Methods of Social Control through Law

Law represents one of society’s most formalized systems for maintaining order and regulating human behavior. While not the only mechanism societies use to ensure conformity, law stands distinct in its systematic application of state-sanctioned authority. Understanding how law functions as an instrument of social control is fundamental to appreciating its role in modern society.

What is Social Control?

The concept of “social control” originated in sociology but has been embraced by legal theorists in their examination of law’s function. Social control refers to the various mechanisms through which a society exercises authority over its members and enforces conformity to its norms.¹

Edward A. Ross, who coined the term, used it to identify regulative institutions that ensure individual behavior conforms with group demands—including supernatural beliefs, ceremonies, public opinion, morals, art, education, and law.² The eminent jurist Roscoe Pound later adapted this concept, describing law as “social control through the systematic application of the forces of politically organized society.”³

While sociologists debate whether law is the paramount instrument of social control, legal scholars like Quinney have recognized the legal system as “the most explicit form of social control.”⁴ As societies grow more complex, their reliance on law as a mechanism of control typically increases.

Two Approaches to Dispute Resolution

Before examining specific methods of social control through law, it’s important to understand the broader categories of dispute resolution:

Adjudicatory Method

This method involves the formal submission of disputes to established institutions like courts or tribunals. The process is typically initiated by an aggrieved party filing an action, with the other party called to defend. A third party (judge, magistrate, or adjudicator) appointed by the state presides over the matter and resolves it in favor of one party.⁵

The adjudicatory method’s decisions are binding on parties and self-executing—they don’t require another tribunal to give them legal force. Within this approach, fact-finding typically follows either an adversarial or inquisitorial model, as detailed in the study of legal reasoning in the judicial process.

Non-Adjudicatory Method

Also known as Alternative Dispute Resolution (ADR), this method resolves disputes without formal appearances before institutions like courts. It doesn’t involve calling witnesses, finding facts, or apportioning blame in the traditional sense.⁶ Examples include reconciliation, conciliation, mediation, and arbitration.

The Penal Technique

The penal technique represents one of the most visible methods of social control through law. It aims to secure conformity to legal precepts and discourage deviant behaviors through the threat of punishment.

This technique involves:

• Defining prohibited conduct
• Establishing penalties for violations
• Creating procedures for determining guilt
• Implementing appropriate punishment

As noted by R.M. Jackson, “It is in relation to criminal offences that we speak of enforcing the law. The general pattern is clear enough: observance of some rules of conduct is regarded as so necessary for society that a breach of such rules is a matter for the intervention by the State.”⁷

The penal technique’s effectiveness lies not merely in its elaborate precepts but in enforcement. When someone commits a crime, the matter is reported to police rather than settled through personal vengeance. The state, through police or prosecutorial authorities, decides whether to pursue charges based on available evidence.

This approach applies to all citizens regardless of status, and—unlike civil matters—criminal liability isn’t typically subject to statutes of limitation. A criminal act can be prosecuted regardless of when it was committed, reflecting society’s enduring interest in punishing wrongdoing.

Alternatives to the Penal System

Despite its prominence, the penal technique isn’t the only approach to addressing deviant behavior:

• Non-intervention: Not all immoral or socially reprehensible conduct is criminalized. Legislative bodies must select which behaviors warrant penal sanctions.
• Warning or Caution: Minor offenses or young offenders might receive warnings rather than full penalties.
• Reciprocity and Self-Help: While dangerous and often illegal in modern societies, some communities still resort to direct reciprocity or self-help, as evidenced by mob justice incidents.
• Compounding: This involves agreeing not to press criminal charges against a wrongdoer in exchange for compensation or other consideration.

The Grievance-Remedial Technique

Unlike the penal technique, which addresses matters of public order, the grievance-remedial technique primarily applies to civil law. As described by Professor Summers, this technique “defines remediable grievances, specifies remedies… and provides for enforcement of remedial awards.”⁸

This technique:

• Establishes substantive legal rules creating rights and duties
• Provides remedies for breaches of these rights
• Ensures enforcement through courts

Areas using this technique include Contract Law, Family Law, Commercial Law, Tort Law, Property Law, and Labor Law. The available remedies vary depending on the nature of the right breached and might include damages (general or special), specific performance, injunction, or restitutio in integrum.

The underlying logic is that providing adequate remedies to aggrieved parties discourages injustice and prevents individuals from taking the law into their own hands.

Alternatives to the Grievance-Remedial Technique

Several alternatives exist to this approach:

• Penal Techniques: Some conduct constitutes both crime and civil wrong (e.g., assault, false imprisonment, defamation), as explained in the guide on aspects of law and legal classifications.
• Private Settlement: Parties might incorporate liquidated damages clauses in contracts to resolve disputes without litigation.
• Insurance: In cases like vehicle collisions, parties might handle matters through insurance rather than courts.
• Arbitration: Increasingly common in commercial contracts, arbitration provides for private dispute resolution by arbitrators who make binding awards.

The Private Arranging Technique

This technique provides a framework of rules determining the validity of private transactions while allowing individuals to arrange their affairs within that framework. Examples include entering into marriage, settling a trust, or making a will.

While individuals have considerable freedom under this technique, once they decide to arrange their affairs according to a particular system of law, they must comply with its rules or risk invalidation. For instance, a person who contracts a statutory marriage cannot validly enter another marriage while the first subsists.⁹

Similarly, a will must meet statutory requirements—typically being in writing, signed by the testator in the presence of at least two witnesses who attest and subscribe to the will.¹⁰ If these requirements aren’t met, the will becomes invalid and the person’s property distributes according to intestacy rules.

