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LAW AND SOCIAL ENGINEERING; the judiciary as a CATARLYST

Updated on January 8, 2014

LAW AND SOCIAL ENGINEERING; THE JUDICIARY AS A CATALYST.

By OLUWASEGUN ISAAC ADERIBIGBE

Abstract:

The legal profession underlies human existence and has its origin in divinity suggesting that life is regulated from the cradle to the grave by law. When a child is born the law prescribes the registration of his birth and issuance of birth certificate, when he grows up the law regulates his conducts, contracts and the devolution of his estate after death and even at death the law prescribes the death certificate. The legal profession all over the world is regarded as one of the three noble, most ancient and revered professions in the world, the other two being Medicine and the Ecclesiastical order. The legal profession’s honour, respect and integrity are sustained by public confidence and trust in its ability to arrive at just decisions to ensure positive social changes.

1. INTRODUCTION:

“This Court in which we sit is a Temple of Justice and the advocates of the Bar as well as the bench are equally ministers in that temple. The object of all equally should be the attainment of justice. ”

In recent times, the subject of law as an instrument of social change stands out in distinct lines as legal reforms in Nigeria and all over the world has been at the centre of the agenda of government, admitting the fact that law, and its adequate enforcement, is imperative to the achievement of behavioural change and social justice in a country. Law is a desirable necessity and an efficient means of inducing social change. It is axiomatic that law is the safety-pin that keeps human society together.

Eugene Ehrlich a prominent European Sociological Jurisprudent poised that law is not what is laid down by the sovereign rather; it is the society’s value and conduct, which determine what the law is. According to him, if law is at variance with popular conduct and the law is unsupported, it is doomed as an instrument of social engineering . The import of this is that it is the living law that reflects the values and dominates the societal life. In order words; the failure of the society is a direct consequence of the failure of law .

The features of law remain the same; it is a body of rules, it is made by man, it is normative in character with an element of coercion and it is territorial in nature. Ehrlich’s view that conduct is to be determined by the law is replete in the Nigerian context where corruption is prevalent, unscrupulous Police officers still openly extort motorists and assault innocent members of the society, where there is security challenges (urban violence, kidnapping and terrorism), child abuse, executive lawlessness, misuse of constitutional provisions and general impunity etc.

This topic subscribes very strongly to the fact that law is the fulcrum of social engineering, development, transformation and harmonious existence in the society. Law and Justice are virtues of social institutions that produce democratic and economic changes in a country. The foundation of social change in a democratic environment is rooted in law and law has been viewed both as an independent and dependent variable (cause and effect) in society and thus the need to emphasize the interdependence of the law with other social systems.

The concept of law and social engineering involves extensive jurisprudential, sociological and philosophical discussions and research done over centuries by a wide range of renowned commentators and authorities. They have done a great deal on the subject matter and the diverse nature of the debates surrounding it. However, this paper simply sets forth a theoretical perspective to the concept of law and social engineering as an ongoing public interest in Nigeria, it will appraise the question whether law in Nigeria is a strategic imperative for social engineering or an instrument to advance political and personal interests, it will also attempt to elicit the challenges and proffer practical solutions to ensuring a rebirth and that the functions of law in the society are actualized.

1.1 Definitions:

Law is the whole system of rules that everyone in a society must obey . Law according to Max Weber is an order, the validity of which is guaranteed by the probability that deviation will be met by physical or psychic sanction by a staff specially empowered to carry out this sanction. Green Arnold defined law as a more or less systematic body of generalized rules, balanced between the fiction of performance and the fact of change, governing specifically defined relationship and situations and employing force or the threat of force in defined and limited ways.

According to Duguit , laws are the rules of conduct normal men know they must observe in order to preserve and promote the benefits derived from life in society. MacIver and Page believes that law is the body of rules which are recognised, interpreted and applied to particular situations by the Courts of the State. Roscoe Pound defines law as an authoritative canon of value laid down by the force of politically organised society. Austin defined law as the Command given by a superior to an inferior .

Social engineering is a discipline in social science that refers to efforts to influence popular attitudes and social behaviors on a large scale, whether by governments or private groups. A social engineer is one who tries to influence popular attitudes, social behaviors, and resource management. Social engineering is the application of the scientific method for social concern. Social engineers use the methods of science to analyze and understand social systems, so as to arrive at appropriate decisions as scientists, and not as politicians . Social control refers to those various means by which a society exercises its authority over its members and enforces conformity to its norms .

