SOCIAL FOUNDATIONS OF LAW NOTES

DEFINITION OF CORE TERMS

1. Social

This word means “of or pertaining to human society” or “of or pertaining to the life,

welfare and relations of human beings in society.”

2. Social order

To say social order is to suggest:

- Accepted rules of social arrangements in the society for example the patterns

of distribution of honour;

- the condition of human relations in the community;

- issues of ordinary life and welfare; and

- The manner in which social honour is distributed in the community between

typical groups.

3. Classes

These are large groups of people distinguished by their position in the system of

social production, by their relationship to the means of production, by their role in the

social organisation of labour and by their share of the social wealth.

Marxist scholars have done profound research in the area of class formation. The

stages involved in this process are:

a) primitive tribal society: at this early stage, there are no classes and life was

basic, simple and based on tribal unity and blood relations;

b) slave owning society: at this stage, social order was divided along slave

owners and the slave class society emerged here;

c) feudal system (feudalism): social order at this stage was organised along land

ownership since land was the only over-whelming wealth in the society. Few

people were feudal Lords (land owners) and the rest, who formed the majority

were serfs who lived under benefits derived from one of the Lords.

d) Capital system: at this stage there is creation of market for goods and

services. To have or not to have depends on power to purchase. There are two

broad classes: owners; and workers which are determined by the factors of

production.

In a typical modern industrial society, there will usually be the following classes:

· Upper class;

· upper middle class;

· lower middle class; and

· lower class.

Political power is usually in the hands of the upper and lower middle class since

majority of people falls in this class and are therefore able to influence political results

due to the power of their votes.

4. Community

This is a grouping of people who have a substantial amount of sharing in feelings,

sentiments and relations. It is of spontaneous formation for example a clan, religion,

etc.

The specific material making up a community is divided into:

a) primary units – these are ground facts for example individual persons, families,

extended families, clans, ethnic groups, religious groups etc;

b) secondary units- marked by the fact that they have been deliberately organised by

the people in the society e.g. youth groups, women organisations, co-operative

societies, trade unions etc.

5. Society

This is larger than a community and its formations is not spontaneous. Its formation is

based on some artificial regional principles. In Kenya for example, a society is based

on geographical aspects.

NATURE OF SOCIETY

Contrary to the belief held by many, society is not a mere loose group of independent

units. Society is a complex network of structures having links and dependencies with

other social elements and forces.

These structures include law, political institutions (e.g. parliament, political parties),

economic and commercial institutions (e.g. trade unions, manufacturers associations,

cooperative societies), religious institutions, teaching institutions, cultural institutions

(e.g. TV, radio, press) etc.

Social elements and forces on the other hand include certain regular patterns of

behaviour, relationships and beliefs.

All the institutional structures are however not equal. In each society, individuals and

groups are ranked according to their place on a “ladder of influence” with some

ranking higher in terms of power, prestige, wealth or some other criteria. To express

this idea of social ranking, sociologists use the term “social stratification.”

SOCIAL STRATIFICATION

Stratification is a multidimensional phenomenon. Human populations are stratified in

various ways and each of these alternative modes of stratification provides a basis for

a different conception of class.

The best way to understand the phenomenon of social stratification is to contrast it

with certain other social phenomenon.

Social stratification should for example not be confused with Social differentiation.

The latter occurs when we have people with distinct individual qualities and social

roles. People are differentiated by biological characteristics (eg. Sex, size, height,

strength, agility), by social roles, work tasks or occupations. These differences must

not be ranked on a hierarchy or evaluated differently. It however sets the stage for

inequality and social stratification.

Social stratification is also different from Social inequality. The latter is a condition

whereby people have unequal access to valued resources, services and positions in the

society. It can emerge in terms of how individuals and groups are themselves ranked

and differing positions in social structure. Notably, social inequality can also emerge

from social differentiation since some roles or social positions place some people in a

position to acquire a great share of valued goods and services.

Social stratification therefore refers to a situation where inequality and differentiation

have been hardened or institutionalized thereby creating a system of social

relationships that determines who gets what and why.

Institutionalization means that a system of layered hierarchy has been established i.e.

rules have been created explaining how rewards are distributed and why they are

distributed in such a way.

The term structural inequality is also used to refer to social stratification.

A System of social stratification helps shape how people live, their opportunities for a

better life, their mental health and life expectancy. It has an important influence on

events such as war and peace, economic expansion or stagnation, unemployment and

inflation and government policies of many kinds.

NB: When a class or strata is primarily hereditary, such placement is referred to as

ascription i.e. people are placed in position of stratification system because of

qualities beyond their control e.g. race, sex, class at birth etc. When class

placement is due primarily to qualities that can be controlled by individuals,

such placement is referred to as achievement.

CONCEPTIONS OF SOCIETY

There are two ideal conceptions/ideas/view of society:

a) the integration consensus- which describes society as functionally

integrated, relatively stable system held together by a basic consensus of

values. Social order is therefore considered as more or less permanent,

and individuals achieve their interests through cooperation. Social conflict

is viewed as the needless struggle among individuals and groups who have

not yet sufficiently understood their common interests and basic

interdependence.

b) The conflict-coercion conception- this perspective considers society as

consisting of individuals and groups characterised by conflict and

dissension and held together by coercion. Social order is temporal and

unstable because every individual and group strives to maximise its own

interests in a world of limited resources and goods thereby brewing

conflict.

Due to the fundamental differences between the two conceptions, when law in

society is viewed in one of these two perspectives, two different conceptions of

the role of law in the society as emerge as follows:

a) The integration- consensus conception

This perspective considers law as a neutral framework for maintaining social

integration.

For example, according Roscoe Pound, one of the most influential American

Sociological Legal Scholar, law is a form of social engineering directed toward

achieving social harmony. The purpose of law is therefore to maintain and to

ensure those values and needs essential to social order, not by imposing one

group’s will on others but by controlling, reconciling and mediating the diverse

and conflicting interests of individuals and groups within the society. In other

words, the purpose of law is therefore to maintain harmony and social integration.

This position is supported by Talcott Parsons who opines that the primary

function of a legal system is integrity since it serves to mitigate potential elements

of conflict and to oil the machinery of social interaction.

Proponents of this perspective further advocate that laws law exists to maintain

order and stability in the society. In this regard, law is a body of rules enacted by

representatives of the people in the interests of the people.

A fundamental assumption of this perspective is that: the political system is

pluralistic; and society is composed of a number of interest groups of more or less

equal power. Law therefore reflects compromise and consensus among these

various interest groups and the values that are fundamental to the social order.

b) The Conflict –Coercion Conception

This perspective considers law as a weapon in the hands of the dominant class.

When diverse groups come into conflict, they compete in order to have their

interests protected and perpetuated through the formalization of their interests into

law. Unlike the pluralistic conception of politics, law does not represent a

compromise of the diverse interests in the society, but rather supports some

interests at the expense of others.

Law is therefore not a device to control interests but rather an expression of

interests, an outgrowth of the inherent conflict of interests in the society. It is the

state’s coercive weapon which maintains the social and economic order and

supports some interests at the expense of others, even when those interests are the

interests of the majority.

This view has been criticised because not all laws are created and operated for the

benefit of the powerful in the society. For example laws on murder, robbery, arson,

assault etc benefit all members of the society irrespective of their economic position.

The perspective is therefore too broad and overstated.

These two conceptions have however been described as being equally valid aspects of

every imaginable society.

SOCIAL RELATIONSHIPS

Human beings are social in nature. For this reason, they interact and form

relationships in various ways, as follows/among them:

1. Economic relationships

At the economic level, human beings engage in two forms of relationships:

i) relationships with nature: people use nature either for direct consumption or

in order to produce things which they can consume; and

ii) relationships amongst themselves: as they use nature to produce, people enter

into property relationships with each other which are called “relations of production”

since they express the personal and social positions each person occupies within the

production process. In practical terms, these relationships are expressed in terms of

who owns and controls the means of production and distribution.

2. Political relationships

Politics expresses the relationships of social power. Social organisation largely

depends on the control exercised on social relationships and processes. The power to

control and determine the direction of these relationships and processes is what

constitutes political power. The social distribution of this power to specific

individuals who play specific roles in ordering social life expresses the nature of

political relationships. Law is therefore merely one of the forms of expressing

political power, the other form being naked violence (cf. slave master relationships).

3. Cultural relationships

Culture is the totality of socially-learned behaviour. It stands for all the items of

behaviour which one learns by virtue of belonging to a social unit with a distinct set

of modes of action and thought. It grows out of the habits and beliefs of a specific

people. Culture represents the whole array of socially-acquired knowledge which

determines one’s behaviour in any social situations. It encompasses matters such as

morality and aesthetics. Inevitably therefore, culture finds its way into law.

PART IV: THE NATURE OF LAW

Origins of Law as a Social Phenomenon

Scholars have, over the years, struggled with the issue of the origins of law and many

theories have been propounded in an attempt to explain this. These theories can be

classified into two broad categories:

a) idealist arguments

These arguments can be summarised as follows:

- that law originates from the dictates of a supernatural being;

- that law is provided to humanity by nature as a set of immutable principles

from which individual rules of law are then drawn;

- that humanity generates law on the basis of some ideal sense of universal

justice

Proponents of this view fall within the wider category of Natural Law theory. Plato,

an ancient Greek philosopher for example, argued that law existed as a natural and

ideal phenomenon and it could only be known and applied by humanity through

reason.

