GPR 601.

JURISPRUDENCE AND LEGAL THEORY

UNIVERSITY OF NAIROBI
SCHOOL OF LAW
MASTER OF LAWS (2009/2010).

GROUP 3 PRESENTATION.
PART B:

THEMES AND CONCEPTS IN JURISPRUDENCE.

SEMINAR: RULES, PRINCIPLES AND THEIR INTERPRETATION.

PRESENTERS:
1.
2.
3.
4.

OLE NAEKU TIMOTHY

NANNETTE MIINGI
MARTIN ONYANGO
STEPHEN CHEGE

1.

Introductory lecture of the topic

What are concepts in jurisprudence?
Need for concepts

2.

Rules

What are rules

How do rules differ from mere habits or regularities of behaviour?
Are there different types of rules?
When is a rule binding/when is a rule binding?
Relevance and application of concept of rules to our legal system

3.

Principles
What are principles
Are all moral principles legal principles? (What is the distinction)

4.

Interpretation
What is interpretation?

Formation of Concepts in jurisprudence.

1.

One of the essential functions of the law is to reduce multitude, variety and diversity of
human actions and relations to a reasonable degree of order and to promulgate rules or
standards of conduct applicable to certain circumscribed types of action or behaviour.
In order to accomplish this task successfully, the legal order must undertake the formation
of technical notions and concepts designed to aid in the classification of the multifarious
phenomena and events of social life.
Legal concepts may thus be viewed as working tools used for the purpose of identifying
typical situations which are characterized by identical or common elements of social
reality.
It can be safely argued that legal concepts are products of human language rather than
physical objects.
Legal rules and principles are formulated from concepts fashioned by a legal system

Need for concepts:

Concepts are necessary and indispensable instruments for the solutions to legal
problems
Without circumscribed technical notions, we could not think clearly and
rationally about legal questions.
Without concepts, we could not put our thoughts on the law into words and
communicate them to others in an intelligible fashion.

The first purpose of law was to regulate human conduct based on certain
normative standards. Normative standards cannot be established without
classifying the types of conduct to which a particular standard shall apply.
They enable us to arrange in order and hold together diverse phenomena because
of some real unity of process or relation which constitutes an element of identity
between them. No recognizable patterns for judgement and action could be
created by the legal system without the accomplishment of this preliminary task
of categorization.

In all areas of the law, we find the hard borderline case the peripheral situation where the
extent of the bounds of a technical concept is problematic or where two or more different
concepts shading into one another may be equally applicable to the facts from a purely
logical point of view.
An important attempt to undertake a systematic and logical classification and
arrangement of some fundamental concepts in legal science was undertaken by an
American jurist, WESLEY NEWCOMB HOHFELD.
WESLEY HOHFELD was an American Jurist born in California in 1879 and a Professor
of Jurisprudence who taught at Stanford Law School from 1905 to 1913. He then moved
to Yale Law School, where he taught until his death in 1918.
Hohfelds aim was to analyze what he called the lowest common denominators of the
law including concepts such as legal relations, right, duty, power, privilege, liability and
immunity as well as to expound the logical relations between these notions.
Hohfeld noticed that even respected jurists conflate various meanings of the term right,
sometimes switching senses of the word several times in a single sentence. He wrote that
such imprecision of language indicated a concomitant imprecision of thought, and thus
also of the resulting legal conclusion. In order to both facilitate reasoning and clarify
rulings, he attempted to disambiguate the term rights by breaking it into eight distinct
concepts. To eliminate ambiguity, he defined these terms relative to one another, grouping
them into pairs of Jural Opposites and four pairs of Jural Correlatives.
Jural Opposites:
1. Right/ No Right 2. Privilege/Duty 3. Power/Disability

4. Immunity/Liability

Jural Correlatives
1. Right/Duty 2. Privilege/No-Right 3. Power/Liability

4. Immunity/Disability

This use of the words right and privilege correspond respectively to the concepts of claim
and liberty rights. Hohfeld argued that right and duty are correlative concepts, i.e. the one
must always be matched by the other.
Hohfelds hope that his conceptions might produce a uniform terminology applicable to
the most divergent branches of the law fell short of realization. American Courts failed to
adopt the classifications which he had propounded and continued to use concepts of right,
duty, privilege and immunity in non-uniform and inconsistent senses.

Perhaps it is relevant to consider the observation of Justice Cardozo that the tyranny of
concepts is a fruitful parent of injustice. He said that Concepts are tyrants rather than
servants when treated as real existences and developed with merciless disregard of
consequences to the limit of their logic. For the most part we should deal with them as
provisional hypotheses to be reformulated and restrained when they have an outcome in
oppression or justice.
Justice Cardozo however, also recognized that concepts are useful, indeed indispensable,
if kept within their place. He submitted that they are values deeply imbedded in our law
and its philosophy and if we realize that concepts are valuable instruments of judicial
reasoning in whose absence judicial activity could not be accurately executed, and if we
avoid at the same time the error of ascribing to them an absolute, eternal reality unrelated
to any social purpose they might be designated to serve, we shall have gained the proper
perspective in our effort to appraise the utility of conceptual tools in the administration of
justice.

Concept of Rules.

2.

According to Blacks Law Dictionary (18 th Edition) by Brian A. Gavner, rules are
defined thus:(a) To command or require. To exert control e.g the dictator ruled the country
(b) To decide a legal point. e.g, the court riled on the point of admissibility of
particular kind of evidence.
There is a body of jurisprudence that has focused on the nature of legal theory prompting
questions such as:

What is law?
How does a Judge decide a case?
In deciding a case, does a Judge apply autonomous and determinate rules and
principles when deciding a case?
Does a Judge merely decide a case in favour of the most politically preferable
outcome?
Must a Judge base his decision on written rules and regulations that have been
enacted by machinery of Government?
Can and should a Judge be influenced by unwritten principles derived from
theology, moral philosophy and historical practice?

Four schools of jurisprudence have attempted to answer these questions.

(i)

FORMALISM proposes that law is a science. The argument is that a Judge

would apply autonomous and determinate rules.

(ii)

REALISM Holds that law is just another name for politics. It would thus
suggest that a Judge would simply decide a case in favour of the most politically
preferable outcome.

(iii)

POSITIVISM Suggests that law must be confined to the written rules and
regulations enacted or recognized by the Government.

(iv)

NATURALISM Maintain that the law must reflect eternal principles of justice
and morality that exist, independent of Government recognition.

It must be acknowledged that rules provide the foundation of a legal system.

