Jurisprudential Foundations of Constitutional Law

CUEA CLS 103
TOPIC 1
THE JURISPRUDENTIAL
FOUNDATIONS OF
CONSTITUTIONAL LAW
Class Presentation
Charles BG Ouma LLB MLB
5/21/2024 NAIROBI LAW TUTORS LTD 2023

• Lesson Content
1. Legal theory
2. Legal systems of the
The world
Jurisprudential 3. Classification of laws
Foundations Of 4. The functions of law
Constitutional 5. The limitations of law as
an instrument of social
Law economic and political
engineering.

NAIROBI LAW TUTORS LTD 2023
Our Key Inquiry Questions
What are the main

theories of law. Who are
What is law? How is it
their principal
distinguished from other Is there a link between Are there universal and
opponents and basic
social phenomena that law and morality? eternal principles of law
arguments. What are
serve the same purpose?
their strengths and
weaknesses .
What are the functions

To what extent is law a
of the law? What are the Is there a limit to the
function of social
limitations of law as a police power of the
political and economic
system of social state?
relations?
engineering?
5/21/2024
Our Key Inquiry Questions
Is there a
Are the legal
convergence
systems of the
between legal
world converging?
theories?
5/21/2024
• The Object of this lesson is
to:
• Establish the link between
legal theory, legal principles
and the normative
Object of provisions of the law
• Enable us understand legal
this lesson principles and rules from a
jurisprudential perspective

• This is not an in-depth study
in ‘jurisprudence’ or ‘social
foundations of law’ but an
effort to demonstrate how
Scope Of legal theory impacts on
constitutional law and the
This Lesson normative provisions of the
constitution

Topic objectives
At the end of this lesson, a participant should

be able to;
• Define the term ‘law’
• Identify the sources of law
• Distinguish between ‘law’ and related social norms
• Articulate the major theories of law
• Relate the theories to principles of law and actual provisions
of the constitution and constitutional interpretation
• Distinguish between the different legal systems of the world
• Explain the functions and the limitations of law

Legal Theory
• We seek to answer the
questions
• What is law?
• How is it created and
enforced? ( Validity)
• How can we evaluate
good law? (Legitimacy)
• Is there a rational limit
to law making power?

• In the field of natural, or,
indeed, many social sciences,
law can be defined as ‘a
statement of fact, deduced
from observation, to the
What is effect that a particular
law ? natural(or social) or scientific
phenomenon always occurs if
certain conditions are
present e.g., "the second law
of thermodynamics" or ‘the
law of gravity
• In the field of Law, ‘Law’ is
typically seen as the system of
normative prescriptions which
may be in the form of rules or
principles that a particular
community recognizes as
What is regulating the actions of its
members and are enforced by
law ? the imposition of some
sanction.
• Thomas Hobbes defined law as
follows; ‘law, properly, is the
word of him that by right hath
command over others’
What is law ?-Thomas
Hobbes
Leviathan chapter 26,
paragraphs 2-3
• "Law in general, is not counsel,

but command; nor a command of
any man to any man; but only of
him, whose command is
addressed to one formerly
obliged to obey him."
• "A Law is the command of him,
or them that have the Sovereign
Power, given to those that be his,
or their subjects, declaring
publicly, and plainly what every
of them may do, and what they
must forbear to do."
What is law ?
I asked ChatGPT
• The term "law" can be defined

from various perspectives, but
generally, it refers to a system of
rules and guidelines that are
created and enforced through
social or governmental
institutions to regulate behavior.
Laws are intended to establish
standards, maintain order,
resolve disputes, and protect
liberties and rights.

Classification of
Laws
• The classification of laws

refers to the process of
organizing laws into
different categories based
on certain criteria or
characteristics. This helps in
understanding and applying
the law more effectively by
grouping similar types of
laws together.