Cecero, another Greek Philosopher further opined that the ultimate law was “heavenly

law” which is the expression of God’s mind. All human law has to be compatible with

the heavenly law for it to be valid and for this reason, human law should be derived

form heavenly law.

b) Materialist arguments

According to these, law has a purely social origin as it arises out of the specific

activities and relationships entered into by people in society. The arguments therefore

recognise social activity as the producer of legal phenomena.

Proponents of this view fall within the wider Utilitarian and Marxist legal theories.

According to the utilitarian John Locke for example, law arose after the advent of a

politically organised society. Before this, man was in a state of nature enjoying

absolute freedom except for the vagaries of nature. As society developed, political

power arose. Law is therefore a mere expression of this power. It arises out of social

activities and is therefore not innate.

The Marxist-Leninist theory also falls within this category. The theory posits that law

is not a natural phenomenon since it arose after the breakdown of primitive social

formation. This process gave rise to antagonistic class relationships which threatened

to tear the society apart if new forms of regulating social behaviour were not

developed. In response, law was developed as a tool for avoiding and negotiating

conflicts between the various classes.

Nature of law

There is no specific consensus as to the true nature of law. However, there are certain

elements about law that have received general consensus. These are:

1. law is a body of rules governing social behaviour;

2. law imposes sanctions to ensure compliance with its demands;

3. law is generally in imperative form- it does not leave the subject with the

discretion as to whether to comply with its dictates or not except in the

form of alternatives;

4. law is largely (not always) in written form; even where oral tradition

prevails, final proof rests on some formalised pronouncement which is

recorded in the form of governing principles;

5. law is made either directly or indirectly by some specialised body with the

authority to do so;

6. Law is a system of rules which:

· forbid certain activities (e.g. theft, murder); or

· impose some conditions under which the activities may be carried out

(e.g. licensing); or

· enable certain activities to be carried out with some form of legal

backing and protection (known as power-conferring rules e.g. the law

of contract.)

7. Law has a normative character- law arises social rules which govern life

in the society. A rule is a general norm guiding conduct or action in a

given type of situation. In this regard, a rule prescribes what activity may,

should or should not be carried out in a specified way.

Since rules guide people in what they may, ought or ought not to do, they

are said to be normative in character. The meaning of the term

“normative” is best understood if contrasted with the term “factual.” A

normative statement states what ought to happen (an “ought” statement”)

while a factual statement states what actually happens in fact (an “is

statement”). All rules whether legal, moral or customary are normative

since they prescribe standards of behaviour which people ought to conform

to.

THE MEANING OF LAW: AN INTRODUCTION TO LEGAL THEORY

Any attempt to define law faces the difficulty that law while manifested in physical

objects for example a statute books, is in essence, an abstraction. For this reason, law

cannot be defined in terms of its physical characteristics. Different scholars have

therefore made attempts to define law by propounding various theories. Some of these

theories include:

1. THE NATURAL LAW THEORY

In its simplest definition, natural law is that "unwritten law" that is more or less the

same for everyone everywhere. To be more exact, natural law is the concept of a

body of moral principles that is common to all humankind and is recognizable by

human reason alone.

Proponents of natural law theory can be categorized in two broad groups:

a) traditional natural law theorists

These include Cecero, st. Thomas Aqinas and Finnis. They argue that beyond and

superior to the laws made by man are certain higher principles of natural law which

are universal, immutable and eternal and which are awaiting discovery by human

reason, to which man made law must conform if it is to be valid.

They therefore argue for the existence of a “higher law.” For some, “higher law” is

interpreted literally as the law derived from divine revelation while for others, it is

interpreted metaphorically to reflect our mixed intuitions about the moral status of

laws. Natural law theorists are therefore both believers and atheists.

The word “natural” as used by natural law theorists does not refer to the law of

nature but rather presents the idea that man, being part of nature, has a nature which

inclines him towards certain ends for example protecting family or even basic

survival. Natural law therefore is that which furthers the attainment by men of the

ends that nature has made it man’s nature (or character or tendency) to seek to

achieve.

In this regard, natural law comprises a body of permanent, eternal truths, truths

embodying precepts of universal applicability, part of the immutable order of things,

unaffected by changing human beliefs and attitudes. These truths are not revealed to

man but are ascertainable by man through the exercise of the reason endowed to him

by nature.

The traditional theory of natural law has a long history starting with the ideas of the

philosophers of the golden age of Greece in 5th Century B.C., then the stoic school of

philosophers in the early centuries of the Roman empire, then passed on to the

thinking of the church which gave it a religious perspective, then came the secular

philosophers of the 16th century and ultimately the 17th and 18th century theorists who

introduced the concept of natural rights.

HISTORICAL DEVELOPMENT OF NATURAL LAW

A. THE ANCIENT GREECE

Plato and Aristotle are the most famous ancient Greek philosophers. Although they

were not, strictly speaking natural law theorists, there are strands in their

philosophies which can find a place in natural law thinking, as later developed.

Plato propounded the doctrine of forms where he argued that forms are

transcendental archetypes that exist independently of the physical world, human

mind, space or time. In this regard, qualities such as law, justice and truth exist in

their own right and all what men can do is merely to reproduce them. However, to be

able to reproduce them, man must seek knowledge of the eternal truths ince these

qualities are eternal and immutable and therefore constitute moral principles of

unchanging human attitudes and beliefs by reference to which all human actions must

be judged.

Aristotle, on his part was a marine zoologist who spent a lot of time observing the

world around him. From his studies of the natural world, he realized that natural

phenomena were in a state of perpetual change, there was always progress. For this

reason, he concluded that the universe is dynamic, always engaged in the process of

becoming, of moving towards an end which immanent within itself from the start.

Law aids human beings in this process.

Plato and Aristotle’s ideas laid the foundations for the development of the full

doctrine of natural law.

B. THE STOICS SCHOOL OF PHILOSOPHY

This was founded by Zeno during the 3rd Century B.C and held sway until around 4th

Century AD and was therefore the prevailing philosophy during the greater part of the

Roman Empire. In their view, law is right reason in agreement with nature; it is of

universal application, unchanging and everlasting; it summons to duty by its

commands and averts from wrongdoing by its prohibitions. God is the author of this

law, its promulgator and its enforcing judge.

C. CHRISTIANITY

Natural law was one of the ideas of the pagan philosophies that became part of

Christian teaching. Christian philosophers readily adapted Stoic natural law theory,

identifying natural law with the law of God, a divine being who actively intervened in

human affairs and lays down express commands for all mankind.

The works of St. Thomas Aquinas (1224-1274) especially the Summa Theologica

marked the most comprehensive synthesis of the classic doctrine of natural law. For

Aquinas, natural law is that part of the eternal law of God ("the reason of divine

wisdom") which is knowable by human beings by means of their powers of reason.

Human, or positive, law is the application of natural law to particular social

circumstances.

Aquinas believed that positive law is derived from natural law and that if it violates

natural law is not true law. Indeed, the phrase “lex iniusta non est lex􀂴 meaning “an

unjust law is not law, is often ascribed to Aquinas and is given as a summary of his

position and the natural law position in general.

d) MEDIEVAL AND RENAISSANCE THEORISTS

Fransisco Suarez is regarded as the greatest thinker of this age. He differed with

Aquinas on the fact that whereas Aquinas emphasised “reason” while analysing

natural law, Suarez emphasised “will.” By will he meant the extent to which moral

standards are best understood as equivalent to the will God whom he termed as the

ultimate lawmaker. He therefore viewed natural law as that knowledge of the general

good which is derived from knowledge of human nature.

Suarez’s writing greatly influenced the 17th-century Dutch jurist Hugo Grotius who

believed that humans by nature are not only reasonable but social. Thus the rules that

are "natural" to them are those which enable them to live in harmony with one

another.

Grotius wrote on rules based on reason that constrain, based on individual rights,

what government can legitimately do and how nations can legitimately act towards

one another. From this argument Grotius developed the first comprehensive theories

of human rights and international law.

NATURAL LAW AND NATURAL RIGHTS

Natural law theory eventually gave rise to a concept of "natural rights." The theory of

Natural rights is credited to John Locke argued that human beings in the state of

nature are free and equal, yet insecure in their freedom. When they enter society they

surrender only such rights as are necessary for their security and for the common

good. Each individual retains fundamental prerogatives drawn from natural law

relating to the integrity of person and property (natural rights). This natural rights

theory provided a philosophical basis for both the American and French revolutions.

Natural law and the subsequent natural rights thinking has had immense effect in

general political theory to date. The American declaration of Independence (of the

year 1776) for example claims to derive its authority from the “Laws of Nature” and

also makes reference to “inalienable rights” of human beings. Chapter IV of our

Kenyan Constitution also makes provisions for human rights and freedoms.

b) Modern natural law theorists

[The most prominent scholars are Lon Fuller and Ronald Dworkin. ]

The modern discussions of “natural law theory” derive from the 1958 “Hart-Fuller

Debate” in the Harvard Law Review. Prof. H.L.A Hart who was a positivist, wrote an

article titled “Positivism and the Separation of Law and Morals” wherein he

demarcated legal positivism from natural law theory from the perspective of the

conceptual separation of law and morality. Lon Fuller responded in his article titled

“Positivism and Fidelity to law- A response to Professor Hart” where he argued

against a sharp separation of law and morality.

