SOCIAL FOUNDATIONS OF

LAW (SFL)
BLW 1106
GROUP TEN PRESENTATION

Instructor: Mr. Samuel Mwangi

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ACKNOWLEDGEMENT

We wish to thank the Almighty God in granting us the gift of Life and the ability to use our

minds and necessary resources in compilation of this document. We also wish to thank our

Lecturer Mr. Samuel Mwangi for equipping us with the knowledge that we used in all stages of

the compilation of this document from research to the very final stage of compilation. Lastly, we

wish to thank all members of the group who participated in the compilation of this document. It

is our hope that this document will contribute immensely to not only this assignment but also to

our careers in the long run.

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DECLARATION

We declare that this document is original and has not been plagiarized in any way whatsoever.

Kindly note that all borrowed articles, case law and other materials used in the formulation of

this document have been referenced by use of OSCOLA or have been marked thereafter in the

references at the very end of the document. This has been confirmed by our group leader below.

Group Leader Confirmation: Signature ………………………. Date ……………………………

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LIST OF GROUP TEN MEMBERS

Name Admission Number Signature Marks x/15

Duke Ocharo BLAW/2024/37135

Vivien Wanjiku BLAW/2024/36233

Iris Ambogo BLAW/2024/34248

Jackline Naeku BLAW/2024/35059

Michael Ndede BLAW/2024/36187

Phillary Chepng’etich BLAW/2024/36470

Nicessive Jelagat BLAW/2024/30272

Nayigiziki Alain BLAW/2024/36122

Kipchirchir Festus BLAW/2024/35679

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ABBREVIATIONS AND ACRONYMS

EKLR – E-platform Kenya Law Reports

AC – Appeals Cases

CLS – Critical Legal Studies

COK – Constitution of Kenya

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TABLE OF CONTENTS

ACKNOWLEDGEMENT..................................................................................................................................i
DECLARATION..............................................................................................................................................ii
LIST OF GROUP TEN MEMBERS...................................................................................................................iii
ABBREVIATIONS AND ACRONYMS..............................................................................................................iv
PROBLEM QUESTION...................................................................................................................................1
INTRODUCTION...........................................................................................................................................2
MARXIST THEORY OF LAW...........................................................................................................................3
Important Concepts.................................................................................................................................3
1. Foundation and structure.............................................................................................................3
2. Legal Form..................................................................................................................................4
3. Ideology and Legal Consciousness..............................................................................................4
Principles of Marxist Legal Theory.........................................................................................................4
1. Historical Materialism.................................................................................................................4
2. Class Struggle..............................................................................................................................4
3. Instrumentalism...........................................................................................................................5
Critiques of Marxist Legal Theory..........................................................................................................5
1. Economic Determinism...............................................................................................................5
2. Overemphasis on Conflict............................................................................................................5
3. Revolutionary Implications..........................................................................................................5
FEMINIST THEORY&......................................................................................................................................6
Types of Feminists..................................................................................................................................6
Liberal feminism (18th and 19th Century).............................................................................................6
Social feminism...................................................................................................................................7
Radical feminists (1967)......................................................................................................................8
Post-structural feminists (1960s and 1970s)........................................................................................8
Postcolonial Feminists (1980s)............................................................................................................9
Importance of Feminist’s Theory...........................................................................................................10
Critics of Feminist’s Theory..................................................................................................................10
LEGAL POSITIVISM.....................................................................................................................................11
Conclusion.............................................................................................................................................13

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NATURAL LAW THEORY.............................................................................................................................15
Significance of Natural Law Theory......................................................................................................15
Advantages of natural law.....................................................................................................................16
Disadvantages of natural law.................................................................................................................17
Criticisms of Natural Theory.................................................................................................................18
LEGAL REALISM THEORY............................................................................................................................19
CRITICAL LEGAL STUDIES...........................................................................................................................19
Proponents of CLS................................................................................................................................20
1. Legal Formalism........................................................................................................................20
2. Emphasis on Power and Ideology..............................................................................................20
3. Interdisciplinary Approach........................................................................................................20
4. Social Justice Emphasis.............................................................................................................21
5. Deconstruction of Legal Texts...................................................................................................21
Critiques of CLS....................................................................................................................................21
1. Lack of Coherence.....................................................................................................................21
2. Overemphasis on Critique..........................................................................................................21
3. Limited Practical Impact............................................................................................................22
LAW AND ECONOMICS THEORY................................................................................................................22
CONCLUSION.............................................................................................................................................23
BIBLIOGRAPHY...........................................................................................................................................24
LECTURERES REMARKS..............................................................................................................................25

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PROBLEM QUESTION

Give an overview on the legal theories.

