Seminar 11- Other Approaches

8/11/2019 Seminar 11- Other Approaches

1/38

UNIVERSITY OF NAIROBI

SCHOOL OF LAW

MASTER OF LAWS PROGRAMME

COURSE CODE: GPR 601

JURISPRUDENCE AND LEGAL THEORY

SEMINAR 11 PRESENTATION

TOPIC: OTHER APPROACHES TO LEGAL THEORY

COURSE INSTRUCTORS: DR. WINNIE KAMAU

DR. EDWIN ABUYA

DATE: Monday 1st

February 2010


2/38

Group Members and Structure of presentation.

1. Francis Kiago- Post Modernist Jurisprudence

2. Lorna Mbatia- Post Modern Feminism.

2. Francis Orioki -!raditiona" #frican Jurisprudence$.%. &incent '(okaa- )s"amic Jurisprudence

*. Francis Orioki- La+ in t(e conte,t of G"oba"iation !(e demands of Justice.


3/38

P#/! #.

POS!MO0/)S! J3/)SP/30'1

Postmodernism is a notoriously ambiguous concept2. From its literal meaning it seems

to come after the modern but is it a culmination of modernity? Postmodernistjurisprudence is late player in a postmodernist stage. Jennifer Wice! argues that any

serious consideration of post modernity "ould ha#e to stem from a historical

periodisation "here postmodernisation genuinely describe a con#ergence of historicalphenomena at a specific$ if loosely choosen time. Postmodernism refers to categories of

thereotical suppositions about the nature of language$ te%t and human subject "ithin the

lens of the social.

&o understand this concept it is necessary to grasp "hat is meant by modernity.

'odernity can be seen in different "ays. 'odernity can be seen as a rage against

e%isting order the realist project "as part of modernity since it e%alts the attac on form.

&he realists sho"ed that form of rights "as different from "hat had been assumed$ andthe form of orthodo% reasoning$ especially the case method of legal education$

o#erlooed consideration of #alues and ignored social science data. &here is a desire toget beyond form to function.

&here "as little participation by jurists in the postmodernism mo#ement until late 1()*+s.,ome strands of postmodernist thining can be seen in chapters on critical legal studies

and feminist jurisprudence. &hough both schools can be seen as discrete$ they had by

end of 1()*+s become submerged in postmodernism. ,ome of the proponents of this

school of thought include Jean lyotard$ Jennifer Wice$ Pierre ,chlag$ J.' -alin amongothers.

!4 5S36J'!7 #0 !4 LG#L S8S!M

ne result of this approach is to shift focus of jurisprudence from the study of the legal

system and its properties /order coherence$ determinancy$ etc0 to the nature of the legalsubject "ho apprehends the legal system and judges it to ha#e those properties.

ccording to -alin$ the nature of legal understanding becomes central to jurisprudential

en3uiry. ,ince the legal subject is socially constructed$ the "ays in "hich socialconstructions has led the legal subject to understand the legal system also becomes

crucial.

Proponents of this school of jurisprudence$ fault standard jurisprudential accounts for

ignoring the connection of the nature of the legal system to human understanding and

maes subjects contribution to legal system in#isible.

1 Freeman$ 4ntroduction &o Jurisprudence$ 5thed$6hapter 17 P.127!81!!26.9ou:inas nd ;. Warrington$ Postmodern Jurisprudence/1((10$ P 1!1((10 .;e#. 77$7.;e#. )*1


5/38

&hey loo for ne" forms of politics that go beyond emancipation because the enemies if

they e%ist are no longer the bourgeoisie or the boss so much as the bureaucracy$

centrali:ed go#ernment and Ddemocratically+ elected representati#es.

4t is argued that change "ould be brought through small scale transformation. ccording

to -oyleegal semiotics is as the 6.>., "riting interested in ideology. &he 6.>., #ie"ed ideology

as a smoescreen. &hey "anted to demystify legal reasoning by demonstrating its

indeterminacy and its political character. >egal semiotics loos at ideology as patterns ofarguments and factual characteri:ation that persons "ithin the legal culture adopt. 4t

demonstrates that same form of arguments repeat themsel#es /formulaic0. &his has threeimplications according to -alin$

1. 4t may suggest that legal discourse is Dformulaic+ and so does not determine the

outcome of cases .4f legal reasoning does not decide cases something else$ politicsor ideology does.

2. 4t undermines the claim to authority and respect to legal reasoning.

!. &he basic form of legal argument turned out as ama:ingly similar to the basic

forms of e#eryday moral and political discourse.

Ao"e#er there are differences bet"een legal reasoning and political discourse. &he

language of la" is institutionally controlled by legislation and precedent. &hemeaning of "ord can change o#ernight "ith a ne" ruling in political moral discourse

this occurs o#er a period of time. B.g. "hen did gay cease to mean joyful and

became e3uated "ith homose%ual?

B%ample of postmodern account of la" is Peter Goodrich+sLanguage of Law. Ae tries to

deconstruct the myth of the Bnglish common la".

(Per -alin$ op cit.$ n p 1)7


7/38

P#/! 6.

# POS! MO0/ FM))S! LG#L M#)FS!O 9#n unfinis(ed draft:

#ut(or Mar; Joe Frug.

)ntroduction

Postmodern feminism is a body of scholarship that 3uestions and rejects traditional

essentialist practices$ as established in and by modernity. &he general premise ofpostmodern social theory is a rejection of the "estern ideal of establishing uni#ersal

grand narrati#es as a means of understanding and e%plaining society1*.

