A Philosophical Analysis Of Legal Positivism With Regard To The Place Of Morality In The Kenyan Judicial System

ABSTARCT

This study is a philosophical analysis of the positivist separation thesis with regard to the role of law in society and the place of morality it. Like any other study in Philosophy, the study is a reasoned response to the claims made by the legal positivist doctrine about law and morality— a response that involves putting forward a counter claim and proceeding to advance reasons why we should believe or accept it.

The study acknowledges that the law, through various judicial institutions like courts and tribunals, is the acceptable instrument for resolving disputes in modern society. However, the study argues that while the science of law as defined by the legal positivist doctrine claims that judicial systems are self-sufficient institutions for solving disputes in society that stand in no need of moral considerations when executing their functions, the contrary is the case in the sense that morality, philosophically defined, is the nourishment that judicial systems need in order to make them effective institutions for dispute resolution.

In this respect, the study holds that contrary to the position held by legal positivism, judicial systems stand in need of moral considerations in order to be effective institutions for dispute-resolution. This position, which is backed by relevant scholarly authority, legal citations and practical examples, affords us a compelling account of why the law cannot exist independently of morality. The ensuing argument also affords us the opportunity to put forward suggestions on how to bridge the gap that is asserted to exist between legal positivism and natural law theory.

The objective is to prescribe a new jurisprudence that seeks to improve the dispute-resolution functions of the Kenyan judicial system, thereby contributing to legal or judicial reforms in Kenya, or any other jurisdiction similar to Kenya’s.

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APA

Kulundu, H (2021). A Philosophical Analysis Of Legal Positivism With Regard To The Place Of Morality In The Kenyan Judicial System. Afribary. Retrieved from https://afribary.com/works/a-philosophical-analysis-of-legal-positivism-with-regard-to-the-place-of-morality-in-the-kenyan-judicial-system

MLA 8th

Kulundu, Hassan "A Philosophical Analysis Of Legal Positivism With Regard To The Place Of Morality In The Kenyan Judicial System" Afribary. Afribary, 31 May. 2021, https://afribary.com/works/a-philosophical-analysis-of-legal-positivism-with-regard-to-the-place-of-morality-in-the-kenyan-judicial-system. Accessed 29 May. 2024.

MLA7

Kulundu, Hassan . "A Philosophical Analysis Of Legal Positivism With Regard To The Place Of Morality In The Kenyan Judicial System". Afribary, Afribary, 31 May. 2021. Web. 29 May. 2024. < https://afribary.com/works/a-philosophical-analysis-of-legal-positivism-with-regard-to-the-place-of-morality-in-the-kenyan-judicial-system >.

Chicago

Kulundu, Hassan . "A Philosophical Analysis Of Legal Positivism With Regard To The Place Of Morality In The Kenyan Judicial System" Afribary (2021). Accessed May 29, 2024. https://afribary.com/works/a-philosophical-analysis-of-legal-positivism-with-regard-to-the-place-of-morality-in-the-kenyan-judicial-system