For various reasons, the term has been imbued with negative connotations . However, virtually all laws and government have the aim of seeking to change behavior and could be considered "social engineering" to some extent. Prohibitions on murder, rape, suicide, armed robbery etc. are all policies aimed at discouraging undesirable behaviours; the definition of Marriage by law obviously excludes same sex marriage by default thereby protecting the sound values of the Nigerian society. In jurisprudence, changing public attitudes is accepted as one of the key functions of the laws prohibiting it .

2. SOCIAL ENGINEERING AND THE ROLE OF THE JUDICIARY.

Law is the unseen chord that holds human society together, ensuring sanity and orderly behavior. The judiciary must therefore set the tone for the right quality of justice by playing his role perfectly especially where the search for justice continues to escalate and justice continuously eludes the poor and powerless. The lawyer and judge must appreciate the special privilege as well as the enormous responsibility as ministers in the temple of justice in the process of interpreting the law .

Independence of the judiciary is no doubt a sine qua non for the attainment of social change. The rule of law is however a major impetus for ensuring an independent judiciary, there is a societal consensus that the legal process will be the way by which law and order will be maintained, accountability and efficiency will be ensured and the operators in the society will be honest, fair and just. These are the foundations of social engineering which is unfortunately shaking in Nigeria.

The term judicial independence has been described by a judge thus: “The modern concept of judicial independence and integrity contains many elements; basically, a judge should have security of tenure and can only be removed for specific grounds and by means of an adequate procedure. The process of selection of judges should be free from any political, personal or other irrelevant consideration. Upon appointment a judge should receive adequate remuneration… judicial remuneration should be adequately safeguarded against being used as a means of asserting control over judges. He must be free from political or other pressures” .

This means that a judge must first be immune from such systems of distorting justice as direct pressure, bribery or approaches by litigant, a friend or counsel, he must also be removed from any sophisticated entanglements, be they political, personal or financial, which might seem to influence him in the exercise of his judicial functions, let alone entanglements that might actually influence him.

The principle of separation of powers which advocates for separate functioning of the three organs of governance is meant to ensure the independence of the judiciary; this however is what ought to be and not what is. What holds is that the judiciary overtly or covertly is being treated as an appendage of the executive, inadequacy of funds is a constant phenomenon which ensures that the chief judicial officers goes often to the executive officers cap in hands for funds. The judiciary must appreciate and recognise it roles. Independence of the judiciary is no doubt the panacea for the attainment of social engineering in Nigeria.

Law is a form of Social Science. Society and law are closely related to each other. Law prescribes the manner to live the social life and this also increases with the Economic, Scientific and Technological progress in the society. Law also changes with social changes and plays an important role in the fulfillment of social needs, so for the fulfillment of social need, there is a need for judicial interpretation of the law and this is the responsibility of judiciary that law which violates the constitutional provisions, public interests and fundamental rights should be declared null and void.

3. LAW AND SOCIAL ENGINEERING: THEORETICAL SPHERE

“I am content to think of law as a social institution to satisfy social wants;

the claims and demands and expectations involved in the existence of civilized society… ”

The history of law is the history of humanity, and the embodiment of its experience. The best thought of a society is to be found in its legislations; its daily life is best mirrored in its usages and customs, which constitute the law of its ordinary transactions. There never has existed, and it is entirely safe to say that there never will exist, on this planet any organization of human society, any tribe or nation, any aggregation of men however savage, that has not been more or less controlled by some recognized form of law. The history of Law is closely connected to the development of civilizations and is set in the wider context of social history.

Law cannot be spoken of as a single homogenous entity. It is a rule or system of rules recognised by a country or community as regulating the actions of its members and enforced by the imposition of penalties . Beyond this, however, the history of law of different communities has developed in distinct ways, reflecting the prevalent socio-political norms and values of the society which they regulate. The history of laws of pre-literate African societies, for example, is significantly different from the history of laws of a developed Western democracy .

The term social engineering was introduced in an essay by the Dutch industrialist J.C. Van Marken in 1894. The idea was that modern employers needed the assistance of specialists - "social engineers" - in handling the human problems of the planet, just as they needed technical expertise (ordinary engineers) to deal with the problems of dead matter (materials, machines, processes). The term was brought to America in 1899, when the notion of "social engineering" was also launched as the name of the task of the social engineer in this sense .

Extremely intensive social engineering campaigns occurred in countries with authoritarian governments. In the 1920s, the government of the Soviet Union embarked on a campaign to fundamentally alter the behavior and ideals of Soviet citizens, to replace the old social frameworks of Tsarist Russia with a new Soviet culture, to create the New Soviet man. The Soviets used newspapers, books, film, mass relocations, and even architectural design tactics to serve as "social condenser" and change personal values and private relationships .