Postmodern feminism directly challenges claims of a unified subject$ "hich is thenpresented as representing an objecti#e point of #ie"$ in essence$ a #ie" from no"here.

Postmodern feminism thus recogni:e differences$ maing room for all to contribute and

thus ha#ing a #ie" from e#ery"here and eliminating the practice of positing one "ay

or one understanding as representing or being truth.

4n elo3uent postmodern feminism style$ the author begins by embracing the di#ersity inthe feminism mo#ements and points out her discomfort in totali:ing11 HfeministicI

theory12. &he reality today is that totali:ing feminism has gi#en "ay to a plethora of

Dfeminisms+ that address gender ine3ualities in the conte%t of racism$ ethnocentrism$nationalism$ religious fundamentalism$ homophobia$ class e%ploitation$ ageism$ etc$

"hate#er the situation calls for. 4n any e#ent$ "omen "ill not be liberated by theory

aloneE there must be disruptions$ local or other"ise1!.

4n eeping "ith the author+s spirit$ 4 shall include Dlocal disruptions+ in this paper i.e 4

shall also put the ey issues raised in the paper in the enyan conte%t.

!(e princip"es$ 9!(e fema"e bod; and t(e "a+:

&he author identifies the follo"ing t"o Dprinciples+

1. &he postmodern position locating human e%perience as inescapably "ithin language suggeststhat feminists should not o#erloo the constructi#e function of legal language as a critical frontier

for feminist reforms. &o put this KprincipleK more bluntly$ legal discourse should be recogni:ed as

a site of political struggle o#er se% differences1.

1*-lac"ell Bncyclopedia of sociology $ Post Modern Feminism$ /2**50 a#ailable at

httpLL""".blac"ellreference.comLpublicLtocnode?idMg(5)1*712!!1NchunNg(5)1*712!!122Nss1857/accessed on 2


8/38

2.&hat male and female se%ual identities are not strictly anatomically determined and

psychologically predictable but rather$ se% differences are semiotic 8 that is$ constituted by a

system of signs that "e produce and interpret 8 each of us inescapably produces herself "ithin the

gender meaning system.17

4n applying these principles$ she focuses on t(e re"ations(ip of "a+ to t(e fema"e bod; andargues that >egal rules and discourse permit and sometimes mandate

1. &he terrori:ation of the female body

2. &he maternali:ation of the female body.!. &he ,e%uali:ation of the female body

&o e%pound on the abo#e

s per the 'erriam Webster dictionary$ terrori:ation1egal rules permit and sometimes mandate the se%uali:ation of the female body. &his occurs

through pro#isions that criminali:e indi#idual se%ual conduct$ such as rules against commercial

se% /prostitution0or same se% practices /homose%uality0 and also through rules that legitimate and

support institutions such as the pornography$ ad#ertising$ and entertainment industries that

erotici:e the female body.1(

Se,ua"iation= !erroriation and Materna"iation !(e 'ase of Prostitution

&he author argues that although most anti8pornography la"s are gender neutral 2*. &he gendered

lopsidedness of this meaning system occurs 3uite simply$ because most se% "orers are "omen.

&hus$ e#en though anti8prostitution rules could$ in theory$ generate parallel meanings for male

and female bodies$ in practice they just dont. nti8prostitution rules terrori:e the female body

since the regulation of prostitution is accomplished not only by rules that e%pressly

repress or prohibit commerciali:ed se%. Prostitution regulation also occurs through anet"or of cultural practices that endanger se% "orers li#es and mae their "or

174bid1


9/38

terrifying. &hese practices include the random$ demeaning$ and sometimes brutal

character of anti8prostitution la" enforcement21.

4n the enyan conte%t$ an ongoing census on the number of female and male prostitutesin the country indicates that there are about 5$*** of them in @airobi+s 6entral -usiness

9istrict e#ery night.22

f these 5*** prostitutes$ about (*Q of them are female.=nfortunately the la"s that e%ist to punish female prostitutes do not punish the men "ho

solicit for their ser#ices.

ne might argue that the terrori:ed female body is not that much different from the se%uali:ed

female body. -oth e%periences of femininity often 8 some might say al"ays 8 entail being dominated bya man. ;egardless of "hether a "oman is terrori:ed or se%uali:ed$ there are social incenti#es to

reduce the hardships of her position$ by either by marrying or by aligning herself "ith a pimp2!.4n

both cases she typically becomes emotionally$ financially$ physically$ and se%ually dependent on

and subordinate to a man. 2*

&he postmodern feminists argue for the decriminali:ation of prostitution Feminists in fa#or of

legali:ation 8 this is the postmodern position 8 argue that$ unlie a narro"ly defineddecriminali:ation campaign$ legali:ation might significantly impro#e the li#es of se% "orers by

among other things$ allo"ing for ad#ertisement for their business.

Feminists "ho are against legali:ation 8 this is the radical position 8 en#ision a decriminali:ationproject that "ould de#elop strategies for pre#enting "omen from participating in se% "or$ rather

than strategies that "ould mae prostitution a more comfortable line of "or27.

&he legal rules that criminali:e prostitution are located in a legal system in "hich other legal

rules legali:e se% rules$ for e%ample$ that establish marriage as the legal site of se% and that lin

marital se% to reproduction by$ for e%ample$ legitimating children born in marriage. s a result of

this conjuncture$ anti8prostitution rules maternali:e the female body. &hey not only interrogate

"omen "ith the 3uestion of "hether they are for or against prostitutionE they also raise the3uestion of "hether a "oman is for illegal se% or "hether she is for legal$ maternali:ed se%.2egal rules in most states also designate adultery as a marital KoffenseK that

constitutes grounds for di#orce.!7. 4n enya$ ,ection ) /10 /a0 of the 'atrimonial 6auses ct !


