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CSS 112 - 0 PDF
CSS 112 - 0 PDF
COURSE
GUIDE
CSS 112
SOCIOLOGY OF LAW
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COURSE GUIDE CSS 112
Abuja Office
No. 5 Dar es Salaam Street
Off Aminu Kano Crescent
Wuse II, Abuja
Nigeria
e-mail: centralinfo@nou.edu.ng
URL: www.nou.edu.ng
Published by:
National Open University of Nigeria 2008
ISBN: 978-058-228-2
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COURSE GUIDE CSS 112
Introduction……………………………………………… 1
Course Aims……………………………………………... 1
Course Objectives……………………………………….. 1
Course Materials………………………………………… 1
Study Units………………………………………………. 1-3
Assignment File…………………………………………. 3
Course Overview………………………………………… 3-4
Assessment………………………………………………. 4
Tutor Marked Assignments……………………………… 5
Final Examination and Grading…………………………. 5
Course Marking Scheme………………………………… 5
How to get the Most from This Course………………….. 5-6
Tutors and Tutorials……………………………………… 7
Summary………………………………………………… 7
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Introduction
Course Aims
The aim of the course is to expose you to the methods of how sociology
influences law in the Nigerian society so that you will be able to identify
correctly the sociological perspective of Legal reasoning and Law
making in Nigeria. This will be achieved by:
Course Objectives
In order to achieve the aims listed above some general objectives as well
as specific objectives have been set. The specific objectives are listed at
the beginning of each unit. The general objectives will be achieved at
the completion of the course. At the end of this course material you
should be able to
Course Materials
Study Units
There are twenty five study units in this course. They are as follows:
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Each unit contains some exercises on the topic covered and you will be
required to attempt the exercises. These will enable you to evaluate
your progress as well as reinforce what you have learned so far. The
exercises together with the Tutor Marked Assignments will help you in
achieving the stated learning objectives of the individual units and the
course.
Assignment File
Your assignment file consists of all the details of the assignments you
are required to submit to your tutor for Marking.
Course Overview
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Assessment
Your assessment for this course is in two parts. First, are the tutor
marked assignments and second is a written examination. You will be
required to apply the information and knowledge gained from this
course in completing your assignments. You must submit your
assignments to your tutor in line with submission deadlines as stated in
the assignment file.
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In this course, you will be required to study twenty five (25) units and
complete the tutor marked assignment provided at the end of each units.
The assignments attracts 20 marks each the best four of your
assignments will constitute 30% of your final mark. At the end of the
course, you will be required to write a final examination which counts
for 70% of your final mark.
The assignments for each unit in this course are contained in your
assignment file. You may wish to consider other related materials apart
from your course materials to complete your assignments. When you
complete each assignment send it together with the Tutor Marked
Assignment (TMA) to your tutor. Ensure that each assignment reaches
your tutor on or before the deadline stipulated in the assignment file. If
for any reason you are unable to complete your assignment in time,
contact your tutor before the due date to discuss the possibility of an
extension.
The final examination for this course will be for a duration of two hours
and count for 70% of your total mark. The examination will consist of
questions, which reflect the information in your course material,
exercises and tutor marked assignments. All aspects of the course will
be examined. Use the time between the completion of the last unit, and
examination date to revise the entire course. You may also find it useful
to review your tutor marked assignments before the examination.
ASSESSMENT MARKS
Assignments Best of four assignment scores at
10% each – 30% of total course
mark
Final Examination 70% of total course mark
Total 100% of Course Material
In distance learning, the study units replace the university lecture. This
is one of the great advantages of distance learning, you can read and
work through specially designed study materials at your own pace, and
at any time and place that suits you best. Think of it as reading the
lecture instead of listening to the lecturer. In the same way a lecturer
might give you some reading to do, the study units tells you when to
read, and which are your text materials or sets of books. You are
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Each of the study units follows a common format. The first item is an
introduction to the subject matter of the unit and how a particular unit is
integrated with the other units, and the course as a whole. Next to this is
a set of learning objectives meant to guide your study. The following is
a practical strategy for working through the course.
4. Turn to unit 1, and read the introduction and the objectives for the
unit.
5. Assemble the study materials, you will need your text books and
the unit your are studying at any point in time.
6. Work through the unit. As you work through it you will know
what sources to consult for further information.
7. Review the objectives for each study unit to confirm that you
have achieved them. If you are unsure of/about any objectives,
review the study materials or consult your tutorial facilitator.
9. Review the objectives for each study unit to confirm that you
have achieved them.
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a. you do not understand any part of the study units or the assigned
readings
b. you have difficulties within the exercise
c. you have a question or problem with an assignment, with your
tutors comments on an assignment or with the grading of an
assignment.
You should try your best to attend the tutorials. This is the only chance
to have face to face contact with your tutorial facilitator and ask
questions. You can raise any problem encountered in the course of your
study. To gain maximum benefits from course tutorials, prepare a
question list before attending them.
Summary
This course guide has introduced you to every aspect of your course on
Sociology of Law. We wish you every success in your study.
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Sociology of Law is a one semester, 3 credit unit, 100 level course which
consists of five modules, each module comprises four to six study units. In
all, there are twenty-five (25) study units. The course provides social
scientific insights into the origin, development and operations of law and the
legal systems. Broken into five modules, the course manual gives adequate
information on Definition of Law, Conceptions of Law, The Relations of
Law to Selected Concepts, The Nigerian Legal System, and Law, Social
Change and the Emerging Legal Structure of Nigeria.
There is no doubt that students will find this course manual quite useful. The
teach-yourself approach to teaching and learning adopted in writing the
manual will be of great benefits to the students. The Self-Assessment
Exercises (SAE) and Tutor - Marked Assignment (TMAs) will adequately
assist students to have a full understanding and perform successfully in the
course.
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Abuja Office
No. 5 Dar es Salaam Street
Off Aminu Kano Crescent
Wuse II, Abuja
Nigeria
e-mail: centralinfo@nou.edu.ng
URL: www.nou.edu.ng
Published by:
National Open University of Nigeria 2008
ISBN: 978-058-228-2
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The four units that constitute this module are thematically linked. The
goal of the module is to conceptualise the discipline of Sociology of
Law. This goal is broken into specific unit objectives which you will
come across shortly. By the end of the module you will understand the
basic methods and concerns of the two parent disciplines. You will also
understand why the relationship between the two have not always been
cordial, but has nevertheless led to the emergence of this course. You
will also know the central assumption of Sociology of Law, namely: that
laws and legal systems are derivatives of the social structure -products
as well as sources of its change.
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CONTENTS
1.0 Introduction
2.0 Objectives
3.0 Main Content
3.1 What is Sociology?
3.2 Sociology and other Behavioural Sciences
3.3 Sociology Defined
4.0 Conclusion
5.0 Summary
6.0 Tutor Marked Assignment
7.0 References/Further Readings
1.0 INTRODUCTION
You must have read the Course Guide. I also assume that you have read
the introductory comments on module 1. This unit is the first among the
four constituent units of the module. The idea behind this unit, is for
you to be acquainted with the general outline of the parent discipline of
which this course is a branch. This is necessary for you to be able to
concretely comprehend what the Course is about.
The unit guides you through not just the definition of Sociology, but
also highlights its method and perspective, and the distinctive bearing
that these have in understanding social phenomena.
2.0 OBJECTIVES
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Probably from the sound of the word alone, you have an inkling or could
hazard a guess about the meaning of Sociology. You probably see it as
“something to do with socials”. I remember when I first gained
admission into the University to read Sociology. I showed my semi-
literate father the admission letter and his immediate retort was: “of all
the Courses in the University why should you choose to go and learn
about how to be social.”
Well, in linking the word to "social", if that is what you did, you are not
totally wrong. The "social" however is not in the sense of being sociable
or attending parties. It should be understood in the sense of "society".
GUIDELINES
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The various intellectual disciplines which study man and his work can
be distinguished from one another based on a number of criteria. For
example, we may ask whether they focus on only one aspect of social
life (and if so which one) or whether they take multi-dimensional or
wholistic approach. We may also want to know whether they emphasise
the concrete and immediate or the abstract and generalised. Do they
stress measurement and statistical manipulation or favour direct and
qualitative methods?
Other yardsticks exist for demarcating the disciplines. For our purposes
here however, it suffices to stress that there is one basic difference
between Sociology and the other social science disciplines. While the
others pick single dimensions of man in society to focus on, Sociology
takes a wholistic approach. To be wholistic is to see the interrelatedness
of the different dimensions of man. Sociology of Law, for example,
singles out the legal dimension of society for study. But in doing so, it
must relate what happens in the legal sphere to the other major spheres
in society.
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Experiencing a problem
Defining the problem
Review of relevant works done on the subject
Formulating hypothesis
Collecting data
Classifying, interpreting and analysing data
Testing hypotheses/verification
Drawing conclusions/formulating theories
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What are the basic problems to which sociology addresses itself and
how does it tackle the problems?
GUIDELINES
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4.0 CONCLUSION
Now that you know the meaning of sociology, you are well on the way
to understanding what Sociology of Law is about. It simply means that
all those assumptions, concerns and methods of Sociology you have
learned, are brought to bear on the phenomena of law. This is done with
a view to unravelling law's content, operation and consequence for the
social order. This is all that is required for purposes of introducing the
Sociology of Law. Should you need to know more about Sociology, the
Course "Introduction to Sociology" is available for you to take. It offers
a more detail and elaborate explanation.
5.0 SUMMAY
From this unit, you have learned the meaning, method, assumption and
concerns of sociology. Within the constraints of space, the basic aspects
of those components have been highlighted in such a manner as would
help your understanding of the course. Towards meeting the overall
modular goal of introducing Sociology of Law, however, you will still
need to read the next three units.
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CONTENTS
1.0 Introduction
2.0 Objectives
3.0 Main Content
3.1 What is Law?
3.2 Law Defined
3.3 Sources of Law
3.3.1 Legislation
3.3.2 Custom and Judicial Precedents
3.3.3 Equity
3.3.4 Subsidiary Sources
3.4 Classification of Law
3.4.1 Criminal Law and Civil Law
3.4.2 Substantive and Procedural Law
3.5 Functions of Law
4.0 Conclusion
5.0 Summary
6.0 Tutor Marked Assignment
7.0 References/Further Readings
1.0 INTRODUCTION
In the first unit of this module you learned about the meaning,
assumptions and methods of Sociology. You were told that it was a
necessary preliminary step in the effort to introduce Sociology of Law
to you. In continuation of the quest to gradually lead you to a full
comprehension of what the course is about, this second unit explains the
second component of the course title, namely Law.
The unit will however not just stop at defining law, it will also explain
some of the more basic dimensions of the concept. These will include its
sources, classifications and functions.
2.0 OBJECTIVES
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GUIDELINES
Try and answer this question as best as you can before reading
further.
Think of all the rules that have governed the different aspects of
your life whether at home, at work, - the play group, association
and so on.
Which of those rules would you regard as laws? What is the basis
of your saying that some of the rules are laws and others are mere
values?
Attempt a formal definition of law. Then read further and see the
extent to which your definition conforms with or deviate from the
working definition given here.
This all encompassing use of the word has created problems for
commentators on law who must constantly specify the particular sense
in which they are using the term. For example, the second edition of the
Webster's dictionary contains six entries for the word “law” and the first
of these alone has 13 separate meanings. It is not surprising that as
Bohannan (1962:73) notes, "more scholarship has probably gone into
defining and explaining the concept of "law" than into any other concept
still in central use in the social sciences."
For the purposes of this course, the term law is used not in a general, but
in a restrictive sense. You are to understand it as law which emanates
from the state. But even the laying down of such a parameter for
determining what is law has its own problem. For example, do we now
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say that primitive societies which had no "State" in the strict sense had
no law? Such societies had no written laws and no formal or centralised
authority to enforce their obligatory rules of human conduct, yet they as
a matter of fact had laws.
John Austin (a Lawyer) defined law as a "rule laid down for the
guidance of an intelligent being by an intelligent being having power
over him." This definition conforms to the Imperative or Command
Theory of Law. Lawyers tend to prefer such definitions. John Salmond
also defines law as "the body of principles recognised and applied by the
state in the administration of justice. There is much emphasis on an
authoritative body giving out the commands. But as earlier noted, such a
definition will exclude rules of conduct in decentralised primitive
societies from the purview of law. This is not acceptable.
Which of the different views of law agrees most with your own view of
law?
GUIDELINES
Compare the different views of law with the on you have yourself
given in SAE I.
With the benefit of knowing other views, do you still think the
one that comes closest to yours is the best?
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Many more definitions could be given. But they will lack in one respect
or the other. Renowned scholars have appreciated this ever since. For
example, the social philosopher, Immanuel Kant, had expressed
disappointment at lawyers for still seeking a definition of their concept
of law. Another scholar, this time a legal philosopher, Lord Hart
declared that nothing convincing enough to be recognised as a definition
could provide a satisfactory answer to the question of what law is. In
1964, Justice Julius Stone hit the nail on the head when he stated that:
"Law is necessarily an abstract term, and the definer is free to choose a
level of abstraction: but by the same token, in these as in other choices,
the choice must be such as to make sense and be significant in terms of
the experience and present interest of those who are addressed" (Stone
1964:177).
The norms that constitute the law present an orderly picture of the
society in which the norms operate.
The order guaranteed by the norms is a coercive order. In other
words, the authority of law is reinforced by force, which the
organised society can deploy to compel individual conformity or
face various forms of deprivations, including life.
The authority which supports the law operates according to other
established norms. It is not arbitrary or spontaneous.
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The sources of law are the materials from which legal rules are made.
Such materials include: custom, religious beliefs, morality, habits,
mores and folkways, whether written or not, and so on. Sometimes the
word "source" is not used in reference to material from which laws are
formed alone, but also in reference to the manner in which laws are
made. Hence legislation, codification, judicial precedents, and equity are
also sources of law. When we come to the particular experience of
Nigeria, the word "sources" shall still be extended further to denote
entire system of laws from which Nigeria has borrowed. For example,
the received English law will become a source of law.
Other than the sources listed, which other sources of law can you think
of?
GUIDELINES
Remember that the word “source” is a loose one and can be used
in many senses.
You are encouraged to keep the three major distinctions in its use
in mind when thinking of other sources.
From which materials are laws made which has not been included
here, how is law made that has not been included here, or how is
law borrowed that has not been included?
For our purposes in this unit, the term will be used in reference to how
laws are made. In this regard, there are Legislation, Custom/Judicial
precedents, Equity, and a host of others that we may describe as
subsidiary sources. Let us take them one after the other.
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3.3.1 Legislation
This is the law that results from the activity of a law enacting body such
as the legislature (or in Nigeria, the National and State Assembly). In
other words when a group of people, usually representing the sovereign,
sit down to consciously deliberate and enact laws, we say such a body is
legislating.
3.3.3 Equity
These include writings and commentaries by legal scholars. They are not
much used in countries which operate then" legal system according to
English law principles. But in countries of continental law like
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GUIDELINES
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Substantive law refers to the bodies of law which define offences, and
prescribe penalties for violations. It also defines rights and duties.
