Вы находитесь на странице: 1из 14

EWK

2014
Contribution of Sociological Jurisprudence to Modern Environmental Law
and Management
By

Wambua Kituku1

1. Introduction

Sociological jurisprudence is among the key schools of jurisprudence. It is springs from the
academic discipline of sociology, which is defined as the scientific study of human behavior, how
humans relate and the relationships that flow from that interaction.2 Being a science,
sociologists tend to draw meaning of terms from empirical problems (social facts) and not from
(abstract) philosophical postulates. The concern of a sociologist revolves around scientific
inquiry into three concepts; social structure, stratification and functions.3 The role of norms
(legal and social) in society is therefore an auxiliary concern of a sociologist as it provides some
vital explanations on how the social structures evolve, cohere and function. From this
proposition, it seems that the disciplinary intersection between sociology and law points
towards sociological jurisprudence.

This paper therefore seeks to investigate the critical claims made by sociological jurisprudence,
examine and critique the contribution by key proponents of this school and offer and reasoned
evaluation of the relevance of this school to the development of environmental law and modern
environmental management.

2. What is Sociological Jurisprudence?

Sociological jurisprudence has often been presented by some authors either sociology of law or
socio-legal studies, though the three have different meanings.4 Roscoe Pound for instance views
sociology of law as an area of study that applies scientific methods of sociology in the inquiry on
the nature of laws and legal institutions.5 Thus, it entails scientific study of law as a social
phenomenon- how social facts relate to law and vice-versa. The sociologists of law is thus
concerned with the metaphysics and formal logic of law as derived from its textual analysis and
application. Socio-legal studies, like sociology of law, emphasizes on the application of scientific

1
Bsc, LL.B, LL.M, PhD Student (at CASELAP- University of Nairobi), and lecturer, Kenyatta University School of Law
2
Pound Roscoe, Sociology of law and social jurisprudence, University of Toronto Law Journal, Vol 5, No 1, 1943 p.8
3
Wacks Raymond, Understanding Jurisprudence: an introduction to legal theory, New York (Oxford University
Press, 2005) Third Edition (2012) pg 163
4 th nd
Freeman M, Lloyd’s introduction to jurisprudence, London (Sweet & Maxwell, 1959) 8 edition (2 Impression)
2010 p858
5
Pound Roscoe op cit p20

1|Page
EWK
2014
methods and views jurisprudential questions as empirical rather than conceptual.6 It seeks to
provide explanations for the social context of law and how this affects the application of law,
using scientifically-derived evidence.

Sociological jurisprudence on the other hand is concerned with analysis and interpretation of
part played by law and its institutions in effecting certain observable forms of social conduct,
relations and behavior7. It goes beyond the sociology of law and departs for socio-legal studies in
the sense that it combines the scientific methods of inquiry with philosophical and conceptual
approaches towards understanding the meaning and purpose of law and the legal order. Five
important claims are associated with this school of legal thought8.

Firstly, the school holds that we cannot grasp the meaning of law except as a social
phenomenon. Law therefore should be studied and understood from empirical social facts and
problems relating to a particular society. Secondly, analysis of legal concepts only provides a
partial explanation of “law in action”. In other words, a conceptual approach that treats law as a
closed system of definitions, rules of operation and general postulates that can be applied to
resolve an specific problem using deductive reasoning cannot sufficiently explain how the law
functions in society.9 One needs to delve deeper and understand the interaction between the law
and its subjects in reality in order to get a fuller picture of how law operates in society. Thirdly,
the school holds that law is merely a form of social control. The notion of law as a predominantly
norms of sanctions preoccupied early positivists (such as Austin and Bentham) and therefore
the sociological school took the view that achievement of social control through sanctions is not
the only purpose of law. Fourthly, proponents of this school reject the classical positivist notion
that there can be a value-free evaluation of law. In this sense, law should be viewed having
inherent moral content which espouses society’s values (secular or religious). Fifthly, while
rejecting naturalists claim that an ultimate theory of values can be found, they hold that reality
is socially-constructed which lacks a natural guide to solutions of its conflicts.