12/38

campaign might lead to the repression of se%ual freedom rather than to the pre#ention of se%ual

oppression. !(

&his campaign therefore brought to fore the di#ision among feminists and the Dtotali:ing+

problem. rdinance ad#ocates assumed that by eliminating depictions of se%ual domination$se%ual domination could be dealt a fatal blo". 4n contrast$ ordinance opponents belie#ed that

domination and subordination constitute a psychological structure that does not depend on thepornography industry and that need not depend on gender di#ision for its e%istence*.

second criticism that has been le#eled against the ordinance campaign is that it distracted

feminists from other "or more important to the "omens mo#ement. rdinance ad#ocates

argued that pornography triggers massi#e physical #iolence against "omenE they claimed that byse%uali:ing domination and subordination$ pornography functions to consign all "omen to

une3ual social and economic status on account of their se%E pponents claimed that the data

causally lining pornography to #iolence against "omen "as insubstantial$ uncon#incing$ and

predicated on a simplistic and unpersuasi#e theory of causation.

third discomfort is that the campaign pre#ented feminists outside the circle of those "ho

originally "ored "ith 'acinnon and 9"orin from ha#ing a #oice in the structure and scopeof their local ordinances HthereforeI the architects of the ordinance lost the organi:ing potential

and the consciousness8raising benefits that "ould ha#e inured from "ider drafting participation1.

'onc"usion.

&he author concludes that &he closing lesson 4 "ant to dra" from the anti8 pornography

campaign about feminist organi:ation is the obser#ation that e%ploring$ pursuing$ and

accepting differences among "omen and differences among se%ual practices is necessaryto challenge the oppression of "omen by se%2.

While "omen today still e%perience se%ism$ "e do so in maredly different "aysC.Weha#e the lu%ury of choosing both our battles and our artillery. We no" that sometimes

"inning re3uires utili:ing "hate#er confrontational measures that are necessary. We are

not afraid of la"suits$ boycotts$ organi:ed protestsC-ut "e also recogni:e that there are

times that "inning re3uires a lighter touch and sometimes a short sirt and a bat of theeyes is not only easier but infinitely more effecti#e!.

!(Frug$ ,upra note 2$ at 1*


13/38

P;& 6

!/#0)!)O#L$ #F/)'# J3/)SP/30'

6; Marius Pieterse**

4@&;9=6&4@!raditiona" #frican ?urisprudencechallenges the currently dominant +estern@"ibera"

p(i"osop(iesof la" in more than one "ays. 4t is useful for legal scholars on the frican

continent in that it might offer uni3uely frican solutions to uni3uely frican problems.4t breas the stereotypical R patroni:ing #ie" of the "est "hich sees frican in t"o

forms

a. 4t portrays fricaLthird "orld as barbaric$ unsophisticated and dangerous.

b. &hat fricaLthird "orld ci#ili:ation is dangerous and unpredictable hence a threatto modern ci#ili:ation.

&he paper dra"s from the pre-co"onia" #frica"hich contains numerous+e"" (idden

uni>ersa" trut(s"hich once prospected and polished "ould enrich the dull "orld #ie"of the "est. &he paper taes the #ie" that the post-co"onia" #fricamay not be useful in

studying frican jurisprudence because it is ridd"ed +it( po"itica" unrest A socia"

economic crisis.For e%ample$ the ci#il "ars in ,udan$ ,omalia$ the 6ongo and the ethnic

clashes in enya. &he post8independence is polluted by the "estern ideologies.

,ome of the >a"ues under";ing pre-co"onia" thining still re#erberate throughcontemporary frican society in the composition of la" and society.7 &he frican

society is still "ell nit together "ith communal elements. 6ustomary la"s$ norms and

practices still mar contemporary frican society.

Modern #frican Lega" t(inkingis the product of the follo"inga. frican+s comple% legal Dheritage+ of

customar; "a+ co"onia" regu"ation

post independence "egis"ation.

b. &he pre#ailing socia" A economicconditionsacross the continent.

&he article recogni:es the sources of the frican jurisprudence to includeE

a. cademic R judicial engagement "ith the notion of =buntui#ing in harmony "ith nature$ gods and ancestors and man remaining at the

centre of interest.

For B%ample$ &he Sout( #frican #rc(bis(op 0esmond !utuclearly e%plained =buntu

in the follo"ing terms

A $erson with buntu is o$en and a/ailable to others) affirming of others) does not feel

threatened that others are able and good) for he or she has a $ro$er self-assuran"e that

"omes from nowing that he or she belongs in a greater whole and is diminished whenothers are humiliated or diminished) when others are tortured or o$$ressed.

&ne of the sayings in our "ountry is buntu - the essen"e of being human. buntu s$eas$arti"ularly about the fa"t that you "an0t e1ist as a human being in isolation. It s$eas

about our inter"onne"tedness. 2ou "an0t be human all by yourself) and when you ha/e

this 3uality - buntu - you are nown for your generosity. %e thin of oursel/es far too

fre3uently as 4ust indi/iduals) se$arated from one another) whereas you are "onne"tedand what you do affe"ts the whole world. %hen you do well) it s$reads out5 it is for the

whole of humanity.67

=buntu offers a #ie" of society that emphasi:es social harmony abo#e indi#idual gain

and sees rights R duties as sides of the same coin. 4t is contrary to the indi#idualistic and

materialistic #ie" approach of the "estern jurisprudence.