Whereas Fuller’s position was based on natural law theory, it was quite different

from the traditional perspective of natural law theory since it laid emphasis on the

moral content of law. In this regard, Finnis argued that:

a) a morally neutral theory of law is neither possible nor valuable; and

b) natural law theory focuses on how, whether and when positive law adds to our set

of moral obligations. In his opinion, it only does this when the rules enacted are

consistent with moral principles.

Fuller offered an analysis based on the “internal morality of law” which posits that

before rules are termed law in the fullest sense, they must meet the standard of

“function and procedure” which consists of a number of principles which Fuller

termed as “principles of legality.”

These principles are:

1) law should be general;

2) law should be promulgated so that the people may know the standards to

which they are being held;

3) retro-active rule making and application should be minimized;

4) laws should be understandable;

5) laws should not be contradictory;

6) laws should not require conduct beyond the abilities of those affected;

7) laws should remain relatively constant through time; and

8) there should be a congruence between the laws as announced and as

applied.

According to Fuller, the essential difference between his theory of law and that

propounded by traditional natural law theorists is that his is a theory of “procedural

natural law” while the latter is a theory of “substantive natural law.”

On the question whether one is superior to the other, it has been argued (by Mathew

Kramer) that procedural ideals though having no intrinsic moral weight, nonetheless

do form part of justice.

In other words, whereas it is not immoral to act contrary to rules of procedure, when

procedure is breached, it is possible to assert that justice has not been done.

2 LEGAL POSITIVISM

Generally, there are three central claims of legal positivism:

1) Law is separate and distinct from morality: Whether some rule is a legal rule or

not depends upon whether it has been laid down in some source such as a statute

or a case and if found in such source, the rule is a valid legal rule whether it is

good or bad, just or unjust. Similarly, a just and reasonable rule does not become a

legal rule if not found in any recognised source of law ;

2) Legal positivism is built around the belief, assumption or dogma that the

question of what is law is separate from and must be kept separate from the

question of what the law ought to (should) be. Positivists are more concerned

with the former since the latter deals with morality of law; and

3) Law is the creation of man (Government/sovereign) and is part of

government’s instrument to achieve rational, coherent and defendable rule.

Legal Positivism has a long history and broad influence. Just like natural law, there

are two broad categories of positivism: Classical positivism and Analytical

positivism.

CLASSICAL POSITIVISM

Examples of classical positivist theorists are:

a) THOMAS HOBBES who lived and wrote in the 17th century is credited as

the real father of classical positivism. According to Hobbes, in the state of nature,

there is “a war of every man against every man,” a state of constant strife in which the

life of man was solitary, poor, nasty brutish and short.”

When man enters into society, law and government therefore become necessary to

promote order and personal security. Through a social contract, the citizen sign away

such of their natural rights to a sovereign as are necessary to for their security and also

for the common good.

According to Hobbes, laws are therefore those rules which the sovereign has

commanded, by word, writing or other sufficient sign of the will, to enable the

citizen distinguish right from wrong. Law is made by man and not a by a

divine being.

b) JOHN AUSTIN

The dominant positivists’ view of law which is usually ascribed primarily to JOHN

AUSTIN is that law is the command (orders backed by threats) of a sovereign to

its subjects enforced by sanction.

According to Austin, sovereignty exists where the bulk of a given political society are

in the habit of obedience to a determinate common superior and that common superior

is not habitually obedient to a determinate human superior. Law, according to him is

therefore a command given by a determinate common superior to whom the bulk of a

society is in the habit of obedience and who is not in the habit of obedience to a

determinate human superior, enforced by sanction.

Since the element of command is central to Austin’s theory of law, this theory is

sometimes referred to as the “command” or “imperative” theory.

The command theory attracted the following criticism:

i) All laws are not orders backed by threats since the laws of contracts and

torts, constitutional and administrative laws as well as procedural laws are

examples of laws which may not fit Austin’s definition since they are more

of “power-conferring” rules.

ii) The notion of the habit of obedience is deficient since it fails to account for

the continuity to be seen in every normal legal system in case of

succession of leadership. The rules established by the new ruler become

law even before “habitual obedience” can be established in fact while the

rules established by the previous ruler continues to have legal force even

after his demise.

iii) The notion of sovereignty is deficient because there is no sovereign who

has unlimited powers and laws made in excess of legislative powers are

usually declared invalid by the courts. Further, in the contemporary time

characterised by failed states such as Iraq and Somalia, Austin’s theory

may be criticised as being too trusting of centralised power.

B ANALYTICAL POSITIVISM

The most important architects of this view were H.L.A. Hart and Hans Kelsen

Analytical positivism emphasises the analysis of key concepts including “law,”

“(legal) right” ‘(legal) duty’ and ‘legal validity”.

i) H.L.A HART (1907-1992)

In his writings, Hart has offered five different positions taken by legal positivists:

1) the contention that laws are commands of the sovereign backed by coercive

force;

2) the contention that there is no necessary connection between laws and morals

or between law as it is and as it ought to be;

3) the contention that the analysis as to the meaning of meaning of legal

concepts is worth pursuing and is to be distinguished from historical inquiries

into the origins or causes of law and sociological inquiries into the relationship

between law and other social phenomena;

4) the contention that a legal system is a closed logical system in which correct

legal decisions can be deduced by logical means from pre-determined legal

rules; and

5) the contention that moral judgements of law cannot be defended.

Hart has however been criticised as not being a true positivist but is rather a Natural

Law sympathiser. This is because, whereas he called for a sharp separation of law and

morals, he conceded that there is some moral content in law.

Hart demonstrated that there are certain characteristic features of human beings

(which he called truisms) which render it impossible for society to survive unless

human beings accept certain constraints on their behaviour. These constraints are

what Hart termed as the “minimum content of natural law.”

There are five truisms that led Hart to the minimum content. They are truisms

because they are true; they are self evidently true; and they may be either so obvious

that they are simply taken for granted or they are not so obvious at first sight. They

are:

1) human vulnerability: man is by his nature capable of inflicting bodily injury

and even death and therefore, maiming and killing have to be prohibited;

2) limited resources: basic necessities in life are always in short supply thus

rendering some form of property institution necessary;

3) approximate equality: no man is enormously stronger than others and this

renders necessary a commonly acceptable system of forbearances and

compromises;

4) limited altruism: since men are neither devils nor angels, restraint is

necessary; and

5) limited understanding and strength of will: which makes it necessary to

apply sanctions including the limited sanction of moral disapproval as an

artificial incentive to secure conformity by those whose own reason or self

control are deficient.

Hart’s minimum content of natural law theory has been criticised as being merely

prohibitive since it does not provide positive inducements to do what is right. Further,

it only deals with primary rules since nothing is said about those special

circumstances in which it may be permissible or even mandatory to destroy life,

inflict injury or deprive property. It therefore did not add any value to the natural law

theory.

ii) HANS KELSEN’S PURE THEORY OF LAW

He propounded his pure theory of law which tried to exclude from law everything

which is not, strictly speaking, law. He wanted to purify law. He therefore called for

the liberation of law from traditional associations. He called for exclusion of such

foreign elements like moral judgements, political biases, and sociological conclusions

which should not be included in a scientific description of the social institution of law.

Kelsen rejected natural law theory because it confused law with morality. In his

opinion, any attempt to define law must deal with law as it is but not as it ought to be.

For Kelsen, law is an “ought preposition”. These prepositions are, basically norms

and for this reason, law consists of norms.

Norms are regulations establishing how persons are to behave. Positive law is

therefore, according to Kelsen, a normative order regulating human conduct in a

specific way.

Norms cannot be derived from facts or morality but from other norms. The question

that arises is whether this derivation can continue ad infinitum. According to Kelsen,

derivation must necessarily come to an end at some point. This is because there is a

foundational argument implied by legal statement (or even religious statements). In

every argument therefore, one will eventually come to a point either so foundational

or so early in the society’s legal history that one cannot go any further back, and no

further justification can be offered. The necessary implication is that to assert the

normative validity of an individual legal rule is implicitly to affirm the validity of the

foundational link of the claim. The affirmation of the foundational norm is

presupposed by any express or implied affirmation of individual legal rules. This

affirmation of the foundational norm of a legal system is what Kelsen called the

“Grundnorm” or the “Basic norm.” Kelsen’s theory was therefore also an attempt to

explain the normative character of law.

According to Kelsen, the legal system is a hierarchy of norms, sort of a pyramid. The

validity of each norm (apart from the basic norm) rests upon a higher norm and the

basic norm is at the top of the pyramid since it is the keystone of the whole legal arch.

In most jurisdiction, the basic norm will usually be the constitution.

3. LEGAL REALISM

Legal Realism is the label that was given to a group of Legal Theorists in the 1920s,

30s and 40s. The only common factor among legal realists is that they are

cynics…there were very cynical about the naturalist and positivist positions.

There are two traditions of legal realists: American and Scandinavian.

a) American Realism

The realist movement in America was inspired by Oliver Wendell Holmes. He was

of the view that law should always be seen from the standpoint of the “bad man”

who is defined to include any person contemplating legal proceedings whether as an

accused in criminal proceedings or a plaintiff/defendant in a civil action. All what the

bad man wants to know is a prediction as to the outcome of his case, and for him, that

outcome is the law. For him, law is “the prophesy of what the courts will do in

fact, and noting more pretentious.” It should therefore always be possible for

lawyers to know how decisions are made and make correct predictions of outcomes

eight times out of ten.

