Among the reasons being paraded by the Nigerian Council of Legal Education for its refusal to admit into the Nigerian Law Schools, the graduates of law programme of the National Open University of Nigeria is the fact that law is a conservative engagement.
This fact of conservatism, understood as uncompromising rootedness to the past, lawyers argue, does not permit the study of law in an open and distance setting whatever the merits of that setting.
Last week, a graduate of the Abuja Campus of the Nigerian Law School, Miss Firdaus Amasa, was denied entry into the Nigerian Bar on the ground that she wore a hijab to that event. Lawyers who defended the exclusion of Miss Amasa, again, cited the conservative nature of Law to support the action of the Council of Legal Education.
When lawyers claim that their profession is conservative, they mean that the rules or principles guiding what they do are essentially unalterable.
Anyone who clings to this sort of idea lives with the mistaken belief that we have reached the end of wisdom, the boundary of which was established by the past. Essentially, such a person tends to mock the present for what it sees as its stupidity or blindness.
This disposition towards the law neglects the dynamic nature of society. And it is this dynamism that imbues each society with the capacity to adjust itself to solve the challenges of its time. However, when the Law of a society insists on the rules of the past for the guidance of that society, it passes the message that the only redemption open to society is its obstinate attachment to the past, its stubborn refusal to change.
Thus, instead of serving as tool for social advancement, Law, if left unchecked, becomes a tool for social retrogression. The two cases cited above, present a perfect example where the nature of law viewed as conservative negatively affects the path of a society.
But if lawyers celebrate conservatism, we will not shy away from the responsibility of calling their attention to the greatest destruction which conservatism could have done to the global system were it not for the tenacity of some French men and women.
The French Revolution to which we owe the modern day democracy was opposed by Edmund Burke, regarded today as the father of conservatism. Burke’s argument was that the institution of monarchy which the revolutionaries wanted to supplant was rooted in tradition and therefore unalterable.
With the benefit of history, we can say today that nothing in the world is unalterable. Indeed, alterability is one of the important characteristics of earthly realities. To insist that laws are conservative and therefore unalterable is to hold that law is not an earthly phenomenon.
A society that realises this and is quite convinced of the truth of their argument must insist that that it makes its laws and not allow its laws to make it. When a society makes its laws, it determines such laws. It establishes the bounds and limits of the laws.
The essential fallout of this type of opinion which I uphold here is that law must have its origin in public opinions and not carry on as if it is beyond them. If the two examples cited above accord to public opinion there should not be any reason why the law should oppose them.
Therefore, invoking conservatism to defend the law each time it appears that what it upholds is at loggerhead with what the rest of society demands amounts to turning law into a tyrant from whose shackle we cannot extricate ourselves.
There is a sense of hypocrisy involved in the claim that law is conservative. In many instances in Nigeria we have seen law mount sustained attack on traditions and tribal cultures of Nigerian peoples on the ground that they are archaic. This was the case when the Supreme Court ruled, for instance, that female children should inherit the property of their parents in Igboland against the prevailing practice that excluded them.
This singular ruling brings the Igbo cultural practice of inheritance up to date with the demands of contemporary world. However, it beggars belief when lawyers resist the demand that law itself should be up to date with the demands of the contemporary society on the ground that law is conservative. What is sauce for the goose is sauce for the gander.
