The Relevance of the Sociological School of Jurisprudence to Legal Studies

7/31/2019 The Relevance of the Sociological School of Jurisprudence to Legal Studies

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THE RELEVANCE OF THE SOCIOLOGICAL SCHOOL OF JURISPRUDENCETO LEGAL STUDIES IN NIGERIA

BY

ETUDAIYE, MUHTAR ADEIZA

INTRODUCTIONJurisprudence among its many definitions has been described as beingconcerned with the nature of law, its purposes, the means (institutional andconceptual) necessary to effectuate these purposes, the limits of the lawsefficacy, the relation of law to justice and morality and the modes by which lawchanges and grows historically.

1This is a definition that is almost apt when

considered against the background of Professor A.A. Okunnigas proclamation athis inaugural lecture

2 as follows: Nobody, he says, including the lawyer has

offered, nobody including the lawyer is offering, nobody including the lawyer will

ever be able to offer a definition of law to end all definitions. It is this papersview that the abstractness of the word law and jurisprudence does not renderthem meaningless but rather amplifies their meaning.

The definition of law has spiraled into many schools which have becomesubjects of scientific enquiry. In the early days, the notion that principles whichwere scientific in origin could be applied to diverse areas such as law andcriminology owed much to Benthamite utilitarians and was eventually given muchimportance by the French philosopher, Comte (1798-1857) who gave a muchencompassing approach to the study of society and coined the phrasesociology. 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 aswell 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 itseffect 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 bestudied and in the same token, taught.

SCOPEThe sociological schools idea of law is a continuation of this persistent processof enquiry into the origin of law as begun by the Historical School. This view ofthe sociological school is in tandem with the knowledge of law with regard tosociety: 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 andrejects the formal and logical idea of law according to the positivists on theground that the formal law presents only a partial portrait of the law. In effect, thepre-occupation with the study of the science gave law a prominent place in the


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new studies and the 19th

century unearthed a number of leading sociologists inEurope (and America) especially Germany who began to look to the newly foundstudies of society as a key to a better understanding of law than had beengained from the Natural Law School and the Positivists.

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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 isto be found;

d. that the law is not an absolute and static body of rules in themselves butare relative to time, place and society;

e. that there is such a thing as social justice. However, views differ greatlyas to what constitutes social justice and the achievement thereof.

Comte had stated that the advancement of knowledge could be through onlyobservation and experiment

4and he furnished a classification of the social

sciences that was hierarchical. Comte considered it most fruitful to apply thescientific method to sociology despite the inherent difficulty. Hecompartmentalized sociology into two i.e. social statics and social dynamics allemanating from his description of sociology as the science of social order andprogress. He saw society as an object constantly in development which if viewedin 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 theprocess of determining the variables by which society functioned with regards tolaw and vice versa.

The importance of the sociological school of law may be immediately noticedwhen the attitude of law and state is compared. The previous attitude of the statewas to confine itself to law and order enforcement and thereby striving to enforcestability in society by enforcing the norms regulating the existing relationshipbetween individuals and society as well as between individuals. This in manyways (which we will evaluate) can be futile. Therein lies the allure of thesociological school: in the failure of the laissez faire notion of law and state.

The social, economic and political problems of the 19th

century has harassed thestate and law into casting off the cloak of neutrality towards the society. Benthamhas shown by his theory of utility how conscious and deliberate efforts could bemade by the law and state to reform the law. This was to allow for theemergence of functional conditions in a society which had subscribed to thelaissez 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 andlegislation expounded by him had great influence in bringing about the welfarestate law and economy. It was this idea that sociological scholars expounded in


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insisting that the role of the law must be seen as a creative one. The law isexpected not only to maintain law and order, enthroning the interests ofindividuals but also to formulate the objects and purposes which society in itsevolution or conscious and deliberate determination must achieve. These are theobjectives the law and the state must be used to achieve.