Classification of
Laws
• Classifications also help in

systematically studying
the law, ensuring legal
professionals and the
public can navigate the
legal system more
effectively

Classification of
Laws
1. Written and unwritten law

2. Public law and private law
3. Criminal law and civil law
4. Procedural law vs substantive
law
5. National law and
international law
6. Constitutions and statute law

Public Law and Private Law
The distinguishing factor

is that it is the law that
Public law defines the relationship
between the governed
and the governors
Treaties, customary
international law
constitutional law tax
law, criminal law,
administrative law

Private law
Public Law The distinguishing

feature is that it
and Private defines the
relationship between
Law the governed interse
Marriage divorce
contract succession
tort etc

Civil law and Criminal law
In our system used to distinguish between
laws the breach of which leads to penal
sanctions and those that lead to no penal
sanctions such as damages for breach
Roughly corresponds to the distinction
between public and private law

• A system is a collection of
elements
• ‘Legal system’ therefore refers
to a procedure or process for
Legal making, identifying, interpreting
and enforcing the law.
Systems • It includes the political, social
and economic organization of a
of the state
• It speaks to the system of
World government, the sources of law,
the structure and jurisdiction of
the courts

Common Law and Equity
4 Major
Legal
Civil Law
Systems
Theocracies
Customary Law
NAIROBI LAW TUTORS LTD 2023 5/21/2024

Not to be confused with civil law- a group of
legal subjects in contradistinction with
“Criminal Law”
Civil Law In “Civil Law Systems” the sources recognised

Systems as authoritative are, primarily, legislation—
especially codifications in constitutions or
statutes passed by government—and custom.
Codifications date back millennia, with one
early example being the Babylonian Codex
Hammurabi.
Modern “Civil Law Systems” essentially derive

from the legal practice of the Roman Empire
whose texts were rediscovered in medieval
Europe

Common law and equity are legal systems
where decisions by courts are explicitly
acknowledged to be legal sources.
Common The "doctrine of precedent", or stare decisis

Law (Latin for "to stand by decisions") means that
decisions by higher courts bind lower courts.
Common law systems also rely on statutes,

passed by the legislature, but may make less of
a systematic attempt to codify their laws than
in a "civil law" system.
Common law originated from England and has
been inherited by almost every country once
tied to the British Empire

Religious law is explicitly based on religious
precepts. Examples include the “Jewish Halakha”
and “Islamic Shariah”—both of which translate
as the "path to follow"—while “Christian Canon
Law” also survives in some church communities.
Theocracies
Often the implication of religion for law is
inalterability, because the word of God cannot
be amended or legislated against by judges or
governments.
However a thorough and detailed legal system

generally requires human elaboration through
interpretation

As was found in traditional African society
Essential characteristic is that there are no

Customary formal sources of law
Law
There are no law makers
Legal knowledge is socially constructed
But there are persons who are presumed to

know the law- the elders-the older the more
knowledgeable

Legal Theory
• A supposition or a system of
ideas intended to explain
something
• The object of legal theory is to
investigate the nature and
content of legal concepts, to
understand the underlying
meaning of legal concepts and
the essential features of legal
systems.

Legal Theory
• It seeks to answer the

question what does it
take for a norm to
qualify as an
authoritative principle
of law and how law is
to be distinguished
from related concepts
such as morality
ethics or good
manners.

Legal Theory
• Legal theories
represent the
fundamentally
different approaches
to understanding the
nature, origin, and
authority of law.

The 4 Main Natural law
Theories
of Law Legal Positivism
Legal Realism
Critical Legal Studies

Law and Economics
Other
Theories Sociological Jurisprudence
of Law
Naturalistic Theories of Law
Feminist Legal Theory
Post-modernism

Natural law is the idea that there are rational
objective limits to the power of rulers.
Natural
Law and
Legal Law is inherently connected to morality.
Positivism According to this view, there are objective
moral principles that form the basis of all
just laws. These principles are derived
from nature, reason, or a divine source.
The foundations of law are accessible
through human reason, and it is from
these laws of nature that human created
laws gain whatever force they have.