Examples of the substantive criminal laws of Nigeria are the Criminal
code and the Penal code.
Law performs very important functions for society. In fact it has been
argued that it is law which makes the social order, and by implication
society, possible. Some of the more obvious manifest functions of laws
are as follows:
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4.0 CONCLUSION
You now know the meaning of law, when used in a narrow or academic
sense. You have also been exposed to the important and basic
components of the concept. You should never lose sight of the purpose
of the unit however. This course is a Sociology course, and not a Law
course. The conceptualisation of law is hence undertaken only with a
view to making you understand the “Sociology of Law”.
Towards that end, the much that has been accomplished in the main
content of this unit suffices.
5.0 SUMMARY
In this unit, you have learned that law, though a frequently taken for
granted word, is a very difficult concept to define. You have also been
given some of the basic characteristics of the concept, which any good
definition of it must capture.
The unit has also discussed some of the basic dimensions of the concept
which yeu should know, for you to claim to actually know the meaning
of law. They include its sources, classifications and functions. In the
next unit, more will still be said about law and the debate over whether
it is something that human society can do without.
Discuss the meaning and sources of Law in not more than six
typewritten pages.
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See the entries under Law: "the Sociology of Law", "The Legal
System", "Law and Legal Institutions".
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CONTENTS
1.0 Introduction
2.0 Objectives
3.0 Main Content
3.1 Is Law Necessary in Society?
3.2 The Case for Existence of Law in Society
3.3 The Case against the Existence of Law in Society
4.0 Conclusion
5.0 Summary
6.0 Tutor Marked Assignment
7.0 References/Further Readings
1.0 INTRODUCTION
In the last unit, you learned the meaning, sources, classifications and
functions of law. In the subsection on functions, you were presented
with a list of some of the vital roles that law plays in society. Remember
however, that the subsection ended on the note that a debate is currently
on going, on whether law is as beneficial as those functions seem to
suggest. Furthermore there is a growing opinion that there are many
other candidates for the position being claimed for law in terms of order
maintenance. It has been suggested that other social control mechanism
such as custom, morality and other informal means can serve the
purpose of law. This unit is devoted to examining the debate about the
necessity of law in society more closely.
2.0 OBJECTIVES
State the argument for and against the existence of law in society/
Demonstrate that at the core of the argument, is the differing
conceptions of human nature," 1 Understand that law, even if it is an
evil, is a necessary evil.
Put more clearly, the question is whether law enhances or impedes the
attainment of the corporate goals of society. In answering the question
two major positions have emerged: one arguing that law is a good thing
and is in fact the thing that makes society possible. In other words that
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there can be no society without law. The other camp maintains that law
is a positively evil thing. Its existence distorts human nature and
engenders all the societal ills. As such society can well do without it.
GUIDELINES
Then think in terms of human nature. How good or bad is it? Use
yourself as example: without the threat of law would you conduct
your life differently?
Law has both its advantages and disadvantages but which are
more? Do you know or can you conceive of any society which
has no law? How will life in general, in such a society, be?
The opposing camp rests its argument on the premise that man is evil or
bad by nature. If left to his devices without the restraint of law, anarchy
and chaos would result. There will as a result be no social order or
society.
Let us now look more closely at the arguments of both sides and what
their exponents have to say.
The underlying idea, around which this case is built, is that man is by
nature evil and the law is needed to keep his evil inclination in check.
As far back as the third century B.C., the "Legist" school of philosophy
in China had made this argument. It concluded that only the restraint of
penal law would bring good back to society. It was reacting to the
decadence and chaos that then characterised the Chinese society.
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At about the same time, the “Shastra writers” of India were making
similar argument. According to this school, man by nature is greedy and
grasping. If left to operate without law, life itself would become a sort of
"devil's workshop" operating on the “logic of the fish”. The big fish will
feed on the smaller ones. It is only the restraint of law that would avert
such a devil's workshop.
There are a number of modern writers who share this view about the
inherent evil nature of man and the need for law as a weapon to curb
such passions. Foremost among them is Thomas Hobbes. To him
society without law is a veritable recipe for disaster. His arguments are
eloquently stated in his book Leviathan published in 1661. A passage in
the work that aptly summarised his views read thus:
Do you agree that without law, life would be nasty, brutish and short?
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GUIDELINES
You have now seen one side of the argument. Before going on to
read about the other side, try and ruminate over the first position?
Is man really innately evil? If he is, is law the only means by which
those evil tendencies can be kept in check? What about religion,
morality and conscience? Can these not do the trick?
Compare your answers with the argument of the other camp in section
3.2
Plato, one of the seminal thinkers of early Greek philosophy, argued that
what is needed in society is not law but education. Education will ensure
that everyone knows his position in society and justice consists of
everyone knowing and doing what is required of his position. He
maintained for example that only philosophers (who are considered the
most educated) should rule.
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4.0 CONCLUSION
You have been presented with the two major contending positions about
the necessity of law in society. Which of them will you consider to be
more appropriate? The fact is, there is virtually no known human society
that has existed without law. Persuasive as the argument of the camp
who argue that law is not necessary is, it is difficult to buy. You should
therefore study deeper into this Course, having it in mind that law is
necessary for the existence and persistence of society. The objective of
exposing you to the debate is, for now, to be regarded as largely
academic.
5.0 SUMMARY
Critically assess the arguments for and against the necessity of law in
society. Ensure that your argument touch on all the relevant aspects of
the question. Write a maximum of six type-written pages.
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Jegede, M.I. (1993). What's Wrong with the Law? Lagos: Nigerian
Institute of Advanced Legal Studies.
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CONTENTS
1.0 Introduction
2.0 Objectives
3.0 Main Content
3.1 Emergence and Development of Sociology
3.2 The Subject Matter of Sociology of Law
3.3 Defining Sociology of Law
4.0 Conclusion
5.0 Summary
6.0 Tutor Marked Assignment
7.0 References/Further Readings
1.0 INTRODUCTION
In the first three units of the course, you learned the meaning of
sociology, and the meaning of law. You were told that the two
disciplines together form the foundation for this course. It is now time
to learn the meaning of sociology of law. This, infact, has been the
modular goal towards which those first three units were preparing you.
In the present unit, you will learn about the emergence of sociology of
law and why it took so long to emerge, given its obvious usefulness.
This usefulness will be underscored by citing some of the many
illuminating statements on the issue, as pronounced by eminent
sociologists and jurists.
2.0 OBJECTIVES
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The pertinent question becomes, given this early interest in the social
content of law, why did it take so long for the sociology of law to
emerge as a course? The core of the answer lies in the attitude of those
same early lawyers and sociologists. Each group tried to carve out the
boundaries of its discipline and saw others trying to deal with same
subject as outsiders and intruders.
Lawyers on the other hand have always been very conservative. They
confer an aura of sacredness on their subject. Anyone not trained as a
lawyer is not "learned" and is not, welcomed to dabble into the subject
matter of the “noble profession”. This mutually reinforcing attitudes
continued to militate against the development of the discipline until both
sides eventually realised what both disciplines stand to gain from
working together.
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Maurice Harriou, a French jurist, stated that "A little law leads away
from sociology but much law leads back to it, and a little sociology
leads away from the law, but much sociology leads back to it." In other
words, it is ignorance on both sides that has hindered the emergence of
the discipline.
Jhering R.V. (1866), a German jurist also argued that "the lawyer had
not merely to grasp the technical principle of his subject, but had to
bring to it, a genuine understanding of the underlying sociological
implication of the legal rule with which he operates and how these could
be used to resolve and harmonise rather than provoke or exacerbate
conflict".
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GUIDELINES
Having said that, let us quickly, add that the Course is a rapidly
developing one and the subject matter as such, is not static. While
podgorecki's (1974) work captures the essential subject-matter, the
subject-matter remains dynamic. The major challenge for the Course,
however, remains the attempt to integrate jurisprudence and social
research.
Shortly and sharply put, the subject matter of sociology of Law is law
and its social context. As a sub-discipline of the discipline of Sociology,
its aim is to apply sociological insights to legal phenomena, particularly
in thearticularly in their interrelatiic social conditions and the social
structure. This is a logical implication of the informed assumption that
law and all its instrumentalities influence and are influenced by the
social structure.
The Sociology of Law is concerned with the nature of law, its sources
and functions, its Nation to other social control mechanisms and the
complex relationship between the legal system (i.e. law together with
the apparatuses for making, enforcing and administering it) and the
society. It studies the materials from which laws are made, the
institutions which 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 unraveling and explaining
their functions. Questions are posed and answered as to the nature of the
organisation of such institutions, their underlying ideologies, their actual
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At this point, you are advised take another look at the 13 course
objectives earlier presented in the course guide to this course. Those
objectives also reveal the concerns and subject-matter of the course in
very clear terms.
GUIDELINES
You may then read on and compare your definition with those of
others. In which respects are they different or similar?
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A critical look at the foregoing definitions reveals that they are all
saying virtually the same thing. Some have only gone farther than others
in elaboration. At best then, there is a distinction without a difference.
By the same token, you are free to adopt any of them that catches your
fancy. Or better still coin your own definition. The major requirement is
that your definition must include words to the effect that sociological or
social scientific methods would be applied to law.
4.0 CONCLUSION
The first three units of this module have been preparing you for this unit
4. You should by now have a fairly definite idea of what sociology of
law is about.
5.0 SUMMARY
You now know the reasons for the late emergence of this sub-discipline
of sociology. You also know that it is not just a branch of general
sociology, but it is also an auxiliary of legal studies. Many quotations
have been given on the benefits of sociologically studying law, and the
various definitions of the course prof erred by eminent scholars. The
ultimate goal of the module, namely introducing Sociology of Law to
you, has expectedly been realised.
Justify the need for a sociological study of law (in not more than six
typewritten A4 pages).
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Schur, E.M. (1969). Law and Society. New York: Random House.
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On the whole, this module is made up of six units. The modular goal is
to give you a deeper understanding of the meaning of law by
highlighting the various ways in which jurists and sociologists conceive
the concept. This goal is broken into specific unit objectives given at the
beginning of each of the units.
Each of the six thematically linked units which constitute this module is
devoted to explaining a particular view of the law. At the end of the
module you would have learnt that not only are there different ways of
conceiving the law, but that each of the perspectives has its own merit.
Your view of the law thereby becomes more sophisticated, deeper and
fuller.
The six ways of viewing the law presented in this module are by no
means exhaustive. Neither are they mutually exclusive. They are
however the most important and dominant ones. The student who is
interested in knowing more (e.g. other versions of conflict theories such
as Social Interactionisms, or Critical Theories, and other versions of
jurisprudence such as Legal Realism or Teleological School) is
encouraged to read the recommended materials at the end of each of the
units.
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CONTENTS
1.0 Introduction
2.0 Objectives
3.0 Main Content
3.1 Basic Assumptions and Propositions of Consensus
Theories of Law
3.2 Proponents/Exponents of Consensus of Law
3.2.1 Emile Durkheim
3.2.2 Harry Bredemeier
3.3 Critique of Consensus Theories of Law
4.0 Conclusion
5.0 Summary
6.0 Tutor Marked Assignment
7.0 References/Further Readings
1.0 INTRODUCTION
2.0 OBJECTIVES
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The theories hence, rest upon a consensus model of society. They also
believe that society is made up of parts (or structures) and each of those
parts or structures functions to maintain stability, equilibrium and
general well-being for the whole society. This is why they are also
called Structural Functionalists.
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GUIDELINES
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Durkheim was very impressed by the imported role that law plays in
streamlining human behaviour to conform to demands of society. He
described it as the most precise and measurable symbol of social
solidarity. Like all Functionalists, he took it for granted that the law
serves the purposes of the whole society without any discrimination.
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Again we see that a benevolent and impartial but very important role is
ascribed to law. This is the major distinctive feature of Consensus
theories of law. The law is never seen as partisan, or as forged out of
conflict. Rather it is seen as an embodiment of the corporate interest of
the whole society.
GUIDELINES
Note that absolutes are rare in the social sciences. You therefore be very
cautious in giving a "No" or "Yes" answer.
It is best to argue for both sides and then on the balance of superior
argument you align with a side, even while noting that it need not
always be so.
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4.0 CONCLUSION
You now know one of the two major theoretical conceptions of law in
sociology. The very kernel of this view of law is revealed in the name of
the view i.e. Consensus theories. The Consensus model of society is
dominant in sociology as a whole. All theories proceeding from that
model make a fundamental statement that there are no fundamental
conflicts in society. Hence, this view of law sees the value enshrined in
law as the cherished values of the whole community. The moment you
question that assumption, you are also questioning the pedestal upon
which the consensual views of law stand.
5.0 SUMMARY
In this unit, you have learnt about a particular conception of law. As you
read deeper into this module, you shall be exposed to more. Remember,
the core of the argument of this school about law, is that it is an
embodiment of communally agreed upon values.
Identify any Consensus Theory of law and analyse the extent of its
conformity to the general assumptions of the Consensus model of
society. Write a maximum length of six typewritten A4 pages.
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CONTENTS
1.0 Introduction
2.0 Objectives
3.0 Main Content
3.1 Basic Assumptions and Prepositions of Conflict Theories
of Law
3.2 Proponents/Exponents of Conflict Theories of Law
3.3 Critique of Conflict Theories of Law
4.0 Conclusion
5.0 Summary
6.0 Tutor Marked Assignment
7.0 References/Further Readings
1.0 INTRODUCTION
In unit 1 of this second module, you learnt about the Consensus view of
law. You were told that Consensus theories take it for granted that
members of society are all agreed about the values that are enacted as
law and that every one views law as a good thing. In this unit, you will
be presented with the other side of the argument. Conflict theorists are
of the view that society is characterised by many conflicting interests.
As such values are not the same for all people, the values enacted as law
are the values of particular groups, not of the whole society. It follows
therefore that law is not the beneficial thing (at least not to everybody)
that Consensus theories portray it to be.
2.0 OBJECTIVES
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Marxist theories proceed from the premise that the manner of ownership
of the means of production, divides society into two major antagonistic
classes. There is the class that owns the means of production. This class
may be called the capitalist, bourgeois, ruling, propertied, parasitic,
exploitative, upper or simply the dominant class. The second class do
not own any means of production but its members have only their labour
to offer for sale to the other class. This second class may be called the
working, labour, exploited, proletariat, lower or simply the dominated
class.
Using the Marxist typology, try and fit 50 people that you know into the
two major classes.
GUIDELINES
The class that owns the means of material production (i.e. machines,
land, factories, etc.) also owns the means of mental production (i.e.
mass media, education, religion, etc.). The class also dominates the state
apparatus. Hence, it is the ruling class. The major objectives of this
class is to make profit and more profits. It makes the profit largely by
exploiting the lower class. It pays members of the lower class wages
which are less than what those workers put into the production process.
The surplus goes into the pocket of the dominant class.
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Law and the machinery of the justice system are geared towards
ensuring that this unjust status quo is perpetuated.