3. Key proponents of sociological jurisprudence

This section examines in detail the contribution of various proponents of this school to the
development of sociological jurisprudence and provides a critique of their claims. Whereas the
thoughts and writings of Karl Marx on law, ideology and socialism (Marxist jurisprudence) fall
within the realm of sociological jurisprudence, this however goes beyond the scope of this paper
and hence shall not be covered hereunder.

6
ibid
7
Ibid
8
Ibid p 162 and and Freeman op cit p835-6
9
Sawyer Geoffrey, Law and Society, Oxford (Clarendon Press, 1965) p17

2|Page
EWK
2014
3.1. Emile Durkheim (1858-1917)

Durkheim’s inquiry into law sought to answer the question “what is it that holds society together?”
and hence “social solidarity”.10 He was concerned with explaining social solidarity in terms of
degree of social bonds manifest in societies and the nature of law and punishment inherent in
these societies. He formulated two types of social solidarities; mechanical and organic.11
Mechanical solidarity is exhibited by simple homogenous groups with shared values and a high
degree of collectivism. Traditional and religious societies tend to show mechanical solidarities.
On the other hand, organic solidarity is found in societies with well-developed division of
labour, social differentiation and show a high degree of individualism and inter-dependence.
This form of solidarity is to be found in modern capitalist societies.

With regards, to sociological jurisprudence, Durkheim makes three critical claims. 12 First, he
holds that law moves from being penal to restitutive, if a society moves from being religious
(collectivism) to secular (individualism). Therefore, the law in societies exhibiting mechanical
solidarities tends to more repressive or punitive whereas where organic solidarity is evident; the
law assumes a restitutive form.

Secondly, he views punishment as a collective sentiment of a society against crime or wrong


doing, by which social cohesion is maintained.13 An act is thus deemed criminal if it shocks the
common conscience of a community. Punishment therefore comes in to reinforce the collective
conscience of a community over the wrong doing and is thus seen as an act of vengeance and self
–defence (against the criminal). He used the typologies of social solidarities mentioned above to
explain the nature of criminality and punishment meted thereto. In religious societies
characterized by collectivism, crime is perceived as religious criminality (i.e. against the
collectivity of persons and property). Punishment therefore is repressive (e.g. beheading, lashing,
burning at the pyre etc). On the other hand, secular societies characterized by individualism,
crime is perceived as individual criminality (i.e. acts which cause injury to individuals)
attracting less harsh punishment (e.g. compensation, payment of damages, fines etc).

Thirdly, he treats law and morality as synonymous. Law is thus viewed as a reflection of the
society’s morality. Absence of society’s moral commitment to law therefore denudes it of its legal
content. This claim justifies a society’s rejection of laws that go contrary to morality.

His contribution therefore is important in the sense that it underlines social cohesion as an
important purpose of law. His views on punishment also explain how and why different
societies today still place different emphasis on repressive or restitutive punishment, based on

10
Wacks op cit, p168
11
Ibid
12
Ibid
13
Ibid

3|Page
EWK
2014
the level of social solidarities evident therein. However, his views have attracted some
criticisms.14

First, he appears to make some generalizations regarding traditional (primitive) societies and
their inclination to repressive law and punishment without empirical evidence. It is a fact that
some traditional societies do not place premium on penal law but rather, tend to embrace
restitutive law (reconciliation, compensation etc). Secondly, civil law in secular societies is
increasingly embracing a penal character, which goes contrary to his first claim. For instance,
civil jail is common punishment under civil law, wheras the remedies of eviction are extremely
punitive, resulting in destruction of property and loss of lives. Thirdly, by treating law as
synonymous with morality is problematic, given that there are instances when law and morality
conflict (in some cases law is legislated against popular morality e.g. in the case of laws
upholding abortion enacted in predominantly Christian countries of the West). Fourthly, the
state inflicts punishment against crime, not as expressive of a society’s collective conscience, but
as an instrument of the some social groups (mostly elite and powerful) in that society. This was
the nature of the state in apartheid South Africa. Lastly, categorization of societies as mechanical
and organic is not very helpful as it does not give a complete progression of intermediate stages
between the two. The nature of law and punishment in societies falling under these
intermediate stages is not explained or accounted for.