1. Natural Law theory

2. Marxist theory

3. Legal Positivism

4. Critical Legal studies

5. Feminists Theory

6. Legal Realism

7. Law and Economics Theory

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INTRODUCTION

Legal theories function as conceptual and intellectual frameworks that influence our

comprehension, interpretation and application of the law. They offer a prism through which legal

scholars, practitioners, and policymakers analyse and evaluate legal principles, decisions, and

institutions. These ideas cover a broad spectrum of viewpoints from various scholars and provide

distinct insights into the nature, function, and application of law in society.

Although there are many legal theories, we will focus on six in our response since we believe

they form the basis of the law in which we will discuss in the order as listed herein. They are:

 Marxist Theory of Law

 Feminists’ theory

 Legal positivism

 Natural Law Theory

 Legal Realism

 Critical Legal Studies

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MARXIST THEORY OF LAW

Marxist philosophy provides a distinctive viewpoint on the place and purpose of laws in society.

The writings of Friedrich Engels1 and Karl Marx2 serve as its foundation. Marxist legal theory

looks at how social and economic inequality are reflected in and maintained by the law. Our

response offers a thorough examination of the main ideas, beliefs and objections of Marxist legal

theory, emphasizing the insights it offers into the relationship of capitalism, law, and conflict

between classes.

Marxist ideology argues that the ruling class uses the law as a weapon to preserve its power over

society rather than as a neutral or impartial institution. Marxists contend that the judicial system

suppresses the working class while defending the interests of the capitalists. Marxist legal

theorists aim to reveal the underlying dynamics of power and inequalities embedded in legal

institutions by examining law through the perspective of class conflict and economic

interactions.

Important Concepts

1. Foundation and structure: This idea of the foundation and basis is fundamental to Marxist

philosophy. The term "base" describes the economic foundations of society, such as the

means and the relationships of production. All non-economic institutions, such as those

pertaining to politics, law, culture, and ideology, are included in the superstructure. Marxists

hold that the social structures that now exist are perpetuated by the superstructure, which both

reflects and serves the interests of the ruling class.

1
Friedrich Engels –German Philosopher and Co- author of the Communist Manifesto
2
Karl Max – German philosopher also Father of the Marxists Theory

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2. Legal Form: Marxist legal theory places a strong emphasis on the significance of

understanding the particular legal structure in which laws are made and enforced. Laws are

actual manifestations of class interests rather than impartial rules of justice. The legal form

reflects the underlying economic relations of society, including property rights, contract law,

and labour regulations.

3. Ideology and Legal Consciousness: Marxist theorists argue that the ruling class maintains its

dominance through the distribution of ideological beliefs that justify existing social

inequalities. Legal consciousness refers to the ways in which individuals perceive and

internalize the legitimacy of the legal system. Through ideological means, the ruling class

maintains control over legal norms and institutions, shaping public perceptions of justice and

legality.

Principles of Marxist Legal Theory

1. Historical Materialism3: Marxist legal theory is grounded in the historical materialist

approach which examines how social, economic, and political factors impact historical

evolution and how legal institutions and laws are viewed as results of specific historical

conditions and class struggles. (Example is the development of labour laws as I will explain)

2. Class Struggle: The idea of class struggle, or the continuous battle between the proletariat

(the working class) and the bourgeoisie (the ruling class), is fundamental to Marxist legal

theory. The balance of power between these opposing classes shapes legal norms and

institutions, with the ruling class employing the law to uphold its supremacy.

3
Karl Marx described it as “an approach focuses on the economic infrastructure of society namely the means of
production and the resultant economic relations among people.”

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 3. Instrumentalism: The idea that the law is a separate, independent institution is rejected by

Marxist legal theorists. Rather, they see the law as an instrument that the ruling class uses to

stifle opposition and further its own agenda. Rather than being guided by universal justice

ideas, the ruling class's material interests shape laws and policies.

