consular Guard to Hausa Guard, and later to Hausa Constabulary as it grew bigger,
was a reflection of the deliberate policy to recruit Hausa people to police Yoruba in
Lagos. Such an “alien” force is easy to be ruthlessly unleashed on dissenting
indigenous people. In fact, they were used in several times in punitive expeditions
against the natives of Nigeria (Ahire, 1991). Later still the colonial masters were to
encourage companies to set up their own police forces to protect their interest. This
was the effect of granting a Royal Charter to the Royal Niger Company in 1886. It
revealed in clear terms the capitalist underpinnings of colonialism (Omolewa, 1986).
In 1930, the Nigeria Police Force was formed by merging police forces of the
southern and northern Nigeria which had continued to exist separately after
amalgamation.

In the judicial arena, the British Government started appointing Consuls for
Lagos, essentially for the purpose of regulating the trade between the British
merchants and the indigenous merchants in in 1849, even before the formal advent
of colonialism 12 years later. Among the courts established for the colony were the
Courts of Civil and Criminal Justice and the West Africa Court of Appeal whose
judges were the judges of the Supreme Court of Sierra Leone. Appeals from the
highest court sitting in each of the British settlements lay to the West Africa Court of
Appeal. Further appeal lay to the Judicial Committee of the Privy Council in London
(Obilade 1985). The various Native Courts Proclamations and ordinances of early
1900 and in the three regions provided for local chiefs to administer 'native' laws and
collect taxes on behalf of the British government. So the British Administration
averted trouble by not rejecting local laws and customs in their entirety, but by only
relegating them through the repugnancy test. By 1943, a number of statutes were
passed to reform the legal system. They included the Native Courts (Colony)
Ordinance 1943 which slightly amended the Native Courts (Colony) Ordinance 1933;
the Magistrates' Courts Ordinance 1943; the Supreme Court Ordinance 1943; the

23
West African Court of Appeal Ordinance 1943 and the Children and Young Persons
Ordinance 1943.44. The Criminal Procedure Code Law and 1960 and Penal Code
Law 1959 came into operation 30th September, 1960 to cater for northern
peculiarities.

On penal policy, the formal correction system, particularly the emphasis on

punitive prisons or custodial system also began with colonialism. Hitherto
indigenous penal measures were largely non-custodial and included clogging,
mulcting, branding, maiming, restitution, suicide, human sacrifice, exile, banishment,
ostracism, etc. With inception of colonialism prisons were constructed and the
history of penal policies and practices since then have revolved around custodial or
institutional punishments, whether in form of prisons for adults, and remand Homes
and borstals for juveniles and children. Many who are seen as threats to the state
have had to sojourn in prison, sometimes for lengthy periods without trial,
particularly under military regimes where detention can extend to years. The courts
on their part have an inclination towards custodial sentencing.

In conclusion, it must be noted that for meaningful integration, nation-building

and national development, a nation must have a clear direction of what it wants to
achieve. Such a direction is clearly articulated in Nigeria’s “Fundamental Objectives
and Directives Principles of State Policy” contained in Chapter 2 of Nigeria’s 1999
Constitution. Those provisions if allowed to guide state policy will make Nigeria a
truly welfarist state, committed to an all-inclusive national development. Such
commitment would have laid the vexed issues of national interest and national
question to rest and reduce the various forms of conflicts that bedevil the nation to
benign forms. Unfortunately, the provisions, though enshrined in the constitution are
not justiceable and are observed more in the breach.

British rule, failed to encourage Nigerians to share a common historical

heritage. Rather it treated the two main regions as separate countries. The result
was that, for a long time, Northern Nigeria resisted independence. Secondly, it made
the traditional rulers to lean more on the British officials and treat the educated elite
with suspicion. Thirdly, it imposed on the Nigerians a set of political values and
preferences without asking Nigerians for their choice. Fourthly, it robbed
Nigerians of the right to administer themselves to the exclusion of outside

24
interference. Lastly, it encouraged ethnic divisions, and rivalries. As Alli (2001:165)
puts it; the truth of the matter is that the entity called Nigeria was conceived,
constructed, cemented and held together by force, threat of force, deceit and
subterfuge to the ultimate benefit of the Hausa/Fulani, the Yorubas and Ndigbo, in
that arithmetical progression.