Marxists, however, note that it is not all the laws, or all the actions of its
agents that are in favour of one side only. Some laws are beneficial to
everyone (e.g. you cannot say the laws against murder, theft or rape
favour only the upper class). This is, however, more coincidental than
deliberate. In search of the specific order (of the capitalist) the general
order (of everyone) may also be served. It is also noted that agents of
the law such as the police are not just instruments of the ruling class,
but sometimes exercise their own institutional or relative autonomy.
This is why it is possible to sometimes arrest and punish erring
members of the ruling class.
There are a large number of theorists who share the assumption that
society is characterised by conflict and that law cannot, as a result,
embody the values of everyone. But as earlier noted, our interest is
mainly on the Marxist variants of such arguments. Now, even among
Marxists, there are slight differences among exponents on the nature and
functions of law.
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Other not so radical Marxists are more cautious in declaring the law and
components of the legal system to be mere instruments of the ruling
class. They argue that while serving the interest of the ruling class, the
law is not merely a tool or instrument to be wielded by the ruling class
as it deems fit. Instances where members of the ruling class have run
foul of the law and are punished are cited as examples. Hence, Louis
Althusser, though a Marxist, maintains that the law and its agents have
what he calls relative autonomy. In other words, they are not totally
dependent on the whims and caprices of the ruling class.
Gramsci is another Marxist, who argued that the state or ruling class is
not always trying to flex its muscles by using the law to its purposes.
But rather that the law is part of the Ideological State Apparatuses,
through which the ruling class attempts to forge legitimation for itself.
This is done not by coercion but by persuading the lower class to see the
benefit of law to all.
Soviet Marxists such as Lenin and Stalin actually believed that with the
coming of the Socialist (Bolshevik) Revolution in 1917, law will die
away. This is because, it will no longer be useful in a classless society
where it is not needed to keep the oppressed suppressed. But in 1921
they realised the futility of expecting law to wither away. They then
declared that law rather than dying in a socialist society, would actually
be "raised to the highest level of development".
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This argument is rooted in the orthodox Marxist position that the law is
simply part of the ideological superstructure of society, twitching to the
string-pulling of the economic base. This argument has been criticised
for being too sweeping. There are laws in which partisanship cannot be
detected.
Cite some laws which are partisan (i.e. partial) and some which are not.
Justify your classification.
GUIDELINES
It might be easier for you to cite laws which you will say do not
favour any particular group. Marxists, however, have a point in
saying that some laws are partisan. These are mostly laws
relating to property. Some laws are not obvious in their partisan
character but become so in the process of enforcement. The
criticism that not all laws are partisan is however quite valid.
Secondly, laws such as traffic laws, pollution, even theft and rape
cannot just be dismissed as reflecting vested interest of a particular
class. They serve the interest of all.
Marxists have also been criticised for the centrality given to class
struggles while ignoring other sources of conflict such as race, ethnicity,
religion, gender and so on.
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4.0 CONCLUSION
You have now learnt about the second of the two major alternative ways
of viewing law in sociology. Their differences stem basically from their
views about the nature of the society order. While Consensus theories
assume that there is a consensus among members of society on what is
good for society, Conflict theories assume the existence of fundamental
conflicts. These views about society affects their respective conceptions
of law, its content, operation and purpose.
The conclusion regarding this specific unit is that so many theories can
be subsumed under Conflict theories. Our emphasis here has been on
Marxist variants of Conflict theories. Even then, it has been shown that
the Marxist theories have subversions with different emphases.
5.0 SUMMARY
In this unit, you have been presented with the Conflict theoretical
perspective on law, you have learnt that there are different versions of
conflict theories. That the Marxist brand is the most dominant and most
useful for our purposes in this course. The differences within the
Marxist perspective have also been presented, as well as a general
critique of Conflict theories. Having followed the format in which the
Consensus theories were presented, it is expected that you will find it
easier to compare the two alternative views of law.
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Reiman, A.J. (1979). The Rich Get Richer and the Poor Get Poorer:
Ideology, Class and Criminal Justice, John Wiley and Sons Inc.
N.Y.
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CONTENTS
1.0 Introduction
2.0 Objectives
3.0 Main Content
3.1 Assumptions and Propositions of the Natural Law School
3.2 Development and Expositions of Natural Law Doctrine
3.2.1 Aristotle
3.2.2 Stoicism
3.2.3 The Middle Ages
3.2.4 The Renaissance Period
3.3 Critique of the Natural Law School
4.0 Conclusion
5.0 Summary
6.0 Tutor Marked Assignment
7.0 References/Further Readings
1.0 INTRODUCTION
In the first two units of module 2, you learnt the two major sociological
perspectives on law. In the present unit and the remaining units of the
module, you will be exposed to jurisprudential perspectives on law.
Remember, the modular goal is to make you understand the major
conceptions of law.
The Natural law view of law is about the oldest and most enduring of
all. The major thrust of its argument is that there are two laws: natural
law and man-made law. The former is the higher and superior law. The
latter is inferior and should emulate the former. In this unit, the
arguments about the two laws are explored with a view to enhancing
your knowledge of the concept of law.
2.0 OBJECTIVES
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The natural law belongs to a higher order. It is an ideal system which the
man-made laws should try to reflect and imitate. Exactly what is this
natural law and how do we know it? If positive laws are man-made, who
makes the natural law? The answer to these questions are not the same,
they have varied from time to time, and from place to place. Natural law
has been equated with physical and propositions of the natural law
school from which this school of jurisprudence proceeds. These are
natural laws held to be superior to laws made by man. The Natural laws
“higher laws” or “divine laws”, while man-made laws are laws of
nature, with what is universal in human nature, with what is most
beneficial or rational for man, with laws of God, with morality and so
on. Whatever the meaning given to natural law, however, one basic
thing remains the same. It is held to be a higher and superior law to
man-made or positive laws.
The major postulation of natural law theorists, then, is that the good
society is one in which man-made laws are harmonised with natural
laws. The more the two converge in a society, the more that society is
deemed to be properly organised. More would be said on the
development and changing conceptions of natural law in the next section
of this unit, where we would be discussing exponents of the school.
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opted for the latter. Nature is instinct or base drives and natural laws are
laws which curb those animal instincts, such as sex drives.
GUIDELINES
Think also in terms of what is good for man and in this wise think
of society. What is beneficial to society or to the greatest number
of people.
Think also in terms of what is divine will or what the holy books
(Bible & Quran) describe as such.
3.2.1 Aristotle
3.2.2 Stoicism
The next development on the natural law theory came from the Romans,
in particular, the philosophical schools of Stoicism. The Stoics also
emphasised the universality of human nature and stressed that reason is
the essential characteristics of humanity. Proceeding from this premise,
the Stoics argued that there was a universal law of nature which can
only be ascertained by reason. This universal law should be the criterion
for judging the adequacy of man-made laws.
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The period that followed the decline of the Roman Empire (say between
400 A.D to 1300 A.D) was a kind of setback for the development of the
scientific spirit. It is called the "middle ages" or the "medieval era" and
witnessed the increasing dominance of the two great religions of the
world in intellectural fields. This trend was reflected in the natural law
doctrine. Natural law was equated with “God –made” or “Divine law”.
The renaissance period followed the middle ages, and again the
conception of natural law changed. This was as a result of a new
resurgence of the scientific approach to issues. But this did not lead to a
rejection of natural law. Rather, natural law was reformulated to mean
the "highly rational" quality in human law. There was a belief that man
is rational and that his reasoning abilities could be used to construct a
rational system of natural law. In other words, laws that are rationally
derived are natural laws.
The attack against the natural law doctrine have come mostly from
acclaimed scientists. It is argued that the doctrine is too idealistic,
moralistic and makes unverifiable propositions. The contents of the
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GUIDELINES
It is instructive that the natural law doctrine met its first sustained
opposition during the enlightenment era of intellectual history. It was a
period (i.e. 18th century) when there was great euphoria about the
benefits of science. All intellectual disciplines were trying to imitate the
natural sciences in the application of the scientific method. The pre-
requisite for this is to study concrete observable phenomena.
Unfortunately, the phenomena denoted by the concept of Natural law
were not so easily available for empirical observation.
4.0 CONCLUSION
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5.0 SUMMARY
Friedman, W. (1967). Legal Theory 5th ed. London: Stevens and Sons
Ltd.
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CONTENTS
1.0 Introduction
2.0 Objectives
3.0 Main Content
3.1 Assumptions and Propositions of the Positivist Schools
3.2 Development and Exposition of the Positivist Doctrine of
Law
3.2.1 Jeremy Bentham
3.2.2 John Austin
3.3 Critique of the Analytical Positivist School of
Jurisprudence
4.0 Conclusion
5.0 Summary
6.0 Tutor Marked Assignment
7.0 References/Further Readings
1.0 INTRODUCTION
In the last unit, you learnt about the Natural law school of
Jurisprudence. You were told of its assumptions, propositions and the
criticism against it. The most severe criticism of the natural law school
came from the advocates of legal positivism. These are people who call
for the application of scientific methods to the study of law. To them, it
is positive (or man-made) law that should be the legitimate concern of
jurisprudence. Natural law is too vague and intangible to be susceptible
to scientific investigation.
2.0 OBJECTIVES
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of law.
From this position, four clear postulations of the school can be stated:
(a) Laws are commands and given. In other words, only laws enacted
by the sovereign or by bodies acting in his behalf are the real
laws.
(b) The conceptual analysis of such laws is a legitimate field of study
on its own, and should not be confused with social evaluation.
(c) Legal rules can be made and legal decisions reached on the basis
of such rules, without any recourse to vague and nebulous notions
of social justice, morality or a higher law.
(d) Law as they are must be kept separate from law as they ought to
be.
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GUIDELINES
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(a) The source of the law (i.e. who made it and from what).
(b) The subject of law i.e. the persons the law concern.
(c) The objectives of the law i.e. the acts or omissions to act.
(d) The extent of the law i.e. in space and time.
(e) The aspects of the law i.e. the directives and incitatives.
(f) The force of the law i.e. obedience eliciting factors.
(g) Remedia appendages i.e. subsidiary/procedural laws.
(h) Expression of the law i.e. its language and phraseologies.
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GUIDELINES
Simply put, it meant they had no laws. But they had rules of
conduct. Since such rules perform the same functions and add the
force of law, it is wrong to deny them the name of law, just so as
to meet the scientific requirement of Austin.
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While legal positivist have patted themselves on the back for bringing
precision, coherence and conceptual clarity to legal terms, scholars of
other persuasions have criticised them for introducing too much legal
technicalities and jargons to law. It is argued that the positivist quest for
technicality has made legal language difficult for legal practitioners to
comprehend, much less the "unlearned" literates and other laymen. '
The school has also been criticised for its insistence that the only valid
law is one issuing forth as a command of the sovereign. This, first of all,
exclude the rules of conduct in societies without identifiable sovereigns
from the purview of law. Secondly, it could lead to injustices and
tyranny if the laws cannot be subjected to standards of morality or a
higher law.
4.0 CONCLUSION
In conclusion, you have learned in this unit that the positivist school
(also called the analytical school (or simply legal positivism) emerged
as an outcome of the scientific euphoria that engulfed Europe of the
18th and 19th century. Its arguments were essentially an attack on the
orthodox natural law approach which was deemed to be speculative and
unscientific.
You have learnt that the major argument of the school was that law must
be separated from morality. The kind of law that it considers to be valid
law, is that enacted by men, at the instance of a sovereign. Your
knowledge of law has been advanced further by a step.
5.0 SUMMARY
This unit presents the arguments and postulations of the positivist school
of jurisprudence. In it, you learnt the context in which the school
emerged, the criticism it leveled against the natural law school, and
some of the criticism that has been leveled against the school itself.
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Again, bear at the back of your mind that the unit is part of a
package/module designed to expose you to the various theoretical ideas
(Sociological and Jurisprudential) on law.
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CONTENTS
1.0 Introduction
2.0 Objectives
3.0 Main Content
3.1 Assumptions and Expositions of the Historical School of
Jurisprudence
3.2 Development and Exposition of the Historical School of
Jurisprudence
3.2.1 Friedrich Savigny
3.2.2 Henry Maine
3.3 Critique of the Historical School of Jurisprudence
4.0 Conclusion
5.0 Summary
6.0 Tutor Marked Assignment
7.0 References/Further Readings
1.0 INTRODUCTION
This unit contains the third of the major schools of jurisprudence that
will be discussed in Module 2. It is yet another step forward in your
learning of the juristic conceptions of law. Remember that the last two
units (i.e. units 3 & 4) contain the natural law and the Positivist
approach respectively.
2.0 OBJECTIVES
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To historical jurisprudence, the only valid law is one that result from a
long historical process. Its validity lies in the fact that it is rooted in the
popular consciousness of the people. The best example of such a law is
customary law. It need not be enacted nor written. It is sufficient that the
community has over time come to recognise the rules, and the people
consider it an obligation on them to obey the rules.
How does the community over time come to recognise rules and
members consider them binding on them?
GUIDELINES
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custom constitute the valid law, regardless of whether they are enacted
in form of legislation or not.
The major figure in this quest and who is widely acclaimed as the
founding father of the historical school is Freidrich Carl Von Savigny.
For Savigny, law was not a deliberately created product of some
artificially contrived legislator. Rather, it was a slow organic distillation
of the spirit of a particular people among which it operated. Such spirit
of the people is captured by the German word, “Volkgeist.”
To the historical school, law is not just an abstract set of rules that a
sovereign imposes on society. It is an integral part of society and is
deeply rooted in the social order. It is shaped by society and
embodies/reflect traditional value system. The notion is similar to the
Marxist view of law described in unit 2 of this module. It is also similar
to the argument of the sociological school of jurisprudence which we
shall come to very shortly in unit 6. The historical school is however
still different from them in being too backward looking. For the
historical school law must always be a passive reflection of social
values. The sociological schools see law playing a more active role in
social engineering and is more forward looking.
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How can historicity tie present society to the follies of the past?
GUIDELINES
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4.0 CONCLUSION
You have now learnt about the emergence of the historical school of
jurisprudence, as well as its postulations, exponents and critique. Their
arguments are best appreciated when juxtaposed with those of the
positivist schools. It is expected that your knowledge of the concept of
law has been advanced further in this unit. Remember, however, that
you are not studying law in this course. The rationale for devoting a
whole module to explaining law is that by the time you start on the other
modules, they will be easier for you to follow. Understanding law will
also aid your understanding of the whole programme of “Criminology
and security studies” for which "Sociology of law" is just one course.
5.0 SUMMARY
Do you agree with the historical school that the real law is customary
law and not legislation? Justify your answer in not more than five
typewritten A4 pages.
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Friedman, W. (1967). Legal Theory (5th ed.). London: Stevens & sons
Ltd.
