Jurists as therapists that resolve social conflict

Centre of gravity of all legal developments is not in legislation or judicial decisions but in society itself – Eugen Ehrlich.

Law is said to be a tool for social engineering. Roscoe Pound gives the theory of Social Engineering in which he compared lawyers with Engineers. Engineers are required to use their engineering skills to manufacture new products.

Similarly, jurists as social engineers are required to fashion and promote contemporary and complementary legal systems, which are therapeutic and well suited to the unique needs of offenders, victims and dynamic and complex society, respectively.

Law spans the spectrum of human enterprise and fulfilment. Ideally, therefore, the law should respond to society and its evolving complexities but when society struggles to squeeze into the orthodoxy of the law, then there is a problem of hate, vengeance and stagnancy with clogging and dysfunctioning of the judicial system. This happens when there is a parochial approach and fixation in interpretation and application of law in managing human relations in a complex, dynamic and ever-changing world.

Fixation on statist justice without creative and flexible complementary humanist systems is the harbinger of social schisms, discontent and unending legal feud, requiring in the words of David Wexler, the need to apply the law therapeutically. Therapeutic jurisprudence, among other views, considers law as a therapeutic agent, cognizant of facts, law and emotions.

Jurists including lawyers, judges and those who are involved in any adjudicatory functions or roles within the criminal justice agencies, should, therefore, in practical terms ply their trade therapeutically. Their essence is to resolve social conflicts, in ways that promote the individual and social physical, mental, emotional and psychological wellbeing of citizens who are involved in and affected by the commission crime.

The ultimate goal should be peace, harmonious social functioning, growth and development of society. To that extent, a jurist can be likened to a therapist who considers physiological and psychological elements to resolve emotional, psychological and physical discomfort and pain occasioned by the commission of a crime and its aftermath, through the application of appropriate principles and procedures suited to the circumstances of each matter.

Jurists are expected to apply the principles and procedures of law to resolve social schisms, not only to maintain law and order but also to ensure cases are resolved to satisfy both macro and micro interests of parties to a matter. In that guise, they are expected to apply the law therapeutically.

The American jurist, Roscoe Pound posits that “law is social engineering which means a balance between the competing interests in society, in which applied science is used for resolving individual and social problems.’’ Therapeutic jurisprudence, the premise of Restorative justice, is an eclectic concept, which at its basics, is the pursuit of healing and restoration of normal functioning in social intercourse and relationships in the administration of adjudicatory processes.

It is not always that the overarching jurisprudence of deterrence and retribution, largely statist, is able to satisfactorily deliver on justice because it sees issues of justice from the prism of ‘’law and order’’ – macro justice. Whereas, micro justice is a very critical balance for social healing and restoration. The words of the erudite jurist of blessed memory, Chukwudifu Oputa, JSC in Josiah v. State rings true that justice is not a two-way thing but three-way traffic – the offender, victim and society. No doubt, without law and order, we would be headed back west, to the Hobbesian era, when life was brutish nasty and short. However, cognizance must be taken of the typical needs of the offender and victim as it relates to the social and psychological health of the society, its Geist. Recognizing this need for flexibility, for instance, the Child Rights Law makes some exceptions to the rigid provisions of deterrence and retribution, when it comes to the ‘child’.

The Child’s Right Act provides in its Section 204 that: No child shall be subjected to the criminal justice process or to criminal sanctions, but a child alleged to have committed an act which would constitute a criminal offence if he were an adult shall be subjected only to the child justice system and processes set out in this Act.

It seeks to protect the child, seen at this age to be incapable of informed opinion as to assume any form of social/criminal responsibility. This provision obviously constitutes an exception to the application of the extant criminal trial process.

Section 209 (1) makes use of the word, ‘dispose’ not trial. It says: The Police, prosecutor or any other person dealing with a case involving a child offender shall – (a) Have the power to dispose of the case without resorting to formal trial by using other means of settlement, including supervision, guidance, restitution and compensation of victim.

The power conferred under the above section was modified by a proviso in its sub-section (b) thus: if the offence is not of a serious nature.

Meanwhile, Section 206 (2) of the Act provides: Every Judge, Magistrate and other judicial officer appointed to the court shall be trained in Sociology and behavioural sciences to ensure effective administration of the child justice system. Without doubt, these provisions tend towards considerations for humanitarian, pragmatic considerations in the administration of justice.

Take for instance, if Rwanda had insisted on handling the Hutsi and Tutsi genocide massacre through the principles of deterrence and retribution, it would remain a boiling and burning pit of blood. It rather had recourse to the justice of healing and restoration. Jurists and social scientists got together and adopted a conversational system of justice that brought together those who were killed and those whose relatives were killed and agreed on what was best for the individual and social functioning of Rwanda – Restorative justice, justice that heals! Today Rwanda is a leading country in every ramification of nationhood.

Our jurist must rise to interpret and apply the law in ways that heal while imposing outcomes, remedies and punishment appropriate to each person and party.

Our jurists must courageously adopt a progressive and pragmatic approach in interpreting and applying the law in a way that is beneficial and progressive.

In Rwanda, those whose relatives were killed (victims) were by therapeutic application of the law, reasonably healed and restored. The offenders, who killed their loved ones and relatives built houses for them, tilled their farms, among other responsive and relevant remedies. Today the Genocide Village is a tourist attraction in Rwanda. There was offence, punishment appropriate to repentance, forgiveness and restoration of social functioning and harmony. This enunciated the spirit of mutual accommodation, which no doubt has helped the development and progress of the country.

ADR is a growing approach to mediating commercial and sundry disputes. In criminal prosecutions, a Plea bargain is a growing practice. Our Jurists hold a very potent balm that is capable of healing and lubricating the harmonious and progressive social functioning of our society – Restorative Justice.

Iwuagwu, a lawyer is the president of the Nigerian Prison Fellowship.