The key doctrine of Positivism can be summarised as being threefold:1) Every community has a law that guides its conduct. That law is a set of special
rules used by the community directly or indirectly for the purpose of determining
which behaviour will be punished or coerced by the public power. These special
rules can be identified by and distinguished by special criteria by tests having to
do with their pedigree manner in which they were adopted or developed, not by
their content. These tests of pedigree can be used to distinguish valid legal rules
from invalid or spurious legal rules.
2) The set of these valid legal rules is exhaustive of the law and where a case is not
clearly covered by such a valid legal rule, it must be decided by the Judge in the
exercise of his discretion by creating a new legal rule relying on his wisdom of
the law or supplementing an old one.
3)

That where there is no valid legal rule, there is no valid obligation and by
exercising his discretion, a Judge is not enforcing a legal obligation.

The main question among Positivists is the test a rule must meet to be counted as a valid
rule of law.
In discussing rules, we shall mainly concern ourselves with the works of H. L.A Hart and
R.M. Dworkin. However we shall begin with a review of John Austins contributions.
JOHN AUSTIN
He defined an obligation as lying under a rule, a rule as a general command and a
command as an expression of a desire that others behave in a particular way, backed by
the power and will to enforce that expression in the event of disobedience. He
distinguished classes of rules into Legal; Moral and Religious. His thoughts were that in
each political community there is a sovereign (either a person or group) who the rest of
the community obeys habitually, but who is not in the habit of obeying anyone else.
However, subsequent theorist rejected his view as being too simplistic as it failed to take
into account various factors, for example, his theory assumed that in every community,
there exists a determinate group or institution founded which is in ultimate control of all
other groups in the community. Later proponents found that this theory could not hold in
complex societies.
H.L.A. HART

Herbert Lionel Adolhus Roebeck was born in 1907 and died in 1992. He has his main
interests in Jurisprudence, legal positivism, linguistic philosophy, political philosophy,
liberalism and utilitarianism.
His works were influence by Jeremy Bentham, John Austin, John Stuart Mill, J.L. Austin,
Ludwig Wittgenstein, Hans Kelsen, Max Weber and in return, he influenced many of his
former students who included Ronald Dworkin, Joseph Raz, John Finnis and Brian Barry
amongst others.
Theories offered by H.L.A. Hart fall within analytical jurisprudence. They aim to clarify
our understanding of the concept of law without offering any normative guidance as to
how we ought to behave or what institutions should be supported as just and right.
He was Professor of Jurisprudence at Oxford University and he authored The Concept
of Law first published in 1961. His book developed a sophisticated view of legal
positivism and among the many ideas developed in his book are:o A critique of John Austins theory that law is the command of the sovereign
backed by the threat of punishment
o A distinction between primary and secondary rules.
o A distinction between the internal and external points of view of law and rules
o The idea of the Rule of Recognition
o A late reply to Ronald Dworkin who criticized legal positivism in taking rights
seriously.
Hart did not agree with Austins proposal that every rule is a general command and that a
person is obligated under a rule if he is liable to be hurt should he disobey it. For Hart, he
hypothesized that being bound by a rule entails a person being both obligated to follow
and obliged by that rule. The difference here can be clarified by giving an example of an
outlaw group, the Mungiki, by virtue of their physical power can formulate a rule which
states that even mini-bus (matatu) that operates within a certain route in the city of
Nairobi should pay a daily protection fee of Kshs. 100/= to is group leader. Those
operators who fail to comply with this rule will obviously be liable to some kind of
injury.
We propose in this seminar to address two of Harts ideas.
1. A distinction between primary and secondary rules.
H.L.A. Hart developed a theory of law based on the distinction between Primary and
Secondary rules.
Secondary rules are further divided into:(a)

Rules of adjudication They resolve legal disputes

(b)

Rules of Change They allow laws to be varied

(c)

Rule of Recognition They allow laws to be identified.

When addressing Primary Rules, the aspect of conferring of rights and imposing
obligations is paramount. But perhaps it is important to interrogate the meaning and
application of the word right because Harts distinction between two Primary and
Secondary Rules carries forward the efforts by Wesley Hohfeld of clarifying the different
senses in which the term right is used.
Conduct rules and decision rules
Another Professor of Law at the University of California, Berkeley Meir Dan-Cohen
argues that a distinction can be drawn in the law between rules addressed to the
general public and rules addressed to officials. Dan-Cohen introduces conduct
rules and decision rules. He argues that substantive rules of law (such as the rules
of torts, contract, and property) are usually assumed to be addressed to two
audiences. As conduct rules, the substantive law is addressed to everyone
(citizens, officials, and noncitizens). Thus, property law tells us who has dominion
over which resources. If this land is mine, then the law communicates the
message that I can use my land and exclude others from its use. These very same
legal rules also serve as decision rules, they tell courts how to resolve disputes.
Dan-Cohen argues that we usually assume that the content of the conduct rules are
the decision rules are identical, but this need not be the case.
Constitutive and regulatory rules.
Constitutive Rules define concepts that do not come into being unless the rules are
followed. Regulatory Rules tell us how to work with entities that exists apart from the
rule.
A rule differs from an order among other ways by being normative. It sets a standard of
behaviour that has a call on its subjects beyond the threat that may enforce it. A rule must
be issued by a person or body that has authority and that authority can only come from
another rule which is already binding on those to whom he speaks.

Rules and decisions - Do Rules yield decisions?

There are two great vices of contemporary jurisprudence, which are either;
1.
The belief that rules dictate results, or
2.

That rules have no bearing at all on the adjudication of disputes.

Hart refers to the belief that rules dictate results as Formalism and the belief that rules
have no bearing at all on the adjudication of disputes as Skepticism.
Formalism
According to Hart, in formalism decisions follow deductively from the rules. The Judge
as a person, as a human being with feeling and a sense of Right, contributes nothing to
the outcome of disputes.
Skepticism
Hart argues that in Skepticism, the creative impulse of the Judge is all there is; the law
itself contributes nothing.
A question must be posed: between formalism and Skepticism, which one is right?

Formalism cannot be right because judging requires sensitivity to the possibility of

interpreting a rule broadly or narrowly. A Judge may apply a rule by analogy or may
except its application in view of certain special circumstances of the case.
Formalism trades on the analogy between the rules of a game and law. Yet games are
played under highly stylized repetitive circumstances. It would mean there would be no
need to adjudicate on novel cases.
Skepticism cannot also be right. It ignores the straight forward cases that are perfectly
predictable under the conventional rules of the system
There must therefore be an account of judging under law that balances between the two.
To illustrate the aforesaid argument, think of the law as a ray of light that passes through
a drinking glass. The refraction of the light wave depends on how much water there is in
the glass. The more water, the more the light is affected by its passing through the glass.
The glass is in the role of the Judge who receives and applies the law. How much the
Judges personality contributes to the refraction of the law is the matter in dispute.
Formalists contend that there is no water in the glass. The light the ray of laws- passes
straight through the Judge and defines the resuming decision.
The Skeptic holds that the glass is full, so full that the light can hardly be recognized after
it passes through it. It is as though the full glass the Judge in the skeptics mind
generates its own light. It becomes its own source of law.
A correct account would thus find the glass neither empty nor full. We have no adequate
theory to describe how full the glass might be for we know Judges receive the law and
issue decisions. The law does not simply pass through them without refraction. Yet we
have no approach towards measuring the relative input of the law and of the Judges
personality in the shaping of the law.