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CONTENTS
1.0 Introduction
2.0 Objectives
3.0 Main Content
3.1 Assumptions and Propositions of the Sociological School
3.2 Development and Exposition of the Sociological School
3.2.1 Roscoe Pound
3.2.2 Eugen Erlich
3.3 Critique of the Sociological School
4.0 Conclusion
5.0 Summary
6.0 Tutor Marked Assignment
7.0 References/Further Readings
1.0 INTRODUCTION
This unit is the last of the units of module 2. In line with the modular
goal, the objective here is to expose you to yet another conception of
law. Though one of the major views of law in Jurisprudence, the name
of this school, sociological jurisprudence, suggests that it is closely
related to the sociological perspective of law.
The thrust of the arguments of this school is that law, rather than being
seen as mere body of rules, should also be seen as a useful tool for
reordering society to suit the yearnings of a people. In this unit, the
postulations as well as the exposition of the school are presented to you
with a view to further enhance your knowledge of the meaning of law.
2.0 OBJECTIVES
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This school emerged in the late 19th century with the major purpose of
integrating law and the social science. It criticised both the positivist
school and historical school position on law. The positivist school for
reducing legal inquiry to mere conceptual analysis and the historical
school for being so backward looking.
(a) Law is not unique. It is only one method of social control among
others. For example, there are a number of informal control
mechanisms such as socialisation, group pressure, and rules of
conduct such as custom, morality etc. and so on which perform
social control functions.
GUIDELINES
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which are trying in their own small ways to make him conform to
the requirements of orderly and civilised living.
(b) Law is not a closed logical entity rather it should form the
legitimate focus of investigation by any one, learned or not.
(c) The law in action is the living or true law, and more worthy of
intellectual searchlight than the dead law contained in books
which has hitherto been the major focus of Jurisprudence.
(d) Law is a relative phenomena. It may manifest in various forms in
various societies and its origin varies.
(e) The abiding and more rewarding concern for scholars and for
society should be with social justice rather than with mere
jurisprudential exposition of concepts.
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functions of the courts as the supreme agent of the law when it comes to
effecting social control.
Erlich was also very interested in the relationship of formal rules (or
laws as they exist in books) to the actual social norms which govern the
operation of the law in society. It is those social norms of law in action
that he described as the "living" or true law.
In other words, behind the technical law in books that lawyers contend
with, there is a living law. The lawyer must therefore go beyond the
man made or positives law, to the normative inner workings of those
laws.
Erlich's major contribution was the call for lawyers, judges, legislators
and other personnel of the justice systems, to be in close touch with the
inner workings of society which may not be immediately apparent in the
language of the law but have all the same forged the law.
GUIDELINES
The law does not speak on its own and it does not make itself.
These are this issues that sociological juriprudence is trying to
draw attention to. Any serious understanding of law must
therefore include the social context of its emergence and
operation.
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Secondly, and relatedly, the assumption that the law is natural and
operates outside the control* of sectional interests is also largely
unfounded. The group in control of law (if the point is conceded) are
most likely to wield the law in a manner that further its interests.
Perhaps, if exponents of sociological Jurisprudence had delved deeper
into their "living law" or law behind the law, this partisan nature of the
law would have been unravelled to them.
4.0 CONCLUSION
This unit is the concluding unit of module 2. Module 2 deals with the
various conceptions of law. So far, two sociological perspectives and
four juristic perspectives have been presented. Note that there are other
schools of Jurisprudence such as the Realist school (or legal realism),
the Teleological school and other less prominent ones. I have
concentrated on the four most dominant ones and I am certain that they
suffice for our purpose in this course.
The sociological School is the one that most adequately straddle the
disciplines of law and sociology. In this unit you have learned that the
school emerged in the late 19th century, that its major exponents are
Roscue Pound and Eugen Erlich. You have also learned their
contributions and the critique of the school. I expect that by now, you
know virtually all that there is to knows about the basics of
conceptualising law. You are nonetheless encouraged to read your
recommended texts and study other dimensions of the phenomenon not
presented here. You should bear in mind at all times that no particular
way of viewing law is perfect or with out any shortcomings. Hence a
critique is presented at the end of each school. It should be helpful for
you to note that the views are not mutually exclusive. It is allowed to
combine views for a fuller understanding of law.
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5.0 SUMMARY
In this unit, you have been introduced to the fourth major school of
Jurisprudence. Its propositions about law and the contribution of its
exponents have been presented. You have learnt that no perspective is
perfect or without weaknesses. That the views are not mutually
exclusive. For a deeper and fuller understanding of the concept of law,
feel free to draw upon compatible insights from the various schools and
theoretical approaches. Remember that they emphasize different aspects
and so may not be as different as they sound. For example, in answering
the question of what law is, Natural law school emphasises a higher law,
Positivists emphasise man-made law, Historical school emphasises
customary law, Sociological school emphasises the law in action.
Critically evaluate the propositions of the six approaches to law that you
have studied in the module, and formulate your own view of law that is
comprehensive and reflect your knowledge of the different approaches.
Write a minimum of 15 and a maximum of 20 type- written A4 pages.
Friedman, W. (1967). Legal Theory, (5th ed.) London: Stevens & Sons
Ltd.
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So much has been said about law in modules 1 and 2. It is time to also
discuss other modes of social control which are non-legal. These non-
legal sources of control are found 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 a times may function independently of,
or to even undermine law.
This module is made up of six units. In each of the units, the relation of
law to one non-legal source of social control or one concept that is
intrincately tied to the idea of law is examined. These are done with a
view to giving you a sociological understanding of conformity and
social control in society.
The first unit examines the relationship between law and morality. It
shows that law does not exist in a vacuum and that legal codes bear
great similarity with moral codes. The areas of convergence and
divergence between law and morality is highlighted and a conclusion is
drawn. This approach is adopted in the next two units, namely on the
relation of law to custom, and on the relation of law to force. Unit 4
focuses on the relation of law to justice. Usually the idea of justice is
implied in the idea of law and the ultimate purpose of law is to bring
justice to society. The unit reveals that the relationship may not be as
easy as that. Infact that there may be legal injustice, where the letter of
law is followed yet injustice results at the end.
Unit six explicates the concept of the rule of law. This is as a logical
follow up to the discussions in unit 5 on law and freedom, and unit 4 on
law and justice. The ultimate aspiration of all modern civilized society is
that the law and not man should rule. The meaning of this statement and
its consequences for the operation of the social order is explored in unit
six.
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CONTENTS
1.0 Introduction
2.0 Objectives
3.0 Main Content
3.1 Law and Morals
3.2 Convergence of Law and Morals
3.3 Divergence of Law and Morals
4.0 Conclusion
5.0 Summary
6.0 Tutor Marked Assignment
7.0 References/Further Readings
1.0 INTRODUCTION
In this unit, you will learn about the relationship between law and
morality. What are their similarities, and what are their differences? Is
the relationship mutually reinforcing or undermining? Can law and
morality actually serve other than the same purposes?
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2.0 OBJECTIVES
It is important to note that the ideas of law and morality are at all times
influenced by power. A powerful group may be able to have laws made
in its interest which do not reflect popular morality. A powerful group
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Morality Law
The diagram shows that while law and moral have their distinct
grounds, there are areas of commonality between. It should be stressed,
however, that commonality does not mean identicality. This is because,
even in the common ground, there exist certain differences. For
example, law and moral condemn murder, rape, theft and so on. But
their definitions of those acts vary. What may constitute rape in morals
may not be so in law.
In what circumstances will law and morality both use the same name for
a moral wrong/crime yet invest such with different meanings?
GUIDELINES
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An obvious similarity between law and moral is that both prescribe and
proscribe conducts, and in doing this, there is great concurrence on
which conduct to prescribe and proscribe. The preponderant majority of
acts that morality will condemn are also condemned and made illegal by
law. When moral and legal codes concide, there is greater certainty of
obedience from citizens and of enforcement by legal officials. Law and
moral will also tend to supplement and reinforce each other.
Furthermore, it becomes a moral duty to obey the law.
Law and morality both impose standards of conduct necessary for social
order. In doing so the rules that they lay down are expressed in similar
language of obligations and duties, rights and wrongs. These similarities
should not seduce us to start thinking that law necessarily connotes
moral obligation or that moral obligations are always translated into
law. The differences between the two spheres are clearly brought out in
the next section.
Secondly, the law does not punish omission to act except where there, is
a legal duty to act. For example in the Nigerian case of Akanni V.R.
(1959) WRNLR 103, the court not held that some men who watched an
old woman die in a burning house without doing anything to help, had
not committed any offence legally, though their action was morally
disgraceful. The position could be the same if somebody who could
swim, watches a child drown when he could have saved the child at no
risk to himself. So refusal to help is not illegal but - it is immoral.
Interestingly, a man who refuses to give back a borrowed knife to its
owner because he (borrower) honestly believes the owner will commit a
crime with the knife is morally right but legally wrong.
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Sometimes the law may deliberately refrain from supporting the moral
rule because the machinery of enforcing such may be cumbersome or
may create more problems than it will solve. A good example of this is
prostitution. This age old activity is typically between consenting parties
and there is usually no complainant. To insist that the law must punish
prostitution is to seek to enforce public notions of morality on
individuals. Furthermore, since it is secretive and there is no aggrieved
party, detection is very difficult. In Nigeria, prostitution is not a crime
perse, but soliciting for it, or making a living from it (like pimps)
constitute a crime.
GUIDELINES
Finally, it may be noted that law and moral may sometimes diverge so
much, that morality may require a disobedience of law! For example if a
legislation is made to legalise drug taking, or stealing or some other
vices, morality will require that such laws be disobeyed. Even in the
military where the norm is "obey before complain", a subordinate is
morally right when be disobeys an immoral order.
4.0 CONCLUSION
The major conclusion that can be drawn from the foregoing analysis is
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that law and moral share much in common, but .they are by no means
the same. The question one may then ask is, what is the nature of the
relationship and which is the dominant partner? Law appears to be
dominant to the extent that it is backed by the coercive apparatus of the
state. But law is easier to enforce when it encodes moral values.
Morality, to a large extent therefore, shapes the law. Infact when laws
do not reflect morality it justifies disobedience. Sometimes however law
that may at first not be in tune with morality, may go on to engender
new notions of morality that suit the changing times. This has been the
case with powerful lobby groups for changes in popular sentiments. For
example, laws relating to protection of children and animals against
cruelty have emerged largely through this way in Western countries. So
new moral duties may be recognized by a powerful elite, the new ideas
are pushed till they become law,, and when they become law, they in
turn influence morality.
5.0 SUMMARY
In this unit, you have learned that law and morality both impose
standards of proper conduct in society. That in most cases they
supplement and reinforce one another. Morality to a large extent
determine the content of law. But laws can also serve to alter morality. It
has been stressed, that even in areas where morality and law agree, the
content of the concordance may not be identical. In the remaining units
of this module, you will encounter other sources of social control that
are related to law in a similar manner with morality.
Criminal Code Act (cap 77). Laws of the Federation of Nigeria, 1990.
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CONTENTS
1.0 Introduction
2.0 Objectives
3.0 Main Content
3.1 Law and Custom
3.2 Convergence of Law and Custom
3.3 Divergence of Law and Custom
4.0 Conclusion
5.0 Summary
6.0 Tutor Marked Assignment
7.0 References/Further Readings
1.0 INTRODUCTION
In this unit, the relationship between law and custom will be critically
examine. You will learn about their similarities, their differences and the
nature of the relationship between them.
2.0 OBJECTIVES
In definition, both law and custom are rules of conduct which members
of society recognise and consider obligatory to observe. The differences
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come, when we start specifying the nature of the rules, how they are
made, how they are enforced, who enforces them, and so on.
Cite some customary rules in your society which are not enforced by
formal agents of law but which are nevertheless binding or considered
obligatory by members.
GUIDELINES
Those from rural areas will have more to cite her. Many of such
rules still exist in modern day Nigeria. In some cases, sanctions
are even administered by informal organs. There are many such
rules in the area of pre or extra-marital sexual relation, misuse of
communal or family property especially, land, and so on.
We have already noted that both law and custom are rules of conduct
which members of society consider bound by. In early or primitive
society, custom was also the law. Such societies had no developed legal
system characterised by written laws and centralised administrative
machinery that today constitute the hallmark of law.
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It has been argued that even when custom serves as a source of law, it
does not then mean that custom is law. This is because custom is just
one among the many sources of law. For example, morality and
religious values contribute to law in their separate identities and
should not be treated as if they are inseparable from custom.
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GUIDELINES
4.0 CONCLUSION
5.0 SUMMARY
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CONTENTS
1.0 Introduction
2.0 Objectives
3.0 Main Content
3.1 Law and Force Defined
3.2 Convergence of Law and Force
3.3 Divergence of Law and Force
4.0 Conclusion
5.0 Summary
6.0 Tutor Marked Assignment
7.0 References/Further Readings
1.0 INTRODUCTION
Force is another concept which has close association with law. For any
definition of law to be complete, it must contain an aspect about what
happens to violators of the law. This is what is contemplated when we
talk about force. It entails the whole machinery of the state, organised
legitimately and entrusted with the authority of enforcing the law. This
explains why many police organizations in the world are called Police
“Forces”, although in the spirit of growing humanitarian clamour, many
are beginning to jettison the word force.
In this unit, you will learn the meaning of force and the various
dimensions of it. You will learn that the force contemplated in this unit
is one that is characterised by the twin elements of legitimacy and
authority. You will also be exposed to debates concerning the
desirability of linking law to force and whether force is in fact a
necessary component of law. Do people obey law because they fear
force or sanctions or is it because of moral or other commitments to the
social order? Many other related thorny issue will also be addressed.
2.0 OBJECTIVES
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The gun-wielding policeman who does more or less the same thing has
also exercised force. But the forces exerted are different. The citizen
knows that the armed -robber is not entitled to his obedience. The
armed-robber has been able to make him comply purely by the threat of
the gun or force alone. The citizen however believes that the policeman
is entitled to his obedience. His uniform gives him a stamp of
legitimacy. He however, has no authority to order passengers into the
bush.
This is the major distinction that must be made here. The force that we
associate with law is the force which is characterised by the twin
elements of legitimacy and authority, it implies that there is a state with
a legitimate or quasi-legitimate government in place. That the state has
law enforcement and administration agencies. That there are laws
governing the operation of the agencies. And in short, that the personell
of the agencies wield legitimate authority. The citizens believe in and
recognise the legitimacy of the agencies and so feel a sense of duty in
complying with the orders of the agents and not out of fear of force
alone.
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GUIDELINES
Suppose you are the driver of such a vehicle, will you stop? What
if it is a armless civilian who orders you to stop? Will you stop?
In the practical sense, it is inconceivable that we can have law that is not
supported by force. Take the element of force away and what you have
left cannot be law. This however must not be interpreted to mean that
law can rest on force alone. As earlier noted, the word force is used in
this unit to mean legitimate authority, and legitimate authority
presupposes that many cherished values (moral, religious, custom, etc),
are distilled into law.
Of course, a few aberrant situations have come up in the past where for a
few months societies were run on brute force (with no legitimacy) alone.