Critiques of Marxist Legal Theory

1. Economic Determinism: Marxist legal theory's critics claim that it reduces all aspects of

society, including the law, to class conflict and economic ties. This deterministic approach

ignores additional social elements that could have an impact on the formation of law and

ignores the complexity of legal issues.

2. Overemphasis on Conflict: Some scholars criticize Marxist legal theory for its exclusive

focus on conflict and class struggle, neglecting other forms of social interaction and

cooperation. While class conflict is undoubtedly an important factor in shaping legal

institutions, it is not the sole determinant of legal development.

3. Revolutionary Implications: The focus Marxist legal theory places on revolutionary

transformation and class struggle has drawn criticism for having the ability to legitimize or

approve violence and unrest. Marxist theorists, according to their critics, ignore the

possibilities of gradual changes and peaceful transitions to more just legal frameworks.

To sum up, Marxist legal theorists shed light on the underlying power dynamics and ideological

components of legal systems by analysing law as a byproduct of class conflict and economic

connections. Marxist legal theory is still a valuable foundation for understanding the complex

nature of law in modern society, despite criticism.

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FEMINIST THEORY4&5

Feminist theory, or feminism is a historically women-led movement that calls for an end to

sexism in all forms. Feminists strive for social justice for those who have been oppressed by the

patriarchy, a system of power dominated by men in society. Feminists fight for equality for

everyone including women, men, non-binary and transgender people. Most feminists agree on

five basic principles:

 Working to increase equality - feminists thought links ideas to action, insisting we should

push for change toward gender equality and not just talk about it.

 Expanding human choice - they believe that both men and women should have freedom

to develop their human interests and talents, even if those interests and talents conflict

with the status quo. E.g. If a woman wants to be a, mechanic, she should have the right

and opportunity to do so.

 Eliminating gender stratification - feminists oppose laws and cultural norms that limit

income, education and job opportunities for women.

 Ending sexual violence and promoting sexual freedom - feminists feel that women should

have control over their sexuality and reproduction.

Types of Feminists

Liberal feminism (18th and 19th Century)

It is rooted in classic liberal thought and believes that individuals should be free to develop their

own talents and pursue their own interests. The first convention in women’s rights movements is

4
Companion to Feminists Studies by Nancy A. Naples (Published 16th March 2020)
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Your silence Will Not Protect you by Audre Lorde (Published 2nd October 2017) 1st Edition

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likely to be the Seneca Falls Convention6 that was on 19th July,1948 which was spearheaded by

Elizabeth Cady Stanton and Lucretia Mott. This approach sees gender inequalities as rooted in

the attitudes of our social and cultural institutions. Liberal feminists sought to abolish political,

legal and other forms of discrimination against women to allow them the same opportunities as

men since their autonomy has deficits. [either at workplace or at home.

The first and the second feminists’ waves were led by liberal feminists and they managed to

formally and legally obtain many equal rights for women, including the right to vote, right to be

educated, as well as the elimination of many other patriarchal paternalistic and moralistic laws.

The equal rights amendment in 1972 – that equality rights under the law shall not be abridged by

United States od by any State on account of sex.

One of the famous liberal feminists, Mary Wollstonecraft, a writer, in her book ‘A Vindication

of the Rights of Woman’, she encouraged women to use their voice in making their own

decisions and ignore the choices which previously others had made for them.

Liberal feminism includes many, often diverging branches: Individualist feminism or libertarian

feminism, they emphasize on women’s ability to show and maintain their equality through their

own actions and choices as they have a place to transform the society.

Social feminism

It evolved from the ideas of Karl Max, who blamed capitalism for promoting patriarchy by

concentrating power in the hands of a small number of men. It was most active during the 1960s

and 1970s though they borrow some of the context from the previously discussed Liberal

Feminism. William L. O’Neill in his 1969 history of the feminist movement also mentioned the

6
It was the first women’s rights convention to discuss civil, social and religious aspects touching the rights of a
woman

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same. Social feminists believe that the traditional family is based on capitalist system, where

women stay home and men work, they also see prostitution, domestic work, childcare and

marriage as ways in which women are exploited.

They see the need to work alongside not just men but all other groups, as the oppression of

women has a pattern of affecting a larger population of people involved in the capitalist system.

Karl Marx felt that when class oppression was overcome, gender oppression would vanish as

well.

