The place of natural law in Kenya’s Jurisprudence
Natural law propounds that true law is right reason in agreement with nature. It denies that the conditions of legal validity of laws are purely a matter of social fact. Natural law is based on the principle that although man exists in nature, he has his own nature. The nature of man is to procreate, protect his family and preserve his life. Natural law is the law which helps man to achieve these objectives. In general, the natural law theory seeks universality and commonality in human laws, institutions and values. The major proponents are Cicero, St. Thomas Aquinas, Lon Fuller, Immanuel Kant, John Finnis, David Hume and Edmund Burke. In Kenya, the natural law theory is anchored in the supreme law of the land (The Constitution) and important pieces of legislation as well. This is testament to the fact that it has a very important place in our jurisprudence. The social contract theory falls under natural law. John Locke and Jan Jacques Rousseau observed that law is a social contract. The 2010 constitution, being the supreme law, is the social contract between the three arms of government; the executive, legislature, judiciary and the citizens and it embodies the wishes and aspirations of the people of Kenya. The provisions of the Constitution are justifiable as the ‘General Will’ as per the views propounded by Rousseau. According to John Jacques Rosseau, the ‘General will’ (La volonte general) is by natural law the sole and unfettered legal authority in the state. The ‘General Will’ is the will of the people taken together as a whole, constituting an entity. The constitution of Kenya 2010 reflects the general will of the Kenyan people. John Austin stated that law is the command of the sovereign. In this case, the people of Kenya are the sovereign. Article 1 of the constitution states that all sovereign power belongs to the people of Kenya and it shall be exercised in accordance with the constitution. The...
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