This happen in some countries that were occupied by Nazi Germany
during the second world war, where the occupiers lack no legitimacy
whatsoever yet were able to rule through fear and brutai force for a
while, it also happens in periods of military coups. These are however
isolated cases and lasted for very short periods. But though they do not
conform to the view that force must be legitimate authority, they
underscore the point that force is a crucial component of law. In other
words, the major compelling reason why people obey the law is the fear
of sanctions for doing otherwise, though this is not always obvious.
Interestingly, arguments have also been advanced to the effect that force
need not be a component of law, or that it is even an anathema to law.
First, it has been argued that any force or violence is wrong in itself.
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Therefore, any law which rests upon violence offends the principles of
true morality. Force is a negation of law and recourse to violence is an
extraneous element outside law, which is only brought in when law
itself has broken down. As such, it is not a component of law. This
second view is however convoluted and not very clear.
Another group of commentators claims that people obey the law not
because they are constrained to do so by force, but because they consent
or at least acquiesce in its operation. It is then maintained that it is such
consent rather than any threat offeree which enables the legal system to
function. The social contract idea (the idea that the state or government
is a product of an agreement between the governor and the governed)
underlies this view. It is instructive, however, that the legal fiction of a
social contract has now been dropped in favour of the idea of universal
suffrage and majority rule.
In your own view, what is the fundamental reason for obedience to law?
GUIDELINES
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4.0 CONCLUSION
In this unit you have learned of the two opposite views regarding the
relation of law to force. One view describes law and the legal system
essentially in terms of legitimacy, authority and consensus and excludes
the element of force. The other view is a coercionist view of law and
puts force at the forefront of law perhaps to the neglect of authority and
legitimacy. The reality, however, is that both views are not mutually
incompatible and must be taken into account to get a comprehensive
understanding of the relation of law to force and the dynamics of the
social order.
True, the need for the actual use of force is becoming less and less in
modern society. People are obeying law more, not because of the
element of compulsion or force but seemingly because they believe in
the law and perceive their obedience to be right. But this should not lead
us to conclude that force is not needed. The knowledge of the existence
of a formidable force (e.g. the police force, the armed forces etc.) to
crush any resistance is enough to render resistance to law useless. So
people seemingly obey without resistance, not because they really
want,to obey but because disobeying is not worth it. At all levels of
society, human law has depended for its ultimate efficacy on the degree
to which it is backed by organised coercion. While there is much good
in human nature, there is also much basic instincts and drives. Mere
commitment to a civilized living is not enough to keep those aggressive
drives in check. The force behind law does, to a large extent.
5.0 SUMMARY
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Sills, D.L. (1968). I.E. S.S. see the following Entries: Force and
Freedom 2:205, Civil liberties 3:308.
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CONTENTS
1.0 Introduction
2.0 Objectives
3.0 Main Content
3.1 Law and Justice Defined
3.2 Law and Formal Justice
3.3 Law and Substantial Justice
3.4 Law and Legal Justice
4.0 Conclusion
5.0 Summary
6.0 Tutor Marked Assignment
7.0 References/Further Readings
1.0 INTRODUCTION
To state that there is a relation between law and justice is to state the
obvious. This is because the purpose of law ordinarily is to ensure
justice. The word justice is however an omnibus or nebulous one and
has been invoked in so many differing situation that its meaning is
becoming obscure. Among the more prominent senses in which the
word has been used are the following: natural justice, jungle justice,
poetic justice, divine justice, substantial justice and legal justice.
In this unit, you will learn the relation of law to the more important of
these forms of justice. You will also learn to distinguish one form of
justice from another.
2.0 OBJECTIVES
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(a) You must hear the other side in a dispute (audi alteram patem),
and
(b) You must not be a judge in your own case (Nemo judex in causa
sud). When people talk of Nemesis catching up with somebody
or when Nigerians say "Na God catch am", they are all invoking
some notions of divine justice in which every offender gets his
just desert regardless of whether the human criminal justice
apparatus is able to handle the culprit or not.
GUIDELINES
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Once people are categorised, and the people in each category are treated
equally, formal justice is done. This concept of justice rests upon the
cliche that "likes should be treated alike". It is not interested in the
criteria by which classification or categorisation is done. It takes the
basis of classification (whether just on unjust) for granted. The only
concern is whether subsequent on classifications, rules and procedures
are being applied such that equals (by virtue of class) are treated
equally. Once this is so, then formal justice is being done.
To the extent that formal justice does not question the justness of rules
of procedures themselves, but is only concerned with whether the rules
are being adhered to, it falls short of an adequate conceptualisation of
justice. The implication of the formal justice positions, is that even if the
criteria for segregating people for selective application of law is mere
skin colour (as happened in Apartheid South Africa and it is still
happening in parts of the U.S. A) justice is being done, so long as the
rules are adhered to. A more robust conceptualisation of justice should
question the rules themselves and evaluate them according to higher
standards.
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The second element is equity. This entails the need to be fair by making
rule-application less rigid and more individualised. The rationale is to
foresee and provide for peculiarities in the situations of individuals. The
need is met by allowing a certain latitude for the exercise of discretion
to the state justice officials. For example, if five individuals separately,
commit the offence of theft, they would have committed it for different
reasons desperation fostered by hunger, insanity and inability to
understand nature of act, out of greed/for illicit gain, out of spite,
calculated act of revenge, mistake thinking it actually belong to him
(accused) on some person other than victim and so on.
The logical follow up to this is that we may also have legal injustice! So,
can anything legally done amount at the same time to an injustice? The
answer is yes.
(a) When a case is decided in a sense that is contrary to what the law
has laid down. E.g. if the law says any one who steals is to be
awarded a medal, then somebody steals and he is punished or
locked up, legal injustice has been done.
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GUIDELINES
Such extreme cases are rare, but there have been instances when
the letter of the law did not quite accord with the reality, e.g. the
law under Buhari in 1984, prescribing death penalty for drug
trafficking of the releasing more recent law against smoking in
public. No matter how responsible those laws were, the fact is not
enforcing them when they come before a court will amount to
legal injustice.
4.0 CONCLUSION
Two major ways by which modern legal system aspire to attain not
merely formal, but also substantial justice are:
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5.0 SUMMARY
In this unit, you have learnt that there are different froms of justice and
that law is closely associated with all of them. You have been told that,
though the ordinary aim of law is to achieve justice, there are times
when law either in content, or in its manner of administration has
created injustice. Of the three major forms of justice examined,
substantial justice comes out as the most important. You have been told
in fact, that it is the kind of justice most in contemplation when we talk
about the relation of law to justice. I expect that you have digested the
content of this unit, bearing in mind that it is the fourth unit of module 3,
which goal is to explain law in the context of its convergence and
divergence from other social control sources, and related concepts.
Critically examine the three major forms of justice discussed in this unit
and explain which of them more closely approximate your own idea of
justice. Write a maximum of 6 typewritten pages.
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CONTENTS
1.0 Introduction
2.0 Objectives
3.0 Main Content
3.1 Law and Freedom Defined
3.2 Law and Fundamental Rights/Freedom
4.0 Conclusion
5.0 Summary
6.0 Tutor Marked Assignment
7.0 References/Further Readings
1.0 INTRODUCTION
The issue of freedom (or liberty or rights) has of late assumed quite
some significance. Governments have been raised or brought down on
grounds of human rights profile alone. As Democracy gains ascendance
over other forms of government (such as Theocracy, Aristocracy,
Dictatorship/Autocracy and other forms of Totalitarianism/Despotism),
so is the issue of guaranteeing certain freedoms to individuals.
In this unit, the relationship between law and freedom is examined with
a view to demonstrating how law further or hinder liberty. Freedom does
not quite fit the notion of a competing source of social control as morals
or custom treated in the earlier units of this module. But the idea of
freedom is nonetheless closely interwoven with the idea of law.
Freedom just like justice is one of the aims that law seeks to achieve.
This may sound contradictory because we associate law with imposition
of restraints which is an antithesis of freedom. But as you read further
into this unit, you will come to understand that law, though seemingly
restricting freedom, is in reality expanding it. You will also learn how
modern societies try to raise the values embodied in fundamental rights
above every other value. This they do by enshrining them in the
constitution and declaring them to be the provisions that must prevail in
the event of conflict with any other law.
2.0 OBJECTIVES
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Freedom on the other hand, ordinarily means the ability to do what one
wishes without restraint. It may therefore appear that it is a contradiction
in terms to say that the idea of freedom is embodied in law. The
contradiction, however, disappears when we understand freedom to
mean, not the liberty to do whatever one wants, but the liberty to do
whatever one wants within the limits imposed by law. This is legal
freedom.
Some freedoms are considered more basic than others. Over the years a
body of such freedoms has come to be recognised all over the world.
They go by such names as Basic Rights or Fundamental Human Rights
or just Human Rights.
Such freedoms are now being written into many national constitutions
beginning with the American constitution of 1776. The courts are bound
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GUIDELINES
Try and see what is left of the rights after the qualifications. It is
usually not much. Yet it is usually enough to secure freedom, so
long as there are responsible executive, legislative and judicial
arms of government in place.
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Through these and similar provisions world wide, the law seeks to grant
and protect freedoms of individuals. But it recognises that unfettered
freedom can be counter-productive, so restrictions are imposed on
individuals to guarantee freedom for all. To ensure legal equality,
democracy becomes the preferred mode of governance and provisions
such as universal franchise and recognition of equality before the law
are put in place. Preservation of property is regarded as a fundamental
purpose of law. But again this is eroded by nationalisation of industries
and land, and the governments power of compulsory acquisition.
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To what extent do you think the right to join association, including trade
unions, for the purpose of fighting for one's right (s.40 of 1999
constitution) should be extended to para-military and military
organisations?
GUIDELINES
The constitution, which is the supreme law actually does not exclude
such organisations from forming association and trade unions. The
Supreme Court has however in (Osawe v State) insisted that the right
does not extent to them. If so, it would only create room for chaos and
instability. Hence the recent police strike (February 2002) was widely
condemned for being illegal, even when they claimed to be pursuing the
rights granted them under S.40.
Religious practices which do not violate laws are allowed. A whole hog
of smaller rights are protected as personal freedom also, provided they
do not amount to encroachment on others' right or a violation of law.
These include freedom to come and go as one pleases, to take up or
reject any employment of choice, reside wherever is desired, and
generally to lead what to him is the good life, subject to compliance
with the laws of the land.
4.0 CONCLUSION
In conclusion, you should note that conflict may and in fact do arise
between the various types of fundamental Rights and values which
underlie them (conflict is not just in terms of the Rights and other
provisions of law). Thus freedom of speech may conflict with the right
of the citizen to be protected against intolerant propaganda. The right to
independent religion may entail preaching discrimination against other
religions. Above all, the security of the state may be involved as a value
overriding all individual claims.
One way of resolving such conflicts, drawing upon the U.S experience,
is to declare certain freedoms to be more fundamental than others, e.g.
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Right to private life may supercede the freedom of the press. As such, in
the event of publication of scandalous intimate details of something an
individual has done in the privacy of his house, that individual may have
a remedy in court on the ground of violation of his privacy, even if the
story is true.
You should also note that it is one thing to lay down fundamental
norms, but quite another to ensure that those concerned actually comply
with them. Because of the shortcomings of national government in
protecting individuals rights, attempts have been made at super-national
levels to protect such rights. Prominent in this regard are the Universal
Declaration of Rights adopted by the U.N. in 1944, and the
institutionalisation of Customary International Law. The problem with
such international efforts, however is that they lack power to do much in
terms of restraints against sovereign power of states to deal with their
citizens. For example, only states (not individuals) are recognised in the
International Court, and an individual cannot therefore take complaints
there against his state.
5.0 SUMMARY
In this unit you have learned that the idea of freedom is embodied in the
idea of law, though ordinarily the two concepts seem to signify opposite
things. You have learned that law, in seeking to restrict the freedom of
individuals is actually expanding the stock of freedom in the whole
society. You have also been told that some freedoms are considered
more fundamental than others. These fundamentality freedoms are also
called Human or Basic Rights. Because they are fundamental, they are
now entrenched in modern constitutions as values which the law holds
supreme and will give precedence should any conflict arise between
them and other laws. There are however so many qualifications/provisos
to the enjoyment of these rights that one wonders if the law does not
take away with one hand what it has given with the other. What ever the
case, one thing is clear, for freedom to be guaranteed, it is ultimately the
law that we must rely on. This point will be made even clearer in the
next unit, which is on the Rule of Law.
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CONTENTS
1.0 Introduction
2.0 Objectives
3.0 Main Content
3.1 The Rule of Law Defined
3.2 The Relation of Law to the Rule of Law
3.3 A Critique of the Rule of Law
4.0 Conclusion
5.0 Summary
6.0 Tutor Marked Assignment
7.0 References/Further Readings
1.0 INTRODUCTION
2.0 OBJECTIVES
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The first and perhaps most seminal definition of rule of law was
propounded by A.V. Dicey in 1915. He reduced the concept to the
presence of three elements in any society. First, there must be absolute
supremacy or predominance of regular law over arbitrary power. In
other words, every person or institution must be subject to the law. All
actions must be based on the provisions of the law and any breach
punished according to the law. The operation of the legal system and in
particular the application of the law must be above the wishes or whims
of everybody.
GUIDELINES
You may want to refresh you memory and get addition materials
by reading unit 3 to 5 of this module again.
Secondly, there must be equality of every one before the law. In other
words, the same law and standards apply to everyone irrespective, of
their standing or status. Thirdly, the courts are the best custodians of
peoples’ right and should administer the laws.
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(a) It presupposes a system based on law and order. Note, law and
order is not to be an excuse for suppressing dissent and
oppressing opponents.
(b) It presupposes the existence of a democratic system of
government i.e. the people should have a say in who governs
them and be able to effect periodic changes of leadership through
elections. They should also be able to disagree.
GUIDELINES
The ultimate aim of all these provisions is to ensure that it is the law
which rules and not man. The relationship between the ruler-ship of the
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law and the kind of law that are in place to guarantee such ruler-ship is
more closely examined in the next section.
As such the relation of law to the rule of law is fairly obvious and
definite. There is a rule of law when law is properly made, fair in its
content, and applies over and above individual whims and caprices
regardless of whether such individuals in fact constitute the State.
A major critique of the rule of law is that it rests upon the "Social
contract" theory of society which sees the State as a partnership between
the ruled the rulers. As such it assumed that the state is an impartial and
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benevolent organ that holds pluralistic interest in balance. But the notion
of social contract has since been discarded. Once we see the state as a
one sided or partisan party in a society with conflicting interests, it
becomes glaring that the rule of law is a mere mask, masking
exploitative and unequal relationship.
Second, the fact that legality and due process provisions are in place
does not guarantee equality. This is because if the substantive laws
themselves are unfair, then no amount of procedural safeguards can
ensure equality and fairness.
4.0 CONCLUSION
In conclusion, you should see the rule of law as an ideal type (i.e. a pure,
perfect form not found in reality) to which all modern societies aspire to.
But no country has been able to live up fully to its requirements. On a
continuum of countries, you will find that the advance capitalist West
has approximated the ideal more closely than third world or developing
countries like Nigeria. In terms of regimes, civilian democracies have
been nearer it than military and other autocratic regimes.