Legal Positivism, by contrast to
natural law, holds that there is no
Natural necessary connection between law
Law and and morality
Legal
Positivism
Legal positivism maintains that law is
a human creation and should be
understood as separate from
morality. According to this view, the
existence and content of law are
determined by social facts and not by
its moral merits.
Legal Realism is a third theory of
Legal jurisprudence which argues that the real-
Realism world practice of law is what determines
what law is; the law has the force that it
and does because of what legislators, judges, and
executives do with it. Similar approaches
Critical have been developed in many different ways
Legal in sociology of law.
Studies Critical Legal Studies is a younger theory of

jurisprudence that has developed since the
1970s which is primarily a negative thesis
that the law is largely contradictory and can
be best analyzed as an expression of the
policy goals of the dominant social group.

Natural law is a theory of ethics that says
The that human beings possess intrinsic values
that govern our reasoning and behavior.
Natural
It states that there are universal moral
Law standards that are seen across time
periods and societies because these
School standards form the basis of a just society

Natural law holds that that
The humans have inherent values
Natural such as moral standards,
Law rationality, and conscience,
School which allow them to make
rational decisions

The Has its origins in ancient Greece
Natural and Rome
Law Propounded by philosophers
School such as Plato and Aristotle

The leading
proponents is Other proponents
Aristotle, & St include
Thomas Aquinas
The
Natural John Locke Lon Fuller
Law
School
John Finnis

Foundation
Universality
The in morality
Natural
Law
School Validity of
law

Foundation in
morality
The
Natural
Law
School Natural law theory posits that law is
inherently connected to morality.
According to this view, there are
objective moral principles that form
the basis of all just laws. These
principles are derived from nature,
reason, or a divine source

Universality
The
Natural
Law
School Natural law theorists believe that
the principles of natural law are
universal and unchanging. They
apply to all human beings,
regardless of the specific legal
systems or cultural contexts.

Validity of Law
The
Natural
Law
School For natural law theorists, a law's
validity depends on its consistency
with moral principles. An unjust
law, one that contradicts moral
truths, is not considered a true law
(lex iniusta non est lex)

Aristotle (Greek: Ἀριστοτέλης,
Aristotélēs) (384 BC – 322 BC)
• Greek philosopher,
• A student of Plato
• His writings cover many subjects, including physics metaphysics,
poetry, theatre, music, logic, rhetoric, politics, government,
ethics, biology, and zoology.
• Together with Plato and Socrates (Plato's teacher), Aristotle is
one of the most important founding figures in Western
philosophy

The Natural law
School
• Aristotle talked of the

theory of the ‘golden
mean’ viz the mean
between opposing views

Saint Thomas Aquinas, (also
Thomas of Aquin or Aquino;
ca. 1225 – 7 March 1274
• Thomas Aquinas
distinguished
between four
kinds of law
• Eternal
• Divine
• Natural
• Human

• Eternal law is the decree
of God and governs all
creation.
• Divine law revealed in the
Aquinas- scriptures
Natural • Natural law is human
participation in the
Law School eternal law discovered by
reason
• Human Law : Law as
articulated by humans

• Natural law is based on
the ‘first principles’
Aquinas- • This is the first precept of
law, that good is to be
Natural done and promoted and
Law School evil is to be avoided. All
other precepts of natural
law are based on this

Natural Law School: Thomas Lon
Luvois Fuller (1902 – April 8, 1978
• Lon Fuller wrote

that law must
meet certain
minimum
standards
• The more the law
departs from these
minimum
standards the less
the likelihood of
its acceptance

The Main
Thesis of • Natural Law is preordained, there are
laws that are immanent in nature. It
the emanates from superhuman or divine
Natural entities
Law • It is a higher law. It is the touchstone of
validity of laws
Theory • It has minimum moral content is
logical rational and reasonable.
• For the validity of law, there is an
objective moral order.