Rule of Recognition as propounded by H.L.A. Hart.

Hart argues that we can work out what the existing law is by reference to the basic rule of
recognition. Under the rule of recognition, statutes and judicial decisions of law are
identified as sources of law. A rule counts as law if it emanates from such a source.
A rule enacted in conformity with some secondary rule that stipulates that rules so
enacted shall be binding. Hart terms these as the valid rules and this fundamental
secondary rule is what has come to be referred to as the rule of recognition. According to
him, this Rule of recognition is the sole rule in a legal system whose binding force comes
from its acceptance. For Hart, the purpose of this rule of recognition is to have a body or
rules which are publicly ascertainable such that we can work out what the rules are
without falling back on our own judgment about justice or moral right. Therefore a law
can only count as law if it comes from such a source and to test the validity of such a rule
one must trace it backwards to the fundamental rule.

Rule of Recognition challenged.

Ronald Dworkin challenged Harts theory of basic rule of recognition
The argument advanced in challenging the rule of recognition was that while legal rules
may be identifiable by using some positive test expressed in terms of rules of recognition,
basic norm or sovereign command, legal principles cannot be so identified. They emerge,
flourish and decline gradually by being recognized, elaborated and perhaps eventually
discarded over time.
According to Dworkin, a principle may already be a legal principle although no court has
ever formulated it or laid it down as a principle and illustrates by example by arguing that
suppose no lawyer or Judge has ever mentioned the principle that no man shall profit
from his own wrong. Dworkin argues that it might still be possible to demonstrate that
that principle is an existing legal principle if one could show that the principle provides
an appropriate justification for a range of established black letter rules and decisions (e.g
a prostitute cannot sue for her earnings). Thus according to Dworkin, we cannot identify
principles simply by consulting certain sources.
On the contrary, Dworkin argues that we can only identify principles by engaging in a
moral or political discussion of what principles should be invoked to justify the black
letter rules of law.
Open texture

This refers to the possibility of vagueness in the sense that a word can be used in a
fluctuating manner such that a gap may arise on how to interpret it. Hart posited that the
sovereign cannot provide for each and every contingency through a scheme of order and
some of these orders may have an aspect of vagueness, what he and John Austin referred
to as the furry edges. In such instances, the sovereign grants decision makers the
discretion to make fresh orders when novel or troublesome cases are presented.
For the theorists, legal interpretation is not possible where the language of the law gives
rise to reasonable uncertainty or disagreement about the laws meaning and proper
application. This Open texture is what gives rise to the debate on the positivists stand on
discretion and Dworkins right answers thesis.
Suppose it becomes unclear whether or not a rule applies to a given case? Hart argues
that in such cases, the court has to exercise its discretion and it will have regard to policy
and consideration.
Policy presumed policy objectives of the rule in question
Consideration Consideration of fairness.
This behoves us to look at the question of judicial discretion.
Perhaps it is necessary to contrast two strategies for reconciling principle with positivism
(i)

Positivist may argue that principles are indeed a part of law, but they can be
identified by some version of the rule of recognition.

(ii)

Positivist may concede that principles cannot be identified

According to Hart, there are clear core cases of a rules application and the penumbra of
open texture that surrounds the core. Hart tried to distinguish between the two. When a
case arises in a rules open texture, there is nothing that a Judge can do but make a
choice or exercise discretion in fashioning the best solution under the circumstances.
According to Hart, the Formalists reign in cases where there are clear core cases of a
rules application whereas the Skepics reign in the penumbra of open texture. In Harts
argument, Judges should, in the face of ambiguity, exercise their discretion.
Dworkin started his critique of Harts discretionary thesis by stating that the only applicable use
of discretion was in only one context, where one is charged with making decisions subject to
standards set by a particular authority. From the three tenets of positivism listed earlier, Dworkin
recognized three gross distinctions of discretion based on the 2 nd tenet:(i)
In the weak sense he means that in some cases the standards that should be applied by
an official cannot be applied mechanically and call for the use of judgment for example
where some piece of information is missing or left out.
(ii)

In the second weak sense - he speaks of where some official has final authority to make
a decision which cannot be reversed by any other official. This applies where there is a

hierarchical structure of officials each with authority for a different class of decision from
each other.
(iii)

In the strong sense where an official is not bound by the standards set for him by an
authority in making his decision. This sense does not exclude criticism of a decision and
should not be taken to mean that the official is allowed to make such decisions without
abiding by some standard of fairness.

Some positivists argue that people only have established legal rights in clear cases, however, in
hard cases, the court is not enforcing any rights but exercising a discretion on moral or social
policy grounds. Positivists 2nd Tenet remains that in clear/easy cases the judge has no discretion
and must decide the case based on the applicable rules, that is, they cannot deviate from the stated
law.
However, it is generally accepted that even the clearest rules have exceptions such that, a rule that
no man shall kill another gives the exception of self-defence. Further, even clear cases may have
special circumstances that had not been anticipated when the rule was promulgated. In such
circumstances, it has been argued that in deciding that a case is easy and therefore only the stated
law should be followed is an exercise in discretion. This is because to come to the conclusion that
a matter is a routine and normal case requires the exercise of judgment because in the alternative
the case would be abnormal therefore a choice has been made in deciding that the case is
normal.
Dworkin moved away from the positivists idea of discretion in hard cases and came up with the
theory of right answers. It can be simplified as follows:
1) Even in difficult decision, judges and lawyers arguing and deciding cases act and talk as
if there were a right answer to be found.
2) There are right answers to legal questions as judges must reach a result in the question
placed before them and some answers are better than others.
3) The best way to prove or disprove the existence of a right unique answer to legal
questions is to consider individual cases and construct an argument around it that a
particular result is the unique correct one or the best among alternatives.
His argument was that judges do not exercise a discretion to create law whenever issues are not
regulated by valid rules, what the judge does is to construct a legal theory which justifies the
body of law and by doing so coming up with a right decision for the case before him. In coming
up with this set of legal theory, the judge must take into consideration moral and political
considerations and by doing so will come up with an integrated and complex body of principles.
He was of the view that the open texture or complexity of a decision does not in itself render a
decision discretionary.
A judicial officer has a duty to find the truth when arriving at a decision about a case and in
carrying out this duty does not render a decision discretionary. The reason Dworkin rejected the
discretionary concept was because under the law there may be no answer to a particular case but
an answer may be found under morality and justice. In such circumstances you would have to
derive a solution from morality and justice meaning that you would not have the discretion of
choice.