Radical feminists (1967)

In 1967, Carol Hanisch, Shulamith Firestone and Robin Morgan were unhappy about the

ignorance of their rights as women and thus they formed the New York Radical. This groups of

feminists tend to be more militant in their approach compared to other feminist movements and

ideologies. They believe that women can free themselves only if they have done away with what

they consider an inherently oppressive and dominating patriarchal system. They feel that this

male-based authority and power structure and that it is responsible for oppression and inequality,

and that, as long as the system and its values are in place, society will not be able to be reformed

in any significant way. They see no other alternative other than total uprooting and

reconstruction of society in order to achieve their goals.

Post-structural feminists (1960s and 1970s)

They are also referred to as French feminists. The most mentioned ones are Juulia Kristeva,

Helene Cixous and Luce Irigaray. Many post-structural feminists maintain that difference is of

the most powerful tools that women possess in their structure with patriarchal domination, and

that to equate the feminist movement only with equality is to deny women a plethora of options

because equality is still defined from the masculine or patriarchal perspective.

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Postcolonial Feminists (1980s)

They are sometimes known as Third world feminists, which discusses experiences endured

during colonialism, including migration, slavery, suppression, resistance, representation,

difference, race, gender, place and responses to the influential discourses of imperial Europe.

Western feminists universalize women’s issues, thereby excluding social classes and ethnic

identities reinforcing homophobia and ignoring the activity and voices of non- white non-western

women. Chandra Talpa Mohan played a major role in the development of this group of

feminists. Postcolonial feminism can be described as feminists who have reacted against both

universalizing tendencies in western feminist thought and lack of attention to gender issues in

mainstream postcolonial thought.

In the 1940s and ‘50s, after the formation of the United Nations, former colonies were monitored

by the West for that was considered “social progress”. Traditional practices and roles taken up by

women sometimes seen as distasteful by western standards could be considered a form of

rebellion against colonial oppression.

Postmodern feminists

Judith Butler7 argues that sex, not just gender, is constructed through language. In her book,

Gender Trouble (1990), she draws on and critiques the work of Simone de Beaver, Michel

Foucault, and Jacques Lacan. Buttler criticizes the distinction drawn by previous feminisms

between biological sex and socially constructed gender. They state that gender is performative.

This argument leads to the conclusion that there is no single cause for women’s subordination
7
Judith Butler – American Philosopher and Gender studies scholar who has formed the basis of postmodern
Feminism

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and no single approach towards dealing with the issue. Modern feminist theory has been

extensively criticized as being predominantly, though not exclusively, associated with western

middle-class academia.

Importance of Feminist’s Theory

1. It helps to address and better understand unequal and oppressive gender relations.

2. It promotes the goal of equality and justice while providing more opportunities for women.

3. It allows men to be who they want to be and not to be tied down to their own gender roles

and stereotypes.

4. Men are encouraged to be free to express themselves in a way which may be considered

‘typically feminine’ such as crying when they are upset.

5. It not only focuses on gendered power and oppression but on how this might intersect with

race, sexuality, social class, religion and others.

6. More women have the right to vote.

7. Feminist theory is also self-critical in that it recognizes that we are evolving and it is also

evolving and may still go on and evolve over time. Feminism is fluid in a way hat it changes

and adjust to suit modern times.

Critics of Feminist’s Theory

1. That it is from a woman-centered viewpoint. While the theory also mentions issues which

are not strictly related to women, it is argued that men and women view the world

differently.

2. Some may call feminist theory redundant in modern day since women have the opportunity

to work now, so the nature of family life has inevitably changed.

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3. Some feminists may go too far into a stage of man-hating which causes more harm than

good. It can make men feel unwelcomed to feminism if they are being blamed for

oppression and they are not directly responsible.

4. Other women may not want to identify as a feminist either if they have the impression that

feminists are man-haters but they themselves like men.

5. Criticism amongst the feminists i.e. Radical feminists often receive criticism for ignoring

race, social class, sexual orientation and the presence of more than two genders.

LEGAL POSITIVISM

Legal positivism, as defined by one of its proponents John Austin8, is a theory of law that holds

that the existence and content of law is determined by social and political factors and is

independent of moral considerations. It is an influential theory that has shaped legal systems and

jurisprudence around the world.

It has had a significant influence on legal systems and jurisprudence around the world, and it is

often associated with the concept of the "rule of law," which holds that laws should be applied

consistently and impartially and that individuals should be subject to the same legal rules and

procedures, regardless of their social or economic status.