The legal system can be more effective and efficient in creating integration,
nation-building and development if the government abides by the provisions of
Chapter 2 of the 1999 constitution earlier cited. When the spirit enacted in chapter 2
of the 1999 constitution are given concrete expression, Law and Social Science will
more effectively play the role of social engineering and nation building

Towards an Applied Sociology of Law in Nigeria

“Applied Sociology”, in a simple and broad sense, means applying sociological

methods, knowledge, and research skills to practice with a view to enabling decision
makers make informed choices about social problems, issues, processes and
conditions and thereby bringing about an improvement in them. Ward (1896 &
1906::iv) employed the term to refer to “the means and methods for the artificial
improvement of social conditions on the part of man and society as conscious and
intelligent agents”.

Applied Sociology may encompasses evaluation research, needs assessment,

market research, social indicators and demographics in the areas of medicine,
mental health, and community health. It may also entail improving access to certain
services, designing surveys and collecting data for purposes of tracking public
opinion, creating profiles of various populations, measuring change in specific social
indicators, studying the social impact of emergency communications during and
after a crisis; working with a community organization to establish an evidence-based
program for disadvantaged groups; conducting participatory action research in
partnership with a community; understanding and resolving issues in group and
organizational dynamics within an institution or complex organizations such as
military, educational, religious, health or criminal justice institutions to mention but a
few (See Ogburn 1930).

25
 Scientific methods, which are neither prescriptive nor evaluative, are expected
to be the basis for applied research in order to distance it from ethics, religion,
commerce, advocacy, journalism, literature, and propaganda. The term “social
engineering” though acquiring a negative connotation during in Soviet Republic and
Nazi Germany, captures the tendency of Applied Sociology to use analytical and
critical evaluations to guide social reform and change.

The term Applied Sociology could be ambiguous as some reserve it for

sociologists who conduct studies for organizations. Ethical issues have been raised
concerning the goal of such organisations (businesses, associations and
government) on whose behalf such researches are carried out and the neutrality of
the researchers. For example, it is possible for slight distortions in the research
methodology (e.g. something as little as the phrasing of questions) to be used to
obtain findings desired by the client.

Furthermore, the fact that applied social research may be used in policy
formation makes it vulnerable to controversies about misuse or misapplication,
especially as the sociologists may not be directly involved in policy formulation and
implementation. These reservations notwithstanding, the term Applied Sociology
remains resilient and continues to survive. The need for scientific applied social
research to bridge the gap between theory and practice and to translate social
science research findings into forms that enable others to understand and address
social problems remains compelling.

Applied Sociology of Law is concerned with the application of the research and
knowledge of this sub-discipline of Sociology to ‘real world’ problems of law, crime,
criminal behaviour and criminal justice. It seeks to find solutions to particular issues
raised by these problems and to problematize current and suggested approaches to
solving them. It draws insights from both academic and administrative sociology
exploring their relevance and applications to policy and practice.

It is pragmatic, functional, and has significant relevance in addressing the

conceptualization of crime, offending, victimization, and the relationship between
government agendas, knowledge production and real world concerns. It addresses
the practical implications of criminological scholarship and thus highlight the role
that criminological research can play in shaping the CJS and its responses to

26
offenders and victims at a policy level.