3.2. Eugen Ehrlich (1862-9122)

Ehrlich was an Austrian professor who sought to distinguish between “law in books” (i.e. norms
and rules of the legal system) and the “living law” (norms which dominate life but not posited in
legal propositions)15. While he agrees that the state promulgates laws to resolve disputes, he
however holds that in large areas of social life governed by laws, disputes rarely occur and if so,
they are resolved without recourse of institutionalized means of decision-making. 16For instance,
parties in a marriage or commercial transaction will pursue their relationships within the
respective rules governing them and will resort to resolving any disputes arising between them
without reference to courts or lawyers. This is particularly true for communities living in remote
rural areas where access to justice is difficult. Business communities also tend to attach more
importance to observance of commercial practices than legal rules associated with contract law.
It is these rules that govern social life that Ehrlich refers to as the “living law”.

Ehrlich’s contribution is very important in that it gives a theoretical basis for self-regulation in
societies.17 Self regulation is achieved where groups and organizations (e.g. professional

14
Ibid p 169
15
Ibid p166
16 nd
Cottrel Roger, The sociology of law: An introduction, London (Butterworths, 1992, 2 edition), p 27
17
Ibid

4|Page
EWK
2014
associations, business groups, trade unions, not-for-profit organizations etc) establish their own
formal rules which they adhere to and use the same to resolve any disputes arising therefrom
without recourse to courts or formal law for that matter. However, courts retain supervisory and
enforcement jurisdiction over self-regulatory frameworks. This theory also explains the
effectiveness of regulatory law as administered by administrative officials in regulation of social
life. His thoughts have also helped in grasping plurality and complexities in legal systems where
the statute law operates alongside customary and personal law as well as transnational and
supranational legal orders.

Perhaps the most stringent criticism of Ehrlich’s contribution is the incoherence of his theory.18
For instance, he does not sufficiently explain the normative content of the “living law” which
otherwise reduces it to social norms without legal validity. Secondly, he does not explain how
the “living law” norms evolve and their distinctive features. Thirdly it is not clear how a conflict
between the “living law” norms and state law norms would be resolved. Even though he
accounts well for the existence of the “living law” he does not quite describe how it relates to the
state, which apparently plays a big role in its development, that is, the “living law” thrives under
the shadow of the state (formal) law.19

3.3. Roscoe Pound (1870-1964)

Roscoe Pound was an American legal scholar who sought to show the distinction and tensions
between “law in books” and “law in action”.20 He held that the role of lawyers and legislators is
to achieve social engineering through rational and consistent balancing of interests in society.21
The purpose of social engineering is to construct an efficient society where the satisfaction of
maximum of interests using minimal resources, friction and waste of resources.22 In a sense,
Pound takes a utilitarian view of law.

Pound further held that the purpose of law is to ensure social cohesion by balancing conflicting
interests in society.23 He classifies interests as individual, social and state 24. Individual interests
are those relating to personal freedoms, domestic relations (family ties) and subsistence
(property, contract etc), whereas social interests relate to community values and concerns (e.g.
peace, health, order, safety etc).On the other hand, public interests are those that relate to the
state as a jural person (i.e. defence, public order, external relations, commerce etc). Law
therefore serves as an important instrument in balancing these interests when resolving

18
Wacks, op cit
19
Freeman op cit p848
20
This dichotomy is similar to the one employed by Ehrlich
21 th
See Dias R, Jurisprudence, London (Butterworths, 1985) 5 edition, p431 and Cottrel op cit, p74
22
Wacks op cit p164
23
Ibid
24
Ibid

5|Page
EWK
2014
conflicts. This happens when persons bring forth competing or conflicting claims to courts or
legislatures, thereby inviting these institutions to identify, recognize and protect valid interests.
The act of identifying, recognizing and protecting these interests leads to authoritative
pronouncements on the same, hence law.