Discretionary decisions carry a specific legal consequence. Unlike decisions on the law,
they are not subject to appeal just because they are wrong. They are subject to reversal as
an abuse of discretion, only if they deviate substantially from normal and expected
practice.
In the Kenyan case, there are principles on which an appellate court will interfere with
the judicial discretion of a lower court. These are: -

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(a) That discretion must be exercised upon reasons and judiciously, not
arbitrary
(b) An appellate court would not interfere with the exercise of the discretion
unless such discretion was exercised wrongly in principle or the court acted
perversely on the facts
(c) Where it can be demonstrated that there was an excusable mistake,
inadvertence, accident or error

See case of Shah Vs Mbogo & Anor. [1968] EA 93

In Mobile Kitale Service Station V Mobil Oil Kenya Ltd & Anor [2004] 1 KLR, the High
Court of Kenya has held thus: The law permits that before the Court can exercise its
discretion, it has to differentiate what is Shadow and what is substance in order to
exercise the discretion judiciously. However, a Court can only revert to the discretion
when there is a valid reason11, excuses, mistakes and errors which are excusable but
when there is no proper explanation, then the Courts powers are limited. It becomes a
judicial obligation to do what is expected under the situation
The Hart-Dworkin debate
This was a debate centred on the critique of Harts work by Dworkin and the subsequent response
by Hart to Dworkins criticisms. It is mainly centered on the areas of valid rules, discretion. Place
of principles in legal system. Some of these topics have already been covered and the others are
covered subsequent hereto.

Concept of legal principles

Legal principles can be said to be moral propositions that are stated in or implied by past
official acts such as statutes, judicial decisions and constitutional provisions.
Unlike rules, principles are not conclusive. They have weight favouring a particular
result. More often than not, there can be principles favouring contrary results o a single
legal question.
There are three basic strategies that one may follow in analyzing the relationship between
rules and decisions. This analysis exposes the place of principles in decision making. The
skeptics treat the decision maker as free of the impact of rules and other restraints in the
materials of the law (policies and principles). The formalist insist that the law determines
the outcome of the cases
Hart defends a middle strategy that divides the realm of rules between the skeptics and
the formalists.
Ronald Dworkin has defended the formalists strategy which denotes the role of
discretion in decision making, and displayed sensitivity to deeper concerns of value.
Dworkin in his article (The Model of Rules) insists those principles, policies and other
standards not only bear upon decision making, but the standards which bespeak value
commitments are part of the law itself. Once we recognize the role of these principles and
policies, we suddenly become aware of them around us.

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It is true that courts can hardly function without invoking the principles of
proportionality, nulla poena sine lege (no punishment without legislative definition of an
offence) volenti non fit injuria(consent negate harm) and nullus commodum capere
protested injuries sua propio (no person should profit from his own wrong)
Courts are also moved by policy objectives such as deterrence, risk distribution and
promotion of commercial transactions. These principles and policies apply in varying
degrees and their impact varies from case t o case, context to context.
When examining the concept of Principles, the works of R.M. Dworkin becomes of great
interest. Ronald Dworkin, a leading Philosopher, published his book Laws Empire in
which he attacked Hart and the positivists for refusing to treat law as a moral issue.
Dworkin argues that law is an interpretive concept that requires Judges to find the best
fitting and most just solution to a legal dispute, given their constitution traditions.
According to Dworkin, law is not made up of rigid rules and discretionary rules made by
Judges.
Dworkin argued that along with rules, legal systems also contain principles. Dworkin
argued that there are instances Judges have cited principles as the justification for
modifying, creating exceptions in or overturning legal rules or instances where in
landmark decisions, Judges appear to give a decision contrary to the relevant precedent.
According to Dworkin, there are numerous principles and rules and Judges must decide a
case brought before them either based on the codified rules or legal principles.
Where there are many, sometimes contradicting principles, Dworkin argues that Judges
consider a variety of theories regarding what the law requires in the area in question
rejecting those that do not adequately fit past official actions. Among the theories that
adequately fit, the Judge chooses the one which best combines fit and moral value,
making the law the best it can be.
Dworkin argues that legal claims are interpretive judgements. According to Dworkin,
every time a Judge is confronted with a legal problem, he or she should construct a legal
theory of what the law is. That law must adequately fit the relevant past legislative
enactment and judicial decisions while making the law the best it can be.

Rules and Principles distinguished.

Hart argues that all legal decisions by courts are classified into one of two
categories.
1. Some are central to the legal rules at issue. In these cases, judges merely
mechanically apply the rules which fall within their jurisdiction.
2. The other categories of decisions occupy the penumbra of legal rules, where the
direction of the legal rule is unclear. In these cases, judges must decide which of
the possible applications of the legal rules are best social policy and then apply
the rule which is best.

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Dworkin used the example of Riggs v. Palmer to illustrate the distinction

between rules and principles.
Riggs v. Palmer, 115 N.Y. 506 (1889), is an important New York state civil court case, in
which the Court of Appeal of New York issued an 1889 opinion. Riggs was an example of
the judiciary using the " social purpose" rule of statutory construction the process of
interpreting and applying legislation.
In Riggs, a probate suit, the plaintiffs, Mrs. Riggs and Mrs. Preston, sought to invalidate
the will of their father Francis B. Palmer; testated on August 13, 1880. The defendant in
the case was Elmer E. Palmer, grandson to the testator. The will gave small legacies to
two of the daughters, Mrs. Preston and Mrs. Riggs, and the bulk of the estate to the Elmer
Palmer to be cared for by his mother, another daughter of the testator, Susan Palmer, until
he became of legal age.
Knowing that he was to be the recipient of his grandfathers large estate, Elmer, fearing
that his grandfather might change the will, murdered his grandfather by poisoning. The
plaintiffs argued that by allowing the will to be executed Elmer would be profiting from
his crime. While a criminal law existed to punish Elmer for the murder, there was no
statute under either probate or criminal law that invalidated his claim to the estate based
on his role in the murder.
Judge Robert Earl (in office 1870 and 1875-1894) wrote the majority opinion for the
court, which ruled in favour of the plaintiffs. The court reasoned that tenets of universal
law and maxims would be violated by allowing Elmer to profit from his crime. The court
held that the legislature could not be reasonably expected to address all contingencies in
crafting laws and that, had they reason to suspect one might behave in the manner Elmer
did, they certainly would have addressed that situation.
Judge Earl, in an analogy to a similar case, wrote: "The principle which lies at the bottom
of the maxim, volenti non fit injuria ['to a willing person, no injury is done'], should be
applied to such a case, and a widow should not, for the purpose of acquiring, as such,
property rights, be permitted to allege a widowhood which she has wickedly and
intentionally created."
Judge John Clinton Gray (1888-1913) dissented. He argued that the criminal law
established punishment for the murder of Francis Palmer. For the court to deny the estate
to Elmer was to, in effect, add significant further punishment to what Elmer received
under the criminal statute, something the court was not permitted to do without the
express, written statute. The written statutes that existed did not sanction the action of the
court and the court cannot simply create or imagine such statutes so as to obtain a morally
pleasing result.
Significance of Riggs vs Palmer in Philosophy.
Legal philosopher Ronald Dworkin uses Riggs in an argument against legal positivism,
focusing on a version of positivism by H.L.A Hart. Hart argues that all legal decisions by
courts are classified into one of two categories. Some are central to the legal rules at
issue. In these cases, judges merely mechanically apply the rules which fall within their
jurisdiction. The other category of decisions occupies the penumbra of legal rules, where