363!3= POL)!)'S A 'OS!)!3!)O#L 0)S'O3/S

471((7 /!0 , !(1 /66048&utu$ 9esmond/1(((0. @o Future "ithout Forgi#eness$4mage. 4,-@*8!)78(


15/38

4n S &s. Mak+an;ane= in "hich the death penalty "as dec"ared unconstitutiona"=emp(asis +as p"aced on t(e centra"it; of t(e >a"ues of (uman "ife A dignit; to t(e

concept of 3buntu"ith the intended conse3uences that$ since the death penalty "asfound to #iolate the right to life R dignity in the interim constitution its imposition "as

also considered to be contrary to the spirit of =buntu.

4n enya$ some decisions especially on personal la" and accident cases are influenced by

=buntuism. 4n S(eik( Mus(taC 4assan &s at(an M+angi Kamau !ransporters Aot(ers($ an accident case$ the Judge held the follo"ing #ie"$ 8in the "onte1t of 9enya)$arents of a de"eased young man who would ha/e been $re$aring himself for a "areer

with a /iew to looing after his parents in their old agesuffer real e"onomi" loss. ,he

"ost of bringing u$ the de"eased and the e1$ense of his:her edu"ation is lost) ne/er to be

redeemed. All the benefits that would accrue to the parents and younger brothers and

sisters of the deceased are e!tinguished.ow) almost all assistan"e) of this ind would

in the "onditions of 9enya be almost wholly e"onomi" in substan"e.

4n M. K. Mabuku &. e+ton Muc(eke Mburu A% ot(ers$

7*

the court$ relied on thedecision abo#e and held that the plaintiff /mother0 had pro#ed that the deceased "as a

conscientious daughter "ho had embared on her social responsibility of taing care ofher parents and her siblings.

&he ,outh frican &ruth R ;econciliation 6ommission incorporated the =buntu spirit Rrecogni:ed amnesty. =buntu "as included in the epilogue of the 4nterim 6onstitution but

not in the 1((< 6onstitution.

4n enya$ the 4armonised draft 'onstitution$ is done in the spirit of =buntuism andsome clause clearly demonstrate =buntuism.71

&he preamb"eto the 6onstitution demonstrates the commitment of enyans to nurturingand protecting the "ell8being of the indi#idual$ the family$ communities and the nation.

'"ause 1% pro#ides for national #alues$ principles and goalsE one of them being to

recogni:e the special responsibilities that the ,tate$ society and parents o"e to children$and upholding the family and the institution of marriage.

'"ause *2recogni:es the family as the natural and fundamental unit of society and the

necessary basis of social order.

From the e%amples abo#e e%amples =buntuism may ser#e political and judicial purpose

if used consistently in political and judicial decisions. &he bad ne"s$ ho"e#er$ is that inmost cases it is not used in maing political and judicial decisions.

49/1()281())0 1; (a"ued abo>e ot(er t;pes

of re"ations 5;ou be"onged if ;ou acted "ike ;ou be"onged. B#ery member must

contribute to the family+s sur#i#al to "hich he belongs. Socia" parent(ood is

emp(asiedo#er and abo#e bio"ogica" parent(ood.-elonging is considered to be in the

best interest of the child and customary la" ensured that family ties are maintained.

'oncepts of Propert; A /ig(ts of Propert;


17/38

Land is communa""; o+nedand a number of people ha#e limited rights in particular

property for particular purposes. Family property is managed by the head of a family for

the benefit of all family members. Aead of the family could be the father in a homesteador the eldest son in the homestead. &his arrangement is similar to the trust relationship

under common la". 4n enya$ for e%ample$ the la"s recogni:e &rust land and communal

o"nership72

!4 #F/)'# '4#/!/ O 43M# A POPL$S /)G4!S #frican

Jurisprudence A )nternationa" 4uman /ig(ts La+

&he frican 6harter has been signed by all frican countries and became into force on

the 21stctober 1()and Group ;epresentati#es ct$ 6ap 2)5 >a"s of enya

and judicial decisions on the principle of resulting trust.


18/38

P#/! 0

)SL#M)' J3/)SP/30'

)ntroduction4slamic jurisprudence is mainly concerned "ith the manner in "hich la"s are deri#ed

from the Tur+an and the ,unnah. 4n this sense$ 4slamic jurisprudence deals "ith sources

of 4slamic la" or ,hari+a as "ell as its interpretation. 4n alternati#e$ 4slamic jurisprudencecould be construed as a legal philosophy or philosophy of la".7!

Bssentially$ the main difference bet"een Western jurisprudence and 4slamic jurisprudence

is that$ unlie the former$ the latter gi#es much prominence to morality and religion.ccording to amali$ the #alues upheld and defended by la" and society in 4slam are not

al"ays rationali:ed. 4ndeed$ ,hariah is primarily based on di#ine inter#ention. Ao"e#er$

that is not to deny that human reason has played a significant role in de#elopment of

4slamic la".

7

4n other "ords$ re#elation and reason are central and at the core of 4slamiclegal philosophy.