This theory has attracted two major criticisms:

a) not all law is a matter of prediction the best examples being non-litigious laws

in the fields of public and administrative law (an example would be the law

allowing all persons above the age of 18 years to vote); and

b) that prediction is merely one of the functions that are performed in the course

of the operation of law and therefore, the standpoints of all participants

(legislators, advocates, judges etc), not merely the “bad man” should be

considered.

B. The Scandnavian Realists

This school of thought emerged in Vienna in the 1920s and 30s and the proponents

identified the law with psychological occurrences i.e. the sensations produced in

people’s minds as the result of legal words.

In an attempt to explain this position, KARL OLIVECRONA, one of the proponents

of this school for example stated that the process of law making involves various steps

( for example a bill is subjected to the formal acts of voting, signing and

promulgation). Since these formal acts have a hold over people’s minds, the contents

of the bill acquire a special psychological effectiveness.

The provision of the law itself is mere words on paper but the reality about the law

consists of the psychological reactions of individuals in terms of the idea of imaginary

actions and the sensations of compulsion and restraint produced when a provision is

brought to our auditory or visual attention.

He rejected the idea of law being a command backed by sanctions. He was of the

view that once laws have been internalised in the subconscious minds of people, there

is no longer need to enforce them by threats of force since the laws are replaced in the

conscious mind with an “ought not” symbol. Laws should therefore be understood as

a psychological phenomena. He however conceded that force may be necessary in the

initial stages of the internalisation process when law gains its psychological hold and

may be from time to time to strengthen the psychological hold.

The criticism levelled against the Olivecrona is that:

a) the theory can be falsified by demonstrating that notwithstanding

regular and well-published enforcement of a legal provision,

automatic reactions of rightness or wrongness do not emerge;

b) the theory ignores the operation of law from an intellectual level

for example when legal writers, practitioners or judges describe or

interpret the law. An example would be the interpretation of the

Finance Act to calculate the tax due from a person.

4. UTILITARIANISM

It is associated with JEREMY BENTHAM as well as JOHN LOCKE argued that

“the greatest happiness of the greatest number is the foundation of morals as

well as law and is therefore to govern our judgement of every institution and action.

Further, “Enlightened self-interest” provide the key to understanding ethics and a

person who always acted with a view to his own maximum satisfaction in the long run

would always act rightly.

In general terms, Utilitarianism holds that morality requires the doing of whatever

would maximise the sum total of pleasure while minimising the sum total of pain.

Utilitarians opine that the seeking of pleasure and the avoidance of pain are common

universal aspects of all human life and since there is no basis for preferring my

pleasures to yours, or others, the proper basis for social choice is to choose the action

which maximises the sum total of pleasures minus the sum total of pain in society.

Criticism:

The difficulty in measuring and “summing” people’s pleasure and pain.

5. HISTORICAL SCHOOL

The historical school emerged in the 19th Century. The basic assumption of this

school is that judges find the law in the history, culture and customs of a people.

According to them, law is the product of historical processes and for this reason, it

can only be understood in light of these processes.

The most prominent members of this school included: the German “romantic” writers;

and Sir Henry Maine, who was a Briton.

A. The German School

The most notable scholars were C. Von Savigny and Hegel.

The central tenet of this school was that law resides in the spirit of the people (the

volksgeist) also known as the national character of a people and custom is the overt

manifestation of the volksgeist. The law of a nation therefore attains its fixed character

even before its recorded history and for this reason, law should be let to grow or

otherwise unfold as part of the history of the people.

It is therefore wrong to suppose that law is made by the sovereign since the sovereign

is merely an organ of the people giving effect to their institutions.

The German school resisted codification, because law resides in the people’s own

peculiar customs and is therefore hard to codify.

To them law is also not universal. It differs from one people to the other since

different people have different spirits.

Their success lies in the fact that they provided a good reason for revering customary

law which they valued because it expresses national uniqueness.

C. SIR HENRY MAINE

For him, the significance of history was the light it shed not so much upon the nature

of the law but upon its content…this is because law always contains deposits of

institutions, principles and distinctions which reflect ideas of different ages. He

opined that it is a mistake to take the legal provisions in force at any time and to

explain them in terms of some rationally coherent set of aims and functions without

giving due regard to history…A law which presently serves one purpose may have

originally arisen to serve a very different purpose. (example, laws against

vagrancy/vagrancy laws)

4.1.3 SOCIOLOGICAL SCHOOL

This emerged in the 20th Century and is tied to sociology (the study of the society).

Since law is a vital part of the society, sociologists have also been interested to study

it.

The social study of law has always assumed four different forms:

1. it deals with inquiries which seek to study the social origins of law and legal

systems.;

2. it deals with impacts of law on various aspects of society;

3. it deals with inquiries as to the functions that the law should perform in the

society and seeks to assess the extent to which the law has succeeded in the

performance of these functions; and

4. it attempts to find the social criteria by which to test the validity of law.

Individual sociological theorists included Auguste Compte, Herbert Spencer Jhering

and Roscoe Pound and Marx Weber.

ROSCOE POUND, an American is termed as the most influential of sociological

jurists. His position was influenced by the expansive character of the American

society, its material wealth and its devotion to scientific technology. All these

encouraged the belief that the basic problem is the adequate control and distribution

of that wealth, and that the solution could best be attained by the application of social

sciences thereto. Therefore for law as a form of social control to be applied in

enabling just claims and desires to be satisfied it must be developed in relation to

existing social need. This renders necessary the study of the place of law in the

society.

For Pound, the social-legal task of law is that of social engineering. This involves

the building of an efficient legal structure through reconciliation of conflicting

interest.

MARXISM

Marxist theory refers to any body of social thought which claims to be based on the

writings of Karl Marx and Friedrich Engels. marxism is a system of sociology, a

philosophy of man and society and also a political doctrine.

In the marxist view, in the primitive society, there was communal production of the

means of life and therefore there was no need for both the state as well as law. As

society developed, society moved from communal production to division of labour

and as a consequence thereof, class division arose and ownership of the means of

production moved from being communal to being private.

The shift from communal to private ownership led to the creation of the institution of

private property which in turn led to the emergence of the concept of legal rights. At

this stage, both state and law emerge so as to enforce the laws arising from the right to

private property.

Since the advent of classes, there is now always a ruling class and one or more

oppressed classes. The law, like other instruments of the state, merely expresses the

will of the dominant class.

According to Marxists therefore, law is the will of the dominant economic class for

the purpose of dominating the weaker economic class, which is used to enforce the

interests of the dominant economic class by the use of the coercive machinery of the

state.

According to Marxists, law cannot be explained in isolation from the social-economic

structure of the society since state and law are historical phenomena which emerged at

a particular time in history so as to reconcile conflicting class interests. For this

reason, the Marxist theory is therefore sometimes referred to as historical

materialism….the use of a historical social economic approach that prevails at a

particular time.

PART V: EVOLVING THEORETICAL PERSPECTIVES ON LAW AND

SOCIETY

There is no one widely accepted comprehensive theory of law and society. Various

theories which have their foundations on the general theories of law, have evolved

over time, starting from the European pioneer theorists to several contemporary

theorists of law and society.

For centuries, under the heavy influence of the natural law theory, the Europeans

considered law as an absolute and autonomous entity which is unrelated to the

structure and function of the society in which it exists. Many European thinkers

therefore believed that law in any given society was a reflection of a universally valid

set of legal principles based on the idea that through reason, the nature of man can be

ascertained. This knowledge then becomes the basis for the social and legal order of

human existence.

From the middle of the 19th Century however, the idea of natural law was displaced

by legal positivism and historical schools of thought. The former called for the

separation of laws and morals while the latter sought to explain law based on

historical factors. Many scholars of this age discouraged philosophical speculations

about law regarding its nature and purpose and instead:

· the positivists concentrated on the development of the positive law as laid

down by the state;

· while the historians concentrated on the derivation of law from a people’s

customs, culture and volksgeist (national spirit).

These scholars therefore recognised that law is not independent from the society. It is

part and parcel of the society and is therefore intricately related/connected to the

structure and function of the society in which it exists

The indivisible relationship between law and society was picked by the Sociological

school and in modern times, sociological theorizing on law and society has

dominated. In the modern society, it is now appreciated that law cannot be analysed

separate from the society and vice versa.

[Among the notable scholars in this age include Roscoe Pound (already studied…cf.

previous notes on social enginerering) and Emile Durkheim.

Emile Durkheim was a French sociologist whose main concern was “social

cohesion.’ He sought to answer the question: “what is it that keeps society together?

In an attempt to answer this, he contrasted two types of societies: a relatively simple

and technologically undeveloped society; and an advanced society in terms of

technology and social structure.

The simple society has the following characteristics:

· the whole group exists and acts collectively towards common aims;

· the moral and legal code (collective conscious) is acknowledged and accepted

by the whole group and it keeps the group together (this is called “mechanical

solidarity”); and

· repressive or penal laws are used to express the groups anger towards

deviants, establish acceptable and unacceptable behaviour, maintain collective

conscious and ultimately, social cohesion.

The advanced society has the following characteristics:

· there is division of labour and occupational specialisation and this inevitably

leads to economic dependency on the various units;

· this interdependency is the source of social cohesion; and

· Instead of repressive and penal laws, you now have compensatory laws whose

aim is not to punish but rather to solve grievances by trying to restore the

aggrieved person to the position she was in prior to the dispute.