Problems with
Natural Law Theory
• Resistance to using
religion or natural law
as a basis of social
organization
• Law is seen as culture
specific not universal as
natural law theory
implies
• Law tends to focus on
rules, not logic

Positivist or Liberal School/Analytical
Jurisprudence
• Leading proponents are
Thomas Hobbes,
Jeremy Bentham, John
Austin, Prof. Hart and
Prof Dworkin and Hans
Kelsen
• Positivism sees law as a
product of a sovereign
excercise of authority

Positivism: • Thomas Hobbes saw
natural law as a precept
Thomas or general rule, found out
Hobbes(5 by reason by which man is
forbidden to do what is
April 1588 – destructive to life, or take
away the means of
4 December preserving the same
1679)

• Thomas Hobbes
believed that humans
Thomas have no moral compass
unless there are
Hobbes(5 predetermined rules to
say what actions are good
April 1588 or bad.
• There is no morality in
–4 the state of nature. There
is no contract without an
December absolute power
enforce it. Therefore,
to
1679) justice only comes into

existence when the
sovereign is established

• Hobbes was a
Thomas proponent of Absolutism,
Hobbes(5 a system which placed
control of the state in the
April 1588 – hands of a single
individual, a monarch free
4 December from all forms of
limitations or
1679) accountability

Thomas Hobbes
Leviathan
State Of Nature
• Hobbes postulates what life
would be like without
government, a condition which
he calls the state of nature. In
that state, each person would
have a right, or license, to
everything in the world. This,
Hobbes argues, would lead to a
"war of all against all" (bellum
omnium contra omnes, and thus
lives that are "solitary, poor,
nasty, brutish, and short"

Life without an ordered
society is short nasty and
brutish
Thomas Society exists to save man

from self destructive
Hobbes(5 behavior.
April 1588 – The members give up some

4 December of their individual rights in
exchange for peace and
1679) security
Law must gain the consent of

the governed- social
contractarianism

Positivism: John
Austin 1790-1859
• John Austin 1790-1859, English

jurist. He served (1826-32) as
professor of jurisprudence at the
Univ. of London, and his lectures
were published (with additional
material) as The Province of
Jurisprudence Determined (1832,
repr. 1967, 3 vol.) and Lectures on
Jurisprudence (1869, 5th ed. 1911).

Positivism : John
Austin
• Law does not pre-exist; it must
be brought into existence by
human beings
• Law is a product of a positive
conduct by a sovereign
• Law is the command of the
sovereign backed by threats.
• The sovereign is the person
whose commands are
habitually obeyed
Positivism : Hans Kelsen 1881-
1973
• Born Oct. 11, 1881, Prague, Bohemia,

Austria-Hungary [now in Czech Republic]
died April 20, 1973, Berkeley, Calif., U.S.
• Kelsen was a professor at Vienna,
Cologne, Geneva, and the German
university in Prague. He wrote the
Austrian constitution adopted in 1920
and served as a judge of the Austrian
Supreme Constitutional Court (1920–30).
After immigrating to the United States in
1940, he taught at Harvard, the
University of California at Berkeley,

Positivism : Kelsens
Pure Theory of Law
• According to Kelsen
a theory of law must be
'pure', that is, it must
be free from the
influence of other social
sciences and disciplines.
• A theory of law must
deal with law alone

Pure Theory of Law
• According to Kelsen, the
Grundnorm represents the
foundational norm or
ultimate legal principle
upon which an entire legal
system is based. It serves as
the highest point of
reference for determining
the validity of other legal
norms within a particular
legal system. In essence,
the Grundnorm is the
fundamental presupposition
that gives authority to all
other norms in a legal order.

Pure Theory of Law
• Kelsen argued that the
Grundnorm is not a norm
that can be derived from
any higher authority but is
instead a hypothetical
construct. It is a necessary
assumption or postulate
required to explain the
coherence and functioning
of a legal system. The
grundnorm is essentially a
fiction or an idea used to
establish the hierarchy and
validity of legal norms
within a particular legal
system..