9i: )s"amic Jurisprudence

4slam started "ith prophethood of 'uhammad in a" gre" "ithincreased spread and popularity of 4slam influenced significantly by prophesies and

teachings of 'uhammad and$ later$ his follo"ers. 4n terms of time$ 4slam came after

;oman la" had matured but before 6ommon la" had taen root. 774ndeed$ 6ommon la"

de#eloped long after 4slamic la" had fully taen shape and matured as a legal system. 4nsum$ 4slamic la" has taen centuries to de#elop to "hat it is today and has been around

during all periods of de#elopment of 4slam.7


19/38

&he "ord Tur+an is the #erbal noun of the root "ord 3ara0a "hich means Dto read+.

&hus$ Tur+an literally means reading or recitation. ,imply$ it is defined as the boo

containing the speech of God re#ealed to the Prophet 'uhammad in rabic andtransmitted to 'uslims by continuous testimony$ or tawatur0.

&he Tur+an also calls itself by alternati#e names$ such as itab$ huda$fur3an$ and dhir/boo$ guide$ distinguisher$ and remembrance respecti#ely0. When the definite article$ al$

is prefi%ed to the Tur+an$ it refers to the "hole of the -ooE but "ithout this prefi%$ the

Tur+an can mean either the "hole or a part of the -oo. &hus one may refer to a singularsura or ayah thereof as the Tur+an$ but not as al8Turan.75

Tur+an is percei#ed by 'uslims as a proof of the prophecy of 'uhammad and the most

authoritati#e guide for 'uslims. &he Tur+an is unanimously accepted as the first sourceof the #hariahand some e#en say that it is the only source and that all other sources are

e%planatory to the Tur+an.7)

'uslims belie#e that the re#elation of the Tur+an began "ith the ,ura al8la3 /(ord and ending "ith the ayah in sura

al8'a+idah /7!0 &oday 4 ha#e perfected your religion for you and completed my fa#ourto"ard you$ and chosen 4slam as your religion.7(

&here are 11 suras and


20/38

&he opposite of #unnah is bid0ah) or inno#ation$ "hich is characteri:ed by lac of

precedent and continuity "ith the past. 4n the Turan the "ord 0#unnah0 and its plural$sunan) ha#e been used on a number of occasions /1< times to be precise0. 4n all these

instances$sunnah has been used to imply an established practice or course of conduct.


21/38

4n the )thcentury 9$ there de#eloped t"o factions of 'uslims depending on political

allegiance. ne faction "as the ,unnites /traditionalists0 "ho represented the orthodo%

/majority0 'uslim population and "ho did not align themsel#es "ith any particularschool. n the other hand$ there "as the heterodo% ,hi+ites /partisans0 or the follo"ers of

the party of li /the Prophet 'uhammad+s cousin and son8in8la"0. &he ,hi+ites formed

themsel#es into a school of 4slam calling for restricting the leadership in the 4slamic"orld to the household of li on the basis of consanguinity /his blood ties "ith the

Prophet0.


22/38

Ma"iki Sc(oo"

&he Ma"ikiis the third8largest of the four schools$ follo"ed by appro%imately 17Q of

'uslims. &he 'alii ,chool deri#es from the "or of 4mam 'ali. 4mam 'ali+s "ellno"n collection of traditions is called the 'u"atta.

'aliites differs from the three other schools of la" most notably in the sources it uses

for deri#ation of rulings. ll four schools use the Turan as primary source$ follo"ed by

the ,unnah$ transmitted as hadiths. ccording to the 'alii ,chool$sunnahincludes notonly "hat "as recorded in hadiths$ but the legal rulings of the four rightly guided caliphs

/early 4slam rulers$ halifas0$ ijma /consensus of the scholars0$ 3iyas /analogy0

and urf /local custom "hich is not in direct conflict "ith established 4slamic principles0.&he 'alii school$ in addition$ relies hea#ily upon the practice of the ,alaf people

of 'edina as a source /as reported in the authentic hadith0. &his is because their

collecti#e practice$ along "ith the deri#ati#e rulings from thesalafischolars$ are

considered muta""atir$ or no"n and practiced by so many people that it can only be of

the sunnah. 4n other "ords$ the practice of the first three generation of 'uslims "horesided in 'edina$ i.e. the salaf or righteous predessors form the normati#e practice of

the Kli#ing sunnahK that "as preser#ed from 'uhammad.52

'ali "as particularly scrupulous about authenticating his sources "hen he did appeal tothem$ ho"e#er$ and his comparati#ely small collection of ahadith$ no"n as al-

MuwattaK&he ppro#edK$ is highly regarded. 'ali is said to ha#e e%plained the title as

follo"s K4 sho"ed my boo to se#enty jurists of 'edina$ and e#ery single one of themappro#ed me for it$ so 4 named it K&he ppro#edK.

4mam 'ali de#eloped a further Dsource D of la" called istadlal /juristic deduction

outside the scope of analogy0 in addition to the recognised four sources and recognised a

principle called maslaha /public "elfareLutilityLinterest0 uni3ue to his school. &he'alii+s pioneered the doctrine of maslaha /public "elfare0 as an independent source of

la". &his source allo"ed a jurist to articulate a ne" rule$ not by direct analogy$ but by

e%tracting the public "elfare principle /maslaha0 that lay behind the first rule and thenapply it to the ne" case.5!