Dias5

postulates that of recent sociology still harboured the uncertainty of youthas a subject that was in dire search for respect. In this vein, the author statedthat sociology was very much in need of the descrip tive word scientific to justifythis search for acceptance and dignity. He postulated that there were five mainreasons for resemblance between sociological and scientific methods (more orless reinstating Johnson)

6as follows:

a. that sociology, like science proceeds from observation to hypothesis anddeductions are checked against the background of reality;

b. that sociology is theoretical and its main aim is synthesizing otherdisciplines 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 behaviourrather than laws that seek to decree social behaviour (that which is andnot that which ought to be).

The laws derived from a sociological investigation of society will be extractedfrom:

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; ande. 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 remainsenormous. The school has opened new methods in examining the interactionbetween 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 alawyers role in society has been widened to encompass more creative anddynamic functions. Lawyers are no longer warriors of just the rights of individualsbut have formed the vanguard for society as well. An inter disciplinary approachin law has also come into the foreground with the emergence of the school. Ithas also affected the concept of legal education in many countries e.g. theUnited States of America.

The sociological school of jurisprudence became inundated with its own array ofscholars who went on to build upon Comtes expositions. This brought about a


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Rudolf Von Ihering has however been criticized for his inability to provide a scaleof values for achieving his conflict between the ideas of interest and purpose. Hegave very little insight into how this balance could be achieved throughobservation and prediction. Some scholars posit that Iherings genius was in the

origin of laws rather than in its application.

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He died in 1892.

EHRLICH (1862-1922)Ehrlichs The Fundamental Principles of the Sociology of Law laid stress on theliving law of the society as distinguished from the formal law encapsulated bydecided cases and statutes. To him the formal law as symbolized by judicialdecisions and statutes presented an imperfect picture of the real goings on in thecommunity.

9The norms that govern society, according to him, always leave the

formal law in their wake with regards to the development of the society. The reallaw 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 tobe laws while norms of conduct govern everyday life of the society. In this wise, acommercial usage may with time develop, but it is only after a considerableperiod of time that the court will incorporate it into contracts. In even furtherdevelopment, it may eventually be embodied in statutes by the legislation makingbody at the time. However, by the time these usages and practices find their wayinto judicial decisions and legislation, they may have undergone changes ormodifications. Also, new usages and practices may have evolved and as suchthe process continues perpetually.

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

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

When it was asked how the living law is to be discovered, the answer accordingto Ehrlich was a) judicial decisions which were only evidentiary; b) modern


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business documents against which judicial decisions needed to be checked, andabove all c) observation of people, by living among them and noting theirbehaviour.

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 theliving law which must be discovered. He states that the living law is not alegislation that is habitually disregarded by the society but that which is obeyedand given importance. Further, the customs of a particular society as well as itsmorals etc. may play a role in the society in which such custom or moral attainssuch devotion as to be termed part of the living law of that society. The notion ofobedience or disobedience of formal laws as against living laws are deeplyrooted in the psychology of the society. This, in itself, is not immutable. The lawsthat are living and socially important may change from society to society and infact may change from time to time. It is this change that must be reflected againand again in the formal laws of the society.

There is no gain reiterating again the importance of Ehrlichs thesis onsociological jurisprudence. It was of profound influence in diverting the attentionof jurists from over dependence on formal laws and giving more insight into theproblems and facts of social life vis-a-vis the acceptance of formal laws and itsobedience. However, it is not clear whether Ehrlichs contempt for formal laws asit were, was too judgmental. He did not endow formal law with any creativequalities and saw it as inscrutable, and as such non-functional. While it is truethat 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 ofchange for the society, and this mainly through the states enforcement. Hisdistinction between norms of decision and norms of behaviour had become alittle belated even when he propounded it. The formal law had become evenmore important because it had gained its own effectiveness not merely on theback of the living law. At any rate he was not very forthcoming in the relationsbetween these two norms. Again it was fruitful to seek to study law againstsocietys happenings but the mode by which this study was to be conductedaccording to Ehrlich would have erased the significance of formal lawscompletely. This would not have been helpful.