Positivism : Kelsens Hierarchy of Laws
• Law is a system of norms

arranged in a hierarchical Grundnorm
order
• The validity of law is based
on another law, the Secondary
grundnorm, the basic law Norms
which is presupposed.
• The grundnorm is the
touchstone of Primary Norms
normativity.
Positivism : Hans
Kelsen’s Grundnorm
The grundnorm is not

entirely the product of
positive human intervention
But positive law is still made

up of normative prescriptions
(ought propositions).
All owe their validity to the

hypothetical basic norm

Positivism : Hans
• The grundnorm is extra-

legal and is changed
extra legally

Positivism : Hans
• It's important to note that

Kelsen's concept of the
Grundnorm has been subject
to various interpretations and
criticisms within legal theory.
While some legal theorists
find it useful in explaining
legal systems and their
internal coherence, others
argue that it lacks empirical
basis and is not necessary for
understanding the nature of
law.

Positivism : Hans
• Courts in Uganda, Pakistan, and

Southern Rhodesia(presently
Zimbabwe) followed Kelsen's
theory of the Grundnorm and
found that a successful
revolution changes the
grundnorm. Judges appointed
under a constitution are bound
to recognise the validity of laws
promulgated under a
constitution created by a
revolution regardless the
judge's political opinions.

Positivism : Hans
• Under the Kelsenian

principle it is the
effectiveness of the law
that counts.
• Efficacy trumps legitimacy
• The defacto state is more
important than the de jure
state

Positivism : • A revolution takes place when
Hans there is a sudden and
Kelsen’s unanticipated change in the
Grundnorm constitutional order.
• It leads to a change of the
grundnorm.
• Revolutionaries are heroes if
they succeed traitors when they
fail.

Positivism : Herbert
Lionel Adolphus Hart
(1907–1992)
• was an influential legal philosopher
of the 20th century. He was Professor
of Jurisprudence at Oxford University.
He authored The Concept of Law and
made major contributions to political
philosophy.
• http://en.wikipedia.org/wiki/H._L._
A._Hart

Positivism: HLA
HART
• The Concept of Law

• A critique of John
Austin's theory that
law is the command of
the sovereign backed
by the threat of
punishment.

Positivism :HLA Hart
• Prof. Hart Law is a • There need not be

system of norms and relationship
rules- the normative between law and
theory of law
morality
• Law is pure free from
the impurities of
ethics morality
politics

Positivism: Prof HLA Hart
• Law is a system of norms

• The concern of the jurist is to
know the law as it is not as it
ought to be
• Law is divided into primary
rules ( rules of conduct) and
secondary rules (rules about
rules)
• The rule of recognition is the
touchstone of validity

Positivism: HLA
HART
• The Rule of Recognition
• A social rule that
differentiates between
those norms that have
the authority of law and
those that do not. Hart
viewed the concept of
rule of recognition as an
evolution from Hans
Kelsen's Grundnorm

Positivism: Hart vs Austin

Dworkin
• An influential contributor to both
philosophy of law and political
philosophy Dworkin received the
2007 Holberg International
Memorial Prize n the Humanities
for "his pioneering scholarly work"
of "worldwide impact."[1 His
theory of law as integrity is
amongst the most influential
contemporary theories about the
nature of law.
• He advocates a "moral reading" of
the United States Constitution

• It promotes certainty and
predictability in determining what is
and what is not Law
• Positivism makes it easier to identify
Strengths the authoritative sources of legal
precepts. Positivism is only concerned
with deriving rules from authority and
of •
applying them to factual situations
It makes the work of those who
Positivism interpret and administer the law
easier
• It is an efficient way to define what is
and what is not law
• It is practical and pragmatic

• It excludes important value
judgments in teleological
interpretations of the law.
• It ignores policy considerations
Problems in the interpretation of the law.
• Law and society are dynamic
with phenomena that evolve with
time
positivism • It ignores legitimacy issues in
law making

• It ignores the socio-economic content
of the law
• Not all laws are backed by threats e.g.
marriage laws
• Definition of sovereign is problematic-
Problems includes the wielder of brute force
• Some laws are merely facilitative
with • Some unwritten conventions have the
force of law –Cf English constitution.
positivism • Kelsen's Grundnorm is itself extra legal