Principal questions which an Applied Sociology of Law should address include:

What is law? Who makes the law in whose interest? What are the sources and
content of law? How can the law be made to be more responsive and proactive?
Who enforces the law and in whose interest? How can enforcement be made more
neutral and beneficial to all stakeholders and all concerned? What is to be done
about offenders? What is to be done about crime? What is to be done about on
behalf of the victim of crime? How should research knowledge be transmitted to
practice? Which are the most effective reforms for the justice system? What are the
cost-benefit analyses of the various decisions at major points of the CJS? What are
the relative merits of alternative laws, policing, adjudicatory, and correctional
strategies? Which can be adopted or adapted with best results for Nigeria? How
should criminology and security studies and training be conducted? (See: Stout &
Klamp 2015; Perlstadt 2018; & CSA 2019),

Legal sociologists are concerned about how their work is received by the wider
society and the weight given to their research and insights. The current trend is for
most practitioners of Sociology of Law to become “Sparkers” of ideas and inform the
practice of security and criminal justice operators. There are however, still many
others who are suspicious of applied research and simply want to do science and
leave application to policy makers.

Black (1972) in his famous article on The Boundaries of Legal Sociology argues
that Sociology of Law should remain a “pure science” and should not strive to
become an “applied science”. Basing his argument on the premise of classical
positivism, he criticised an Applied Sociology of Law on the grounds that it shares
much in common with moral philosophy, jurisprudence, and normatively oriented
study. For him, scientific Sociology is the study of facts which must be separated
from the study of values that an Applied Sociology of law has a tendency of being.

According to him, the proper concern of legal sociology should be the

development of a general theory of law. A purely sociological approach to laws
should involve not an assessment of legal policy, but rather, a scientific analysis of
legal life as a system of behaviour. The ensuing general theory of law would be able
to predict and explain every instance of legal behaviour. This will be a Sociology of

27
law that is true to basic positivist principles. He maintained that while not denying
that an impressive body of empirical works on the CJS that have emerged over the
years, the contribution of such work to the scientific discipline of Sociology of law is
limited.

Black argued that the quality of applied science depends upon the quality of
pure science. So legal engineering ultimately requires a general theory of how legal
systems behave as natural phenomena. By contrast, the core problems of legal
policy-making are problems of value. Such value considerations are as irrelevant to
Sociology of law as they are to any other scientific theory of the empirical world. He
concluded that even if utility is the issue, the utility of Applied Sociology of Law must
ultimately depend on the quality of Pure Sociology.

Overall Black’s argument is not necessarily contradictory to the existence of

Applied Sociology of Law though he goes to great lengths to maintain this. This is
because the Applied Sociology contemplated here is one that relies on the methods
and principles of Pure Sociology.

This tension between the designation of Sociologists as “pure scientists” and

as “social engineers”/reformers was brought to the fore in a recent debate on the
WhatsApp/Social media platform of the Nigerian criminological society (NSE). A
member had posted a video showing police recruit trainees being punished and
brutalized as part of routine training and test of resilience. The member observed
that such barbaric training in the long run only engenders police brutality in dealing
with the civil populace. Prof Alemika, a renowned and foremost Legal Sociologist in
Nigerian, in response had written that (09/09/2020 6.29pm): “this is not included in
the curriculum for training. These are excesses of individuals. .. what can the
torturers claim to be teaching?” Prof Don Omale, another prominent Criminologist
then wrote that (6.46 09/09/2020): “Punishment and discipline is in the curriculum”
and that he can say this authoritatively based on knowledge acquired in the course
of his teaching experiences with the Police, Prisons and Military institutions. Prof
Alemika replied that (7.30pm 09/09/2020): “Organisationally mandated actions
should be distinguished from informal organisational deviant practices. … My
observation is that our analysis and critiques need to be more nuanced and reflexive.
I do not in any way justify what I will rather from my own viewpoint refer to as

28
brutality, even for advocacy”. The author of this piece contributed to the debate by
noting that (10.07 pm 10/09/2020): “Hobnobbing with these security organizations
should provide unique opportunities to correct rather than to condone and defend
their inadequacies. Or why else should we regard ourselves as better informed social
scientists and social engineers”.

The essentially theoretical leaning of Sociology has hampered its image,

especially in a poor developing society like Nigeria impatient to see concrete inputs
of various disciplines in nation-building. An applied focus would lend it more
relevance and professionalism. Students of Applied Sociology of Law, equipped with
their basic knowledge of sociology and research skills should be able to undertake,
as part of their trainings, visits of observations to criminal justice institutions for first
-hand field experience of how these agencies work while their training curriculum
should include a range of external lecturers from professionals working in the
criminal justice field. Through this they will gain insights and knowledge on a range
of professions, have opportunities to gain work experience, and fit into specific
workplaces after their schooling (See Jaja 2006).