In undertaking this task, legal institutions test these interests against certain jural postulates
(legal values or ideals). The postulates constitute the basic assumptions upon which the
ordering of society rests are tend to be implicit rather than explicit, such as; no intentional
injury, due care not to harm, control over dangerous activities etc.25 A socially integrated society
is one that has developed a modicum of consensus over these values over time. Thus in the
balancing act, interests that satisfy or uphold these values will be recognized and validated by
courts or legislatures, hence gain legal protection.

Pound’s theory is still useful in explaining how common law evolves and functions. He has
extended this thinking to the development of statute law by engendering a notion of balancing
of interests in the legislators’ actual work. Like all other theories, he has also attracted various
criticisms.26

First, his thinking appears to adopt a consensus model of society, wherein there is widely shared
understanding of interests and values. However this may not be the case as different social
groups and strata may hold different values and interests (a conflict model). Secondly, his
classification of interests is problematic as the line separating social and state interests may be
too thin to discern, hence making it difficult to conceptualize the balancing of these interests.
Thirdly, it can be assumed that the jural postulates (legal values) forebear the claims- otherwise
courts and legislators would have problem identifying and agreeing on these interests every time
a conflict is presented to them. This would therefore make the law creation process dependent
on static postulates thus not sufficiently account for legal change. Fourthly, the theory does not
account for vested interests (e.g. those that accrue to by virtue of operation of law). Sixth, the
conceptualization of interests does not take into consideration that some interests can be
created by the law (e.g. welfare law creates interests for dependants). Seventh, it is difficult or
impossible to achieve a cohesive society through balancing of interests, where there is a minority
whose interests are irreconcilable with those of the majority. Lastly, the theory only accounts
well for judge-made law and not less for legislative innovation.

3.4. Max Weber (1864-1920)

Weber was a trained lawyer and economist, who differed from other sociological jurists by
adopting a detached view of his subject-matter. His contribution to this school regards his

25
Freeman, op cit p851
26
See Wacks Ibid p165 , Cottrel op cit p75 and Diaz op cit p434-6

6|Page
EWK
2014
explanations on the evolution of a “rational” legal order and the role of law in the development of
capitalism in western society.27 With regards to the former, Weber developed four typologies of
law based on the concept of rationality and as well, a theory of legitimate domination of law that
explains how legal norms acquire legitimacy hence its normativity.

Using the degree of sufficiency of norm- content, Weber classified legal systems as either
“formal” (i.e. “self-sufficient” with adequate rules and procedures for decision-making) or
“substantive” (i.e. rules and procedures for decision-making are constantly evolving).28 The
Roman law and civil law systems of Europe are examples of formal systems, whereas common
law systems were regarded as substantive. Using level of integration and consistency in
application of rules, Weber categorized legal systems as either “rational” (i.e. high level of
integration and consistency in application of rules to create a logical gap-less system) or
“irrational” (low level of integration and incoherent application of rules devoid of human
logic).29 A rational system is attributed to the professionalized administrative system of justice
that is guided by expertise in the application of law, which is found in advanced societies. An
irrational system on the other hand is common among “primitive” societies and relies on
charismatic persons who arrive at decisions using tests that are beyond the control of human
intellect (e.g. divine revelation).
rational

Formal/Rational: Gap- Substantive /Rational:


less legal system run by theocratic system ( no
professionalized separation of law from
administration of justice religion or morals) and
(e.g. roman law and civil application of doctrinal
law of western European rules and procedures (e.g.
countries) ecclesiastical law or English
common law)
Substantive/irrational: ad
irrational

Formal/Irrational:
primitive legal system: hoc decisions made
where there is trial by onpolitical, religious,
ordeal emotional
considerations(e.g. Kadhi
systems)
Formal Substantive
Table 1. representation of Weber’s typology of laws

He sought to explain normativity of law (how people become obliged to obey law) using the
theory of legitimate domination and formulating three types of such domination as follows:30