The Soviet Union succeeded in making enormous changes in society by the use of law. In Spain, law was used to reform agrarian labour and employment relations. China also managed to moderate through law its population growth and as a result devoted more of its resources to economic development and modernization. From the foregoing, history should teach us to believe that law can be a means of social engineering in any society.

In a broad theoretical framework, social engineering or change has been slow enough to make the custom of the people the principal source of law. Law could respond to social change over decades or even centuries. Law in every environment has been the major instrument of regulating the behaviour of people in the society; for example, the only reason a car owner will register his vehicle is because it is a legal requirement of law.

In its most concrete sense, social change means large numbers of people engaging in group activities and relationships that are different from those in which they or their parents engaged in previously. Thus, social change means modifications in the way people work, rear a family, educate their children, govern them, and seek ultimate meaning in life or the way the leadership in a country carry out its responsibilities.

Because law is deeply implicated in our economic, political, and social worlds, pursuit of social change invariably involves an engagement with law. Debates around the relationship between law and social change more often than not tend to crystallise around the inquiry: which of the two (law and change) should influence the other. Realistically, such a debate is more in the realm of the academia than any other thing, because in practice the pendulum has swung both ways. In some instances, the changing ethos and mores in the society have laid a basis for reforms in law.

The widely held belief here, is that a law that lags behind changed circumstances in society (be they political, economic or social) runs the risk to lose its legitimacy. Thus, it behoves a good and vigilant government to always have a sense of pressing societal changes, and to accordingly review legal institutions, aligning them with the new changes in society. On the other hand, it is equally not unknown of instances where law itself has taken a lead, laying a firm basis for changed morality in society. There is, therefore, a noticeable degree of symbiotic relation and interdependence between law and social change.

Savigny believed that only fully developed popular customs and laws could form the basis of legal change. As customs and laws grow out of the habits and beliefs of specific people, rather than expressing those of an abstract humanity, legal changes are codifications of customs. He believes that law is determined by the sense of justice and the moral sentiments of the population, and legislation can only achieve results by staying relatively close to the prevailing social norms. Law and especially legislation, is a vehicle through which a programmed social evolution can be brought about.

The law, through legislative and administrative responses to new social conditions and ideas, as well as through judicial re-interpretations of constitutions, statutes or precedents, increasingly not only articulates but sets the course for major social change. Attempted social change, through law, is a basic trait of the modern world. In present-day societies, the role of law in social change is of more than theoretical interest. In many areas of life such as education, infrastructure, finance, transportation, energy, protection of the environment, politics and crime prevention, the law is an important instrument of change.

Law does not always lay behind the times. One great merit of law is that it adapts itself to the changing needs of society and maintains stability when the rapid alterations disturb the relations in society. Law helps the society assimilate the changes by adjusting group advantages and injuries resulting from them. Law may become an advanced instrument of social change on a national as well as international level by affecting the social frame work in which relations take place. However, if law is greatly in advance of, or greatly behind, the trends of change in the society, it remains unenforceable. If it is in harmony with the processes of change, it accelerates and institutionalises changes.

Law plays an important direct role in regard to social change by shaping and orchestrating an idea and set of behaviour. For example: a law setting up a compulsory educational system will give value to education in that society, the Universal Basic Education Scheme in Nigeria will in due cause upgrade the quality of the labor force in Nigeria. On the other hand, law interacts in many cases indirectly with basic social institutions in a manner constituting a relationship between law and social change. For example: a law designed to prohibit polygamy will indirectly affect the morality of the society. Law plays an agent of modernization and social change. It is also an indicator of the nature of societal complexity and its attendant problems of integration.

Law is likely to be successful to induce change and ensure social engineering if it meets the following conditions:

A. Law must emanate from an authoritative and prestigious source.

B. Law must introduce its rationale in terms that are understandable and compatible with existing values.

C. Enforcement of the law must be aimed at making the change in a relatively short time. Those enforcing the law must themselves be very committed to the change intended by the law.

D. The instrumentation of the law should include positive as well as negative sanctions.

E. The enforcement of the law should be reasonable, not only in the sanctions used but also in the protection of the rights of those who stand to suffer the violation.

Social engineering is a universal phenomenon as the same occurs in all societies. Society is never static. Both primitive as well as civilized society also undergoes changes. The process of change may be fast or slow depending on the people concerned. Social change is community change as the same involves not single individuals but more people. The speed of social change differs from society to society. The speed of social change today is faster than it was in medieval times. This is because factors which cause social change, do not remain uniform or even their existence may not be there. Factors like industrialisation, urbanisation, education etc. give impetus to social change.

