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.
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
