Academic journal article African Journal of Criminology and Justice Studies : AJCJS

A Justice Void Filled: Explaining the Endurance of Extreme Tradition-Based Laws in Nigeria1

Academic journal article African Journal of Criminology and Justice Studies : AJCJS

A Justice Void Filled: Explaining the Endurance of Extreme Tradition-Based Laws in Nigeria1

Article excerpt

Introduction

The "rule of law" posits that all persons in a society are subject to, and ruled by, the same legal standard. This concept instructs that no one is to be treated preferentially, without legal justification (see as examples, Dicey, 1885/1985; Tamanaha, 2004). This is the way to build and sustain a fair, just, and lastingly progressive society. Building and upholding such a society requires the contributions of good law, custom, tradition, and other forms of social control (see Hart, 1997). Law (that is, official law) alone cannot achieve this condition. However, in the absence of fair, just, and a lastingly progressive condition, a society will be weak, teeter, and likely to fail due to internal failings (ineffective system due mainly to lack of citizens' support) as much as external weaknesses (low regard for the society by other societies that observe the rule of law) (Okaf?, 2007). Thus, the rule of law is fundamental to a society. When the rule of law fails, as often happens in more recent postcolonies (less developed countries), such as Nigeria, the official law and justice are challenged through and by alternative social control.

A society lacking the proper rule of law standard faces several present and future challenges. The capacity of the society to function optimally in the present is legitimately questionable mainly because of the dissatisfaction with which the citizens are likely to view it. The law and justice system of the society is likely to be both ineffective and inefficient as a result of its lack of proper and legitimate grounding among the citizens. Also, the future of the society will be highly speculative. Its survivability will become an open question. The high level of unpredictability of the future direction and actions of the society will substantially compromise the society's present functioning and future. The present and future challenges will conspire to degrade the quality of the lives of the citizens of such a society. Life, at both the individual and group levels, will likely be bleak.

Thus, the social control challenges facing a society in which the rule of law is absent or is prominently compromised are of two main kinds: individual (or personal) and institutional. Individual citizens and small groups of citizens in a society without the rule of law readily resort to alternative social control. These citizens challenge the official (governmental) law and justice system through (by means of isolated, individual cases, actions, and omissions within) the available alternatives. Also, larger groups of citizens, such as communities, groups of communities, ethnicities, and regions of the affected country may, in time, use the alternative social control as a means to challenge the official system. As the challenges to the official law and justice system expand, the alternative system is constituted into a powerful, all encompassing institutional obstacle or challenge to the ineffective official system. Thus, the now large alternative social control becomes the alternative system that challenges (by) the official system.

In many instances, the challenges to an official law and justice system are mild. This means that those challenges are routine, not fundamentally threatening ways of expressing dissatisfaction with the prevailing rule of law shortcomings of the official system. Such mild challenges do not undermine the foundations of the official system. These regular challenges do not oppose the essential characteristics of the law and justice system. Rather, the challenges operate in ways that offer alternatives through (within) the existing dominant official system. Examples include situations where citizens opt to manage their grievances, conflicts, and disputes informally according to their indigenous ways of life contrary to the stipulated official standards. Disputants are likely to choose an indigenous process where they derive greater satisfaction compared to an official (likely foreign) system. …

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