4. LAW AND SOCIAL ENGINEERING; THE NIGERIAN EXPERIENCE.

The return to civilian rule on the 29th of May 1999, after much dribbling by successive military administrations renewed the hope of the average Nigerian in the opportunity for Nigeria to begin its quest for economic and social stability. After 14 years of democratic renaissance, it is obvious that we have not fared well based on our reasonable anticipations for positive social engineering.

The average Nigerian continues to ask himself/herself whether the constitution and other enacted laws have been a means of social engineering or a weapon of oppression and instrument to advance selfish and political interests. Particularly, recently when the president of Nigeria; Dr. Goodluck Ebele Jonathan exercised his constitutional powers to pardon Dipreye Alamieyeseigha who had been convicted of corruption and embezzlement. Was the law of state pardon and Amnesty under section 175 of the 1999 Constitution made to benefit someone like Dipreye Alamieyeseigha?

The argument in support of the action of the President is that the President is at liberty to grant amnesty conditionally or unconditionally, depending on his assessment of the circumstances warranting the grant of amnesty. This view, in my opinion emerged from the positive school of thought; I would prefer the realist school which views law as what the court says it is, being an institution that considers equity as well as law. I believe Equity will not support such an exercise of discretion in such a circumstance. .

Several factors are responsible for the perception of law in Nigeria. The obvious root cause of the lack of confidence in our laws is the level of corruption in the country. Olusegun Obasanjo, former President of Nigeria admits that corruption is the greatest single bane of our society. Chinua Achebe (of blessed memory) confirms that corruption in Nigeria has passed the alarming and entered the fatal stage; and Nigeria will die if we keep pretending that she is only slightly indisposed. The Supreme Court via Uwais, J.S.C (as he then was) in A.G. Ondo State v. A.G. Federation stated that Corruption is not a disease which afflicts individuals alone but society as a whole. If it is therefore to be eradicated effectively, the solution to it must be pervasive to every segment of the society. Recently, the President of Nigeria; Dr. Goodluck Ebele Jonathan admitted while in South Africa that the perception index of corruption in Nigeria is very high and that he has reports about some corrupt Nigerian.

The problem of corruption is present in all human societies and wherever there is any form of social organisation, one should expect a perversion of the order of things and indeed an affront on the value system. Anti -social behaviour, illegalities and all other forms of immoral acts are always witnessed in all human societies. The same is therefore expected of corruption, which is precisely a kind of behaviour that deviates from the norms of the society.

Corruption is simply an act by a member of the society that flouts the public duty that the member owes to the society. The neglect of public duty as a result of corruption occurs because the individual seeks to satisfy his own selfish interests, rather than partake in promoting the common good. Corruption, as the abuse of public duties for private end, has become an aspect of the contemporary modern society.

Nicollo Machiavelli, the philosopher who propagated the necessity for politics to be an amoral activity, once affirmed the fact that corruption is common to all societies, when he said: “How easily are men corrupted and in nature transformed.” Indeed, it has been said that the scourge of corruption in many parts of the world is a disease striking at the heart of the society.

Nigeria has witnessed the continued spread of corruption throughout her history as an independent nation notwithstanding the various law enacted to combat the menace. Although corruption is conceived to be part of the nation’s social features since inception, in recent times the increase in the spread of the malaise of corruption has been so high that people tend to regard this evil act as inherent to the Nigerian public culture.

It is therefore unfortunately believed that, if there is anything which operates efficiently, uniformly and smoothly all over the country, it is the twin engine of the machinery of corruption and bribery. The phenomenon of corruption seems to be our unofficial ideology, our lingua franca, the universal language which is spoken and understood in every nook and cranny of Nigeria. This has been a perplexity in the drive to achieve positive social engineering in the country.

A problem, which can be primarily called a social problem but interlinked and interconnected – with religious problem, economic problem, political problem, occupational problem, residential problem, cultural problem and other innumerable problems interwoven in one problem is in fact, the social problem of corruption.

5. CONCLUSION

Law is a system of rules and guidelines which are enforced through social institutions to govern behavior, wherever possible. It shapes politics, economics and society in numerous ways and serves as a social mediator of relations between people. Contract law regulates everything from buying bean cake (akara) to trading. Property law defines rights and obligations related to the transfer and title of personal and real property. Trust law applies to assets held for investment and financial security, while tort law allows claims for compensation if a person's rights or property is harmed. If the harm is criminalized in legislation, criminal law offers means by which the state can prosecute the perpetrator. Constitutional law provides a framework for the creation of law, the protection of human rights and the election of political representatives. Administrative law is used to review the decisions of government agencies, while international law governs affairs between sovereign states in activities ranging from trade to environmental regulation or military action.