Some examples of legal positivism in action include:

 A law that imposes a fine on individuals who fail to pay their taxes on time is considered

valid under legal positivism, even if some may argue that it is morally wrong to punish

people for failing to pay their taxes.

8
John Austin – English Legal Theorist, proponent of Legal Positivism

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  A law that requires individuals to obtain a license before practicing a particular profession is

considered valid under legal positivism, even if some may argue that it is morally wrong to

restrict people from practicing their chosen profession.

Legal positivism is often contrasted with natural law theory, which holds that there is a universal

moral code that is inherent in nature and that serves as the basis for all legal norms. Legal

positivism, on the other hand, argues that law is a human construct and that it is determined by

social and political factors, rather than by any inherent moral principles.

The main ideas of legal positivism are the pedigree thesis, the separability thesis, and the

discretionary thesis. In brief, the pedigree thesis holds that real laws are ones that can

realistically generate obedience under the threat of punishment. The separability thesis holds that

laws are logically distinct from and independent of moral considerations. And the discretionary

thesis holds that judges, when adjudicating cases that do not fall under a clear law, can introduce

legal elements in their decision that act as laws themselves. Or in other words, judges have a

quasi-law-making power. An example is the Brown v Board of Education (1954) that led to the

desegregation of schools therefore establishing new legal principles that were not explicitly

outlined in the statutes. The same way the Judges may have power to make laws they can as well

declare laws unconstitutional for example in the case of Marbury v Madison (1803) whereby

William Marbury was appointed as a justice for peace in the district of Columbia by the outgoing

president John Adams but did not receive his official commission before the new president

Thomas Jefferson when he took office. Marbury petitioned to the Supreme Court to compel

Madison to deliver his commission however, the supreme Court declared the exercise

Unconstitutional and the petition was dismissed.

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According to Austin, the validity of a law does not depend on its moral content, but rather on the

fact that it is imposed and enforced by a legitimate authority.

The word “positivism” was probably first used to draw attention to the idea that law is “positive”

or “posited,” as opposed to being “natural” in the sense of being derived from natural law or

morality.

In other words, John Austin agrees with Professor Hart’s view on law and morality. Hart is also a

legal positivist and he states that law and it is not necessary that laws have to satisfy certain

demands of morality. He goes ahead to opine that the existence of law cannot be judged by

merits and demerits. A law happens to exist irrespective of our likes and dislikes.

In addition to that, Legal positivism is a legal theory that holds that laws have no foundation

outside of the conventions and procedures involved in usual law-making. In other words,

conventional laws are noy founded on natural laws or social interests.

The positivist theory of law proposes that people, and especially judges, should base their

judgments and actions on the laws that have been passed by convention, such as constitutional

laws or statutes (laws passed by a legislature). This is because laws are merely social constructs;

they cannot be derived from any source such as divine commandments, human reason, natural

laws, etc.

Conclusion

In conclusion, Legal positivism is a theory of law and justice that emphasizes the importance of

the formal sources of law, such as statutes and court decisions, as the basis for legal decision-

making. Judges who subscribe to this theory of law and justice believe that the legitimacy of law

depends solely on its source, rather than its content or moral value. Proponents of legal

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positivism believe that the text of the law should be interpreted strictly according to its plain

meaning. Such judges focus primarily on the text of the law, rather than considering extrinsic

factors such as social context or policy considerations. This theory of law and justice also

emphasizes the importance of legal precedent in determining the outcome of a case. Judges who

apply this theory decide their cases based on the doctrine of precedent and stare decisis.

According to the doctrine of stare decisis the decisions of a high court are binding upon lower

courts. This doctrine enjoins judges to apply the decisions of other judges when making

decisions. It is a foundational principle within the common law system that is applied in the

United Kingdom. According to legal positivists, judges should avoid injecting their personal

biases or moral judgments into their decisions. Judges whose decisions are anchored on this

theory of law and justice strive to make decisions based solely on the formal sources of law,

rather than their personal beliefs or values.

Legal positivists also hold the view that the law should be applied consistently across different

cases and contexts. It is apparent that judges in this school of thought strive to apply legal rules

and principles consistently, regardless of the particular circumstances of a case. In “Shaw v.