BENTHAM (1748-1832)Benthams utility outlook of life and law has already been mentioned in passing.He was said to be an individualist who sought to approach the problems ofsociety on that basis. Pain and pleasure was the great governor of man. As suchthe function of law was the actualization of the greatest happiness of the greatestnumber. This was one of the propositions of the Principle of Utility whichmeasure the utility of actions in the amount of happiness it gave people. It is theminuteness of detail that brought about Benthams importance in expositing theprinciple of utility for he was by no means the creator. Hume would seem to bethe originator. The happiness of each individual eventually results in the


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happiness of the whole society. Law was therefore most functional when it couldachieve this. It was difficult however to ignore that the pleasure of the individualin a simple form would ultimately run counter to that of the community. It hasbeen said that he may have had in mind the duality and concurrence of the twoanalogies of the individual and the community. This is where the community

interest lay in the political and public domain while the individual interest lay instrictly private matters.

In spite of the importance of Benthams principle in his Introduction to thePrinciples of Morals and Legislation and his subsequent influence in the annalsof jurisprudence, his propositions were not above criticism. And it turns out mostof the criticisms were apt. It has been found out that the pleasure and painhypothesis were subjective in nature and as such impossible to adjudicate on inan objective way. Since conduct was not limited to pain and pleasure givingqualities, it was in many cases simply a question of individual reaction. Theconsequence of an action may also give rise to immediate pain with a promise of

future pleasure etc. These issues relating to uncertainty make observation andassessment tedious. Again, it is not immutable that the happiness of the majoritywill lead to the happiness of the whole society. These aptness of the criticisms ofhis principle may have arisen out of Benthams faith in the existence of theaverage man.

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

ROSCOE POUNDThe jurisprudence of interest as propounded by Ihering was further expatiatedupon by Roscoe Pound, an American jurist of the present period. The basis ofPounds theories lay in the search for the solutions to the problems of Americansociety at the time. This was with particular reference to what was perceived asequitable in the distribution of the abundant natural resources in America at thetime. His studies believed in using the knowledge of the social sciences as aninstrument of bringing about social change. This change was grounded oncontrol, adjustment of social relations and general troubleshooting.

Pounds sociological jurisprudence placed a lot of importance on the study of lawin its direct relationship to the society. He believed the society must be made asa prelude to the making, interpretation and application of laws. For legalenforcement to be effective, the lawyer, jurist and legislator must study society.Pound espoused the idea of having a justice ministry that was concerned withthe psychology and philosophy of judicial matter against the background ofsociological studies so that the purpose and object of the law could beachieved.

10This achievement could be through only constant and consistent

study of society.


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Pound realized that the whole of the common law was filled by the impression ofthe individual and posited that individual interest could be adequately protectedand 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 worthyof protection;

c. The jurists must determine the limits within which those recognizedinterests could be realized; and

d. The jurists must select the means for realizing and giving effect tothose recognized interests within the limits so determined.

The role of the lawyer is likened to that of an engineer and his aim being to builda structure of society in such a way as to establish the satisfaction of themaximum 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 eachother.

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

a. individual interest;b. public interest; andc. social interest.

The individual interest are the claims, demands, desires and expectations thatare purely individualistic in nature. As such, individual interest could be said to bean interest of substance, personality, domestic relations, honour, reputation,privacy, physical person, belief, opinion and so on. Public interest refer to theclaims, demands, desires or expectation of the individual looked at from thestandpoint of the state. An example is property acquired by the state. In socialinterest, most of the issue stated under individual life are the same except thatthis is held in a social context. Also, there is the social interest of state in thegeneral health etc. of society. There is also the social interest in morals, religionand so on. The object of the exercise is to balance these interests against eachother by the jurists. However, there may be difficulties when interests of differentclasses are in conflict e.g. the individual interest against public interest. Thisbalancing has mostly highlighted the fact that law was a potent instrument forsocial progress.

Roscoe Pound has not been without his critics:

a. Pounds analogy of engineering has been said to be inept. This isbecause engineering was done with skilled ambience and it was


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possible to predict waste and stress as well as the quantity. This wasnot the case with law. At any rate, law and society changed tooconsistently for such a description.

b. He assumed that interests were there for the law to recognize andprotect. 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 twoobjects.

There have been other scholars who have had great impact in the studies of thesociological approach to the field. Montesquieu (1689-1892) had propounded hisown theory laying great stress on the influence of the climactic and geographicalconditions of law of which history was a backdrop to this study. Duguit(1859-1928) insisted that social life should be viewed as it is lived. He forged his idea

based on the interdependence of man and called it the principle of socialsolidarity. All these scholars enthroned one idea, the study of law through theeyes of the society and vice versa.