The functions of law have not changed, law is meant to define and regulate social relations, it is meant to identify and allocate official authority and settle disputes. It is trite that law is the fulcrum of social engineering, development, transformation and harmonious existence in the society. Law and Justice are virtues of social institutions that produce democratic and economic changes in a country. The foundation of social change in a democratic environment like Nigeria is rooted in law.

6. RECOMMENDATIONS.

Having looked through history, there is a new political moral and ethic, inevitably leading to what is now a new form of expectation and agitation that Nigeria’s government must deliver on the promise of constitutional democracy and social engineering. It is this new demand which undoubtedly brings more pressure to bear on the government to discharge their historic mission to not only monitor the changing times, ethos and mores of the society, but also to align our legal institutions as best as may serve the new needs and desires for a truly democratic dispensation ensuring a positive social change. The following are some of the indicators for a way forward.

 Progressive Enactments and Amendments of Legislations:

The present popularity of the values of transparency and accountability within the democratic culture that is gaining popularity all over the world; the recognition by the international community that corruption in all countries should be curtailed through the concert of the international civil society and governmental regulations that discourage corruption in all corner of the world are all potentials that Nigeria needs to tap into to ensure that its own legislative initiatives realize her desire of bringing corruption under control. The legislature must amend the laws that are archaic or inadequate and enact new ones where there is a lacuna .

 Efficient Enforcement of legislations:

It is obvious that Nigeria has enacted many laws to combat corruption starting from the Criminal and Penal Codes to the current anti-corruption legislations. The challenge however, has been the enforcement mechanism of these laws. It is perceived that its execution has been selective and politically manipulated. The law enforcement agencies cannot be totally trusted with this sacred task as their allegiance is usually to an Oga at the top rather than the society. Some unscrupulous Police officers still openly extort motorists and assault innocent members of the society. The executive arm must as a matter of urgency facilitate an efficient way of enforcing the laws to achieve social change.

 Independent Interpretation of Legislations:

Independent interpretations of legislations are required to ensure that our laws become an instrument of social change. The lawyer, as the watch dog of the people must through total commitment to justice provide necessary support to the judiciary; the last hope of the common man to arrive at just decisions in the interest of justice, fairness, equity, law, order, peace and progress. The Judiciary must detach herself from the moral decay eating into the socio-economic fibre of the country and decide to be an instrument of social engineering.

 Consistent Re-orientation of Citizens:

Consistent re-orientation of citizens is necessary to ensure that law achieves the objective of social engineering. Media practitioners and stake holders must use every means necessary to educate the populace on the need to change their mind set and begin to conceive the desired change. They should all embark on campaigns to fundamentally alter the behavior and ideals of the average citizen, to replace the old social frameworks of corruption, maladroitness and ineptitude with a new culture, to create the new Nigerian. They may use newspapers, social media, books, journals, films, etc. You are the change Nigeria needs.

 Determination by stakeholders:

It is trite that despite the present situation of an endemic culture that has given Nigeria the notorious name of being one of the most corrupt countries of the world, there is still light at the end of the tunnel. A people not prepared to deal with the root cause of corruption will definitely assume a position of inferiority, atrophy and subservience in the comity of nations. The average Nigerian must be determined to begin the change and as operators of the legal system, the judiciary must resoundingly make it clear that the society must be built on the rule of law, justice, equality and due process not by mere rhetoric but by genuine and positive determination.

Finally, Nigerians must belief in the project called Nigeria and reflect on these issues. Someday, the victims of these failures, the children of tomorrow with a broken future will rise up in accusation against our generation. Someday, the aborted generation may take us to the court of posterity and the tribunal of history; we will all be cross examined on our roles today. The charges will be charges of nonchalance, greed, selfishness, nepotism, neglect, grievous errors in judgment, failure to fight corruption and failure to abide by our conscience or the rule of law. The exhibits will be the victims of countless religious riots and terrorism, the millions of impoverished citizens and abused Nigerian children who have lost their future, the violation of the social contract by the leaders and betrayal of trust by people in authority. We must decide to follow the due process of law and abide by the laws of our country to achieve a positive social change. The problem is not inadequacy of laws but the ineffective enforcement of the laws. Social engineering begins from an individual.

*LL.B, LL.M, B.L. ACIArb (UK) Law Lecturer at Faculty of Law, Bowen University, Iwo, Nigeria. segunaderibigbe@consultant.com or segunaderibigbe@lawyer.com. +2348055453177.

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