5.0 SUMMARY
In this unit, you have learned about the concept of the rule of law. You
now know that it has no single definition but it is generally agreed that it
means the extent to which the law is allowed to direct the affair of
society rather than the wishes of men. Remember the twin principles of
legality and due process and what they entail. At the end, it was
concluded that a complete rule of law is something that no society can
claim to have achieved. But we can measure societies in terms of the
extent to which they approximate the ideal.
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Ahire, P.T. (1997). “Culture, Democracy and the Rule of Law: Theory
and Evidence from Nigeria” in Nasidi & loil (eds) Culture and
Democracy. Zaria: Ahmadu Bello University, Press.
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INTRODUCTION
The first three modules of this course have dealt with general issues that
is of major concern in the sociology of law. In this module, specific
focus will be brought to bear on the Nigerian situation. In discussing the
Nigerian legal system, those general concerns would be given specific
empirical content. At the same time, the issues of modern versus
traditional or formal versus informal justice system would be addressed.
This module is made up of five units. The style adopted in writing the
first four units which deal with historical periods in Nigeria's
development is the same.
The units are broken into the following six parts:
(a) Overview
(b) Substantive law (i.e. law defining offences and rights)
(c) Procedural laws (i.e. laws defining how to proceed with an
alleged offender)
(d) Penal laws (i.e. rules defining what to do with a convicted
offender)
(e) Personnel of the justice system, and
(f) The outcome of the justice (especially criminal justice) process.
You should bear in mind that this excursion into the history and
development of the Nigerian legal system is also an excursiory into the
evolution of the modern from the traditional. For space and time
constraints (Sociology of law is a one semester course), no separate
module is created for a discussion on formal versus informal methods of
justice. But such a topic is a very important part of sociology of law.
Attempts have been made in this module to integrate the concern of such
a topic here.
Therefore, the first two units where the pre-colonial legal system of
Nigeria is discussed should also be seen as a discussion of informal or
traditional systems of justice. As you will soon discover, the references
given there conmin material on informal justice systems outside Nigeria.
Units 3 and 4 which discuss the colonial and post-colonial legal systems
respectively should also be seen as a discussion of formal legal systems.
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The overall goal of the module is to familiarise you with the historical
development of the Nigerian legal system while at the same time
highlighting the important features of traditional and modern systems of
justice to you. Specific objectives towards that goal are presented in
each of the units.
CONTENTS
1.0 Introduction
2.0 Objectives
3.0 Main Content
3.1 Overview of the Pre-Colonial Legal Order of Southern
Nigeria
3.2 Substantive Laws
3.3 Procedural Laws
3.4 Penal Measure
3.5 Personnel of the Justice System
3.6 Philosophy and Outcome of the Justice Process
4.0 Conclusion
5.0 Summary
6.0 Tutor Marked Assignment
7.0 References/Further Readings
1.0 INTRODUCTION
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2.0 OBJECTIVES
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In all the villages, towns, kingdoms, and empires, the applicable law
prior to colonialism was unwritten customary law. These are the
respective customary rules of the different peoples. There were no
formal or centralised machineries for the enactment, enforcement or
administration of such rules. They have simply evolved from the
practices, habits, and previous decisions of respected arbitrators. Yet the
rules were acknowledged and recognised as binding and obligatory.
Negative sanctions were available for non-compliance, and enforcement
range from self-help remedies to enforcement by recognized organs.
Though the various divisions of law as well as purpose of law, are not
explicitly recognised or articulated, they nevertheless existed as we shall
soon see in subsequent sections.
Name any twenty small pre-colonial tribes that were not under the
political influence of any kingdom.
GUIDELINES
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You must note however that custom itself reflect many other kinds of
rules, beliefs, folkways, norms and values which over time crystallize
into rules of conduct which the people believe they are bound to
observe. It embraces social morality, ethics, religion and general beliefs
of the people. It also subsumes decisions taken by relevant authorities in
new cases, which later become some sort of judicial precedents for the
future. So these other rules either separately, or in conjunction with
custom, constituted the major sources of law in the pre-colonial southern
Nigeria.
They also had their own principles of liability. For example, unless a
rule was violated, one cannot be punished. Accepted defences against
criminal liability included age, insanity, mistake and self-defence.
Somebody that is considered a child, insane, or who shot a person by
mistake, honestly believing he was shooting an animal, or kills in self-
defence was either totally exonerated or his level of liability reduced.
These features characterised all modern systems. It is wrong to deny
their existence under the pre-colonial legal systems or so-called
“primitive” societies just because they did not exist in books but
customs.
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GUIDELINES
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The outcome at the end of it all was that justice reflected the views of
the people, there was commitment and belief in it, it was convenient and
convincing, and was largely devoid of the rancour and acrimony that
characterises present day Nigeria legal system.
GUIDELINES
Look at the total process itself and explain the extent to which it
meets the needs of adjudication. Look at the setting whether rural
or urban.
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4.0 CONCLUSION
5.0 SUMMARY
In this unit you have learned that prior to the colonisation of Nigeria, the
different autonomous tribes which now make up the federation of
Nigeria, bad their own systems of justice administration. The system
was an informal type and based largely on unwritten customary law in
the south (in the next unit you will learn about what the north was like).
You have also learned the mean it of the major divisions of law and
have been told that the discussion in the next three units of this module
will be according to the same divisions.
The major position that has been pushed in this unit, especially in its
concluding parts, is that the pre-colonial justice system was humane and
served the purpose of justice and society well. It was however noted that
an opposite view exist and you need not be hasty in aligning with my
position.
This unit is long, perhaps the longest in the whole course. But its length
is justified on the ground of laying foundations for all the other units in
this module.
Identify and critically discuss either any form of trial by ordeal, or any
form of informal trial process that is still practised in your community
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Okonkwo and Naish (1980). Nigerian Criminal Law. London: Sweet &
Maxwell.
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CONTENTS
1.0 Introduction
2.0 Objectives
3.0 Main Content
3.1 Overview of the Pre-Colonial of Northern Nigeria
3.2 Substantive Laws
3.3 Procedural Laws
3.4 Penal Measure
3.5 Personnel of the Justice System
3.6 Philosophy and Outcome of the Justice Process
4.0 Conclusion
5.0 Summary
6.0 Tutor Marked Assignment
7.0 References/Further Readings
1.0 INTRODUCTION
In Unit 1 of this module you were told that the pre-colonial Nigeria
setting could be divided into two broad parts for the purposes of
discussing justice administration. Unit 1 then dealt with one of the two
parts, namely southern Nigeria.
2.0 OBJECTIVES
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In other words, the north was operating the Sharia legal system. Of
course, there were a few areas in the north (such as Tiv land and much
of the present day Middle Belt and Christian dominated areas in the
present north) which the Jihadist were unable or yet to penetrate. Those
places operated in ways quite similar to southern Nigeria. Our
discussion here shall focus essentially on the Islamic north.
The basic source of law in the Islamic North was the Holy Koran. The
laws are deemed to have been given by God and so are divine. The laws
of the Koran which are necessarily not too elaborate nor exhaustive are
supplemented by some recognised subsidiary sources. In order of
importance, these are the Sunnahi Hadith (i.e. sayings and deeds of
Prophet Mohammed), Ijma (unanimous agreement of learned Islamic
scholars), Qiyas (Analogical deductions), and Istihad (subsidiary
sources) which included public interest, legal presumptions, custom and
"Blocking the means". Offences are classified according to whether they
are contained in the Holy Quran (Huddud offences), or require
retaliatory measures (Qisas), or required discretionary handling (Taazir).
We shall explain these classifications further in subsequent sections of
this unit.
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One thing worthy of note is that,- Islamic law, to the extent that it was
largely contained in a book (Holy Quran), is a written law. The
tendency to describe it as a customary law is therefore not quite correct,
because customary laws are unwritten. Nevertheless, for our purposes
here, and from the official view in Nigeria, all pre-colonial laws are
deemed to be customary laws.
Since the political organisation of the north was more developed, it had
a machinery for justice administration. There were "local policemen"
who effected arrests. Detention was more used than in the south, and
there were judges. The trial process was quite simple but relatively more
formal than in the south. The legal administrative machinery was
manned by Islamic legal scholars mostly.
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For Qisas offences (i.e. murder or grievous bodily harm) the penalty is
retaliation of the victim (or when victim is dead, the relevant relation),
or the victim is allowed to opt for compensation. So even murder is
compoundable under Islamic law. The relation of the deceased can ask
for "blood money" rather than demanding that the culprit be also killed.
GUIDELINES
The overall head of the Islamic state, i.e. the Caliph, is chosen not based
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The more upright, pious and learned one is, the more he could be
entrusted with power. In fact, for the Sharia legal system practitioners
need not undergo any legal training. This is because every thing is
contained in the Holy texts and being knowledgeable in it implies
knowledge in all spheres of human endeavors.
Since the Islamic religion is a total way of life in which legal relations is
embedded, it follows that Islamic legal system also serves religious
functions. So long as people are committed to the religion, they are also
committed to the legal system that it prescribes.
The Quranic laws are seen as divine, higher and superior laws which
man made law should imitate. It is inconceivable to adherents of the
faith that a penalty proscribed by God should be judged by human
reasoning and standards and found to be wanting. This was at the very
core of the recent Sharia crises in Nigeria.
GUIDELINES
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4.0 CONCLUSION
5.0 SUMMARY
You have learned in this unit that though the pre-colonial Northern
Nigeria was not a single entity, the earlier conquest of large parts of it
by the Fulani Jihadist put it on the path to achieving that. It had a more
centralized political organisation with a vast territory under the political
leadership of the Sokoto Caliphate. The territory was administered
according to Islamic principles and the legal system was Shariah based.
You have learned that the Islamic law is largely written though referred
to as customary law. You have also been presented with the different
aspects of law under the system and how religious considerations are
paramount. You may want to read unit 3 of module 2, which was on
“Natural law” to have a richer understanding.
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You now know how pre-colonial Nigeria was legally administered prior
to the advent of the British colonialists. The decision as to whether their
methods were barbaric and repugnant to natural justice is largely yours
to make. But the debate will be revisited later in unit 5 of this module.
If you had any problem in understanding the discussion under any of the
major subdivisions, go back and read unit 1 of this module where each
section contains elaborate statements on what is expected.
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CONTENTS
1.0 Introduction
2.0 Objectives
3.0 Main Content
3.1 Overview of the Colonial Legal Order of Nigeria
3.2 Substantive Laws
3.3 Procedural Laws
3.4 Penal Measures
3.5 Personnel of the Justice System
3.6 Philosophy and Outcome of the Justice Process
4.0 Conclusion
5.0 Summary
6.0 Tutor Marked Assignment
7.0 References/Further Readings
1.0 INTRODUCTION
In 1861, King Dosumu of Lagos, who could neither read nor write,
signed a document called the Treaty of Cession. He had been assured
that by signing the document, the imperial might of Britain would be
brought to protect Lagos (his kingdom) from all enemies. By the simple
act of signing however, he had ceded Lagos to the British and that
singular act set into motion the effective colonialisation of the territory
that is today known as Nigeria.
2.0 OBJECTIVES
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With the treaty of cession in 1861 Britain could play a more visible role
in dispute settlement. It established consuls to regulate trade. The
consuls in turn established consular courts, which were later followed
by equity courts.
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To what extent will you agree with the assertion that Nigeria is not and
should never have been a nation and that the amalgamation of 1914 was
a kind "forced marriage"?
GUIDELINES
In 1933 there was a reform of the system, for the first time. High courts
and magistrate courts were established. There were additional reforms in
1943. A separate law for juvenile was also established in that year along
with juvenile courts.
The over view has focused mainlyon development in the judicial sector
of the legal system. There were development in other areas too that are
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The major sources of law during the colonial period was the received
(more appropriately, imposed) English law. This came in the form of
statute of general application in England (i.e. legislation), common law
of England (case law) and the English doctrine of Equity. The
legislative houses set up by the different constitutions (i.e. Clifford
Constitution in 1922, Richard's Constitution in 1946, Macpherson
Constitution in 1951 and Lyttleton Constitution in 1954) also provided
limited sources of law in form of local legislation (called ordinances).
Nigeria customary law also served as a source of law particularly in
civil matters so long as it could be shown that it was "not repugnant to
natural justice, equity and good conscience or incompatible with any
law for the time being in force". This is known as the repugnancy test.
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GUIDELINES
The major sources of procedural laws in the colonial period were the
Criminal Procedure Act (CPA) for criminal procedure. For civil
procedure, they are found in the various High Court Civil procedures,
and rulings of superior courts.
The trial process also became formalised. It held in courts (not under
trees, or chiefs' palaces) and proceeded according to explicit set of rules.
Trial by ordeal or the swearing of oath by "fetish" symbols were
abolished.
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The elders, chiefs, Kings, age grades, secret societies, diviners, and so
on, who had hitherto been the dominant justice personnel lost out. They
were replaced by British administrators and professionals with legal
training, and by personnel of such agencies as the police and prisons.
Many of them were reluctant to use the machinery of justice and still
preferred their indigenous informal modes of dispute settlement. Those
who used it were discouraged. When the alien system is invoked against
neighbour, the whole neighbourhood may begin to treat the complainant
as an object of scorn and ostracism regardless of whether they believed
the accused was wrong.
The overall outcome was that justice was expensive, slow, and not
convincing. It tended also to generate rancour and acrimony among
disputants even after the so-called settlement in court.
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4.0 CONCLUSION
5.0 SUMMARY
This unit has focused on the colonial legal order of Nigeria between
1861 and September 1960. You have learned that the colonial
experience began with the cession of Lagos to the Colonial British
empire in 1861. You have also learned that in fashioning the legal
system to its taste, the colonial masters treated the indigenous legal
system as inferior and of a subordinate status. Indigenous criminal law
was abolished, and customary civil law was allowed only if it passes the
repugnancy test. The conclusion is that the pre-colonial legal system
was more responsive to the yearnings and aspiration of the people. This
is however not to say that the British system is an unmitigated disaster.
Infact there were many new relations of commerce that our local laws
could not have handled but which the foreign laws could.
You are free to disagree with my conclusions, and to draw and justify
your own.
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CONTENTS
1.0 Introduction
2.0 Objectives
3.0 Main Content
3.1 Overview of the Post-Colonial Legal System
3.2 Substantive Laws
3.3 Procedural Laws
3.4 Penal Measures
3.5 Personnel of the Justice System
3.6 Philosophy and Outcome of the Justice Process
4.0 Conclusion
5.0 Summary
6.0 Tutor Marked Assignment
7.0 References/Further Readings
1.0 INTRODUCTION
In this unit, you will learn that the nature and character of post-
independence Nigerian legal system owes much more to the colonial
experience. It reflects a predominantly Western value while the
indigenous system continues to play a subordinate role. You will also
learn about military incursion into politics and the effect that this has
had on the legal system.
2.0 OBJECTIVES
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A counter coup followed in July 1966. The country was reverted from
unitarianism back to federalism and the regions resurrected. To forestall
civil war, the states (creation and transition) provision Decree 14 of
1967 was promulgated. Twelve states were created from the former four
regions.