Already a number of prominent Nigerians have criticised Sociology for being

obsolete and of no use in the 21st century. Then President Olusegun Obasanjo
(Nigeria’s Military Head of State (1976-1979) and Civilian President (from 1999 to
2007) fired the first significant salvo in 2005 when he declared that Sociology is
useless and has no development value for Nigeria. He added: “Some people come to
me and they said they have two Masters degrees and yet cannot get a job. Then I
asked what did you read and they replied Mass Communication, the other one is
Sociology. Then I told them, you are uneducated. You now have to go and be re-
educated to create value for your skill” (Nwankwere, 2005:10). Quite recently,
(September 25/09/2020), Reno Omokri, a former presidential aide to President
Goodluck Jonathan (2010-2015), for reasons best known to him, took to his twitter
to ask: “what is the relevance of Sociology in the year 2020? The return on
investment for such a Course is minimal. In profit and loss accounting, reading
Sociology for four years is purely a loss, in terms of time and money, a bricklayer is
more relevant”! This is not the place to respond to these displays of crass ignorance
by prominent politicians. Ironically, such is widespread among policy makers in
Nigeria that supposed to look forward to and utilize inputs from Sociologists and

29
social scientists. A sure way of changing this mind set is for the relevance of
Sociology to be practically demonstrable. When Sociology becomes more proactive,
practical/applied oriented and more professional in its different areas specialities,
Sociology of Law inclusive, such derogatory misconceptions and stereotypes about
its role and relevance in society will die naturally.

REFERENCES
Ahire P.T. (1991). Imperial Policing: The Emergence and Development of the Police Force in Nigeria
(1860-1960). Philadelphia: Open University Press, Milton Keynes.

Alemika E. E. O. (1994). “Sociology of Law: An Introduction to its Development and Problems”. In Otite
0. (ed) Sociology: Theory and Applied, pp. 285-298, Lagos: Mathouse Press Ltd.

Alli C. (2001). The Federal Republic of Nigeria Army: The Siege of a Nation. Ikeja: Malthouse Press Ltd.

Anleu F. (2009). “Law in Classical Social Theory”. Chapter 2, In Fox et al (eds). Law and Social Change.
http://www.sagepub.com/upm-data/28828_Anleu___Chap_2.pdf Accessed: 12/08/2015.

30
Aquinas T. (1270). On Divine Law. Cited in Mclaren O. (1948). Private Property and Natural Law:
Aquinas Papers no. 8.

Aubert V. (ed) (1963). Sociology of Law. London: Penguin.

Auknotes (2011) Law and Society. http://sites.google.com/a/g.rit.edu/auknotes/law-and-

society/chapter-7-law-and-social-change Accessed: 12/08/2015.

Austin J. (1954). “The Uses of the Study of Jurisprudence” in H.L.A. Hart (ed). The Province of
Jurisprudence Determined. London: George Weindefield & Nicholson Ltd.

Banakar, R. (2003). Merging Law and Sociology: Beyond the Dichotomies of Socio-Legal Research.
Berlin/Wisconsin: Galda and Wilch.

Banakar, R. (2011). "The Sociology of Law: From Industrialisation to Globalisation", Sociopedia.isa,

2011 ; University of Westminster School of Law Research Paper No. 11-03.

Black, D. (1972). "The Boundaries of Legal Sociology". In Yale Law Journal, 81.

Bredemeier H. C. (1962). Law as an Integrative Mechanism. Extracts in Lloyd L.M. (1979). Opcit Pp.
406-411.

Cotterel, R. (1992). The Sociology of Law: An Introduction. (2nd ed.). London: Butterworths.

Cotterrell, Roger (2007). "Sociology of Law". In Encyclopedia of Law and Society: American and Global
Perspectives (Thousand Oaks: SAGE).

