Monday, 3 August 2015

My Jurisprudential thought ( Response Sociological and Historical School of Jurisprudence)

The writer will attempt to refer to two schools of jurisprudential thought. These include the Historical, Sociological, The writer will thereafter expound into the theories in brief and reflect and respond its use in modern day law, after which the writer will attempt to critique the aforementioned schools of jurisprudence.
*Do note that the writer may mention other schools of jurisprudential thought in passing.

Historical School of Jurisprudence
This school emerged amongst German scholars in the 19th century as they resisted the legal trend in Europe of codification of laws. This rebellion was led by non-other than Professor Carl Von Savigny[1]. He presented the main tenets of this school as being that understanding the forces of historical development are essential in evaluating jurisprudence and that it is to be found in the consciousness of the people[2].He thus further posited that law was to be found in the deep inner instincts of the people and that in this regard universality of law was hindered in a way.
Is there any application of this jurisprudential school in Kenyan Law?
The writer admires this school as it encompasses a utopia of paradise like law that involves the people fully as the only source of law is their deep instincts. This may not be so in reality however the closest we have gotten is the Kenyan Constitution of 2010. If we can closely contrast it with the Constitution of 1963 we note that; the old Constitution did not have a preamble, the spirit of our forefathers was thus lost but in the 2010 Constitution there is a preamble that recognizes the spirit of the Kenyan people which includes those who fought for freedom and ethnic diversity amongst others. The 2010 Constitution recognizes that all power belongs to the sovereignty of the people of Kenya[3], this goes to further recognize that the people are the legitimate source of the law, other Articles in support of this are 94(1), 129(1) and 159(1)[4] which state that legislative, executive and judicial authority derives from the people.
This school is further buttressed when it comes to Constitutional Interpretation in the Courts which may denote the school of legal realism as being judge made. In Cases such as John Harun Mwau & 3 Others v Attorney General and 2 Others[5], Centre for Rights Education and Awareness (CREAW) & 7 others v Attorney General[6] and U.S.I.U. v. Attorney-General & Another[7], the Court repeatedly recognized that in interpreting the Constitution due regard must be given to the fact that it is a living document and has a spirit and a consciousness. This spirit is the spirit of the people.
Thus there is evidence of this school of jurisprudence.
Critique; to critique my own position, the 1963 Constitution was a colonial law for domination, that has been built upon by the 2010 Constitution and many questions are raised as to its applicability from the third world legal theory school.
Sociological school of jurisprudence: This school asserts that law is a product of human behavior, attitudes and interaction. This brings us to the concept of social transformation.  This is when the law is used to pull society in particular direction or vice versa. More often than not the law is always behind society, this is known as the doctrine of lag.
Are there examples of social transformation by the law in the World?
In Kenya we have some communities that practice female genital mutilation (F.G.M), this is an outdated practice and with the passing of the Prohibition of Female Genital Mutilation Act[8] we have seen the reduction of this practice as it has been criminalized. The law has pulled society away from these outdated practices.
In America, different states have had different laws with regards to rights of homosexuals, however recently the Supreme Court of the United States ruled that all states must recognize the rights of homosexuals[9].
In the African Jurisprudence, the African Commission was categorical in recognizing that the African peoples are different thus the African Charter[10] embodied the concept of human and people’s rights and indigenous populations law/rights[11] as such we see an attempt of pragmatism to try and rectify the problem of transplanting colonial law without careful tendering as to its applicability to the former colonies. In common law there was no concept of group rights as such they were very individualistic, again I digress to the Legal theory in the 3rd world(school). Thus the human and people’s rights are attempting to drag society back from the individual rights to the group rights, to enable people to at least recognize people such as indigenous people and their rights to land.
Critique: This school of jurisprudence when used to define law is prone to abuse by the capitalist giants. A Rothschild once said ‘if I can control a nation’s wealth, why can’t I make her laws?’ this goes to show how the dominant class will lobby for the law to be passed in their favor thus making law an apparatus of the state to spread the ideology of the dominant class, which is a Marxist argument. In Kenya, the intellectual property laws[12] however modern it is has now made our farmers poorer as they cannot plant their own seedlings and must purchase from Monsanto. My comment to this would be that everything is two sided, like a coin, a union of opposites/contradictions, in constant struggle. A dialectical argument I close with.



[1] O. J. Paul, Key Issues in Jurisprudence, pg 97, para 2.7.1
[2] C.V. Savigny, Vocation of Our Rage for Legislation and Jurisprudence (1814)
[3] Article 1(1),Constitution of Kenya 2010
[4] Constitution of Kenya 2010
[5] H.C, Constitutional Petition no. 65 of 2011(2012); See also http://kenyalaw.org/Downloads_FreeCases/PETITION%20123%20OF%202011%20-%203%20JUDGE.pdf (Accessed on 7/24/2015)
[6] H.C, Constitutional Petition no 16 of 2011; See also http://kenyalaw.org/Downloads_FreeCases/162011.pdf (Accessed on 7/24/2015)
[7] H.C, Constitutional Petition no 170 of 2012; See also http://www.kenyalaw.org/Downloads_FreeCases/88362.pdf (Accessed on 7/24/2015)
[8] No. 32 of 2011, Laws of Kenya
[9] Obergefell et al v Hodges, Director, Ohio Department of Health, et al. (U.S.C No. 14–556) June 26, 2015
[10] African Charter on Human and Peoples Rights
[11] 276 / 2003, Centre for Minority Rights Development (Kenya) and Minority Rights Group International on behalf of Endorois Welfare Council  v Kenya, A.L.R
[12] Industrial Property Act and Trade Marks Act