Areas governed by this technique include Contract Law, Family Law, Commercial Law, Property Law, Partnership Law, Company Law, and Trust Law.

The Constitutive Technique

This technique facilitates cooperative actions by vesting legal personality in groups distinct from their individual members. It enables the “pooling of efforts and resources” to achieve social ends like commerce, charity, or cultural objectives.¹¹

The landmark case Salomon v. Salomon established the principle of separate legal personality, allowing incorporated bodies to have perpetual succession and limited liability.¹² This principle forms the bedrock of company law and enables the existence of large multinational corporations by reducing investors’ risk.

The constitutive technique also applies to religious organizations, educational institutions, and socio-cultural groups constituted as incorporated trustees. Government entities like statutory corporations, universities, and administrative agencies are similarly established through this technique.

The Administrative-Regulatory Technique

Modern governance requires regulation of numerous activities that legislatures cannot directly oversee. The administrative-regulatory technique involves government agencies adopting, communicating, and enforcing regulatory standards.

This technique typically includes:

• Systems of licensing
• Inspections
• Warning letters
• Revocation of licenses
• Administrative proceedings, civil litigation, or criminal prosecution when necessary

Examples in Nigeria include the Standards Organisation of Nigeria (SON), Department of Petroleum Resources (DPR), and the Nigerian Communications Commission (NCC), which regulates telecommunications services.¹³

Unlike the penal technique, which prohibits antisocial behaviors, the administrative-regulatory technique regulates legitimate activities. It also differs from the grievance-remedial technique by operating preventively, before grievances arise.

The Fiscal Technique

While taxation’s classical aim is revenue generation, modern governments use it to achieve other economic goals and discourage antisocial behaviors.¹⁴ For example, Nigeria increased gas flaring penalties by 1,900 percent in 1998 to discourage environmental damage in oil-producing communities.

Taxes like income tax and capital transfer tax can also redistribute wealth and narrow social gaps. The Federal Board of Inland Revenue and State Boards of Internal Revenue administer various taxes at federal and state levels, established under the Personal Income Tax Act.¹⁵

The Conferral of Social Benefits Technique

Modern governments recognize that providing social amenities—previously left to individuals, communities, or private organizations—helps prevent social disharmony and promotes order and peace.

This technique aims to improve welfare in expectation of creating social order, particularly in developing countries seeking to create conveniences for citizens. Examples in Nigeria include:

• Nomadic Education Programme
• National Mass Literacy Programme
• Urban Mass Transit Programme
• Low-Cost Housing Scheme
• National Primary Health Care System
• National Directorate of Employment Schemes

Despite numerous welfare programs, poverty and welfare issues remain significant in many countries, as programs are often poorly implemented or captured by elites rather than reaching target populations.

Conclusion

The methods of social control through law are diverse and complementary, often overlapping in practice. Governments must choose which technique or combination will best achieve their objectives when considering legislation.

These techniques illustrate the two principal sources of modern law—legislation and judge-made law. Since courts interpret statutes, the two sources inevitably intertwine.

Understanding these methods provides insight into how law maintains order, resolves disputes, and shapes behavior. For law students, recognizing these different approaches helps contextualize how various legal fields function within the broader system of social control.

For further reading on how these methods are implemented and interpreted, explore our resources on legal reasoning and approaches to problems, sources of law in Nigeria, and legal research methods.

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Footnotes

1. O. Otite & W. Ogionwo, Introduction to Sociological Studies, Ibadan, Heinemann, 1979, p. 375. ↩

2. Social Control, London, 1910, Macmillan, cited in O. Otite & W. Ogionwo, Introduction to Sociological Studies, Ibadan, Heinemann, 1979, pp. 374-375. ↩

3. R. Quinney, The Social Reality of Crime, Little Brown & Co. Inc, 1970, cited in D. Lloyd & M.D.A. Freeman, Lloyd’s Introduction to Jurisprudence, 5th ed., 1985, London, Stevens & Sons, pp. 618-625. ↩

4. Ibid. ↩

5. M. Akanbi, “Why Arbitrate?” (2002) The Jurist, Vol. 7, p. 61. ↩

6. S. Ofe, “Justice in Dispute Settling”, (1998) The Calabar Law Journal, Vol. 2, p. 91. ↩

7. R. M. Jackson, Enforcing the Law, Rev. ed., Penguin Books, Middlesex, 1972, p. 6. ↩

8. “The Technique Element in Law” 59 California L.R. 733 (1971). ↩

9. See sections 33 and 45 of the Marriage Act, Cap M6 LFN 2004. ↩

10. See generally section 6 of the Wills Law, Cap. 164, Laws of Osun State of Nigeria 2001; and section 6 of the Wills Law, Cap.170, Laws of Oyo State of Nigeria 2000. ↩

11. Farrar and Dugdale use this phrase to capture the collaborative nature of activities enabled by the constitutive technique. ↩

12. The principle that a company has a legal personality distinct from its members was established in Salomon v. Salomon & Co Ltd [1896] UKHL 1, [1897] AC 22. ↩

13. Nigerian Communications Commission Act No. 75 of 1992, Cap N97 LFN 2004. ↩

14. B. Nwabueze, Military Rule and Social Justice in Nigeria, Spectrum, Ibadan, 1993, pp. 127-132. ↩

15. Act No. 104 of 1993, Cap P19 LFN 2004. ↩