• Positivism places too much
emphasis on validity and
efficacy has no regard for
Problems legitimacy
• Positivism is not interested
with in justice morality or ethics
• Led to Fascism, Nazism,
Positivism Apartheid
• Can legitimize dictatorship

• Exclusive positivism the
legal validity of a norm
can never depend on its
Two moral correctness
• Inclusive positivism
strands of moral considerations may
Positivism determine the legal
validity of a norm but it is
not necessary that this be
the case always

• John Finnis identified
Convergence several convergences
of Positivist between natural law
and Natural and positive law and
Law Schools was of the view the
two are not mutually
exclusive

• Joseph Raz - it is a
necessary truth that there
are certain vices a legal
system cannot possibly
Convergence have
: Raz and • Ronald Dworkin- We must
Dworkin not lose sight of the fact
that law is an interpretative
concept, this imports moral
evaluations

• CLS challenges traditional legal
doctrines, arguing that law is
inherently political and serves to
perpetuate power structures and
social inequalities. It often draws
Critical Legal on Marxist, feminist, and
postmodern theories.
Studies (CLS) • E.g Critiques of how the law
reinforces capitalist interests and
marginalizes disadvantaged
groups
• Key Proponents: Duncan
Kennedy, Roberto Unger.

The Marxist Leninists
Karl Marx (1818 - 1883 F.Engels 1839-1893

Vladimir Ilyich Ulyanov
1870 - 1924),
• As a politician, Vladimir
Lenin was a persuasive
orator, as a political
scientist his extensive
theoretic and
philosophical
developments of Marxism
produced Marxism–
Leninism, the pragmatic
Russian application of
Marxism.[
• Economic and material
conditions determine
ideological phenomena
Marxist • Society is in a constant
class struggle determined
Leninist by the relationship of its
members to the means of
Theory of production and
factors of production
the
Law • Communism is inevitable-

economic determinism

• Law is a product of class
struggle. Remove the
class struggle and there
Marxist is no need for the law
• Ideological phenomena
Leninist such as law and the
state are
Theory of superstructures built an
material substrata
Law • The content of the law
is a function of socio-
economic relationships

• Marxist-Leninism
identified three
Marxist main classes in
society
Leninist ➢The bourgeoisie
Theory of ➢The proletariat
Law ➢The peasants

• It recognises the socio-
economic foundations of the
law
• It recognizes the class content
of law
• It recognizes the social
Strengths historical geographical
influences in law making
of Marxism • It explains legal norms and
can facilitate comparative
studies of the law
• It explains why legal norms
change and vary from place
to place ,time to time

• Determination of classes
is problematic
• Problem of path
dependence-what is the
Problems relationship between law
and economics?
with • It is utopian
• Encourages revolution as
Marxism a means of achieving
utopia
• The law and the state can
be fairly autonomous
from economic conditions

The Realists
• Popularized in the Scandinavian
countries and in the US. Leading
proponent is Oliver Wendell
Holmes. Others are Roscoe
Pound, Karl Llewellyn and Justice
Benjamin Cardozo
• Law is a prediction of what those
who are tasked with
administering it say it is
• Law is a prediction of what the
judges say it is
• Law is made by human beings
and subject to human
imperfections

Sociological
Jurisprudence
• This approach emphasizes the
social purposes and functions
of law, examining how laws
impact society and how social
forces influence law.
• It advocates for the study of
law in its social context.
• E.g studying how laws related
to family and marriage evolve
in response to changing social
norms and values.
• Roscoe Pound, Max Weber.

Sociological
Jurisprudence
• Eugene Ehrlich, sought
to make distinct the
differences between
positive law, which
lawyers learn and apply,
and other forms of 'law'
or social norms that
regulate everyday life,
generally preventing
conflicts from reaching
lawyers and courts.