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the direction of the legal rule is unclear. In these cases, judges must decide which of the
possible applications of the legal rules are best social policy and then apply the rule
which is best.
Dworkin argues that Riggs has two features which contradict Hart's interpretation of the
legal process.
First, this case does not appear to lie at the edge of legal rules, instead it is
very clearly central. Despite this, the majority did not apply the legal rule
as required.
Second, there appears to be a legitimate debate about what the law is, and
not what the law should be, in this case. According to Dworkin, under
most versions of legal positivism, Hart's included, there should rarely be
debate about what counts as law.
In Taking Rights Seriously, Dworkin argues that this case shows that in addition to rules
established in statutes, principles are also a component of law. These principles, while not
binding, are sufficient to modify statutes as in Riggs. He argues that both the majority and
the dissent use these legal principles -- "one cannot benefit from one's own wrongdoing"
in the case of the majority and "one should not be punished beyond the ways specified in
the statute" in the case of the dissent.
Another case in which the Court relied on legal principles to arrive at a decision, despite
the absence of statute is that of Claus H. Henningsen and Helen Henningsen v.
Bloomfield Motors, Inc., and Chrysler Corporation 32 N.J. 358, 161 A.2d 69 (N.J. 1960).
The New Jersey Supreme Court held that an automobile manufacturer's attempt to use an
express warranty which disclaimed an implied warranty of merchantability was invalid.
On May 7, 1955, Clause H. Henningsen purchased a Plymouth automobile, manufactured
by Chrysler Corporation, from Bloomfield Motors, Inc. The automobile was intended as a
Christmas gift to his wife, Hele, and the purchase was executed solely by Mr.
Henningsen.
The contract for sale was a one page form, contained paragraphs in various type sizes on
the front and back of the form. Mr. Henningsen testified he did not read all paragraphs of
the contract. The back of the contract contained the following clause:
The manufacturer warrants each new motor vehicle (including original equipment placed
thereon by the manufacturer except tires), chassis or parts manufactured by it to be free
from defects in material or workmanship under normal use and service. Its obligation
under this warranty being limited to making good at its factory any part or parts thereof
which shall, within ninety (90) days after delivery of such vehicle To the original
purchaser or before such vehicle has been driven 4,000 miles, whichever event shall first
occur, be returned to it with transportation charges prepaid and which its examination
shall disclose to its satisfaction to have been thus defective; This warranty being
expressly in lieu of all other warranties expressed or implied, and all other obligations or
liabilities on its part, and it neither assumes nor authorizes any other person to assume for
it any other liability in connection with the sale of its vehicles.

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The car was delivered on May 9, 1955. There were no problems with the car until May
19, 1955. On that day, Mrs. Henningsen was driving the car at 20-22 miles per hour on a
smooth two lane highway. Mrs. Henningsen then heard a loud noise, the steering wheel
spun in her hands, and the car suddenly veered and collided with a wall. The car was
damaged severely, and declared totaled by the Henningsens' insurance carrier.
The defendants refused to repair the car under warranty, since they claimed the express
warranty was limited only to repairing the defective parts and that is was not liable for
damages caused by defective parts.
Mr. and Mrs. Henningsen sued under a theory of negligence and a theory of warranty.
The court felt the proof was not sufficient to make out a prima facie case of negligence,
and gave the case to the jury solely on the warranty theory. The jury returned a verdict for
the plaintiffs, Mr. and Mrs. Henningsen, against both defendants. The appellate case was
argued on December 7, 1959, and decided on May 9, 1960.
It was held that Automobile purchasers may recover for damages caused by defective
parts under an implied warranty of merchantability, since automobile manufacturers and
dealers may not limit this warranty to replacement of only defective parts as this violates
fair dealing and public policy.
Henningsen argued that at least in the circumstances of his case, the manufacturer ought
not be protected by the fact that the manufacturers liability for defects was limited to
making good defective parts and that the manufacturer ought to be liable for the medical
and other expenses of persons injured in a crash. He was not able to point to any statute
or to any established rule of la that prevented the manufacturer from standing on the
contract. The Court nevertheless agreed with Henningsen.
Reasoning
Automobiles were sold by the automobile manufacturer to the automobile dealer, who in
turn sells them to consumers. Therefore, there is no privity between the automobile
manufacturer and the consumer. While a majority of courts, at this time, hold privity is
required for the manufacturer to be liable to the consumer, there is a trend towards
eliminating privity as a requirement. It is unjust for the manufacturer to benefit from
advertising their product as suitable as a car, and profit from this representation, while
providing a basic implied warranty that what they are providing matches what they
represent they are providing. Therefore, an implied warranty accompanies every car the
manufacturer puts into the stream of trade.
The express warranty signed by Mr. Henningsen will apply under contract law even
though he did not read all of it. The warranty agreement, which is a standard used by all
major automobile manufacturers, seems to disguise the limitations of the warranty
coverage. The jury verdict at trial established this disclaimer was not fairly obtained, and
therefore the disclaimer will not apply to the situation at hand. Therefore, damages under
implied warranty will stand.
Further, the contract is one of adhesion and Mr. Henningsen had no chance to bargain on
its terms. The defendants took advantage of their relative bargaining power to force

15

unfair disclaimers upon the customer, and since this disclaimer of any warranty except
one for replacement of defective parts violates public policy.

Distinction between principle and policy-Dworkin.

