Power and Criminal Law: Criminalization of Conduct Norms in a Colonial Regime

The central focus of this paper is to investigate the role of power (economic, political, and military) in defining an act as criminal. The theory in question is the functionalist/consensus argument that power is a facility for the performance of functions in and on behalf of society as a system, and not for egoistic ends (Parsons, 1957), and that criminal law is a product of customary beliefs, ideals, values, and taboos of a society that are codified in state law (Durkheim, 1939; Parsons, 1957). In an effort to evaluate these arguments, the development of bigamy law in colonial Nigeria and the role ‘power’ played in the development of such a law are investigated and discussed vis-à-vis theoretical arguments of consensus and conflict. The data show that power instead of being a capacity to mobilize the resources of society for the attainment of goals for the general good of society, as the consensus approach claimed, is a capacity to mobilize the resources of society for the attainment of goals of the ruling class in spite of opposition of the majority in society. The ruling class interest protected by the statute was a moral or theological interest. Further, the bigamy statute was based neither on consensus over values nor on the customary beliefs, habits, and standards of the Nigerian people. The paper, therefore, concludes that criminal law, instead of representing customary beliefs and standards, is an ideological construction of those who have the power to protect their own interests through legislation.