Feminist Legal Theory
• Feminist legal theory critiques

how the law has historically
been male-dominated and
seeks to address the ways in
which laws perpetuate gender
inequalities.
• E.g Analyzing how legal
provisions reflect and
perpetuate gender biases
• Key Proponents are
Catharine MacKinnon, Martha
Fineman.
Law and Economics
• This theory applies economic

principles to analyze and
predict the effects of laws. It
posits that laws should be
designed to promote
economic efficiency and
maximize social wealth.
• E.g Analyzing tort law through
the lens of cost-benefit
analysis to determine the
most economically efficient
outcomes
• Key Proponent: Richard
Posner

Post-Modernism
• Post-modernism in legal theory,

often associated with critical
legal studies (CLS) and
influenced by broader post-
modernist thought, challenges
traditional concepts of law by
questioning its objectivity,
neutrality, and universality.
• Post-modern legal theory
emphasizes the subjective and
socially constructed nature of
legal concepts and focuses on
deconstructing established legal
doctrines and practices to reveal
underlying power structures and
biases

Post-Modernism
• Rejection of objectivity and
universality
• Critique of metanarratives
• Focus on language and discourse
• Deconstruction of legal concepts
• Skepticism of legal formalism
• Pluralism and relativism
• Influence of other disciplines
• Power and marginalization:
Emphasis on power and politics

Lon Fuller: The
principle of legality
• The principle of legality is the legal
ideal that requires all law to be
clear, ascertainable and non-
retrospective.
• It requires decision makers to
resolve disputes by applying legal
rules that have been declared
beforehand, and not to alter the
legal situation retrospectively by
discretionary departures from
established law.
• It is closely related to legal
formalism and the rule of law

The principle of
legality
• The principle has particular
relevance in criminal and
administrative law. In
criminal law it can be seen
in the general prohibition
on the imposition of
criminal sanctions for acts
or omissions that were not
criminal at the time of their
commission or omission.

The principle of
legality
• The principle is also thought to
be violated when the sanctions
for a particular crime are
increased with retrospective
effect.
• In administrative law it can be
seen in the desire for state
officials to be bound by and
apply the law rather than acting
upon whim. As such advocates
of the principle are normally
against discretionary powers

The principle of
legality
• The principle can be varyingly
expressed in Latin phrases such
as
1. Nullum crimen, nulla poena
sine praevia lege poenali (no
crime can be committed, nor
punishment imposed without
a pre-existing penal law),
2. Nulla poena sine lege (no
penalty without law) and
3. Nullum crimen sine lege (no
crime without law

The principle of
legality
• The principle can be varyingly
expressed in Latin phrases such
as
1. Nullum crimen, nulla poena
sine praevia lege poenali (no
crime can be committed, nor
punishment imposed without
a pre-existing penal law),
2. Nulla poena sine lege (no
penalty without law) and
3. Nullum crimen sine lege (no
crime without law

• Fuller contends that the purpose of
Fuller’s law is to "subject human conduct to
the governance of rules". To do so
Eight efficaciously the law must have some
internal morality
• The eight conditions represent this
Routes of internal morality of law. Compliance
with them leads to substantively just
Failure for •
laws and away from evil ones
The Morality of Law is a story about
any Legal an imaginary king named Rex who
attempts to rule but finds he is unable
to do so in any meaningful way when
System any of the eight conditions are not
met.

1. The lack of rules or law,
Fuller’s which leads to ad-hoc and
Eight inconsistent adjudication.
Routes of 2. Failure to publicize or
make known the rules of
Failure law.
for any 3. Unclear or obscure
Legal legislation that is
System impossible to understand.
4. Retroactive legislation.
Fuller’s Eight Routes of
Failure for any Legal
System
5. Contradictions in the
law.
6. Demands that are
beyond the power of
the subjects and the
ruled.
7. Unstable legislation (ex.
daily revisions of laws).
8. Divergence between
adjudication, legislation
and administration of
the law