This classification has however been criticised since we still have penal laws in the

modern industrialised society. What is however true for both societies is that law

plays an important part in the definition and regulation of all kinds of social

relationships between individuals and groups.

FUNCTIONS OF LAW IN SOCIETY

Simply put, the function of a social institution is the contribution it makes to the

overall social structure and to its maintenance. Law is merely on of the various

institutions in the society. The function of the law is therefore the contribution it

makes to the overall social structure and to its maintenance.

In order to fully appreciate the functions of law it is important to first understand that

Law can be viewed in two senses:

a) law as an instrument: In this sense, law is used as a form of compulsion- everyone

is forced to obey the law and those who fail to obey are punished. As an instrument,

law operates in a punitive sense to enforce the penalties laid down for disobedience

in this way, it is used as an expression of the authority of the state to require members

of the society to adhere to certain courses of conduct. In this sense, law is the chief

instrument of the state clothed with legitimacy and legality for the direction of the

society.

b) in a discipline sense: Law viewed in this sense lays down procedures for doing

things. Example are the Civil and criminal Procedure rules etc. In this sense, law is

discipline that is vested upon procedures.

Relationship between the two senses

Law as an instrument is a part of the legal material to be used in the study of law as a

discipline.

FUNCTIONS

There are many functions of law in the society and different scholars have identified

different functions. There are however some recurrent major functions. These are:

1. Social control

In a small homogenous society, social control is achieved by self-sanctioning, and

informal mechanisms of social control such as gossip, ridicule or humiliation. In a

complex society characterized by diversity of population, lack of direct

communication between the various segments, absence of similar values, attitudes and

standards of conduct, competing interests, there now becomes necessary to have

formal mechanisms of control has arisen.

Formal social control is characterised by:

· explicit rules of conduct;

· planned use of sanctions to support the rules; and

· designated officials to make, interpret and enforce the rules. In modern

society, there are many formal as well as informal methods of social control.

Law is therefore considered as one of the formal methods of social control.

In most societies, law will usually be either repressive or penal or take the form of

compensatory rules where the object is not to punish but to solve grievances by trying

to restore the aggrieved person to the position she was in prior to the dispute.

2. Attaining of social order

Law functions as an instrument for creating and maintaining social order. Social order

is necessary for the sustenance of the daily living which is most basic to the life of

any people anywhere in the world. It gives identity and being to the people. Social

order is the bed-rock for the growth of other sectors of human activities since it

provides the foundation for these activities. Once a people attain social order, they are

able to engage in other activities for example economic and political activities. It is

an extremely active ingredient of human life that continually inter-plays the economic

and political order.

Order is however not absolute. Its definition will differ from society to society and

from group to group and even perhaps from individual to individual. What is

described as disorder sometimes depend on the viewpoint of the observer and further,

what is described as disorder might be so described or labelled because it is in the

interest of the person, or groups so describing it that it be accepted as disorder.

Generally though, social order refers to peace, calm and lawfulness together with the

lack of conflict and people doing what is accepted of them.

3. Dispute Resolution

In contemporary society, there is greater reliance on law for the orderly resolution of

conflicts. Law however only deals with disagreement which have already been

translated into legal disputes (by commencement of action/suit in the appropriate

forums). A legal resolution of a conflict does not however result in reduction of

tension between the aggrieved parties. It results in resolution of a specific legal

dispute but not the amelioration of the broader issues that have produced the conflict.

In simple societies, dispute settlement systems tend toward compromise, or “give-alittle,

get-a-little” while the systems in more complex societies tend towards “winnertakes-

all.” This is because in the former societies, social relationships tend to be fairly

permanent and there is always need to sustain the social ties whereas in the latter, in

many disputes, there is no desire to continue with the relationship…e.g. an running

down case. Where there is need to sustain for example a long standing business

relationship, parties will seek a compromise even in a modern day setting.

4. provides mechanisms for facilitating interpersonal relationships

Law plays an important part in the definition and regulation of all kinds of social

relationships between individuals as well as groups. The family which is the most

basic social unit, is for example protected trough legal rules and institutions. In this

regard, there are laws regulating marriage, divorce, bigamy, the rights and obligations

of members of the family etc. similarly, in the business world, law regulates the

activities of companies, partnerships, trade unions, financial deals between business

people will for example be subject to the law of contract etc.

5. Provides for the authorization and recognition of legitimate authority

Law vests specific powers to specific individuals and institutions in the society. This

body of law is known as public law and it deals with such matters as constitutional

issues, the authority of elected representatives, powers of bodies such as the public

service, the courts, police, local authorities, etc. The law for example vests parliament

with the power to make laws, the courts with the power to adjudicate, etc.

6. Social engineering

This was originally propounded by Roscoe Pound. It refers to the purposive, planned,

and directed social change initiated, guided and supported by the law. In this regard,

law is considered a desirable, necessary and highly efficient means of inducing

change, and usually, its institutions and procedures are preferable to other alternatives.

Through social engineering, law is used to achieve certain positive objectives of

social or economic policy. This is usually achieved through the intervention of the

government “in the interest of the community as a whole. Most of the time, such

intervention is usually controversial because in most cases, the politicians are seeking

to realise their political convictions (cf. the Health insurance Bill by Ngilu…and

Mwiraria’s response, privatisation bills etc.). this notwithstanding, the 20th century

has seen increasing interventionist regulation world over (privatisation in the UK,

Affirmative action and Race issues in the USA etc.)

7. Other functions

Law has so many other functions: law also serves to educate, punish, harass,

protect private and public interests, distribute scarce resources, maintain status

quo, to maintain class systems and to cut across them, to integrate and disintegrate

societies, all these happening in different places at different times and with

different weightings.

Others:

· Structuring and controlling public power;

· Facilitating and effectuating private choice;

DYSFUNCTIONS

Law poses certain dysfunctions which, if not addressed may pose operational

difficulties. These are:

a) law tends to be conservative: law stabilizes and perpetuates status quo

particularly due to the doctrine of precedents found in common law

systems which shuns continuous revisions and disruptions of established

law in the interest of certainty. Due to this, social changes often precedes

legal changes and this sometime renders law irrelevant.

b) Law tends to be rigid: law is usually cast in general, abstract, and universal

terms which do not take account of unique circumstances- for example law

on theft does not differentiate whether one stole for economic gain or

because he was genuinely hungry.

c) Law tends to be restrictive: law can overstep its bounds thereby rendering

regulation into over-regulation and control into repression.

It is important that law makers be conscious of these dysfunctions so as to ensure that

operates well without any dysfunctions.

4. LAW AND SOCIAL CHANGE

Society is not static. It is a complex network of relationships which are constantly

changing.

Social change therefore represents the idea that majority of people in the society are

engaging in activities and relationships that are different from those which they or

their parents engaged in previously. It therefore refers to a restructuring of the basic

ways in which people in a society relate to each other with regards to political, social

and economic activities, including education, religion, family, life, recreation,

language and other activities.

Whereas most of these changes may have no effect on law, some will usually result,

sooner or later, in changes in the law. For this reason, law, just like other social

institutions, has a dynamic character. It is imperative therefore that the basic legal

framework be equipped to accommodate legitimate adjustments in the social, political

and economic order.

Usually however, in almost all societies, there is a disparity between law and the state

of social reality which creates a gap between the law and the people’s daily actions.

Law will therefore sometimes lag behind social change thereby creating a lack of fit

between law and social reality. Social change therefore usually poses a problem for

rigid legal systems. The most appropriate tool for resolving this problem is law

reform.

Through an effective law reform programme, a systematic programme can be created

for monitoring the laws in operation in the society and where necessary, for

incorporating suitable social change into the law to create harmony in the interplay

between law and social, economical and political development.

RELATIONS BETWEEN LAW AND SOCIAL CHANGE

There is debate as to whether law should lead, or whether it should cautiously follow

changes in the society.

German legal scholar Friedrich Karl Von Savigny for example believed that law

should follow social change. This is because law is a codification of customs which

grow out of the habits and beliefs of a specific people and therefore, only the fully

developed popular customs should form the basis of social change.

On the other hand, Jeremy Bentham ( a British social reformer) was of the opinion

that law should bring about social reforms partly in response to and partly in

stimulation of social need. Law should therefore follow as well as lead social change.

This debate still ranges to date. The two contrasting views are that:

a) Law should follow social change because law is determined by the sense of

justice and the moral sentiments of the population and legislation can only

achieve results by staying close to prevailing social norms.

This view sees law as a dependent variable since it is determined and shaped

by societal opinions. Law reform should therefore always be preceded by

social change.

This view has been criticised on the basis that historically, there are some

instances when law has in deed preceded social change and has been utilised

to regulate the pace of social change. An example would be the use of law by

colonial masters to grant independence to their former colonies, use of law by

countries in the former Soviet Union transitioning from communism/socialism

to capitalism, etc.

b) Law should lead/stay ahead of social change because law is a vehicle through

which programmed social evolution can be brought about. This view sees law

as an independent variable which can be utilised as an instrument of social

engineering.

The reality is however that law both leads and also follows social change. It is both as

an effect as well as a cause of social change. The two views therefore represent a

continuum dealing with the relationship between law and social change.

Instead of asking whether the law changes society and vice versa, perhaps the more

appropriate question should be under what circumstances can law bring about social

change, at what level and to what extent and vice versa. The relationship between law

and social change is therefore reciprocal.