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GUIDELINES
The sections have been most criticised. The preamble states, “We
the people of the Federal Republic of Nigeria... Do hereby make,
enact as give to ourselves the following constitution”. This is said
to be a lie because the constitution was imprised by the military
and not by the people, to the constitution is already lying about
itself.
S. 13-24 states all the good things that government should do for
the people. The block of sections is titled “Fundamental
Objectives and Directive Principles of State Policy”, the problem
is they are not justifiable. That is they are not binding on
government and you cannot take any government to court for not
enforcing them.
Most of the other laws of, the federation have remained intact
whether under military or civilian regime. They can be found in
the “Laws of the federation of Nigeria 1990”.
The sources of law under post-colonial Nigeria are not very different
from under the colonial Nigeria. Neither has there been any radical or
drastic change in their content. The sources remain:
(a) legislation under which it may be noted that decrees and edicts
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which are laws made by military regimes have come in. Besides,
statutes of general application in England are no longer
applicable in theory. But in practice most of them have been
reenacted virtually verbatim by local legislation.
(b) received English law which include common law of England and
Doctrines of equity as frequently found in case laws.
(c) case law and
(d) customary law. Again the customary laws must still pass the
repugnancy test before it is accepted as a source of law.
The general principles of liability, just like under the colonial era
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Rules guiding arrest include: the person being arrested must be informed
of the reason for his arrest, he should not be arrested with more force
than is reasonably necessary, he should be granted bail if he meets the
requirement and where detained, he should not normally be detained for
more than 24 hours before he is taken to court.
The court trial itself proceeds upon the adversarial principle. The judge
sits and listens as prosecuting and defence attorneys argue it out. It is
like a fight (adversary) which the judge observes and pronounce
judgement upon. Each side calls witnesses which he examines and
which are cross-examined by the other side. The jury system of trial is
not practised in Nigeria. In high courts and higher courts, both sides are
usually represented by lawyers. In fact for some cases, especially
criminal cases, legal representation is a requirement.
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personnel of the Nigeria system are formalised. The Police is the agency
charged with law enforcement. It makes arrests, and in lower courts,
conduct most of the prosecutions. The law allows private citizens to
make arrests especially when the crime is committed in their presence.
But they are to hand over such an arrestee, as soon as possible to the
Police. Note that even when vigilante groups perform law enforcement
functions, they are only doing so as private citizens and have no legal
power to torture, detain and do many of the other they do.
The trial process of the post colonial legal system is dominated by legal
professionals or people with legal training. The judges, prosecutors, and
lawyers are all supposed to be trained lawyers. A limited scope for
participation is however also given to lay people (i.e. people not versed
or learned in the law). For example in lower courts, lay people can act
as judges. Customary courts in the south may be presided over by those
knowledgeable in the customs of the people, while Area courts in the
North may be presides over by alkalis whose only qualification is
knowledge of Islam.
Do you agree that modern law enforcement agencies are not serving
their expressed purpose?
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GUIDELINES
Clear identification of the agencies and the purposes each should serve.
Do you have facts and figures? Think over what the situation would be
like if those agencies were not there at all. Think also what it would be
like if certain things are alone to improve the performance of the
agencies.
For cases that go to trial stages, the technicality of the language, the
impersonal setting, the stern looking judge with artificial white hah", the
interminable delays and adjournments, have tended to frustrate litigants.
Many complainants simply stop attending trials, feeling that their
problems are being compounded.
Above all, those processed by the system seem to leave it with feelings
of dissatisfaction regardless of whether they have been processed as
complainants, accused or even as mere witnesses. Feelings of mutual
hostility and acrimony also tend to characterise subsequent relations
between litigants/disputants rather than the reconciliation that was the
major preoccupation of the pre-colonial system.
4.0 CONCLUSION
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5.0 SUMMARY
In this unit, you have learned about the significant features of the post-
colonial legal system of Nigeria. Just like the colonial system, it is
fashioned after the English legal system. You have learned that though
stuck with a modern system based on foreign values, the attitude of the
citizens remain largely traditional. The outcome is a legal/justice
machinery which many people are reluctant to use. This must not be
interpreted to mean that the legal system has no use. On the contrary
there are many things that the post-colonial system can handle which the
pre-colonial system cannot even begin to contemplate (e.g. traffic laws,
contract, transnational crime etc.). The point however is that more room
can be given to certain elements of the pre-colonial system to play a part
in the modern system, instead of the present subordinate position, that it
has been consigned to.
Obilade, A.O. (1985). The Nigerian Legal System. Ibadan: Spectrum law
Publishing.
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CONTENTS
1.0 Introduction
2.0 Objectives
3.0 Main Content
3.1 Issues of Substantive Law
3.2 Issues in Procedural Laws
3.3 Issues in Penal Policies/Measures
3.4 Issues in Personnel/Staffing of the Justice Machinery
4.0 Conclusion
5.0 Summary
6.0 Tutor Marked Assignment
7.0 References/Further Readings
1.0 INTRODUCTION
In the course of the first four units of this module, some debatable issues
recurred which for space constraints and to avoid repetition were not
pursued. This unit will now take up some of those issues with a view to
briefly but critically examining the contending views.
In this unit, you will be exposed to the contending views about some
aspects of our traditional justice system vis-a-vis the modern legal
system. You will learn more about the repugnancy doctrine, the
principles of natural justice, and other debatable issues.
2.0 OBJECTIVES
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The import of all these is that customary law is applicable only in civil
matters. But even within this limited scope, the operation of customary
law is subject to its passing the repugnancy test. In other words, the
judge can only apply it, when it is "not repugnant to natural justice,
equity and good conscience or incompatible with any law at the time
being in force". It must also be generally accepted. The problem is that
the standard of repugnancy was (during colonial era) and is still being
judged by foreign, or specifically, British values.
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GUIDELINES
The issues here also revolve largely around the repugnancy principle. It
has been argued that the operation of the pre-colonial justice system did
not meet the requirements of a modern system and that it fell short of
natural justice. For example, the process of trial whereby litigants swear
by potent objects (instead of by the sacred books or Holy Bible/Holy
Quran), or the trial itself which involve some form of ordeal.
The trial process itself which involved ordeals in the pre-colonial period
was also considered more efficient and effective. It was cheap and it
achieved results. It also met the requirements of the two fundamental
principles of natural justice namely: audi alteram patem (Hear the other
side) and nemo Judex hi causa sua (You cannot be a judge in your own
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case). The trial was cheap, convincing and accorded with the beliefs and
values of the people.
The modern trial process is very expensive, alien, entails many delays
and the people do not believe in it. For example, the adversarial
principle whereby the atmosphere of a fight is created is estranging.
Even many of the due process provisions meant to guarantee fair trial do
not accord with the values and norms of the people. E.g. in furtherance
of the principle of Presumption of Innocence, an accused person can
keep mute during the whole trial, because the onus is not on him to
prove that he is innocent but on the prosecutor to prove that he is guilty.
But under Nigerian values, somebody who is innocent is expected to
shout and proclaim his innocence keeping mute is usually interpreted as
a tacit acceptance of guilt.
GUIDELINES
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In this regards, it has been argued that the pre-colonial policies were
better. It is not easy to train people for conditions of free, responsible
living in society, under conditions of captivity. The irony is while
Britain is abandoning imprisonment and relying more on our traditional
measures such as fines, restitution, reconciliation, Nigeria is abandoning
those traditional measures in favour of imprisonment.
The effect is obvious. We have more criminals and more recidivists (i.e.
repeat offenders). The prison serves as a training ground where they are
dehumanised, and they learn more sophisticated skills from hardened
and habitual criminals.
There is no need for problem questions here because the issue is very
clear. If Nigeria is truly desirous of giving practical demonstration to its
theoretical commitment to rehabilitation (and not imprisonment) of
offenders, it should borrow from penal measures of its pre-colonial past
and learn to rely less on imprisonment.
There is a lot that the Nigerian legal system can learn and borrow from
the traditional system.
4.0 CONCLUSION
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5.0 SUMMARY
In this unit, you have learned that the subordinate status accorded our
traditional legal values in their coexistence with the modern legal
system is a source of problems in the attainment of justice goals in
Nigeria. It has been suggested that more expression should be given to
traditional values especially in the trial process and in the execution of
penal measures. Note however, that the view that has been pushed here
is largely one side strong arguments also exist for the opposite view that
traditional concern should actually be further de-emphasized if we want
our legal system to meet our aspirations. You may therefore want to take
a different position from the one adopted here. The social sciences
unlike the physical and natural sciences, do allow disagreement. Your
view must however be grounded on concrete, superior argument.
Obilade A.O. (1985). The Nigerian Legal System. Ibadan: Spectrum law
Publishing.
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The focus of this module is the dynamic relationship between law and
social change in Nigeria and how this has impacted on the emergent
legal structure of the nation. There is an enduring controversy in the
social sciences on the relation of law to social change. One view sees
the two phenomena as partners of equal status in the engendering of
social progress. Another view maintains that social change is the leading
partner while law just follows and reflect the changes. Yet another view
posits that it is law which actually leads and drags along social changes.
In reality, each view has its own merits. Determining which comes first
between law and social change becomes as difficult as determining
which come first between the egg and the chicken. The debate is
however, now largely academic for it is now widely recognised that any
of the two could come first depending on the situation and circumstance.
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.
This module is made up of four units. The first unit focuses on the
impact of colonialism in structuring the Nigeria legal system. It reveals a
great reliance on law by the colonialist, in trying to create a social
structure that is conducive to the realisation of their aims, manifest or
ulterior.
In unit 4, which is the final unit of the module (as well as the whole
course), the significant features of the emergent legal system of Nigeria
is highlighted. Thereafter its problems are examined, and the unit
concludes naturally, on the prospects of the legal system.
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CONTENTS
1.0 Introduction
2.0 Objectives
3.0 Main Content
3.1 Law and Social Change in Colonial Nigeria
3.2 Establishment of Formal Social Control in Nigeria
4.0 Conclusion
5.0 Summary
6.0 Tutor Marked Assignment
7.0 References/Further Readings
1.0 INTRODUCTION
Much has already been said on the history of the Nigeria legal system in
the last module. The purpose here is not to repeat the colonial history,
but to select those aspects of it, which had significant impact on the then
legal system and have endured in one way or the other to influence the
present structure and character of the Nigerian legal system.
In this unit, you will learn that the colonial master relied
overwhelmingly on the legal system to fashioned out the kind of society
they wanted out of Nigeria. The Nigerian colonial experience was about
the coming together of two different kinds of people with alien cultures.
Infact the natives themselves (i.e. apart from the white colonialists)
were not living together as a people and had no sense of nationhood. To
weld the diverse peoples and culture into a political entity, the law was
used, not just as a legal framework to reflect the far reaching changes,
but more importantly as a tool to forge further changes that will
consolidate and give meaning to the new dispensation.
2.0 OBJECTIVES
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Prior to 1861 there was no Nigeria, talkless of a legal system to talk of.
There were just relatively autonomous tribal societies in the society,
while the Fulanis through the Sokoto caliphate were extending their
control all over the north. British and other European nationals were of
course engaging in some produce trade along the coastal areas with
some natives (slave trade having been abolished).
The signing of the treaty of cession by king Dosunmu and four of his
chiefs was a legal act whose effect was to cede Lagos to Britain and
thereby effectively making 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. In other
words, those events illustrate in clear terms the ways by which law can
effect social change, or at least give recognition to social change.
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Cite some examples of the new relations of commerce that came up and
the kind of laws that would be needed to regulate them.
GUIDELINES
Think in terms of a primitive society that was far behind even the
present day rural societies that you know of. There were no
factories/industries to manufacture anything on a large scale,
except people for family holdings dealing with particular crafts.
No currency par se (except say for cowries in some area). No
vehicles, and no written laws.
So while such societies may have criminal law because there was crime,
and land laws because many civil conflicts were about land, there were
unlikely to be company law and constitutional law. If laws of contrast
were available they would be very rudimentary. The notions of agency,
partnership, limited liability companies, hire purchase, sale of goods law
and so on would be foreign and could only have come in with the new
relations of commerce. It is not surprising that even today; Nigeria laws
in those areas remain mere verbatim reenactments of English laws.
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 for the use and common benefit of the
natives.
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Another major way in which the colonial legal system forged new
patterns of behaviour among the natives was the way it largely
replicated practices in the imperial country in the colonies. In short, the
legal system was fashioned in such a way as to facilitate the realisation
of British exploitative aims. No matter how vehemently they insist that
theirs was a civilising mission, the facts on the ground showed that
Britain benefited a lot from its colonies. Mineral resources were
savagely exploited, the rail system was constructed in such a way as to
carry produce from the interior to the coast for export, education was
lopsided and designed to create "white man in black man's skins".
Everything was geared towards creating a docile, obedient indigenous
citizenry that is conducive to British drive to derive maximum economic
benefit from the colonies.
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GUIDELINES
The British efforts in this direction are more obvious in the history of
the establishment of the court system and the powers granted to the
various courts. The first courts, namely the consular courts, equity
courts, and Lagos Supreme Court, were established mainly to provide a
peaceful atmosphere for the commercial activities along the coastal
areas, between natives and European nationals.
Then as the colonial adventure proceeded into the interior, you find
British companies such as the Royal Niger Company being granted
powers to administer territories. Later on, the territory of the Royal
Niger Company (RNC), which later became the oil rivers protectorate
and still later southern protectorate had its own supreme court, while the
northern protectorate also has its supreme courts. (As earlier explained
in module 4, these supreme courts were supreme in name only, and no
Nigerian court actually became supreme until 1963). Both protectorates
were created in 1900 and their respective supreme courts were
empowered to apply common law and equity as well as statutes of
general application in force in England on the first day of January, 1900.
In 1914, the two protectorates were amalgamated into the colony and
protectorate of Nigeria. Their laws and legal systems were harmonised,
their respective chief justices were abolished, a single chief justice and
single attorney general were appointed. The Supreme Court ordinance
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of 1943 further strengthened the legal system. That same year the
children and young person ordinance was adopted.
In terms of law enforcement, the modern police force did not emerge
until 1930. Before then, some ad hoc arrangements were made by the
respective protectorates. Since the colonial government was always
attempting to ruthlessly suppress dissent, the police force had a
paramilitary stance. They were made up predominantly of ex-slaves, ex-
soldiers, and sometimes ex-convicts. They were usually staffed by non-
locals and this made it easy to unleash them in a cruel fashion on the
natives. Infact, they were used several times in military expeditions. In
1930, the Nigeria Police Force was formed largely from the remnants of
the West African Frontier Force (WAFF) as well as the Hausa
constabulary Dogorai in the north. It was an exclusively male force, and
females were not recruited until 1955.
4.0 CONCLUSION
5.0 SUMMARY
In this unit, you have learned that the colonialist relied very much on the
legal system in achieving then-colonial mission in Nigeria. The creation
of the protectorates and the entity called Nigeria were accomplished
through legal proclamations. Thereafter the law was still relied upon to
bring about changes that suited the new dispensation. Of course, where
the changes were clearly discordant with local beliefs, the coercive
instrument such as the paramilitary police forces were brought into
ruthlessly suppress dissent and restore order.