S(afi$i Sc(oo"

&he ,hafi+i ,chool of thought stipulates authority to four sources of jurisprudence "hich

in hierarchical order consist of the Turan$ the ,unnah$ ijma KconsensusK$

and 3iyas KanalogyK. &he ,hafi+i ,chool also refers to the opinions of 'uhammadscompanions. &he school$ based on 4mam ,hafi+i "ritings emphasi:es

52@A, Jacson$ ;e#ie" 4slamic >a" and Jurisprudence ,tudies in Aonor of Farhat J. Siadeh$ 7 /10

Journal of ear +astern #tudies


23/38

proper istinbaat/deri#ation of la"s0 through the rigorous application of legal principles

as opposed to speculation or conjecture.5

4mam ,hafi+i approached the imperati#es of the 4slamic ,hariah /6anon >a"0 distinctly

in his o"n systematic methodology "hich e%clude the e%ercise of pri#ate judgment in thee%position of legal principles. Put differently$ he discouraged free use personal opinion

/ijtihad0. Ae ga#e more scope to ijma /consensus of opinion0 than 'ali to gi#e greatereffect to the Prophetic dictum that D'y people "ill ne#er agree in an error.57

4anba" Sc(oo"

&he jurisprudence school "as started by the students of 4mam hmad bin Aanbal. 4mam

hmad sought to employ e%ceptional caution "hile formulating juristic opinions and

issuing #erdicts$ and "ould fre3uently "arn his students against speaing in a matter in"hich they had no reputable predecessor. &his approach of prudence is demonstrated in

the thought process applied by hmad in e%trapolation of la"s from the di#ine sources$"hich is as follo"s5uran and the #unnah0 "as the first point of reference for allscholars of jurisprudence$ and in this$ hmad "as not an e%ception. Whene#er he

noticed a di#ine te%tual e#idence for an issue$ he ne#er referred to other sources$

opinions of the 6ompanions$ scholars or resorted to analogical deduction />iyas0.

2. Oerdicts issued by the companions "ere resorted to "hen no te%tual e#idence "as

found in the Turan or the ,unnah. &he reasons for raning the #erdicts of the6ompanions after the Turan and the ,unnah are ob#ious &he 6ompanions

"itnessed the re#elation of the Turan$ and its implementation by the 4slamic

prophet$ 'uhammad$ "ho ad#ised the =mmah to adhere to the rightly8guidedcaliphs$ hence$ the companions ought to ha#e a better understanding than thelatter generations.

4mam hmad$ "ould lie"ise$ ne#er gi#e precedence to a scholarly opinion or

analogical deduction />iyas0 o#er that of the 6ompanions+$ to the e%tent that if

they "ere di#ided into t"o camps o#er an issue$ t"o different narrations "ouldsimilarly be documented from 4mam hmad.

!. 4n a case "here the companions differed$ he preferred the opinion supported by

the di#ine te%ts /the >uran and the #unnah0.

. 4n instances "here none of the abo#e "as applicable$ hmad "ould resort to

the mursal Aadith.

7. nly after ha#ing e%hausted the aforementioned sources "ould 4mam hmademploy analogical deduction /Tiyas0 due to necessity$ and "ith utmost care.

5W Aalla3$ Was l8,hafi+4 the 'aster rchitect of 4slamic Jurisprudence? 27 4nternational Journal of'iddle Bast ,tudies 7)587)) /1((!0.574bid.5


24/38

part from the four ,unni schools$ there "ere other less prominent schools "hich

follo"ed these schools "hich are no" either e%tinct or e%ist in small$ isolatedcommunities. &here "ere also the traditionalists called ahl al8hadith or imams

speciali:ing in hadith "ho succeeded 4mam Aanbal. &hese 4mams compiled si%

collections of hadith into boo form. &he ahl al8hadith sa" their tas as merely collectingand not analy:ing narrati#e material on the prophet /hadith0 and did not allo" theirpersonal opinions and judgements to play any role in doing so. Ao"e#er$ despite the

fastidious and painstaing process of compilation$ due to the possibility of fabrication$

the Aadith has al"ays remained an ambiguous and inferior source of 4slamic legislation. 55

&here is no" the scholarly consensus$ amongst both orientalist and traditional

scholarship$ that it is a myth that once ,hafiis school of la" "as fully established

together "ith the other schools founded byhmad ibn Aanbal$ bu Aanifa and 'ali$

the KdoorK of ijtihad "as closed and it "as considered that ijma had been reached on all

necessary points of la". 4ndeed$ 4slamic jurisprudence has changed a great deal e#er sincealthough it is still based on the four sources mentioned abo#e and borro"s hea#ily from

the schools of la".

)s"amic Lega" P(i"osop(;

&he general 4slamic philosophy is of great di#ersity and richness$ characteri:ed by certain

features that are of special significance for both an understanding of it and for an

appraisal of its impact on the "orld at large.5)ne must remember that this philosophye%isted at a time in "hich strict obedience of the 4slamic religion "as customary.

4slamic philosophy is mainly concerned "ith the basic issue of the harmony bet"een

human reasoning and the re#elations pro#ided to the 'uslims in the holy Turan. &hus$

the main purpose of 4slamic philosophy "as to determine the relation bet"een theuni#erse and the human being in one hand and the creature of that uni#erse and llah on

the other hand.5(

&he impact of 4slamic philosophy on the ;enaissance$ and therefore to Buropean >egal

jurisprudence$ "as enormous. First and foremost$ 4slamic philosophy originates from atime "hen 4slam had a great influence on e#eryday life. &he mere fact that 4slamic

philosophy "as able to operate in such a fundamentalist en#ironment greatly effected the

;enaissance for it ser#ed as an e%ample the thiners of that time 8 ho" to present ne"$554bid.