ADVANTAGES AND DISADVANTAGES OF USING LAW TO INITIATE

SOCIAL CHANGE

Social change is a complex, multifaceted phenomenon brought about various social

forces. The change is therefore sometimes slow, uneven and is conditioned by

different factors to differing degrees.

There are many ways of initiating social change including law, revolution, rebellion,

riots, coup d􀂶etats, violent protests, demonstrations, social movements, education,

mass media, technological innovations etc.

Compared to the others, law has certain advantages and disadvantages:

ADVANTAGES

1. change efforts through law tend to be more focussed and specific. This is

because the change through law is a deliberate, rational and conscious

effort to alter a specific behaviour or practice. The intentions are clear,

with clear means of implementation and enforcement outlined at the

outset.

2. Law has legitimate authority. There is therefore a general feeling in the

society that the law has to be observed even by those critical of the law in

question. Since law has legitimate authority, it also has power or capacity

to influence behaviour. Legitimate authority gives law a binding force and

for this reason will be generally obeyed by people in the society. Law has

sanctions for disobedience and will therefore be more successful in

producing the desired social change.

DISADVANTAGES

1. There is a possibility of prevailing conflict of interests which determines

which laws are promulgated and which alternatives are rejected. This

means that law is imposed on most people in the society particularly the

minority and economically weak classes and therefore, only those social

changes which are in the interest of the stronger classes will be initiated.

2. there are divergent views on use of law as an instrument of social change

which may not give the changes wider acceptability. Some see law as

being merely one of the many available options for initiating social

change. Others see it merely as a part of broader social policy frameworks.

3. Law may contradict prevailing morality and values and thereby breed

resistance to change for example if it goes against established positive

culture, habits, vested interest, ideological positions, moral standards etc

(cf. ban on smoking in public).

4. LAW AND SELECTED SOCIAL THEMES

40

LAW AND DEVELOPMENT

THE CONCEPT OF DEVELOPMENT

Historically, development was defined purely in terms of economic growth. Economic

growth represents an increased output per capita, without the majority of the people in

the society being necessarily any better off. This is a western conception of

development.

The consequence of this perception was that the rights and freedoms of people were

subordinated to the imperatives of industrialisation. From a developing country

perspective, it is argued that development should satisfy the direct needs of the people

instead of abstract notions of national wealth. This prompted calls for a “people

centred” definition.

Thus, in the early 1970s, the International Labour Organisation (ILO), United Nations

Development Programme (UNDP) as well as the World Bank, adopted a “Basic

Needs Approach” to development. This approach was informed by a realisation that

the development which took place in most poor countries went hand in hand with

increase in poverty. The BNA approach thus took into account the straight

relationship between a development strategy and elimination of poverty rather than

waiting for a “trickling down effect of growth”.

A BNA approach therefore sees development as involving the satisfaction of the

following two conditions: expansion of the money economy in real terms; and the

improvement, through time of the overall well being of the people.

Since the late 1980s, the term “development” has been replaced by “sustainable

development” defined as: “ a development strategy that manages all assets, natural

resources and human resources as well as financial and physical assets, for increasing

long term wealth and well being.”

As a goal, sustainable development rejects policies and practices which support

current living standards, that leave future generations with poorer prospects and

greater risks than our own.

Modern conceptions therefore see development as a multi-dimensional process. It

seeks to create a broad-based sustainable improvement in the quality of life and

standard of living. Economic growth is a necessary though not the only condition for

development.

ORIGINS

Historically, law and development emerged as a discipline in the 1960s as an

extension of American international policy. It was actually an off-shoot or by-product

of development assistance activities by the US Government and other International

Agencies, and private foundations working with legal institutions in the developing

world.

The American society had embraced “pragmatism” (or realism) as a social legal

philosophy which was seen as a “skin deep” version of utilitarianism. Americans saw

no mystery in law. (No wonder they called for such definitions as “the prophesy of

what courts do” and “what judges say is what is meant by law”.) They therefore saw

law as being less mechanical, more flexible, more sensitive to conflicting interests,

more amenable to compromise and more oriented to problem solving. The ultimate

role of the law was seen as being that of “social engineering.” Law was seen as a

positive instrument of social change.

With this experience, America felt that it had all the answers to issues of

development. If any society wanted to develop, it could do so with the help of law

which is seen as a powerful weapon of social control in the hands of any state willing

to use it energetically and purposively.

Anxious to “aid and advise” a divided world in the post-second world war era, many

aid programmes were devised and since America knew very little about most

countries, so as to legitimize these programmes, law and development scholarship

was developed to operate alongside the aid programmes.

Law and Development seemed to fit in well with the programme. Since third world

nations engaged in massive use of law to carry out rapid changes in society, it

provided social theorists of law with an opportunity to move from a theoretical

inquiry into the role of law in social change to practice.

CONCEPTIONS OF LAW AND DEVELOPMENT

There are many conceptions of Law and development. It has been understood in the

following individual or even or combined senses:

a) as a distinct “field of study,” where it seems to be concerned with social

change; or

b) as a “programme” for implementation where it is concerned with devising

techniques for inducing and sustaining social change; or

c) as a “movement” which people should join as an act of faith where it seeks to

mobilise people of the world to accept “modernization” as a rational, liberal

goal to work towards; or

d) as a convenient “funding” device where it brings under its ever-expanding

umbrella a vast amount of scholarship.

An analysis of law and development as conceived by the Americans reveals the

following conclusions:

a. The major concern of law and development was confined to the

management of societies within the national boundaries of modern

states;

b. the focus of concern of law and development was the state which is

assumed to be objective, honest and genuine in its plans;

c. the state possesses the capacity to decree laws and rules which are

genuinely geared towards social change;

d. where there is incongruence between the state declarations through the

law and the society’s acceptance of changes, this can be overcome by

evolving bureaucratic, administrative, legal and other techniques in

order to secure compliance.

e. if the various compliance techniques fail, fresh techniques can be

devised to ensure that the “gap” between what is decreed and what is

expected can be achieved.

f. law and development secures an efficient regulatory system under

conditions of the rule of law;

g. law and development is particularly concerned with regulating social

behaviour to secure its compliance consistent with the overall

developmental plans of the society;

h. law and development is programmatic in nature and concentrates its

concerns on particular programmes;

Development assistance was therefore given to developing nations by America in the

three phases:

1) (first phase) export of legal education from America to the

developing world- lawyers were seen as social engineers and

therefore training of lawyers was seen as being critical;

2) modernisation- this was aimed at modernising the developing

societies. It is not clear whether the modernisation was aimed at the

state structures and the legal system or the general outlook of the

people. The process however failed because tradition adopted

modernity and modernity preserved tradition thus there was no

clear separation of the two;

3) development - compared to modernisation, the objectives of

development were clearer, since more concrete goals and

programmes could be designed. Law was seen as being a purposive

instrument for development. In this regard, rules and process were

laid down, and government agencies were created to work towards

the achievement of the prescribed goals. Law and development

was therefore addressed to the state and not the people. The state

was required to devise a system and techniques that would initiate

developmental changes in the society. Law and development was

seen as being pragmatic and therefore able to secure an efficient

regulatory system under conditions of rule of law so as to achieve

developmental goals.

THE CRISIS IN LAW AND DEVELOPMENT THEORY

The problem with the American conception of law and development was that it was:

- conceptualised exclusively in western terms and characterised purely by faith

in progress. Development was defined purely in terms of economic growth

involving the inculcation of new patterns of behaviour and law was seen as the

most effective mechanism for achieving such change.

- addressed to the state and not the people. It was for the state to devise the

overall system and develop techniques that would induce change for the

overall benefit of the society. Where there is a gap between the state’s desires

and societal compliance, bureaucratic, administrative or legal and other

techniques were to be used to procure compliance.

These expected results did not however become a reality thus plunging law and

development programmes in a crisis. The moral worth of law and development as

originally conceived therefore became questionable since in most developing

countries, the holders of political and economic powers are the same, unlike the west

where the two powers are held by different institutions.

MODERN PERSPECTIVES ON LAW AND DEVELOPMENT

DEFINITION

In modern times, Law and development can be understood in two senses:

· a study of the conscious uses of the law to help bring about sustainable

development.

· a study of how law and legal institutions can be used to set off, monitor or

otherwise regulate the fact or pace of social change.

Scholars are now keen to understand actions within and without the law and also

against the state. In this regard, there is a realisation that law in part and parcel of

social relationships. It may not be the key to development, but it cannot be

ignored either. It is therefore necessary to de-centre and refocus the role of law in

development.

It is through law that modern states confer formal validity to their actions. In most

countries, the pursuit of the various processes of economic development will therefore

tend to be translated into a legal framework in the form of statues, regulations or other

subsidiary legislation.

Most states will therefore usually turn to law for the creation of any new institutions

that are necessary for development. Law also contributes to the effective operation of

these institutions through role differentiation and the control and punishment of

deviance from role expectation.

The role of law in development has largely been seen as that of social engineering.

This is the attempt to seek social change in a planned, rational manner. It comprises

experimental ways of using law as a tool in planning and realising social change. It is

the conscious and purposeful use of law to affect the behaviour of individuals and

groups towards the desired social goals.

There are to approaches to modern studies in law and development:

1. An approach concerned with generalisations which seeks to explore

general connections between law, society and development. This approach

aims at conceptual knowledge, rather than a knowledge of the details; and

its domain is legal and political philosophy.

2. an approach concerned with isolating small chunks of the body of law

which govern various economic institutions, investigate these laws

intensively and then attempt an evaluation of their efficacy and, by

implication, their contribution to economic development.;

Both approaches have been said to be worthwhile and therefore worth of pursuing

vigorously.