27
Wacks, Ibid, p170
28
Ibid p171
29
Ibid
30
Ibid p173

7|Page
EWK
2014
 Traditional domination: legitimacy is claimed for by people believing in the sanctity of
age-old rules
 Charismatic domination: legitimacy due to devotion to exceptional sanctity, heroism or
exemplary character of a person (the law giver)
 Legal rational domination: legitimacy due to belief in legality of rules and those in
authority to issue commands

Traditional and charismatic dominations are rather personal and lend themselves to accusations
of being partial in decision-making approach (correspond to irrational systems). On the other
hand, legal rational domination is based on rule by bureaucracy and hence is viewed as
impersonal and impartial (rational systems).

In explaining the role of law in the rise of capitalism, Weber held that rational economic
conduct (e.g. profit-making) is only possible if by way of certainty and predictability of a logical
and rational legal order.31 Law therefore assists (rather than being the cause of) the rise of
capitalism in Western societies. It may seem that Weber viewed law as fundamentally related to
but not determined by economic factors, unlike other sociological jurists like Karl Marx.

The most significant criticism of Weber’s ideas stems from the fact that capitalism in England
developed and flourished without a formal rational legal system (England instead had a
substantive rational system of common law).32 His response to this critique was that the English
system exhibited a high degree of formalism (the writ system, advanced legislative drafting
tradition etc), which made it certain and predictable enough to support growth of capitalism 33.
The existence of vibrant and highly trained legal professionals in England, which served both
government and business interests contributed immensely to evolution of laws that supported
growth of capitalism.

Secondly, his theory of legitimate domination is also viewed as embracing a simplistic view of
personal forms of domination, which are more complex in reality. The notion of bureaucratic
domination also does not explain legitimacy of law comprehensively. Thirdly, Weber’s theory
explains the rise of laissez faire capitalism but cannot account fully for the rise of other forms of
modern European economic systems e.g. the welfare state. Fourthly, irrationality of a legal
system can support growth of capitalism by allowing for a high degree of economic pragmatism
hence adaptation and innovation. Fifthly, his explanation on law and capitalism assumes a
teleological narrative that starts with formal irrational system (associated with primitive
societies) and ends with the formal rational system (of advance Western societies) occupying
the ultimate historical stage of legal development. However, there is evidence to show that the

31
Ibid p175
32
Ibid
33
Ibid

8|Page
EWK
2014
capitalism world is now moving (back) towards substantive rational systems, by increasing
allowing for bureaucratic discretionary regulations (under administrative law).

3.5. Others

Since Pound, sociological jurisprudence has attracted scholars who have made significant
contributions, though not in the same scale as their predecessors. Jurgen Habermas, a German
scholar has explained the role of law in social integration using the “communicative reason”
concept.34 His point of departure is the distinction between “law as a medium” (i.e. body of rules
and procedures governing a state and economy) and “law as institution” (as an expression of
shared values and norms in the life word). He contends that “law as a medium” requires
legitimation in order to become “law as an institution”. This is achieved through discursive
processes within a society that apply communicative reason. Without such discourse, “law as a
medium” is unlikely to acquire requisite normativity. Though this theory may sound persuasive,
its practicality is questionable as it assumes a Platonic model of democracy which for now is
perhaps limited to constitutional change through popular legitimation processes.

A group of scholars have also advanced a theory of “autopoiesis” which attempts to explain how
law operates autonomously from other disciplines or practices while at the same time validating
and reproducing itself.35 They apply biological processes to explanations on development of
laws. Law, they contend, interacts with extra legal information (economics, science, culture and
humanities etc), “ingests” such information and transforms it into legal or normative form
(hence new law). Through this process of ingesting and incorporating extra legal matter, law
achieves sovereignty and autonomy over other subjects. This theory however appears to reduce
the power of human control over legal development processes, which is not the case in most
instances. Explanations on the origins of law are absent from this theory.