• Each of the 8 features which lead
to failure form a corresponding
Fuller’s principle to avoid such
deficiencies which should be
Eight respected in legislation.
Routes of • If any of these 8 principles is not
present in a system of
Failure governance, a system will not be
for any a legal one.
• The more closely a system is able
Legal to adhere to them, the nearer it
System will be to the ideal, though in
reality all systems must make
compromises.
The Functions of law
1. Regulates behaviors
2. Balances conflicting interests
❖ It shapes politics, economics
and society in numerous
ways and serves as a
primary social mediator of
relations between people
3. Provides a system of dispute
resolution
4. Organizes social economic and
political institutions
5. Secures social economic and
political justice

Why then, the Law?
Asked Paul the Apostle

“It was added
because of
transgressions,
And till the
offspring
gave the should come to
answer; whom the
promise had
been made..."
(Galatians 3:19).

Why then the law, asked Thomas
Hobbes

 It helps as escape from
a state of nature where
life was short nasty
and brutish
 It makes society
possible .
 It legitimizes actions
of the society that may
infringe on individual
preferences

The Milgram Obedience
Experiments
• Two thirds of us would

wilfully do what we
passionately consider
wrong or unethical if
we were ordered to do
so by someone in
authority especially if
the acts of wrongdoing
ethical violations are
demanded
incrementally
The Stanford
Prison Experiments
The very best of us
have an incredible
capacity for evil
That includes Ivy
League Law
Students
• Law is ill suited to deal with
basic moral and ethical
problems
• It often fails to deliver on its
promises on social justice
Limitations • It does not deliver equity
of the law and often stands in the way
• Laws can be applied
selectively

• The decriminalization
process
1. Cannabis sativa
Limitations 2. Same sex relations
of the law 3. Reproductive health rights
4. Euthanasia

• Background Essay on the
Nuremberg Trials
Suggested
• Classical positivism at
Reading Nuremberg reconsidered

Take Away
What are the main

theories of law. Who are
What is law? How is it
their principal
distinguished from other Is there a link between Are there universal and
opponents and basic
social phenomena that law and morality? eternal principles of law
arguments. What are
serve the same purpose?
their strengths and
weaknesses .
What are the functions

To what extent is law a
of the law? What are the Is there a limit to the
function of social
limitations of law as a police power of the
political and economic
system of social state?
relations?
engineering?
5/21/2024
Take Away
Is there a
Are the legal
convergence
systems of the
between legal
world converging?
theories?
5/21/2024
https://encrypted-tbn0.gstatic.com/images?q=tbn:ANd9GcTmDoG_2JEk3C0iio-YoCLHoX-bJne1WXoM2Ng9k_e7MuJ_3A2i

END OF PRESENTATION
By CHARLES B G OUMA
ADVOCATES OF THE HIGH COURT OF KENYA
FACULTY OF LAW CATHOLIC UNIVERSITY OF
EASTERN AFRICA

Jurisprudential Foundations of Constitutional Law

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CUEA CLS 103

5/21/2024 NAIROBI LAW TUTORS LTD 2023

5/21/2024 NAIROBI LAW TUTORS LTD 2023

Our Key Inquiry Questions

What are the main

What are the functions

Our Key Inquiry Questions

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5/21/2024 NAIROBI LAW TUTORS LTD 2023

At the end of this lesson, a participant should

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• "Law in general, is not counsel,

• The term "law" can be defined

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• The classification of laws

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• Classifications also help in

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1. Written and unwritten law

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The distinguishing factor

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Public Law The distinguishing

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Civil Law In “Civil Law Systems” the sources recognised

Modern “Civil Law Systems” essentially derive

NAIROBI LAW TUTORS LTD 2023 5/21/2024

Common The "doctrine of precedent", or stare decisis

Common law systems also rely on statutes,

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However a thorough and detailed legal system

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Essential characteristic is that there are no

Legal knowledge is socially constructed

But there are persons who are presumed to

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• It seeks to answer the

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Critical Legal Studies

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Feminist Legal Theory

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Studies Critical Legal Studies is a younger theory of

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