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.

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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

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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

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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

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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

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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

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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

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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 “lexiniusta non estlex��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

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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

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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

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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

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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

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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

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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

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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 AugusteCompte, 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

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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

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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.

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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

18
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

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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

20
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 Savignyfor 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

21
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.

22
Thus, in the early 1970s, the International LabourOrganisation (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

23
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

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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

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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

26
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

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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

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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.

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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:

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“ 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. OkothOgendo, in his article on “Customary law in the Kenyan Legal System”
(in J.B.Ojwang and J.N.K. Mugambieds, 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. OkothOgendo 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

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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”

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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 GwaobiKilimo 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

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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.

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