5),harif af l8Gha:al$ &he 4nfluence of 4slamic Philosophy and Bthics on &he 9e#elopment of

'edicine 9uring the 4slamic ;enaissance$ #ailable athttpLL""".muslimheritage.comLuploadsL&heN4nfluence

NofN4slamicNPhilosophyNonN9e#elopmentNofN'edicine.pdf /last accessed on 2*L*1L2*1*0.

5(4bid.
http://en.wikipedia.org/wiki/Ahmad_ibn_Hanbalhttp://en.wikipedia.org/wiki/Ahmad_ibn_Hanbalhttp://en.wikipedia.org/wiki/Ahmad_ibn_Hanbal


25/38

radical ideas "ithout angering religious fundamentalists$ "ho "ere the church at that

time. Without 4slams e%ample$ the ;enaissance thiners may ha#e presented their ideas

in a much more pro#ocati#e form$ setting them bac hundreds of years due to "idespreadhate$ distrust and non8acceptance of "hat people "ould percei#e to be o#erly radical

ideas. )*

,econdly$ 4slamic philosophy al"ays lead to one main conclusion$ that the po"er of

llah "as supreme and that his "ords "ere the absolute truth. &hus$ although 4slamicjurists belie#ed lie 4bn ;ushd belie#ed in primacy of reason$ they denied that that the

findings of philosophy could e#er be in conflict "ith Tur+anic re#elation or any

theological doctrines deri#ed from it. 4n other "ords$ 4slamic philosophers argued forharmony of religion and philosophy$ that is$ harmony of faith and reason.)1

&hirdly$ many of the ideas of ;enaissance philosophy are based on ancient Gree$

Persian and 4ndian te%ts$ "hich the 'uslims translated$ as "ell as the philosophy of the

'uslims themsel#es. &he 'uslims "ere responsible for creating the foundation for the

KbuildingK of philosophy that the ;enaissance thiners "ould later Kconstruct.K

)2

ccording to 4slamic jurists$ there is no distinction bet"een ci#il la" and di#ine la". s

"e sa" in our discussion of sources of 4slamic la"$ much reliance is laid on the primary

sources of la".Finally$ it is important to note that 4slamic legal philosophy is much influenced by the

4slamic concept of human nature. Bssentially$ according to 4slamic scholars$ the human

being is naturally inclined to right and #irtue and the natural inclination has been madeobligatory upon human beings by command of llah in the Tur+an )!&hey belie#e in

God and the >ast 9ayE &hey enjoin "hat is right$ and forbid "hat is "rong$ nd they

haner after good "ors.)

)*4bid.)14bid.)24bid.)!,upra$ note ($ p. (2.)Tur+an ! 11.


26/38

P;& B

L#B ) !4 'O!H! OF GLO6#L)I#!)O !4 0M#0S OF J3S!)'.

#3!4O/

9arrel 'oellendorf is the uthor of this article. 9arrel holds a - from ,t. John+s

college$ ' from 6laremont Graduate ,chool$ Ph9 from 6laremont Graduate ,chool.

#SS)GM! o. 1

Globali:ation is a mu"ti-faceted social phenomenon in#ol#ing increasing economic=

po"itica" A "ega"integrationon a global scale. Globali:ation is a process of interaction

and integrationamong the people$ companies$ and go#ernments of different nations$ a

process dri#en by international trade and in#estment and aided by informationtechnology. &his process has effects on t(e en>ironment= on cu"ture= on po"itica"

s;stems= on economic de>e"opment and prosperit;= and on (uman p(;sica" "ell8

being in societies around the "orld.)7

World 6ommission on Bn#ironment R 9e#elopment /W6B90 has captured globali:ation

in the follo"ing terms

ational boundaries ha/e be"ome so $orous that traditional distin"tions between lo"al)

national and international issues ha/e be"ome blurred. #ome nations ha/e $ushed their

$oli"ies to the e1tent that they ha/e affected sovereigntyof other nations.7;

4ncreased global economic acti>it; is a central feature of globali:ation. &his is in

accordance to the e#idence by the =nited @ations 9e#elopment Programme /=@9P0.)5

For e%ample$ globali:ation has increased the po"er of international financial institutions

85Oercelli$ lessandro$ Globali:ation and ,ustainable 9e#elopment /,eptember 2**!0. =ni#ersity of ,iena

Bconomics Woring Paper @o. !((. #ailable at ,,;@ httpLLssrn.comLabstractM


27/38

such as 4nternational 'onetary Fund /4'F0))and World -an /W-0)(and international

trade under World &rade rgani:ations /W&0.

ffecti>e and sustainab"e g"oba"iation re3uires that there be an internationa" "ega"

regime t(at ensures ?ustice and fairness in the allocations of international resources$

protection of rights for all and due process procedures. &his discussion focuses on the

role of international la" in addressing #arious aspects of globali:ation to ensure fairness

and justice.