4. Some reflections on the sociological jurisprudence

The thoughts of sociological jurists described above are essentially Eurocentric in nature. They
attempt to give explanations on law and legal systems typically from a westerner’s point of view.
Notions of primitive or traditional legal systems appear to be directed to non-Western societies.
Such views however do not appear to appreciate the level of sophistication of non-western
societies that are known to have evolved viable legal systems before the rise of the modern state
e.g. the Oriental (Chinese and Japanese empires), Egyptian, native American (central and
southern), sub-saharan Africa (pre-colonial west, east and southern kingdoms) and Middle East

34
Ibid p190
35
Ibid p191 and Cottrel op cit p 66, the theory is attributed to German scholars Niklas Luhmann and Gunther
Teubner

9|Page
EWK
2014
civilizations. Jurisprudence of these societies has been neglected perhaps in favour of a teleology
aimed at extolling superiority of western legal thought and systems.

Secondly, the sociological jurists have not captured the tremendous social changes that have
happened in the developing world and how law has shaped or been shaped by the same. Most
developing countries, especially in Africa tend to share similar characteristics in terms of
governance and economic development. They for instance tend to exhibit formal democratic
requirements (though espousing weak institutions and practice), formal legal systems
(operating alongside marginalized but resilient customary systems) as well as formal markets
(along vibrant informal markets). What therefore is the role of law, if at all, in the ongoing
evolution of these states?

Thirdly, there is a dearth of non-European scholars in this field. Is this reflective of dominance of
euro-centrism in legal thought or reluctance by non-European scholars to interrogate law from
their respective sociological standpoints? Or is it an indication of the minimal influence exerted
by this school over contemporary jurisprudential thought? What difference would such scholars
make if they developed keener interest in this field?

Lastly, the future of sociological jurisprudence school is in doubt. Its attempt to relate the
understanding of law to social facts (reality) moves its closer to realism. On the other hand, its
fastidious fidelity to justice and morality draws it close to natural law or analytical
jurisprudence. Due to these overlaps, many authors completely leave out or ignore the school. Its
place therefore among the influential schools of thought lacks a firm guarantee.

5. Contribution of sociological jurisprudence to the development of environmental law


and modern environmental management

First, the conception of the law as a form of social control continues to exert tremendous
influence over development of environmental law and management. Penal sanctions for
environmental breaches associated with criminal law and enforcement perhaps reflect society’s
collective displeasure or opprobrium (over such conduct as pollution, wanton destruction of
sensitive habitats and infringements to personal enjoyment of property) as explained by
Durkheim. This has given rise to the concept of environment crimes. It has been argued that due
to complex nature of environmental law, it is this distinctive nature that all available sanctions
should be made available to enforce compliance.36 Criminal enforcement is necessary to protect
integrity of the regulatory system, prevent harm to the environment, protect public health and
welfare and to punish culpable violations.37 Its application serves to fill gaps left by civil law
36
See Kameri- Mbote P, The use of criminal law in enforcing environmental law, in Okidi C, Kameri-Mbote P &
Akech M (eds), Environmental governance in Kenya: Implementing the framework law, Nairobi (East African
Education Publishers, 2008) p110.
37
Ibid p113

10 | P a g e
EWK
2014
enforcement, express moral outrage over grievous environmental harm and proscription of
unlawful activities. The existence of command and control mechanisms in national statutes38
and international conventions39 which are used in enforcing environmental compliance can be
understood in this light. The use of restitutive law on the other hand is meant to ensure
compensation and restoration of parties to the position prior to breach. The same has been
extended to environmental law through for instance the application of polluter-pays-principle.
This is also reflected in Kenyan statutes as well as international law and common law
provisions.40