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

Facts which are the occasion, cause or effect, immediate or otherwise, ofrelevant facts or facts in issue, or which constitute the state of thingsunder which they happened, or which afforded an opportunity for theiroccurrence or transaction are relevant.

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This may be illustrated in several ways but one would serve the purpose. A, anomadic Fulani cattle herdsman camps his herd of cattle in a bush inOgbomosho. B in attempting to steal one cow in the night thinks that he hassucceeded in tranquilizing it but the cows moo rouses A from his slumber. Bythe time he gets to his cow A finds his dead cow in Bs hands. A, in a fit of ragelaunches himself at B stabbing him with his dagger from which wounds Bimmediately 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 beentitled to introduce evidence to show that a nomadic Fulani cattle herdsmanplaces a lot more value (sometimes emotional) on his cattle and that the sight ofB remorselessly holding his dead cow had triggered some fury in A. it wouldamount to a relevant fact that A killed B. The piece of sociological evidence ofthe state of As community would carefully fit both the bill of the occasion, cause


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or effect or constitute the state of things under which they happened, or whichafforded an opportunity for their occurrence passing the test of relevancy. Ofcourse it is a different matter entirely whether the judge would find evidence ofthat 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 CriminalCode) 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 willallow evidence derived from the sociological fields while such considerations arenot taken into cognizance in the codification of laws. For, in many countries, notleast of all Nigeria, legislation has not appeared to follow sociological preceptsthereby leading to laws being ignored or outrightly contravened. There aremyriad reasons adduced for this.

The most significant of which is the specific sociological setting in Nigeria thatallows for permissiveness. In many cases corruption has rendered lawsineffective largely due to the fire brigade approach to legislation devoid ofsociological investigation and also coupled with an abundance of lack ofenforcement. The Taxation laws

13and the Bankruptcy laws

14are called to

question. Prof. D. A. Ijalaiye cited15

other cases which include the ownership ofland vested in the governor of states

16, the law against smoking in public

17,

lynching of apprehended suspects18

, bigamy laws19

and the offences againstpublic health.

20

Another is the all too lengthy intermissions of military dictatorship in Nigeriaduring which a supreme military body that considers itself under no duty, moralor 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 ofNigerian laws are promulgated. Not too far removed from this, is the often lazy,reckless, uninspired and pusillanimous legislatures that Nigeria has beenblessed with during the short interregnums of constitutional government. Thecontribution of these legislatures have been restricted to passing the oddsocially challenging bills as the annual and eventually routine AppropriationBills.

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

Notwithstanding, law and legislation must take cognizance of non-legal andextra-legal considerations. The Sociological school thinkers are not alone inadvocating this phenomenon. The American courts have since 1907 acceptedevidence derived from sociology, psychology and other sciences in adjudicatingon issues of law and policy.

21Of course this provokes a virulent controversy of a


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different kind relating to the question of giving meaning to constitutions and otherstatutes.

CONSTRUCTION OF CONSTITUTIONS STRICT CONSTRUCTION VERSUSLIBERAL CONSTRUCTION.

One contentious controversy is often lost sight of in the agitation for theapplication of sociological jurisprudence as the courts are clearly entitled to. Andthat is the larger question of the construction of the constitution especially andother statutes. Should the law be construed narrowly and in terms of ajurisprudence of original intention as the strict constructionists like formerUnited States Attorney General (under President Ronald Reagan) Edwin Meesewould prefer or should it be construed liberally in all its breadth, sociology,psychology and all? The strict constructionists insist that it leads to judicialactivism (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. Withoutoriginal intention and strict construction, there would be only one surviving lawand that is the whims and caprices of the judge. For what is one mans sociologydoes amount to another mans personal view of utopia

22in the words of former

American President Ronald Reagan.