Arguments of policy justify a political decision by showing that the decision advances or
protects some collective goal of the community as a whole. The argument in favour of a
subsidy for aircraft manufacturers, that the subsidy will protect national defence is an
argument of policy.
Arguments of principle justify a political decision by showing that the decision respects
or secures some individual or group right. The arguments in favour of anti discrimination
statute that minority has aright to equal respect and concern is an argument in principle.
Principles are proposition that describe rights; policies are propositions that describe
goals.
A right differs from community goal in several important aspects.
First its specification calls for an opportunity or resource or liberty to be accorded to
particular individuals or groups.
Secondly, a right must have certain threshold weight against collective goals in general.
Thirdly, law as integrity requires that rights be distributed consistently, whereas it does
not prevent a community goal from being attained by unequal distribution of benefits and
burdens (i.e. only subsidizing some manufactures.)In matters of principle, there is a
requirement of articulate consistency which does not have the same force in matters of
policy.
It might be inferred that if a consistent application of arguments of principle yields the
conclusion that a plaintiff has aright to recover damages for negligent medical treatment,
the judge should not be swayed by policy considerations which suggest that such claims
lead to wasteful expenditure on defensive medicine.
Dworkin singles out for approval the speech of Lord Scarman in a nervous shock case.
.the distinguishing feature of common law is this judicial development and
formation of principle .and if principle inexorably requires a decision which
entails a degree of policy risk, the courts function is to adjudicate according to
principle, leaving policy curtailment to the judgment of parliament the policy
issue as to where to draw the line is not justifiable.
Critics of Dworkin have argued that judicial decisions in hard cases are often dictated by
policy considerations. In areas such as the law of nuisance, courts take account of
benefits to the community of certain kinds of activities before ruling that they must not
take place. and in the context of disclosure of documents in a civil litigation or of reasons
for certain kinds of administrative decisions courts listen to arguments of public policy
against disclosure and are sometimes swayed by them.

Interpretation
Lawyers commonly speak of interpretation when they have in mind a search for the
intention of some authority which enacted a text, such as a statute or constitution or the
intentions of parties to a contract or of testators or parties in a property transaction.
Propositions of law can be very abstract or concrete. It therefore begs the question, what
sense should be given to propositions of law? How should statutes be interpreted?

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Interpretation and Legal Theory

As mentioned above, in dealing with the problem of legal interpretation as a theory
Dworkin suggests that in various cases, including social practises, art and literature we
bring an interpretative attitude i.e. we tend to take the data (rules) and advance a
conception of it.
According to Dworkin, legal practice is about exercising interpretation. We have to adopt
an interpretative attitude when arriving at concrete conclusions about the outcomes of a
particular case (as judges are required to do) or whether asserting more general
propositions of law (as a legal writer may do) or whether, at the level of theory we are
advancing claims about the nature of law. At each of these levels we bring our political
convictions to bear on the relevant data. Part of Dworkins main thesis is that an
interpretation of law is inherently political and this is debunks the value-free theorising
that is upheld by positivists such as Bentham, Austin, Kelsen and Hart.
Dworkins contributions to the interpretation of laws can hence be summarised in the
following three closely interrelated positions:
First, law is an interpretive enterprise. That is, it is a social practice best understood, or
rather, understood at all, by putting oneself in the posture of a participant in the process at
a point where change is being considered; in that situation the purpose of the practice
comes under notice and debate. Dworkin offers an illuminating parallel: Suppose there is
a practice called courtesy. It is a social practice, dependent on the interaction of many
people and at first made up of conventions taken for granted - for instance, that peasants
should doff their caps to nobles. The question is raised, is it important to continue this
rule in order to have courtesy? One party argues that the point of courtesy is to do
homage to a class; the other party argues that the point of courtesy is to show respect to
persons. Interpretation is necessary. The purpose of the practice has to be determined, or,
as Dworkin alternatively expresses it, meaning has to be imposed on the institution. To
understand the institution is to grasp what its participants urge as they interpret it. Law is
such an enterprise.
Second, interpretation is constructive; it consists not in identifying the intentions of the
participants but in imposing ''a form or purpose'' in terms of which the interpreter resolves
the disputed question. Thus in the controversy over courtesy, if the purpose imputed to
courtesy is showing respect to persons, a less one-sided custom may be accepted without
abandoning the practice of courtesy.
Third, the imposition of purpose is not to be done arbitrarily. The form or purpose to
be imposed is that which will make the practice ''the best possible example of the form or
genre to which it is taken to belong.'' The constraint on interpretation is then the practice
itself as it indicates ''the form or genre to which it is taken to belong.'' In law, Dworkin
contends that the form to which it belongs incorporates three concepts - justice, or the
securing of rights based on past history; fairness, or deference to more general communal
expectations; and integrity. By the last term, by which Dworkin sets great store, he means
fidelity to fundamental principle in actions by officials. The meaning is developed
especially in relation to judges, who, out of integrity as here defined, pay attention to
precedent even as they shape solutions to new situations.

17

The method of interpretation of statutes and the principles that will be applied in
achieving such interpretation will vary from one jurisdiction to another. However in all
cases the task is to give meaning to statutes and enable their enforcement. This is easier
said than done though as judges, in carrying out judicial duties have sometimes taken
differing views about their roles in interpreting statutes.
In Magor and St. Mellons Rural District Councul v Newport Corporation [1952] AC 189
at 191 Denning LJ said:
We sit here to find the intention of Parliament and of Ministers and carry it out, and
when we do this better by filling in the gaps and making sense of the enactment than by
opening it up to destructive analysis. His view then was that judges could fill in gaps in
statutes.
This view was however repudiated by Lord Simonds in the House of Lords who stated
that:
The duty of the court is to interpret the words that the legislature has used; those words
may be ambiguous, but even if they are, the power and duty of the court to travel outside
them on a voyage of discovery are strictly limited1.
This view was
Reid when he said:

restated in the Black-Clawson AG [1975] AC 591 at 613 by Lord

We often say that we are looking for the intention of Parliament but that is not quite
accurate. We are seeking the meaning of the words which Parliament used. We are
seeking not what Parliament meant but the true meaning of what they said.
Rules of interpretation are not like many other rules. They have to be formulated in terms
of concepts which cannot be elucidated like other legal concepts. They provoke issues
such as meaning, purpose and legislative intent. Such concepts may have a universal
sense, they may be the same for all legal systems. On the assumption that concepts of
statutory interpretation have a universal sense, juristic writers have treated statutory
interpretation as a trans-systemic topic. This therefore makes the principle of statutory
interpretation special as compared to other legal concepts and rules.
Interpretation of, statutes, rules and legal principles under English Common law is to be
found from decisions of courts and are therefore part of the English Common Law. But
they are difficult to formulate because:(a)
(b)

Unlike other settled common law rules, they have no match between a rule and a
ratio decidendi of a case or a series of ratio decidendis. Mostly, judicial
formulations of these standards are obiter dicta.
The dicta are often obscure and sometimes conflicting. The best one can do is to
develop formulations supported by the greatest possible weight of dicta. Such dicta
invoke the ordinary or natural or plain meaning of words, the absurd,
inconvenient or unreasonable consequences of particular interpretations and the
purpose, object or underlying scheme of legislation.