Secondly and closely related to the above, Pound’s conception of law as an instrument of
balancing interests to achieve social cohesion continues to influence the evolution and
application of key environmental principles of law and management. Balancing of interests
involves weighing between individual and social or public interests in favour of environmental
protection and conservation. Courts have been called to intervene whenever there is a clash
between and among the various categories of interests in society. In Miles v Secretary of State for
County and Royal Borough of Kingston upon Thames,41 the court allowed compulsory acquisition of a
house in deplorable condition after upholding preservation of the environment in the interest of
a community over protection of individual rights (protection of family, home and peaceful
enjoyment of property). In Kenya, the conflict around the issue of locus standi in environmental
litigation is instructive. In the two Wangari Maathai cases, courts took restrictive view (against the
plaintiffs) of the preponderance of individual’s interest over social interests whenever
environmental litigations arise.42 Yet in another case, the Maina Kamanda case, that was litigated
within the same period, the High Court adopted a liberal view of locus in favour of the
plaintiffs.43 Parliament however resolved this conflicting approach by adopting a liberal view of
locus by enacting EMCA.44

The significance of jural postulates (legal values) in the identification, recognition and
protection of interests is still relevant in modern environmental law and management. In Kenya
for instance, the constitution provides for such aspirational values as human rights, equality of

38
See part XIII of Environmental Management and Coordination Act of 1999
39
See for instance United National Convention on Law of the Seas and Bamako Convention on Movement and
Transportation of Hazardous Wastes
40
See Article 6 of Constitution of Kenya (2010) and Section 3 (5) of EMCA on incorporation of international law
and general principles of international law into Kenyan law
41
(2000) JPL, 1992 p199-202, quoted in Gray K. & Gray S. Elements of land law, New York (Oxford University Press,
th
2001, 5 Edition) p1383
42
Wangari Maathai v Kenya Times Media Trust (1989) KLR 267 and Wangari Maathai & 2 others v City Council of
Nairobi & 2 others, civil Case No 72 of 1994
43
Maina Kamanda and another v Nairobi City Council HCCCNo 6153 of 1992
44
See Okidi Charles, Background to Kenya’s Framework environmental law, in Okidi et al (eds) op cit p13, where he
notes that in the debate over enactment of EMCA, parliamentarians made references to the new locus standi rule,
urging every Kenyan to be a whistle-blower when it comes to protection of the environment

11 | P a g e
EWK
2014
freedom, democracy, social justice and rule of law.45 These values have been elaborated further
under Article 10 of the Constitution where they have been made justiciable and enforceable in
the enactment, application and interpretation of law and policy. In this sense, they bind courts
and legislators in a manner that Pound envisaged. Inclusion of values that support
environmental protection and conservation such as public participation, transparency and
accountability, good governance, equity, human rights and sustainable development have the
potential of enhancing environmental law moving forward.

At the international plane, the global community has forged tremendous consensus on general
principles of environmental law. These principles are found in declarations and treaties,
providing general principles of law, customary law as well as binding legal norms. They include
the precautionary principle, integration principle, common but differentiated principles,
sustainable development among others. International tribunals and law-making bodies of the
international community are duty bound to observe these principles when adjudicating claims
through adjudication and law-creation.

Thirdly, sociological jurists’ accounts of “living law”, “law in action” and “law as institution” are
still helpful in explaining regulation of human behaviour with regards to the environment. The
importance attached to environmental awareness and education, self-regulation and promotion
of culture and ethos that promote environmental conservation and protection can be attributed
to these jurists. Efficacy of enforcement of legal norms and rules depends to a great extent the
moral commitment of the subjects of law to the norms and rules themselves. This is predicated
on the shared understanding of values underpinning the norms, the utility of such norms in
regulating social life and the role of subjects in enforcement of the norms. This provides a sound
theoretical understanding of the place of incentives for voluntary environmental compliance that
can now be found in modern environmental law texts such as public participation and
education, tax incentives and benefit-sharing schemes.

Fourthly, legitimation theories as proposed by Weber and Habermas are still relevant in
explaining how environmental laws achieve legal normativity or binding-nature. The primacy
now given to public participation in the legislative process resonates with the “communicative
reason” concept, where citizens engage with legislators over the nature and content of laws to
be enacted.

Fifthly, Weber’s explanation of the role of law in the rise of the capitalist system still begs more
inquiry into its role in development of welfare states. Invariably, welfare states tend to be more
eco-friendly than (Laissez faire) capitalistic societies. Using Weber’s methodology and approach
(the facilitative role of law in economic development) it may possible to derive explanations as
to why certain categories of states tend to take environmental issues more seriously than others.