These views were expressed with a view to the construction of the Americanconstitution. 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 shortcomingsof the strict construction argument can however be graphically illustrated.Bowen

23observes thus:

One has to wonder whether the Attorney General (Meese) hasconsidered the kind of genie that can rise from the constructionist bottle.Strict adherence might have prevented his boss from making war inGrenada. Keeping the Central Intelligence Agencys favourite secretswould be impossible. There could be no federal minimum wage. The AirForce could not be funded (the Constitution mentions only an Army and aNavy), the Federal Communications Commission, if it existed at all, couldnot assign television channels. The fact is that virtually every genuineconstitutional question has unique complexities that do not lendthemselves to the slam bang simplicity espoused by Reagan and Meese.For as Jefferson noted two centuries ago, the founders laid theirshoulders to the great points, knowing that the little ones would follow ofthemselves

One should add that there may never have been a Central Bank (or the FederalReserve Board) in America since it was not expressly provided for under theConstitution. For when the Congress created the Bank of the United States in1791 the constitutionality was in doubt as the Constitution never gave Congress


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power to create corporations. Mr. Chief Justice Marshall was his usual eruditeself in holding

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Among the enumerated powers, we do not find that of establishing abank or creating a corporation. But there is no phrase in the instrument

which, like the articles of confederation, excludes incidental or impliedpowers; and which requires that everything granted shall be expressly andminutely described A constitution, to contain an accurate detail of all thesubdivisions of which its great powers will admit, and of all the means bywhich they may be carried into execution, would partake of the prolixity ofa legal code, and could scarcely be embraced by the human mind. Itwould probably never be understood by the public. Its nature, therefore,requires, that only its great outlines should be marked, its importantobjects designated, and the minor ingredients which compose thoseobjects be deduced from the nature of the objects themselves. That thisidea was entertained by the framers of the American constitution, is not

only to be inferred from the nature of the instrument, but from thelanguage. It is also in some degree, warranted by their having omittedto use any restrictive term which might prevent its receiving a fair and justinterpretation. In considering this question, then, we must never forget,that it is a constitutionwe are expounding intended to endure for agesto come, and, consequently, to be adapted to the various crisesof humanaffairs.

If further justification is needed for the so called judicial activism (such aconservative-orchestrated stigma the misinformed man cringes from it) of thecourts, it is to be found in the use of terminologies in constitutions especially and

statutes (Nigerias inclusive which the strict constructionists admit aremeticulously worded) such as fair hearing, reasonable time, if a reasonableman would, public safety, public morality, adequate time and facilities,reasonably justifiable in a democratic society, reasonable suspicion etc. Forone thing these statutes could not, for ominous reasons, have employed suchterms as for instance unreasonable suspicion or subjective suspicion or forthat matter just plain suspicion. For another, such words compel the courts totheir solemn calling which terminates not at merely deriving meaning from thewords 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 (eventhose whose selfish instinct is not disposed to giving) come to realize theinevitability of those words. To the embarrassment of the strict constructionistswho conveniently gloss this over when they canvass strict construction andoriginal intent, the framers original intent is contained in those mathematicallyunascertainable words which call for the importation of sociology, psychologyand other sciences in expounding laws. The framers were a bottomless vessel ofwisdom and knowledge and in that knowledge they knew only one thing they


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did not know everything. Ascribing today, therefore, farcical intentions to theframers (who were not in a position to envisage cellular phones, the AcquiredImmuno-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 arethemselves 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 toweather the labyrinthine storms that come usually in the form of incalculablexes. A constitution is much like the chameleon meant to show the apt colours at the apt times; constantly stretching its disposition to meet constantly changingtimes. Like the constitution then, the chameleon may not be persuaded to partwith its green. Or its red. And the constitution may not be persuaded to part withthis in-built camouflage; these in-built mechanisms that are essential to its

survival.