18

There has been controversy as to how canons of interpretation interrelate these matters of
meaning, consequences and purpose. The traditional view has been that there are three
rules:The literal or plain meaning rule: Words that are reasonably capable of only one
meaning must be given that meaning whatever the result.
Tindal C.J in the Sussex Peerage Claim
My Lords, the only rule for the construction of Acts of Parliament is, that they should be
construed according to the intent of the Parliament which passed the Act. If the words of
the statute are in themselves precise and unambiguous, then no more can be necessary
than to expound those words in their natural and ordinary sense. The words themselves
alone do, in such a case, best declare the intention of the lawgiver
The golden rule: Ordinary words must be given their ordinary meanings and technical
words their technical meanings, unless absurdity would result.
Lord Blackburn in River Wright Comrs V Adamson
I believe that it is not disputed that what Lord Wensleydale used to call the golden rule
is right, viz, that we are to take the whole statute together, and construe it altogether,
giving the words their ordinary signification, unless when so applied they produce an
inconsistency, or an absurdity or inconvenience so great as to convince the Court that the
intention could not have been to use them in their ordinary signification, and to justify
the court in putting on them some other signification, which, though less proper, is one
which the court thinks the words will bear
The mischief rule: When an Act aims at curing a defect in the law any ambiguity is to be
resolved in such a way as to favour that aim.
Heydons case
The classic formulation of the Mischief Rule appearsin the resolution of the barons of the
Exchequer in Heydons case where it was resolved that for the sure and true interpretation
of all statutes in general (be they penal or beneficial, restrictive or enlarging of the
common law), four things are to be discerned and considered.
1. What was the common law before the making of the Act
2. What was the mischief and defects for which the common law did not provide
3. What remedy the Parliament has resolved and appointed to cure the disease of the
Commonwealth
4. The true reason of the remedy, and then the office of all the Judges is always to
make such construction as shall suppress subtle inventions and evasions for
continuance of the mischief and pro private commodo, and to add force and life to
the cure and remedy according to the true intent of the makers of the Act, pro
bono publico.
It was argued by Willis that these are distinct rules and that a court invokes whichever of
the rules that produces a result which satisfies its sense of justice in the case before it.

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Sir Rupert Cross recommended the following reformulation of the rules

1. The Judge must give effect to the ordinary or where appropriate, the technical
meaning of words in general context of the statute; he must also determine the
extent of general words with reference to that context.
2. If the Judge considers that the application of the words in their ordinary sense
would produce an absurd result which cannot reasonably be supposed to have
been the intention of the legislature, he may apply them in any secondary meaning
which they are capable of bearing.
Other rules of statutory interpretation are :1. The rule ejusdem generis (of the same kind): when a list of specific items
belonging to the same class is followed by general words (as in cats, dogs, and
other animals), the general words are to be treated as confined to other items of
the same class (in this example, to other domestic animals).

2. The rule expressio unius est exclusio alterius (the inclusion of the one is the
exclusion of the other): when a list of specific items is not followed by general
words it is to be taken as exhaustive. For example, weekends and public
holidays excludes ordinary weekdays.
3. The rule in pari materia (on the like matter): when a prior Act is found to be on
the like matter it can be used as an aid in construing the statute in question (R v
Loxdale (1758) 1 Burr 445, 447 (Lord Mansfield); 97 ER 394).
4. The rule noscitur a sociis (known by its associates): when a word or phrase is of
uncertain meaning, it should be construed in the light of the surrounding words
(Bourne v Norwich Crematorium Ltd [1967] 2 All ER 576 (Ch) 578).
5. An Act must be construed as a whole, so that internal inconsistencies are avoided.
Section 11 if the Interpretation and General Provisions Act, Chapter 2, Laws of
Kenya, provides that a law should be read with such formal alterations as to
names, localities, courts, officers, persons, moneys, penalties or otherwise as may
be necessary to make it applicable to the circumstances, and in particular a
reference to a Probate Court, Bankruptcy Court or Admiralty Court, or similar
expression, shall be construed as a reference to the High Court exercising the
appropriate jurisdiction. In Kenya it has also been held that marginal notes form
part of the Act and must be interpreted together with the.
In The Estate of Shamji Visram & Kurji Karsan v Shankerprasad Maganlal Bhat
& Others, Civil Appeal No. 25 of 1964 it was held that the marginal notes to
sections in Kenya Acts should be considered when interpreting the Act and in
particular the court should have regard to the word patent in marginal note to
section 99 of the Evidence Act, 1963. However this position contrasts sharply
with the practice in England where Lord Reid in Chandler v D.P.P [1964] A.C 763

20

stated In my view side-notes cannot be used as an aid to construction. They are

mere catch-words and I have never heard of it being supposed in recent times that
an amendment to alter a side-note could be proposed in either House of
Parliament. Side notes in the original Bill are inserted by the draftsmanSo sidenotes cannot be enacted in the same sense as the long title or any part of the body
of the Act
6. In England ambiguities my occasionally be resolved by referring to external
sources; for example, the intention of Parliament in regard to a proposed Act, as
revealed by ministers during its passage through Parliament, may be discovered
by reference to Hansard (Pepper v Hart [1993] AC 593 (HL)). However, the
House of Lords has ruled against the existence of an alleged social policy rule,
which would enable an ambiguous Act to be interpreted so as to best give effect to
the social policy underlying it.
7. Ratio decidendi that is "the reason for deciding". Lord Halsbury's on this aid to
construction is that:
"Every judgement must be read applicable to the particular facts proved, since
the generality of the expressions which may be found there are not intended to be
the expositions of the whole law but govern and are qualified by the particular
facts of the case in which such expressions are to be found." Lord Halsbury
(1901).
With regard to the importance of material facts Goodhart A L (18911978)
pointed out in the 1930s, that the ratio is in practical terms inseparable from the
material facts. Goodhart observed that it "is by his choice of material facts that the
judge creates law". By this Goodhart meant that the court's decision as to which
facts are material or non-material is highly subjective, yet it is this initial decision
which determines a higher or lower level of generality for the ratio.
9. Obiter dictum "things said by the way". Obita dicta are not binding (unlike the
ratio), but they may be regarded as persuasive in a future decision. The weight
given to dicta usually depends on the seniority of the court and the eminence of
the judge in question.
Obiter dicta are judicial opinions on points of law which are not directly relevant
to the case in question. They are made when a judge chooses to give some
indication of how he or she would decide a case similar, but not identical, to case
under consideration. These statements are often meant to clarify the legal
principle which the judge proposes to apply in his or her judgement. For this
reason, obiter dicta often take the form of analogies, illustrations, points of
contrast or conclusions based on hypothetical situations.
Ratio decidendi and obiter dicta
o A ratio decidendi is not an abstract principle, to be applied in a deductive
fashion to a later case. Instead the ratio is a ruling on a point of law in relation
to a specific case.