45 th
6 Paragraph of the Preamble to the Constitution of Kenya (2010)

12 | P a g e
EWK
2014
Sixthly Pound’s views on balancing of interests may explain the role courts in recognition and
protection of environmental rights that may not necessarily be legislated in statutes. Through
identification, recognition and protection of interests, inherent rights may flow from the
decisions of judicial officers when adjudicating over competing claims. At the international
plane, it can be inferred that the Trail Smelter case gave implicit recognition of the right of states
to freedom from environmental harm or injury caused by activities undertaken within the
jurisdictions of neighbouring state (s) through the imposition of a collateral duty to the latter. 46
With time, this important right is now various Declarations and Conventions. In our own
jurisdiction, the right to clean and healthy environment was first recognized by courts before
being legislated in EMCA.

Lastly and perhaps most significant, Pounds view on social engineering as the purpose of law
and the theory of autopoeisis are applicable in explaining legal change within the environmental
realm. Continuous scientific, political economic and social changes are creating new
environmental problems that merit intervention by law. The law is thus constantly balancing
interests and interacting and “ingesting” these problems as presented in the form of legal
disputes and claims brought before courts and legislatures. In the end, by way of new
enactments and judicial decisions, law adapts to the new environmental changes.

6. Conclusion

This paper has explored the meaning and purpose of sociological jurisprudence and established
its place in elucidation of the nature, purpose and operation of law and legal systems. The
relationship and distinction between sociology of law and sociological jurisprudence over
methodology and approach has also been tackled. Key sociological jurists and their views about
the subject have been reviewed and critiqued. This paper however notes that these scholars have
basically adopted a Eurocentric view which does not sufficiently explain law and legal
development in non-western societies. This perhaps presents an opportunity for new scholars to
breath into life this school with new non-Western perspectives especially in the developing
world. Lastly, the paper concludes that sociological jurisprudence still continues exert
considerable influence in the development of environmental law and modern management
concepts and practices.

46 th th
US v Canada (1935), Reports of International Abritral Awards, 16 April 1938- 11 March 1941, Vol III p1905-
1082 accessed from http://legal.un.org/riaa/cases/vol_III/1905-1982.pdf on 8th June 2014

13 | P a g e
EWK
2014
Bibliography

Books and Articles

1. Cottrel Roger, The sociology of law: An introduction, London (Butterworths, 1992, 2nd edition)
2. Dias R, Jurisprudence, London (Butterworths, 1985) 5th edition
3. Freeman M, Lloyd’s introduction to jurisprudence, London (Sweet & Maxwell, 1959) 8th
edition (2nd Impression) 2010 p858
4. Government of Kenya, Constitution of Kenya (2010), (Nairobi, Government Printer, 2010)
5. Gray K. & Gray S. Elements of land law, New York (Oxford University Press, 2001, 5th
Edition)
6. Okidi C, Kameri-Mbote P & Akech M (eds), Environmental governance in Kenya: Implementing
the framework law, Nairobi (East African Education Publishers, 2008)
7. Pound Roscoe, Sociology of law and social jurisprudence, University of Toronto Law Journal,
Vol 5, No 1, 1943 pp1-20
8. Sawyer Geoffrey, Law and Society, Oxford (Clarendon Press, 1965)
9. Wacks Raymond, Understanding Jurisprudence: an introduction to legal theory, New York
(Oxford University Press, 2005) Third Edition (2012) pg 163

Cases
1. Wangari Maathai v Kenya Times Media Trust (1989) KLR 267
2. Wangari Maathai & 2 others v City Council of Nairobi & 2 others, civil Case No 72 of 1994
3. Maina Kamanda and another v Nairobi City Council HCCCNo 6153 of 1992

Websites

1. www.kenyalaw.org
2. http://legal.un.org/riaa/cases/vol_III/1905-1982.pdf

14 | P a g e

Вам также может понравиться