CSA (2019) “Applied Sociology”. Publication of the Canadian Sociological Association.

http://www.csa-scs.ca/files/webapps/csapress/applied/about/

Deflem, M. (2007). "Sociological Theories of Law". Pp. 1410–1413. In Encyclopedia of Law and
Society: American and Global Perspectives. David S. C. (Ed). California: Sage Publications.

Dicey, A. (1915). Introduction to the Study of the Law of Constitutions. London: Macmillan

Durkheim, Emile. (1893). The Division of Labour in Society. New York: The Free Press (reprinted 1984).

Ehrlich E. (1936). Fundamental Principles of the Sociology of Law. Cambridge, MA: Harvard University
Press.

Friedman L.M. (1967). “Legal Rules and the Process of Social Change”. Stanford Law Review. Vol. 19,
No. 4 http://www.jstor.org/stable/1227535. Accessed: 12/08/2015.

Gurvitch, Georges (2001). Sociology of Law. New Brunswick, NJ: Transaction (orig. 1947).

Hart h. L. A. (1954). The Province of Jurisprudence Determined. London: G. Weindefield & Nicholson
Ltd.

Hobbes, T. (1651). Leviathan. Oakesholt M. (eds) (1946). Oxford: Blackcrest.

Holmes O. W. (1897). The Path of Law. Extracts reprinted in Lloyd L.M. (1979), opcit Pages 452 -459.

ISA (2011). International Sociological Association Research Committee on Sociology of Law RC12
http://www.isa-sociology.org/rc12.ht

Iwarimie-Jaja D. (2006). “The Need for Establishing a Nigerian Society of Criminology”. A paper
presented at the Meeting of Nigerian Criminologists and interested persons in related
professions. Held at Sissi Hotel, Port Harcourt from October 27-28th, 2006.In African Journal of

31
 Criminology & Justice Studies (AJCJS) Volume 2, No. 2, November 2006 Pp 154-160.

Jhering R. (1866): “Law as Means to an End”. Extracts in Lloyd L.M. (1979), opcit Pages 374-375

Lloyd, L.M. (1979). Introduction to Jurisprudence. 4th ed, Stevens & Sons. London.

Lloyd, D. (1987). The Idea of Law: A Repressive Evil or Social Necessity? London: Penguin Books.

Maine, H. (1861). Ancient Law. Excerpts reprinted in Lloyd L.M. (1985), opcit Pages 658-661.

Maliki A. S (1995). “Justice before Trial: A Study of Pre-trial Police Practices in Kaduna State”. M.Sc.
Dissertation, submitted to Department of Sociology, A.B.U, Zaria.

------------ (2006). The Sociology of Law. Lagos: National Open University of Nigeria (NOUN).

------------ (2013). “An Examination of the Nature and Operations of Islamic and Statutory Laws of
Testate Succession in Kaduna State, Nigeria”. Journal of Islamic Studies Research (JISR) Vol.4,
No.1, Pp 43-56.

------------ (2014). “The Role of the Nigerian Legal System in National Integration and Nation-Building
(1914 -2013)”. A Paper prepared for the National Conference on “Nigeria since the 1914
Amalgamation.

------------ (2014). “The History of Sociology of Law and Criminology in Nigeria”. Zaria Sociological
Journal. (ZASOJO). Vol3, No1. Pp. 63-68

------------ (2015). “Law and Social Change in Nigeria: A contextual Analysis”. Zaria Journal of Social
Sciences. Vol.3 No.2. Pp. 53-79

Malinowski B. (1926). Crime and Custom in Savage Society. New York: Simon and Schuster.

Marx, K. (1959). “German Ideology and Preface to a Critique of Political Economy.” Reprinted in
Thompson, K. & Tunstal J. (eds) (1971) Sociological Perspectives: Selected Readings. London:
Penguin Books.

Merton, Robert (1957). Social Theory and Social Structure. New York: Free Press.

Mills, W.C. (1959). The Sociological Imagination. London: Oxford.