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

It is suggested that one weapon of sociological jurisprudence would be trial byjury for such a trial is one of the parties before their peers who either by theirnumber or their diversity or their collective experiences are closer to the partiesthan a single arbitrator of legal knowledge who pretends to know something ofeverything. For instance, the trial of Bernhard Goetz

25is instructive. There, the

jury had been unanimous in acquitting Goetz for shooting four black youths on asubway car. In his confession, Goetz said one youth had asked him for fivedollars. When Goetz looked up and saw a smirk on Troy Cantys face, hebelieved that the youths were about to rob him. He pulled out his gun and shotthem down. Goetz had previously been twice mugged and physically abused. Onlegal grounds Goetzs defence of self defence would have appeared shaky giventhat he saw the first three youths tumble to the floor from his shots did he havean excuse to shoot the fourth? But his peer-jury from New York where youngblack men were responsible for the overwhelming number of robberies on NewYork City subways (according to the Transit Authority Police, of two thousand sixhundred and seventy four (2,674) robbery suspects, seventy (70) were white, fivehundred and eighty four (584) Hispanics and two thousand and twenty (2,020)blacks) came back with the verdict that Goetz had used deadly force reasonablybelieving that he was about to be robbed. Juror Michael Axelrod, in none of thelong-winding legalese you suffer at the hands of jurists, told Newsweek,In Mr.


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Goetzs mind he didnt feel the threat was over. It happened rapidly. I dont thinkhe 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 sentencespassed by judges and not by juries were unconstitutional though it did not go sofar as to give a retroactive bent to its decision, leaving that open. The SanFrancisco 9

thCircuit Appeals Court has followed suit in holding that it was

unconstitutional for a judge and not the jury to deliberate on and pass a deathsentence thereby resolving the fate of hundreds of convicts on death row in thestates of Arizona, Idaho and Montana

26in favour of, in the minimum sentencing

by a jury of his peers with all the afflictions inflicted on the accused by hisenvironment or in the maximum trial de novo.

The motives behind the decisions by a jury indeed suffers constant scrutiny butso 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 tolegislation has gained a lot of following in contrast to the positivist approach andas society moves into the next millennium, it needs even newer ways of creativeinvestigation into society. Globalisation has brought to the fore the issue of asmaller world where the world is gradually coming closer to a common culturebecause of economical, political and cultural interaction. Never has society hadmore information gathering technology at its behest and for its application with

the emergence of the internet and mobile telephony as well as satellitetechnology. It is possible that a century down the line, the sociological input intojurisprudence may become more predictable and more uniform from one onecountry to the other. It becomes poignant to note therefore that socialinvestigating methods will become more accessible and more universal.

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

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

1Encyclopaedia Britannica 5

thEd. at 150

2(1983) Series 62 at p. 207

3The Idea of Law, Dennis Lloyd at p. 207

4Dias-Jurisprudence 4

thEd. at p.581

5Dias-Jurisprudence 4

thEd. at p.581 to 583


15/15

6

Sociology: A Systematic Introduction by Johnson at p.27

The Idea of Law, Dennis Lloyd at p. 2078

Dias-Jurisprudence 4th

Ed. at p.5889

Law in a Changing Society, W. Friedman 2nd

Ed. at p.2010

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)11D. A. Ijalaiye-The Sociological Jurisprudence and the Nigerian Order at p. 33

12Section 8

13Income Tax Management Act (1961) (as amended) Cap 173 Laws of the Federation

14The Bankruptcy Act, Cap 30 (1979) Laws of the Federation

15Lectures: Obafemi Awolowo University, Ile-Ife Jurisprudence and Legal Theory Class, 1997

16The Land Use Act, 1978

17Tobacco Smoking (Control) Decree, 1990

18Section 30(1) Constitution of the Federal Republic of Nigeria, 1979

19The Criminal Code S. 370

See also R. v. Princewill (1963) NNLR 54 and (1963 All N. L. R. p. 3120

The Criminal Code S. 246

See also S. 30 of the Public Health Act Cap 165 of 1960 Laws of the Federation21

The Brandeis Brief in Muller V. Oregon, 208 U.S. 412 (1907) 22Radicals In Conservative Garb, Time Magazine August 11, 1986 Essay, Ezra Bowen.

23Op. cit.

24Mc Culloch V. Maryland 4 Wheat 316, 4 L. Ed. 579 (1819)

25A Trial Without End, Newsweek Magazine, June 29, 1987

26British Broadcasting Corporation World Service News Bulletin, 5 hrs-5.30GMT on September 3, 2003

27The Natural Law Reader, Brendan F. Brown at p. 195

Documents

The Relevance of the Sociological School of Jurisprudence to Legal Studies