Much of the new scholarship on law and development therefore points to the need to

reconsider the nature and role of the institutions of the state and the law.

Within the refocused modern conception of law and development, the role of the

modern state is to serve as an agent in development. In this regard, the state is

charged with the responsibility of maintaining law and order so as to ensure that

social and economic conditions are fostered to enable the citizen to realise their total

development and dignity. The concept of the rule of law plays a pivotal role since it

provides the proper environment for the release of the people’s energy and creativity

which in turn is employed in developmental efforts.

On the other hand, it has been realised that the citizen are not passive in the face of

state power. They are often involved in struggles of resistance or even in active

manipulation of power for their own benefit. For this reason, the issue of development

cannot be confined to matters of economic growth alone. Sustainable development is

intimately concerned with broader human and social issues and in all these, law has a

key role to play. (…to be studied in other substantive areas such as Human rights etc).

B. GENDER AND THE LAW

Gender does not refer to sex. It refers to the socially constructed roles that are

ascribed to different sectors of the society purely on the basis of their sex. Gender

related issues therefore include both men and women issues. Women issues have

however been more vocal and therefore, in this topic, we will concentrate on them.

THE FEMINIST MOVEMENT

Women, as a social category, have been involved in various struggles throughout

history. These struggles are part and parcel of the greater social struggles. These

struggles have, to a large extent, been for equal participation, alongside the men, in all

activities in the society. These struggles are necessitated by the fact that for a long

time, women have been subordinated to men.

The book “The Second Sex” written by Simone de Beauvoir and published in 1949

formed a landmark in the history of the feminist movement since it was the first to

present a comprehensive and detailed exposition of women down the ages.

The theme of the book was that man defines woman, not as herself but relative to him,

she is not regarded as an autonomous being and therefore, she is differentiated with

reference to man and not herself. She is incidental and inessential. Man is the subject,

he is the absolute while she is the “other”. Whereas she is free, she lives in a world

where she is compelled to assume the status of the “other”- the one that is different.

FEMINIST LEGAL THEORY

This is a philosophy of law based on the political, economic and social inequality of

sexes. There are two critical themes of feminist legal theory:

a) the analysis of the extent to which the legal system reflects and reinforces

a male perspective.

Regarding this theme, feminist legal theory opposes the patriarchal ideas that

dominate society in general and the legal system in particular. Patriarchy refers to the

ordering of society under which standards (political, economic, legal, social etc) are

set by and fixed in the interest of men. It connotes a political structure that values men

more than women.

In relation to law for example, it is argued that the male experiences and perspectives

are the reference point in relation to which the law is fixed. Since men have defined

the law in their own image, law has excluded and marginalised voices and meanings

of women. An example would be the definition of work as that which is “done for

wages outside your own home.”

b) the analysis of how women’s differences from men should or should not

be reflected in legal rules, legal institutions and legal education.

In relation to this theme, different schools of feminist legal theorists have offered

divergent responses to the inherent or socially constructed differences between men

and women and what these differences should mean in terms of the way we think

about law:

a) liberal/traditional feminism: they assert that women are just as capable as

men and therefore they should have equal opportunities to make their own

choices. They challenge the assumption of male authority and seek to

erase gender-based distinctions recognised by law, thus enabling women to

compete favourably with men. Liberal feminist therefore tended to

concentrate on public issues that affect women.

b) Radical feminism: they focus on the inequality between men and women

and argue that men as a class have dominated women as a class thereby

creating gender inequality. The radicals concentrate on issues that affect

women in their private lives.

c) Cultural feminism: for cultural feminists, women’s difference from men is

not a source of potential weakness but a source of strength and is therefore

to be celebrated. Cultural feminists therefore emphasise women’s positive

aspects as compared with men.

WOMEN ISSUES AND THE LEGAL SYSTEM

Law plays a central role in women’s social struggles. This is because whereas it is

perceived as neutral, the reality is that law is not. Law is the most common form in

which most social relationships appear, be they economic, political, cultural or

moral/ethical. For this reason, it does play a role in entrenching and protecting

existing social relationships and also in creating new ones. This includes the position

of women vis a vis that of men in the society. It is therefore not neutral.

There are three primary avenues which may be used to articulate feminist issues in the

legal system:

1. the legislative process

Feminists argue that there are either none or if any, very few specific laws formulated

in response to the women issues. In response to this complaint, it is argued that the

laws in Kenya generally provide for equality of the sexes and therefore, the women

should take advantage of the equality. The reality is however that women feel

discriminated against by the law.

The basis of this discrimination, it is argued, is the very constitution which

is supposed to protect the interests of all, women included. Undoubtedly, the Kenyan

Constitution accords rights and freedoms to both men and women which, of the

constitution are to be enjoyed by all irrespective of race, tribe, place of origin,

residence, political opinion, colour, creed or sex (under s.70). This notwithstanding,

women in Kenya have felt discriminated against.

By way of example, the Constitution exempts, under s. 82(4) a number of laws from

the provisions against discrimination. These include:

i) Laws affecting non-Kenyan Citizens: thanks to this exception, under s. 89 of

the Constitution, a Kenyan man can automatically pass Kenyan citizenship to

his foreign wife and children while a Kenyan woman cannot pass citizenship

to her foreign husband or children. They have to go through a rigorous

application process. This is argued to discriminate against women who are

citizen.

ii) Laws of adoption, marriage, divorce, burial, devolution of property on death

and personal law matters;

iii) Laws affecting members of a particular tribe or race in matters exclusively

concerning them and such action is seen as justifiable in a democratic society

Feminists argue that these exceptions have created room for the violation of women

rights.

The women further argue that even if there is equality under the law, the trite question

is: does formal juridical equality translate into substantive social-economic and

political equality?

Further, it is argued that even if existing laws are non-discriminatory, there may still

be need for additional laws to address specific women issues (cf. sexual offences bill,

free sanitary towels for girls, duty-free importation of sanitary towels etc.)

Law is assumed to be objective and value neutral, applying equally to all. Some

feminists however argue that women are not equal to men and the “equality” of

treatment may result in a reinforcement of actual inequality. In treating unequal

persons equally, the law reinforces existing conditions and promotes inequality.

It is argued that from a historical context in which women have been discriminated

against, formal equality of treatment means actual inequality. Calls are made for the

need to go beyond juridical equality and create operational norms to ensure equality

in opportunity. Affirmative action is called for to correct this historic inequality.

The composition of the legislature itself is seen as being problematic because it is

dominated by men. Thus, there have been calls for reservation of a certain percentage

of parliamentary positions (30%) for women.

LEGAL SUCCESSES

The misgivings that the feminists have about law notwithstanding, the law has been a

fundamental instrument for availing women the forum and stage for advocating for

their rights.

In the traditional African society for example, patriarchy was the dominant framework

within which gender relations were organised. The enactment of statutory law has

been a great effort to have universal laws which can apply uniformly to all

irrespective of their gender and this has helped improve the status of women in

Kenya. Examples include:

1) Criminal law

Under section 77(b) of the Kenyan Constitution, no person shall be convicted of a

criminal offence unless that offence is defined, and the penalty therefore is prescribed

in a written law. Consequently, customary law, which comprises largely unwritten

rules and practices, is not applicable in criminal law. Certain practices which were

permissible under customary law and which violate the rights of women, have been

for example criminized by statutory law. Examples include:

· Gender violence: this is defined as the violence perpetrated by men or women

against members of their opposite sex. Patriarchal attitudes and practices had

legitimized violence against women since violence or at least the threat of

force was seen as necessary for its entrenchment. Wife beating was for

example not perceived as criminal in the customary setting but mere

discipline. Under statutory law however, wife beating would be treated as

assault under section 250 of the penal code (where there are no injuries) or

section 231 (where there are injuries). In the former case, the offence is a

misdemeanour punishable by 1 year imprisonment while in the latter case, the

offence is a felony punishable by life imprisonment.

· Sexual abuse: this implies any unwanted physical or verbal invasion of an

individual’s body that is sexual in nature. Offences related to sexual abuse

would include rape and defilement which are viewed as mechanisms used by

men to gain control over women. Under customary law, there was a wide

range of possible penalties for rape ranging from ex-communication, social

ridicule, fines use of taboos etc. For a long time in Kenya, rape was prosecuted

under section 139 of the Penal Code but this has now been repealed by the

newly enacted Sexual Offences Act which makes provision for rape under s. 3.

the Essence of the rape offence is the absence of consent on the part of the

woman at the time of intercourse while in cases of defilement, consent is

immaterial.

ii) the law of succession- traditionally, women were disadvantaged when it came to

issues of inheritance. The Law of Succession Act cap 160 has attempted to reduce

these disadvantages because it treats both men and women equally in regard to

inheritance. Men and women enjoy equal rights on these issues.

2. The Judicial Process

The primary function of the judiciary is to settle disputes and adjudicate rights. The

judicial system in Kenya is adversarial in nature and therefore, unfortunately, it is

reactive. This means that it cannot commence proceedings and its authority has to be

invoked.

The judicial process is however an important medium for addressing women issues in

three ways:

· A sensitive judge can use his or her interpretive discretion in favour of

feminist issues particularly in grey areas;

· Sensitive advocates can canvass feminist concerns in his/her arguments and

submissions thus opening room for adjudication of the issue. This is very

important since the court’s authority has to be invoked…it is reactionary; and

· Public interest litigation on relevant issues- this would address those issues

which transcend individual or corporate interests but are general societal

concerns.