Minow M. (1994). “Law and Social Change”. 62 UMKC Law Review. Pp. 171-184.
(http://heinonline.org).Accessed:12/08/2015.

Montesquieu C. (1748). The Spirit of the Laws. Oxford: Oxford Univ. Press.

Nwakere L. (2005) “Why are Nigerians still Readfing Mass Communication and Sociology”. Daily Sun,
Monday 08/08/2005. http://www.laits.utexas.edu/africa/ads/1188.html

Obilade, A.O. (1985). The Nigerian Legal System. Ibadan: Spectrum Law Publishing.

Ogburn, W. F. (1930). "The Folkways of a Scientific Sociology". Publications of the American

Publications of the American Sociological Society, 16:1-11.

Oloruntimehin, F. (1984). "Social Change and the Emerging Legal Structure" In Pearce T. O. and Afonja
S. (eds), Social Change in Nigeria. Essex: Longman.

Omolewa M. (1986). Certificate History of Nigeria. Lagos: Longman.

Parsons T. (1951). The Social System. New York: The Free Press.

32
Perlstadt H. (2018). Applied Sociology as Translational Research: A One Hundred Fifty Year Voyage.
https://msu.edu/~perlstad/History_Applied_Sociology_H_Perlstadt_Jun_05.pdf Accessed
24/04/2020

Petrazycki, Leon (1955). Law and Morality. Cambridge, MA: Harvard University Press.

Podgorecki, A. (1974). Law and Society. London: Routledge and Kegan Paul.

Pound, R. (1943). "Sociology of Law and Sociological Jurisprudence." University of Toronto Law
Journal 5.

Quinney R. (1970). The Social Reality of Crime. Extracts reprinted in Lloyd L.M. (1979). Opcit Pp. 396-
406

Quinney, R. (1975). "Crime Control in a Capitalist Society: A Critical Philosophy of Legal Order" In
Taylor et al (eds.) (1975). Critical Criminology. op cit.

Salmond J. (1954). “Jurisprudence”. In Hart H.L.A. (ed) op cit.

Savigny F. K. von (1840). “System of Modern Roman Law”. Reprinted in Lloyd L.M. (1979). Op cit. Pp
653-658.

Selznick, P. (1969). Law, Society and Industrial Justice. New York, Russell Sage Foundation.

Selznick P. (1959). "The Sociology of Law". In Sociology Today. Merton R. et al. (eds). N.York: Harper&
Row.

Spitzer, S. (1981). "The Political Economy of Policing". In Greenberg D.F. (ed) Crime and Capitalism:
Reading in Marxist Criminology. California: Mayfield Publishing Company.

Stone J. (1966). Law and the Social Services. Extracts reprinted in Lloyd L.M. (1979). Opcit Pp.417-
420.

Stout B & Klamp K, (2015). “Applied Criminology and Criminal Justice“. In James D Wright (editor-in-
chief), International Encyclopedia of the Social & Behavioral Sciences, 2nd edition, Vol 1.
Oxfords Elsevier pp 832-836

Sumner G.W. (1906): Folkways: A Study of the Sociological Importance of Usages, Manners, Custom,
mores, and Morals. New York: Free Press.

Taylor I., Walton P., Young J. (eds) (1973). The New Criminology. London: Routledge & Kegan Paul.

Taylor I., Walton P., Young J. (eds) (1975). Critical Criminology. London: Routledge & Kegan Paul.

Ward, L. F. (1896) Dynamic Sociology or Applied Social Science, 2nd edition, New York: D. Appleton
and Company.

Ward, L. F. (1906). Applied Sociology: A Treatise on the Conscious Improvement of Society by Society.

Weber, Max. (1922). On Law in Economy and Society. New York: Simon and Schuster.

Documents

-1999 Constitution of the federal Republic of Nigeria

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 -Conversations on the WhatsApp platform of the Nigerian Society of
Criminology, NSE of 9th & 10th September, 2020.

*This write-up is made up, substantially, of excerpts from previous writings on the
subject by the author, which have been updated and supplemented to meet the
“applied” requirements.

34