DPP [1962] AC 220”9, the defendant was charged with conspiracy to corrupt public morals after

he published a book that was deemed obscene. The defendant argued that his freedom of speech

was protected under the European Convention on Human Rights, but the House of Lords rejected

this argument on the basis of legal positivism. The House of Lords applied the strict position of

the law and held that the law did not recognize a right to freedom of speech that was absolute

and that the defendant's actions were therefore criminal . See (Society for International

Development (SID) & 3 others v Atorney General & 2 others (2018) eKLR)

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“Shaw v DPP (1962) AC 220 Cause 998 of 2014” eKLR

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NATURAL LAW THEORY

Natural law is the concept of a body of moral principles that is common to all human kind and is

recognizable by human reason alone. It is a theory in ethics and philosophy that says human

being possess intrinsic or inherent values that govern their reasoning and behaviour. Natural law

maintains that these rules of right and wrong are inherent in people and are not created by society

or Court judges.

Significance of Natural Law Theory

1. Gave rise and influenced legal and ethical frameworks of principles of international and

human rights on the basis that all human beings have innate needs that are universal. Natural

law theory has been used in court proceedings to oppose unfair laws and practices that go

against core moral values although some courts have kept this theory at bay and used other

theories of law. Individuals and society might endeavour to create a more ethical and fairer

world governed by universal principles of justice and human rights by applying natural law

theory to particular situations or cases.

2. The natural law theory has also been used to criticize repressive governments and unfair

laws, advising people to oppose legislation that violates these fundamental moral precepts.

3. Natural law theory fosters a sense of moral obligation and responsibility towards others by

firmly establishing moral principles in the natural order of the cosmos.

4. Natural law theory has influenced how justice and morality have been understood

throughout history and served as a guiding principle in numerous discussions and

movements. For instance, natural law theory was applied to support the inherent rights and

dignity of every person, regardless of race, during the American Civil Rights Movement.

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5. Similarly, natural law theory has been used to support the preservation of ecosystems and

the protection of the natural world for future generations in talks about environmental ethics.

Natural law theory has been used in court proceedings to oppose unfair laws and practices that

go against core moral values. Individuals and society might endeavour to create a more ethical

and fairer world governed by universal principles of justice and human rights by applying natural

law theory to particular situations or cases.

Advantages of natural law

1. Universal applicability: Because of uniformity, moral principles, and its ability to provide a

framework for ethical decision-making across different cultures and societies.

2. Enhance human dignity and the inherent rights and responsibilities: It helps individuals

navigate complex moral dilemmas and strive towards the common good, promoting a more

just and harmonious society.

3. Guide for legislation and governance: By ensuring that laws are in line with fundamental

moral principles, natural law can foster a sense of justice and equality, protecting the rights of

all individuals. In a world where ethical values may vary greatly; natural law provides a solid

foundation for creating a more ethical and humane society. By grounding laws and

governance in natural law principles, societies can work towards creating a more stable and

fair legal system that upholds the rights and dignity of all individuals. This framework also

encourages individuals to act in accordance with their inherent moral compass, promoting a

sense of personal responsibility and accountability.

4. Timeless and universal ethical guide: Natural law helps shape a more compassionate and

just society for generations to come. By recognizing the inherent worth and intrinsic rights of

every individual, natural law fosters a sense of respect and empathy within communities.

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 This, in turn, leads to a more harmonious and peaceful society where conflicts are resolved

through dialogue and understanding rather than through force or coercion.

5. Just society: Embracing natural law principles can help humanity move towards a future

where justice, equality, and compassion are the guiding principles of governance and social

interaction. As individuals and societies continue to uphold natural law principles, they create

a foundation for a world where human rights are respected and upheld. This not only benefits

the current generation but also sets a positive example for future generations to follow. By

prioritizing respect, empathy, and understanding in all aspects of life, we can work towards a

more just and compassionate society that values the inherent dignity of every person. In doing

so, we can create a legacy of peace and harmony that will endure for years to come. For

example, when a government enacts laws that protect the rights and freedoms of its citizens, it

sets a precedent for other nations to follow. This can lead to a ripple effect of positive change,

ultimately creating a global community that values equality and justice for all.

For instance, natural law theory was applied to support the inherent rights and dignity of

every person, regardless of race, during the American Civil Rights Movement. Similarly,

natural law theory has been used to support the preservation of ecosystems and the protection

of the natural world for future generations in talks about environmental ethics. All things

considered, the application of natural law theory in several historical situations emphasizes

how important and relevant it is to solving difficult ethical and societal problems today.