3. Administrative process

Kenyan administrative process is oriented towards law-and-order only. This

orientation, was inherited from colonialists, and unfortunately, it operates in disregard

of social issues. There is therefore need to re-orient the process (e.g by

democratisation) so as to make it more creative and sensitive to women needs.

The re-oriented process can then be used to address women issues in two ways:

· Implementation of gender sensitive laws: one enacted, laws must be

implemented so as to be effective;

· Delegated legislation: parliamentary legislation is sometimes phrased in

general terms and power becomes vested in the administration to formulate the

rules for implementing the legislation. Such rules are termed as delegated

legislation. Delegated legislation can give considerable power and discretion

to administrators.

C. LAW AND CUSTOM

Jurists and anthropologists are not agreed on the relationship between law and culture.

Law grows with societal complexity. In many primitive societies, custom is sufficient

for the needs of the society. The common view is that what begins as custom becomes

redefined in legal institutions and eventually is given expression in the law.

In this topic, we inquire into the place or the “juridical value” of customary law in

the Kenyan Legal system.

DEFINITION OF CUSTOMARY LAW

Kenya, unlike so many other African countries including Uganda, Tanzania, Ghana,

Nigeria, Botswana, Zimbabwe, Sierra Leone etc has never had a statutory definition

of customary law.

In Tanzania, the Interpretation and General Clauses Act (Cap 1 Laws of Tanzania)

for example defines customary law as:

“ any rule or body of rules whereby rights and duties are acquired, imposed, or

established by usage in any [Tanzanian] African community and accepted by such

community in general as having force of law.”

In Uganda, the Uganda’s Magistrates Courts Act of 1964 (Cap 36 laws if Uganda)

defines customary law as:

“ the rules of conduct which govern legal relationships as established by custom and

usage and not forming part of the common law nor formally enacted by Parliament.”

Prof. Okoth Ogendo, in his article on “Customary law in the Kenyan Legal System”

(in J.B.Ojwang and J.N.K. Mugambi eds, The S.M.Otieno Case: Death and Burial In

Modern Kenya, argues that there is no need for defining customary law differently

from the law in general since there is no mode or special procedure for delineating

customary law from other types of law or systems of normative order.

Therefore, any rule of behaviour or conduct which provides a reason or justification

for individual or collective action, or which either alone or in combination with other

rules, principles or standards, defines a framework for authoritative decision-making

in society counts as law. It is irrelevant whether such a rule forms part of the

legislative enactments, judicial pronouncements or the cultural history of the society.

Prof. Okoth Ogendo does not therefore see any essential difference between

customary law and any other forms of law. To him, the hallmark of a rule of law is the

authoritative articulation of the social values which it represents.

THE JURIDICAL STATUS OF CUSTOMARY LAW IN KENYA

Colonialism was marked by the imposition of an Anglo-European system of law and

legal ordering. Customary law was therefore not considered by the colonial authority

as being significant. After independence, Kenya was one of countries which did not

alter its law in any significant way to improve the status of customary law.

Customary law is recognised by law and applies in Kenya by virtue of the following

Laws:

1. The Constitution

Under s. 82(4) (c ) of the constitution, an exception to discrimination is made “for the

application in the case of members of a particular race or tribe of customary law with

respect to any matter to the exclusion of any law with respect to that matter which is

applicable in the case of other persons.

Specifically, the clause mentions adoption, marriage, divorce burial devolution of

property on death or other matters of personal law as areas in which “diversity would

continue to persist’ and thus discrimination was permissible.

It has been argued that these exceptions merely reinforced the structural and attitudal

biases against customary law that had been built into the legal system in Kenya’s past

history.

2. Judicature Act of 1967

S. 3 of the Judicature Act provides for the laws that are applicable in Kenya. These

are listed in the following order:

· the constitution;

· written law (statutes);

· common law, doctrines of equity and the Statutes of General Application in

force in England on 12/08/1897 which are to apply only if the circumstances

of Kenya and its people permit; and

· customary law: that the Court of Appeal and all subordinate courts shall be

guided by1 African customary law in civil cases in which one or more parties

is subject to it or affected by it, so far as it is applicable and is not repugnant to

justice and morality or inconsistent with any written law.

Notably, this hierarchy was a verbatim reproduction of the hierarchy first enacted by

the colonial authorities in 1897.

The significance of the positioning of customary law at the bottom of the hierarchy

and its juridical weight were addressed by the Court Appeal in the famous case of

VIRGINIA EDITH WAMBUI OTIENO V. JOASH OCHIENG OUGO AND

OMOLO SIRANGA (civil Appeal No. 31 of 1987) famously known as the

S.M.Otieno case.

In this case, the court was called upon to determine the following issues regarding

customary law:

1. The question of Rank

This question essentially asks: where in the hierarchy established by s.3 Judicature

Act, does customary law lie?

Under the 1897 ranking the place of customary law was unequivocally bottom. This

was because it was not expected to remain a permanent feature on the hierarchy of

norms in the legal order. Rather, it was expected to be rendered irrelevant as more and

more people to whom it applied crossed over to the domain of English law.

1 Defined by the court to mean that the courts must have as their guiding light, as the principal law,

African customary law.

The court of Appeal reversed this perception by holding that the place of customary

law as the personal law of the people of Kenya is complementary to the relevant

written laws. Both compliment each other.

2. The question of the general applicability of customary law

This questions touches on the applicability of customary law either in general or in

specific circumstances. When and to whom does it apply?

In response, the court held:

“at present, there is no way in which an African citizen can divest himself of the

association with the tribe of his father if those customs are patrilineal.”

This would imply that customary law applies to all indigenous Kenyans

This position of the court has been criticised as being “dogmatic” since no

anthropological evidence was adduced to support it. Further, it makes the assumption

that patrineliality must first disappear before changes can appear in the domain of

customary law.

Two alternative and more acceptable answers has been proposed:

· the court’s view that customary law is generally the personal law of

indigenous Kenyans would mean that in the absence of any relevant written

law, all what would be required is clear and irrefutable evidence of complete

severance from the customary social order. If there is such evidence, then

customary law does not apply.

· To provide for a social-legal mechanism for opting into or out of customary

law on proof of a variety of social facts, such as change of mode of life,

acquisition of membership in a different community etc.

3. The question of the extent of the applicability of customary law

The pertinent question is: granted that a person is subject to or affected by customary

law, is that law to apply in certain situations or in its entirety?

The requisite criteria for applicability of customary law under s. 3 Judicature act are:

1. “So far as is applicable”

2. if not “repugnant to justice and morality”

3. when not inconsistent with written law

“the repugnancy clause” as it is usually referred to, has been ridden with

controversy. In the Tanzanian case of Gwao bi Kilimo v. Kasunda bin Ifuti (1938)

TLR (R) 5 a colonial judge explained that:

“morality and justice are abstract conceptions and every community probably

has an absolute standard of its own by which to decide what is justice and

what is morality…To what standard then does the law refer- the African

standard…or the British standard? I have no doubt whatever that the only

standard of justice and morality which a British Court in Africa can apply is its

own British Standard.”

Guided by this perspective, colonial courts declared as repugnant to morality very

many African institutions such as customary marriage which was characterised as

“Wife Purchase” (R. vs. Amkeyo) Children born in polygamous marriages were

described as issues of “Concubinage or adulterous connection” etc.

The repugnancy clause has therefore been dismissed as mere cultural imperialism. It

empowers courts to pass moral judgement over a community yet once a customary

rule has been declared repugnant, it cannot be subsequently resurrected. The reality is

that such practices continue to be practised thereby brewing extra-legal regimes.

The clause was however abolished in many countries after independence including

Tanzania and Ghana but continues to subsist in our Kenyan law.

4. the question of the internal conflicts of customary law

The question is: how are conflicts between customary laws of different communities

with regard to a specific matter to be resolved?

Unfortunately the issue was not adequately canvassed by both the Advocates as well

as the judges. It would have been useful if the court had deliberated adequately on the

question of whose customary law was applicable in this case since the plaintiff and

the deceased came from different communities.

The court of Appeal chose to apply the techniques of private international law to

arrive at the conclusion that the personal law of the husband would prevail. The

application of these techniques have been criticised as being capable of leading to

absurdity or even unsatisfactory results.

THE FUTURE OF CUSTOMARY LAW

In Kenya, customary law is based on ethnic groups. There is however a large basis

for commonality arising out of the mode of conception of the customs, the special

relationship between the legal system, cultural systems and economic systems.

It has been suggested that for customary law to have any future in Kenya, it should be

transformed into a “common law of Kenya.” This would be developed through a

process of focussing efforts, not at unification ( i.e. harmonisation and

eradication/elimination) of diversity but at consolidation of the areas of commonality

that has emerged through shared history. Consensus in customary practice should be

carefully searched for and managed for purpose of developing it into a Kenyan

common law.

The legislative process tends to be very inflexible and insensitive to any ideas which

do not reflect the exigencies of the time and circumstance. Parliament may therefore

not be the most competent institution to develop customary law into a common law of

Kenya. The Parliament could however amend s. 3 Judicature Act to remove the

repugnancy clause and then leave it to the judiciary to develop the common law of

Kenya. This would allow flexibility and experimentation which are important factors

in the development of stability and legitimacy in the process of maturing a common

law.