Kulundu, Hassan (2013) A Philosophical Analysis of Legal Positivism with Regard to the Place of Morality in the Kenyan Judicial System. Masters thesis, Kenyatta University.
![[img]](http://thesisbank.jhia.ac.ke/style/images/fileicons/application_pdf.png) |
PDF (A Philosophical Analysis of Legal Positivism With Regard To the Place of Morality in the Kenyan Judicial System)
2016-02-179.pdf - Accepted Version Restricted to Repository staff only Download (4MB) | Request a copy |
Abstract
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. The introductory chapter of the study has sought to define the central question of investigation by way of a hypothetical analysis, the objective of which is to highlight the ethical issues that make the debate about law and morality of great interest to philosophers. In the succeeding chapters, the study attempts to put the institution of law and legal practice in an ethical perspective— expounding and giving meaning to jurisprudential theories like legal positivism and their ethical implication on the conduct of various actors in the legal profession. By use of dialectic reasoning, the study, in the fourth and fifth chapters, discusses the concept of morality in a manner that draws a critical distinction between morality from a sociological and philosophical perspective— a distinction that the study relies upon to critique and challenge the positivist position on law and morality.The rest of the chapters are of persuasive authority— discussing ethical issues that often arise in the great debate on law and morality. Such issues include the concepts of conflict of interest, moral dilemma, justice, liberty and legitimate authority. From the accumulated discussion, the study ventures the conclusion that; the dispute-resolution function of the Kenyan judicial system is better served when it embraces morality.
| Item Type: | Thesis (Masters) |
|---|---|
| Subjects: | B Philosophy. Psychology. Religion > B Philosophy (General) H Social Sciences > H Social Sciences (General) K Law > K Law (General) |
| Divisions: | Africana |
| Depositing User: | Geoffrey Obatsa |
| Date Deposited: | 09 May 2017 11:52 |
| Last Modified: | 09 May 2017 11:52 |
| URI: | http://thesisbank.jhia.ac.ke/id/eprint/1491 |
Actions (login required)
 |
View Item |