Disadvantages of natural law

1. Conflict in interpretation: The potential for conflicts between different interpretations of

what is considered to be inherently moral or immoral.

17
 2. Rigid: The unchanging nature of natural law may not account for evolving societal

norms and values. This can make it difficult to address complex ethical dilemmas or

adapt to changing circumstances.

3. Unclear: Natural law may not always provide clear guidance on how to prioritize

conflicting moral principles or resolve ethical conflicts. As a result, individuals and

societies may struggle to navigate conflicting values and principles when attempting to

make ethical decisions.

For example, in the case of euthanasia, natural law may dictate that all forms of killing are

inherently wrong, regardless of the circumstances. However, in a situation where a terminally ill

patient is suffering greatly and requests assisted suicide, natural law may not provide clear

guidance on how to ethically navigate this dilemma.

Criticisms of Natural Theory

Because of its rigidity it is at times viewed not take into consideration the intricacies of

contemporary society or the changing moral standards. The definition of "natural" or universal

moral principles and the possibility of disagreements between various interpretations of them has

also been a bond of contention i.e. different people have their own perceptions hence creating

disagreement e.g. what is morally acceptable in one place may be immoral in another.

The ongoing debate and discussion surrounding natural law theory continue to shape

contemporary ethical and legal frameworks, demonstrating its enduring relevance and

importance. Ultimately, the principles of natural law serve as a foundation for understanding the

universal moral truths that govern human behaviour and guide the creation of just societies.

For example, the concept of natural law theory influenced the drafting of the Universal

Declaration of Human Rights in 1948, which sought to establish a set of fundamental rights

18
that are inherent to all individuals regardless of nationality or culture. This document has since

served as a cornerstone for international human rights law, guiding efforts to protect and uphold

the dignity and rights of individuals around the world.

LEGAL REALISM THEORY

The realism theory is interested in how the law works rather than its traditional definitions.

Under this law theory, the law is based on judicial decisions in the court. The theory holds that

rules which are not used to solve practical cases are not laws but merely exist as words on paper.

These dead words of the law only become alive when used to solve a dispute between two

parties. Realists believe that the law is constantly changing and evolving. They argue that today’s

law may not be the law tomorrow. This is because new cases are constantly being decided by a

judicial decision in court, which can change the law and legal practice “The function of realist

jurisprudence… is not to make the law but to describe how it works.” Justice Benjamin Cardozo

American Lawyer and jurist. This theory is based on the common law legal system. In this

system, the decision made by a court in a previous case is used as a guide to decide future similar

cases. However, this theory does not apply in the civil law legal system. This is the other primary

legal system globally, and it is different because it is based on written code of law. The theory

suggests that the law marker in the civil law legal system is not a judge.

CRITICAL LEGAL STUDIES

A legal theory known as Critical Legal Studies (CLS) first appeared in the US in the latter half of

the 20th century. Its goal was to challenge the prevailing narratives about law, justice, and

power. It began as a reaction to the perceived flaws in normal legal analysis.

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Proponents of CLS

1. Duncan Kennedy: Kennedy's writings, including "Legal Education and the Reproduction

of Hierarchy10," expose how the legal profession and its hierarchical structure reinforce

social injustices.

2. Catherine MacKinnon: MacKinnon's feminist analysis of the law, especially in her work

"Toward a Feminist Theory of the State 11," looks at the ways in which institutions and legal

norms promote inequality and oppression based on gender.

3. Richard Delgado: In his work on critical race theory, which includes "Critical Race

Theory: An Introduction12," Delgado examines how the legal system marginalizes

communities of colour and upholds racial hierarchies.

Crucial Principles of Legal Studies

1. Legal Formalism: CLS scholars critique the traditional legal approach, which emphasizes

formal rules, logic, and precedent, often overlooking the social, political, and economic

context in which law operates. They argue that law is not a neutral or objective system but

rather reflects and reinforces existing power structures and inequalities.

2. Emphasis on Power and Ideology: CLS places a strong emphasis on how ideology and

power shape institutions, legal standards, and court rulings. Legal concepts and regulations

are viewed as manifestations of the prevailing interests, upholding social structures and the

status quo.