21

o Only the ratio binds an inferior court. Cases themselves do not bind.
o If the court is not required to make a ruling on a point of law, its decision will
not give rise to a ratio.
o There is no requirement for each judgement to contain a single ratio and no
more. Multiple rationes are quite normal.
o Not every statement of law contained in a decision is necessarily ratio or
obiter. A judge may refer to a principle only to express his or her disagreement
or for the sake of completeness. For a statement of law to be ratio or obiter,
the judge must express his or her explicit agreement with the principle.
Interpretation of the Constitution

In our humble view, this is an area deserving its own paper and we shall only very briefly
touch on this by looking at one of the earliest cases in constitutional interpretation and a
more recent one to examine the jurisprudential changes that appear to have taken place in
the intervening period.
El Mann v Republic [1969] EA 357: This case was decided on the reasoning that the
Constitution should be construed like an Act of Parliament; put another way, like ordinary
legislation. Though this reasoning and part of the ratio decindedi in El Mann have
continually been put into question, the ruling continues to inspire a significant number of
Kenyan judges and lawyers.
The interpretative view applied in determining El Mann man was that the constitution
was subject to the same rules of interpretation as normal statutes and despite the fact that
it occupies a different position in the hierarchy of laws in Kenya the court at that time
effected a judgement based on a narrow and possibly political basis.
Njoya & 6 Others Vs Attorney General & 3 Others. [2004] 1 KLR 261 (The so called
Ringera Judgment)
The Ringera Judgment, comprised three separate decisions; Justices Ringera and
Kasango concurring on most issues, with Justice Kubo dissenting. Their judgment dealt
with four issues affecting the legal regime on which the review process was based. These
were:
Constitutional Interpretation
The Judges delved into the province of the interpretation of the provisions of the
Constitution. Justice Ringera and Kasango were in parity opinion, holding that the
Constitution should be interpreted as a living document, and not like an Act of
Parliament. Ringera captured their postulations on the Constitution as follows:
It is the supreme law of the land; it is a living instrument with a soul and a
consciousness; it embodies certain fundamental values and principles and must be
construed broadly, liberally and purposely or teleologically to give effect to those
values and principles. Kenya Law Review 160 [2007] Vol 1: 153
Justice Kasango in supporting this position cited section 3 of the Constitution which
affirms its own supremacy, posited that

22

[t]he Constitution of Kenya having so clearly stated its supremacy means that the
rules of interpretation cannot be the same as other statutes which are subordinate
to it.
Ringera relied upon the decisions in the Kenyan High Court case of Njogu v. AttorneyGeneral [200] LLR 2275 (HCK) and the Tanzanian Court of Appeal case of Ndyanabo v.
Attorney-General [2001] 2 EA 485. In the relevant portion relied upon by Ringera, in
Njogu v Attorney-General on Constitutional interpretation it was averred:
We do not accept that a Constitution ought to be read and interpreted in the same
way as an Act of Parliament. The Constitution is not an Act of Parliament. It
exists separately in our statutes. It is supremeit is our considered view that,
Constitutional provisions ought to be interpreted broadly or liberally, and not in a
pedantic way, that is restrictive way. Constitutional provisions must be read to
give values and aspirations of the people. The court must appreciate throughout
that the Constitution, of necessity, has principles and values embodied in it; that a
Constitution is a living piece of legislation. It is a living document.
While in Ndyanabo v. Attorney-General, relied upon by Ringera and Kasango, the court
Tanzanian Court of Appeal held, Samatta CJ commenting:
We propose to allude to general provisions governing constitutional
interpretation. These principles may, in the interest of brevity, be stated as
follows. First, the Constitution of the Republic of Tanzania is a living instrument,
having a soul and consciousness of its own as reflected in the preamble and
fundamental objectives and directive principles of state policy. Courts must,
therefore, endeavor to avoid crippling it by construing it technically or in a narrow
spirit. It must be construed in (tune) with the lofty purposes for which its makers
framed it. So construed, the instrument becomes a solid foundation of democracy
and the rule of law.
As Mr. Justice EO Ayoola, a former Chief Justice of the Gambia stated
A timorous and unimaginative exercise of the Judicial power of constitutional
interpretation leaves the Constitution a stale and sterile document. Secondly, the
provisions touching fundamental rights have to be interpreted in a broad and
liberal manner, thereby jealously protecting and developing the dimensions of
those rights and ensuring that our people enjoy their rights, our young democracy
not only functions but also grows, and the will and dominant aspirations of the
people prevail. Restrictions on fundamental rights must be strictly construed.
By siding with these decisions, Ringera and Kasango ultimately extinguished the El
Mann doctrine in the case of Republic v El Mann. The thrust of the doctrine was that
although there were exceptional circumstances for liberal connotation, the Constitution
should be interpreted as any other ordinary statute, especially where the words used are
precise and unambiguous.
Justice Kubo on the other hand, did not find the El Mann doctrine of interpretation vis-vis the Crispus Karanja Njogu doctrine of interpretation, mutually exclusive. He observed
that the El Mann doctrine did not exclude other forms of constitutional interpretation,
merely calling for contextualisation of the issues in question.

23

On the question of context, he invoked the case of Keshava Menon v State of Bombay
wherein it was stated:
but a court of law has to gather the spirit of the Constitution from the language
of the constitution.
From the foregoing arguments, the thrust of the Judges position on the issue of
constitutional interpretation is that the Constitution is a living document that should be
interpreted broadly and liberally. Nowhere did Justice Kubo dispute this. However his
postulation that the EI Mann doctrine could in certain situations be used for
Constitutional interpretation is extinguished by the opposing views of Ringera and
Kasango. The two asserted that the EI Mann doctrine provided for the Constitution to be
interpreted like ordinary statutes, and was therefore bad in law.

24

REFERENCE MATERIALS
1. BIX, BRIAN JURISPRUDENCE: THEORY AND CONTENT (4 th ed. London
2006)
2. DWORKIN, R.M. THE PHILOSOPHY OF LAW (pp. 38-65 Oxford University
Press)
3. DWORKIN, R.M. LAWS EMPIRE (1st ed. Harvard University Press, 1986)
4. FLETCHER, GEORGE P., BASIC CONCEPTS OF LEGAL THOUGHT (Oxford
University press 1996)
5. FREEMAN, M.D.A. LLOYDS INTRODUCTION TO JURISPRUDENCE (7 th
ed. London 2001)
6. HARRIS, J.W. LEGAL PHILOSOPHIES (2nd ed. Butterworths, London 1997)
7. HART, H.L.A., THE CONCEPT OF LAW (2nd ed. pp. 238-277 Oxford University
Press)
8. SIMMONDS, N.E. CENTRAL ISSUES IN JURISPRUDENCE JUSTICE, LAW,
AND RIGHTS (chapter 6, London 2002)
9. KITHURE KINDIKI The Emerging Jurisprudence on Kenyas Constitutional
Review Law [2007] Kenya Law Review Vol. 1 153 - 187

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