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CONTENTS
1.0 Introduction
2.0 Objectives
3.0 Main Content
3.1 Law and Social Change under Civilian
3.2 Law and Social Change under Civilian Administration
3.3 Law and Social Change under Military Administration
4.0 Conclusion
5.0 Summary
6.0 Tutor Marked Assignment
7.0 References/Further Readings
1.0 INTRODUCTION
In this unit, you will learn that the changes brought about by
independence were not as profound as would have been expected. First,
because the new indigenous master had interests that were not radically
different from the erstwhile colonial masters. And second, because the
independence was more a political independence with little or no
economic independence. Nevertheless there were some significant
changes.
2.0 OBJECTIVES
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justice;
Understand why the law has been used more radically under
military than under civilian regimes in Nigeria.
GUIDELINES
“Flag and file” in the sense that there is a Nigerian flag to testify
to her independence and sovereignty and there is a file
containing documents by which it was granted political
independence.
What the sceptics are saying is that so long as the country has
been unable to achieve independence and foreign countries still
dictate policies to her, the country cannot be said to be really
independent.
Whatever the case might be, the fact remains that as from October 1960,
Nigerians became the rulers of Nigeria. Largely because the indigenous
leaders who stepped into positions vacated by the colonialist share
identical interests (capitalists) with the colonial masters, the structure of
colonial legal system has remain largely intact. The changes that the
legal system has been used to effect have also not been as drastic as
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would have been expected. All the same, there is no gainsaying that
some changes have been attempted and a number of them successfully
accomplished.
In those 14 years the civilian have tried within pressing constraints (of
having a vested interest as capitalist interest in the perpetuation of the
colonial legacy, manning an economically dependent nation, and
limitations of the requirements of rule of law), to make the legal system
respond to and reflect the socio-political environment, and to use it to
create desired social changes.
The fact of the independence itself, and the attendant shift in leadership
from colonial to indigenous masters is a very significant social change.
But this changes which as earlier noted was also a legal change, had to
be made meaningful only by law. The law was needed to consolidate,
reinforce it 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, we note that 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, though in reality those some
laws were simply reenacted (most times verbatim) as local legislation.
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the Nigerian Supreme Court became truly supreme i.e. the highest court
of the land. A fourth region, the mid-west region was also created.
On the whole however, the development of the legal system and the
conscious use of the law to effect changes have been more pronounced
under military regimes.
The military have ruled Nigeria more (ruling for 28 out of the 42 years
of independence) than civilian administrations. Perhaps because they
are not hampered by provisions of legality, they have been bolder in
using the legal system to effect changes.
The first military regime in Nigeria came via a coup d'etat in January
1966. It was easy for the head of the military junta (Aguiyi Ironsi) to
wake up one day and turn Nigeria from a federation into a unitary state.
In other words, the regions were abolished, and the federal structure of
Nigeria was reverted to unitary structure in which regions were replaced
by provinces. This was through a decree (remember decrees are laws
made by the Federal Military Government while laws of State Military
Governments are called edicts). When a counter-coup came six months
later, it was again easy by decree for the new head of state (Gowon) to
revert 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 point is
that it is easy for military regimes to use law to bring changes. For
example, no civilian regime has been cash to create a single state
because of the rigorous requirements of the constitution. Yet virtually
all the military regimes created states with some of the states creation
exercises under the military being based on something as trivial as
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satisfying a wife's whim. But the existence of those states are realities
which civilian regimes dare not tamper with. (Today Nigeria has 36
States thanks to the military -12 by Gowon, increased to 19 by
Murtala/Obasanjo, raised to 21 then 30 by Babangida and increased to
36 plus FCT by Abacha).
There are other areas in which the military has used the legal system to
effect changes. The one that most readily comes to mind among them is
the "Nigerian Enterprises Promotion Decree of 1972" which was later
amended in 1977. The promulgation of this decree was necessitated by
the desire 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
N400, 000 or the turn-over of the enterprise is more than Nl, 000,000
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%.
Yet another effort by the military to utilise the legal system to promote
the economic development of Nigeria is its intervention in wages
payable to workers and in the conditions of then- employment. This is
done through fixing by law a national minimum wage. Any wage below
is illegal. This has been difficult to enforce but the spirit behind it is
commendable.
The military has attempted to use the law to control trade disputes and
curb strike. Various trade dispute decrees have been enacted and at a
time when the federal military government thought strikes by teachers
and medical doctors were getting out of hand in the 1990s, it enacted a
decree that sought to put both professions under essential services and
therefore not allowed to go on strike. This however failed as the unions
have continued to go on strike and the decrees have never been
successfully invoked.
The land use decree (called Land Use Act under civilian regimes) of
1978 was another bold legislation meant to bring social justice in the use
of land. It was felt that land was constituting a recurring source of
dispute, especially in southern Nigeria, (in the north such a law already
existed) due to the inadequacy of customary system of land ownership.
This decree then 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.
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The military has also, quite apart from using 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.
Why has there been more changes in both the legal system and societal
structure under the military than other civilian regimes?
GUIDELINES
Civilians must proceed according to the law and this is, a slow process.
Besides, at every step of the way there may be judicial obstacles mainly
in the form of injunctions and declaring the government's action ultra
vires or unconstitutional.
The military on the other hand do not have to contend with many of
such obstacles. The constitution is suspended, many other clauses are
put in place to stop the courts from enquiring in to the military
government's acting, and the civil populace is generally more point.
4.0 CONCLUSION
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The conclusion then is that the colonial impact on Nigeria's legal system
has remained more enduring than the pre-colonial impact, (when no
formal legal system existed) and has eclipsed whatever changes the
independence could have brought. The reason for this is obvious. It has
to do with the capitalist character of the indigenous elite and the
inability to have achieved economic independence along with political
independence.
5.0 SUMMARY
Describe which social changes are desirable in Nigeria of today that will
ensure greater social justice, and how the legal system can be utilised to
effect the social changes.
Elias, T.O. (1972). Law and Social Change in Nigeria. London: Evans.
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CONTENTS
1.0 Introduction
2.0 Objectives
3.0 Main Content
3.1 The Influence of Modern Global Trends on Nigerian Legal
System
3.2 Global Influences on Nigeria’s Human Rights Policies
3.3 Global Influences on Nigeria’s Gender Policies
3.4 Other Areas of Global Influence
4.0 Conclusion
5.0 Summary
6.0 Tutor Marked Assignment
7.0 References/Further Readings
1.0 INTRODUCTION
In this unit you will learn about some of the more important changes
(both in law and in society) that global trends have brought about in
Nigeria.
2.0 OBJECTIVES
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The global influences on Nigeria's legal system are discussed under four
headings, here under.
The sudden demise of General Sanni Abacha and his military regime in
1998, and the revelations of the regime's human rights violations in the
aftermath, did thrust human rights issues to the fore of national
discussion in Nigeria. "Human Rights" suddenly became a household
word in Nigeria. But human rights issues had been on the international
agenda of political discourse long before then, and Nigeria is infact a
signatory to many international conventions on human rights.
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GUIDELINES
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such not binding on member states, but nevertheless set standards which
such states are expected to observe. They include the following:
Stiff penalties also exist for trafficking in women or for those who tend
to use women in any degrading way. Many local branches of
international NGO's (Non-Governmental Organisations) fighting for the
rights of women presently exist and are encouraged. A bill seeking to
ban female circumcision (or Female Genital Mutilation) in Nigeria, had
been passed by the National Assembly.
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In a nutshell, changes are being brought about in the laws and social
practices relating to women in Nigeria as a result of the current global
interest in Gender and Feminism. This is notwithstanding that local
sentiments, especially among men, are yet to catch up with such global
trends.
GUIDELINES
Make a distinct between what the law says and what obtains in
actual practice.
The influence of global trends has also been very noticeable in Nigerian
laws relating to labour, the treatment of the environment, the trading in
rare animals, and so on.
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crimes.
4.0 CONCLUSION
5.0 SUMMARY
In this unit, you have learned that global events and trends do have a
tendency to influence both legislation and social changes in a country. In
Nigeria such trends have influenced legislation on human rights, gender,
labour, environment and so on. You have also learned that not all the
international influences come in the form of binding laws which
signatory nations must observe. Sometimes standards are just set and it
is only expected that nations use those standards to gauge their
performance.
Tabiu, M & Ladan MT. (eds) (1998). Human Rights and the Prison
System in Nigeria. Manual for Prison Officers, National Human
Rights Commission of Nigeria, Abuja.
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CONTENTS
1.0 Introduction
2.0 Objectives
3.0 Main Content
3.1 The Emerging Legal Structure of Nigeria
3.2 Problems of the Emerging Legal Structure
3.2.1 Problems Relating to the Nature of the Laws
3.2.2 Problems Relating to Law Enforcement
3.2.3 Problems Relating to Adjudication/Justice
Administration
3.2.4 Problems Rleating to Corrections
3.3 Prospects of the Emerging Legal Structure of Nigeria
3.3.1 Prospects of the Law
3.3.2 Prospects of Law Enforcement
3.3.3 Prospects of Adjudication and Justice
Administration
3.3.4 Prospects of Corrections
4.0 Conclusion
5.0 Summary
6.0 Tutor Marked Assignment
7.0 References/Further Readings
1.0 INTRODUCTION
This is the last unit, not just of module 5 but of the whole course. This
unit will wrap up the discussions in the last two modules of the course.
This two modules have been concerned with the situation of the law and
the legal system in Nigeria. Having discussed various aspects of the
legal system, it is pertinent to ask, what then are the major features of
the emergent legal system of Nigeria? What are its problems? What are
the prospects for resolving the problems and putting a viable responsive
legal system in place? This unit addresses those issues/questions.
2.0 OBJECTIVES
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From the discussion in Module 4 and the first two units of this module,
it should be apparent that the emergent Nigerian legal system is largely
a colonial legacy. It bears the bold imprint of Britain in virtually every
aspect and has been described by Oloruntimehin (1984: 221) as a
"miniature English legal system". Forty two years of independence (i.e.
1960-2002) has not been able to change that, though some token, half-
hearted attempts have occasionally been made to Nigerians the system.
In areas of civil law where statute law is available, those statutes usually
amount to a verbatim reenactment of English statutes, notwithstanding
that they now bear different names and are contained in the "Laws of the
Federation of Nigeria 1990". Examples include the Sales of Goods Act,
Bills of Exchange Act, Company and Allied Matters Act and so on.
Infact other than that the English parliament can no longer legislate for
us, there has been very little change since colonialism. Our customary
laws remain in operation for crimes. For civil matters, they are given a
subordinate status and must pass the repugnancy test to be applicable.
Note: If the discussion here sound a little too condensed for you to
follow, you are advised to go back and read module 4, especially
unit 3.
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As noted in 3.1 above, the laws that are in operation in Nigeria are
largely foreign laws. This poses some problems. First, those laws may
not actually reflect the values and yearnings of Nigerians. The tendency
is that feelings of alienation, estrangement and lack of confidence may
be experienced by those whom the laws affect. If the criminal codes in
the country are both foreign and customary laws cannot apply to
criminal matters, 42 years after independence, does it mean Nigerians
share the British views about the repugnancy of customary law? And as
if that is not enough, customary law may only apply in civil matters (i.e.
relating to marriage, family, land tenure, inheritance, succession to land)
if it is not repugnant to the principles of natural justice.
In the northern part of the country, some states are presently going out
of their ways to enact Sharia codes which they claim are more in tune
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The setting and proceedings of trial under the emergent legal system is
another source of problems. It is too formal, too rigid and adversarial.
The air of confrontation created, the sternness of the judges countenance
and his fake grey hair, the fact that it is not participatory in nature (i.e.
people from the floor not contributing), the delays, the adjournment, the
length, the expenses, and the technicality and sophistication of language,
the alien values that the law gives expression to and the fact that a single
man (in most cases) deliver the judgement at the end of the day, are all
features of the emergent legal structure which differ considerably from
what the people would really identify with. It is true that from the period
of colonialism to date is over a century, and that a new generation of
westernised Nigerians with different values should have since been
forged. The reality however is that the psyche and mentality of
Nigerians have not changed to any significant extent. And in fact, in the
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rural areas (which constitute the majority of Nigerians) cases are still
being disposed and justice being dispensed according to informal
principles more reminiscent of pre-colonial times than the modern legal
system.
The irony however is that the rest of the civilised world, Britain
inclusive, are increasingly moving towards the non-custodial forms.
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GUIDELINES
Factors that led them to the first crime may still be there to push
them back.
The prisons rarely reform but rather tend to mould inmates into
hardened criminals.
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date and in tune with the legitimate yearnings and aspirations of the
people. Towards this end, the law reform commission needs to be
strengthened. As it is presently constituted, it can hardly perform the
role of meaningful reform of our laws.
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Can the February 2002 strike action by men of the Nigerian Police Force
be justified on any ground?
GUIDELINES
A lot has already been said inwHG above on the negative features of
justice administration of the emergent legal structure. It follows that
addressing those negative aspects would be a sure way of enhancing the
satisfaction of the people with the system and the attendant general
attainment of criminal justice goals. The trial process, for example, need
to be made less adversarial. It has to become more responsive to the
yearnings of the people by making the language of law and trial less
technical. Decisions should be reached more promptly. More courts
have to be established to reduce the costs incurred by litigants and even
witnesses in travelling long distances to make court appearances. If the
process cannot be made more open and participatory, then at least the
process of reaching a decision should not be left to a single man.
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judge will also decide whether the sentence should be imprisonment and
for how long, or whether it should be any of the other options. And in
doing this he is supposed to consider the needs of the offender
(reformation, medical, deterrent or punitive) as well as the needs of the
criminal justice system. It is suggested here that the sentencing decision
should be left to a committee made up of all the other relevant
professionals in the medical field, as well as the behavioural sciences.
GUIDELINES
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4.0 CONCLUSION
The conclusion that can be drawn from the foregoing discussion is that
the emergent legal structure of Nigeria is characterised predominantly
by foreign/alien features. The foreign content of the law is raised above
local values and the other components of the legal system have all been
formalise to bear a distinctly English stamp. These have created some
problems in the operation of the legal system. The legal system,
however, has some prospects of meeting the yearnings and aspirations
of Nigerians, since the problems are capable of being addressed.
5.0 SUMMARY
In this unit, you have learned about the significant feature of the
emergent legal structure of Nigeria. You have been told that the legal
system we have in place currently is dominated by foreign features
whether in the law, law enforcement, law administration or corrections.
The problem posed as a result has also been highlighted. It was
concluded that the system still has great potentials for meeting the
yearnings and aspirations of the majority of Nigerians once those
problems are addressed.
Elias TO. (ed) (1972). Law and Social Change in Nigeria. London:
Evans.
Obilade, TO. (1985). The Nigerian Legal System Ibadan: Spectrum Law
Publishing, Ibadan.
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