3. Interdisciplinary Approach: To examine law in a larger social framework, CLS incorporates

ideas from a number of academic disciplines, including, political science, economics,

10
Legal Education and the reproduction of hierarchy by Duncan Kennedy, originally Published in 1983
11
Towards a Feminist Theory of the State by Catherine MacKinnon, originally published in 1989
12
Critical Race Theory: An Introduction by Richard Delgado and Jean Stefanic, originally published in 2001

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 sociology, and philosophy. It looks for the fundamental social and economic factors

influencing the evolution of law and the process of making decisions.

4. Social Justice Emphasis: CLS is dedicated to advancing equality and social justice via

advocacy and reform of laws. It aims to oppose oppressive policies and speak up for

marginalized groups, including women, people of colour, and those from low-income

backgrounds (Those mentioned in Article 2713 and 5614 of the COK).

5. Deconstruction of Legal Texts: Legal Texts: Statutes, Court Opinions, and Legal Doctrines

are examples of legal texts. CLS researchers use deconstruction techniques to explore the

hidden meanings and power dynamics that these texts contain. They cast doubt on the idea of

legal predictability and clarity and draw attention to the ambiguity and uncertainty of legal

language.

Critiques of CLS

1. Lack of Coherence: According to critics such as Ronald Dworkin and Ricard Posner, CLS is

hard to characterize and assess as a cohesive theory of law because it lacks a clear framework

and incorporates a variety of viewpoints.

2. Overemphasis on Critique: According to some academics like Robert P. George and Martha

Nussbaum, CLS offers few viable alternatives or constructive answers because of its

unrelenting criticism of the institutions and legal norms that are now in place.

3. Limited Practical Impact: Despite its theoretical contributions, CLS has been criticized for

its limited practical impact on legal practice and policymaking, with some questioning its

ability to effect meaningful change within existing legal systems.

13
Article 27 – Equality and freedom from discrimination
14
Article 56 – Minorities and Marginalized Groups

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To sum up, Critical Legal Studies presents a critical viewpoint on the law, questioning

established legal presumptions and promoting equality and social justice. It looks at how

ideology and power shape the law, highlighting the necessity for multidisciplinary research and

reform.

LAW AND ECONOMICS THEORY

Law and economics theory, which is based on the concepts of economic analysis, aims to

comprehend and assess legal regulations and establishments about their effectiveness and

distributive impacts. This approach's advocates frequently call for market-based solutions to

legal issues, arguing that laws should be created to maximize social welfare and decrease

transaction costs.

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CONCLUSION

From all that has been discussed above we can conclude that different viewpoints on the nature,

intent, and application of law in society are provided by legal theories. Each theory offers

important insights into the complexity of the legal system, from critical legal studies' critique of

power dynamics and inequality to natural law theory's emphasis on universal moral standards.

Legal positivism places emphasis on the significance of the source and validity of law, whereas

natural law theory holds that laws must be justifiable in accordance with inherent moral

principles. While critical legal studies question the idea that the law is neutral and looks at how it

might support injustice, legal realism emphasizes the influence of social context and extra-legal

variables on legal choices.

While feminist legal theory investigates the relationship between gender and the law in an effort

to overcome systemic bias and discrimination, law and economics applies economic analysis to

legal regulations and institutions. Marxist legal theory emphasizes how the law both reflects and

perpetuates social inequality by examining it through the prism of class conflict and economic

interactions.

Scholars and practitioners can gain a deeper knowledge of the fundamental ideas of the law and

how it affects people individually and in communities by interacting with these many legal

theories. Though each theory has advantages and disadvantages, taken as a whole, they add to

the current conversations regarding how the law may advance justice, equality, and social

change.

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BIBLIOGRAPHY

a. Constitution of Kenya 2010.

b. Kenya Law Reports.

c. Gender Trouble by Judith Butler (Published March 1990).

d. Companion to Feminists Studies by Nancy A. Naples (Published 16th March 2020).

e. Your silence Will Not Protect you by Audre Lorde (Published 2 nd October 2017) 1st

Edition.

f. The Communist Manifesto (Paperback) by Karl Marx published 1848.

g. How Europe Underdeveloped Africa by Walter Rodney published in 1971.

h. A guide to Critical Legal Studies by Mark Kelman Published 1987.

i. Research Handbook on Critical Legal Theory published 2019.

j. Natural Law: A Short Companion by David VanDrunen published 2023.

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LECTURERES REMARKS

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