)S )!/#!)O#L L#B /#LL8 L#BD

&he term international la" originated "ith Jerem; 6ent(am usage in 15)( in his

"ritings entitled$ An Introdu"tion to the Prin"i$les of Moral ? Legislation.(*-entham

distinguishes interna" "a+ from )nternationa" La+. 4nternal la" go#erns citi:ens in a

country "hile international la" go#erns so#ereign states. 4n contemporary jurisprudence

distinction is dra"n bet"een municipa" "a+ and internationa" La+.(1'unicipal la" is

the national$ domestic$ or internal la"of a so#ereignstate"hich includes not only la" at

the national le#el$ but la" at the state$ pro#incial$ territorial$ regional or local le#els.(2

'riticism of )nternationa" La+

,eptics argue that there is nothing lie international la". &heir criticism is based in the

difference bet"een the state and global community. &here is typically an undisputed

so>ereign "ithin a state "ith the po+er to enforce "a+by imposing sanctionshence the

e%istence of la". t international la" there is no such so#ereign and therefore enforcing

88&he 4nternational 'onetary Fund /4'F0 "as formed in 1( and it is an international organi:ationthat

o#ersees the global financial systemby follo"ing themacroeconomic policiesof its member countries$ in

particular those "ith an impact on e%change ratesand thebalance of payments.4t is an organi:ation formed

"ith a stated objecti#e of stabili:ing international e%change rates and facilitating de#elopment.89World -an is a term used to describe aninternational financial institutionthat pro#idesle#eraged

loansH2Itode#eloping countriesfor capital programs. &he World -an has a stated goal of reducing

po#erty.90-entham J$ /15)(0$ Dn 4ntroduction to the Principles of 'oral R >egislation+$ %ford 6larendon Press91rticle !) of the 4nternational 6riminal Justice /1(a"$ "hich include

a. international con#entions$ "hether general or particular$ establishing rules e%pressly recogni:ed by the

contesting statesEb. international custom$ as e#idence of a general practice accepted as la"E

c. the general principles of la" recogni:ed by ci#ili:ed nationsE

d. subject to the pro#isions of rticle 7($ judicial decisions and the teachings of the most highly 3ualified

publicists of the #arious nations$ as subsidiary means for the determination of rules of la".92'alcom @ ,ha" /2**!0$ 4nternational >a"$ 7th ed$ 6ambridge =ni#ersity Press.
http://en.wikipedia.org/wiki/Lawhttp://en.wikipedia.org/wiki/Sovereigntyhttp://en.wikipedia.org/wiki/Sovereign_statehttp://en.wikipedia.org/wiki/Sovereign_statehttp://en.wikipedia.org/wiki/International_organizationhttp://en.wikipedia.org/wiki/Global_financial_systemhttp://en.wikipedia.org/wiki/Global_financial_systemhttp://en.wikipedia.org/wiki/Macroeconomic_policieshttp://en.wikipedia.org/wiki/Macroeconomic_policieshttp://en.wikipedia.org/wiki/Exchange_ratehttp://en.wikipedia.org/wiki/Balance_of_paymentshttp://en.wikipedia.org/wiki/Balance_of_paymentshttp://en.wikipedia.org/wiki/Balance_of_paymentshttp://en.wikipedia.org/wiki/International_financial_institutionhttp://en.wikipedia.org/wiki/International_financial_institutionhttp://en.wikipedia.org/wiki/International_financial_institutionhttp://en.wikipedia.org/wiki/Leveraged_loanhttp://en.wikipedia.org/wiki/Leveraged_loanhttp://en.wikipedia.org/wiki/Leveraged_loanhttp://en.wikipedia.org/wiki/World_Bank#cite_note-1http://en.wikipedia.org/wiki/Developing_countrieshttp://en.wikipedia.org/wiki/Developing_countrieshttp://en.wikipedia.org/wiki/Developing_countrieshttp://en.wikipedia.org/wiki/Infrastructurehttp://en.wikipedia.org/wiki/Povertyhttp://en.wikipedia.org/wiki/Povertyhttp://en.wikipedia.org/wiki/International_organizationhttp://en.wikipedia.org/wiki/Global_financial_systemhttp://en.wikipedia.org/wiki/Macroeconomic_policieshttp://en.wikipedia.org/wiki/Exchange_ratehttp://en.wikipedia.org/wiki/Balance_of_paymentshttp://en.wikipedia.org/wiki/International_financial_institutionhttp://en.wikipedia.org/wiki/Leveraged_loanhttp://en.wikipedia.org/wiki/Leveraged_loanhttp://en.wikipedia.org/wiki/World_Bank#cite_note-1http://en.wikipedia.org/wiki/Developing_countrieshttp://en.wikipedia.org/wiki/Infrastructurehttp://en.wikipedia.org/wiki/Povertyhttp://en.wikipedia.org/wiki/Lawhttp://en.wikipedia.org/wiki/Sovereigntyhttp://en.wikipedia.org/wiki/Sovereign_state


28/38

the la" by imposing sanctions is not feasible. 4n absence of a credible and effecti#e

enforcement mechanism in international arena$ there is no la"

0efence to t(is 'riticism

&here are t"o #ie"s that defend the e%istence of international la"$ one pragmatic and

another conceptual.

a. &he pragmatic >ie+especially by &homas Fran is that international la" has

matured into a complete legal system co#ering all aspects of relations amongst

states$ persons$ corporation$ and international organi:ations etc.(! 4nternational la"

consists of intricate net"or of la"s go#erning a myriad of rights R duties that

stretch across R beyond national boundaries. B%amples of these la"s include

=ni#ersal 9eclaration of Auman ;ights /=9A;0$( 6on#entions on 6limate$

&rade etc. ,ome states acno"ledge$ international la" as a source of la" "ithin

their domestic constitutions e.g. rticle O4 of the =, 6onstitution recogni:es

international la".(7

4n enya #alidity of the la"s that apply /including the 6onstitution0 is based in

section ! of the Judicature ct and the same does not include international la". (s. Jane /ono A anot(er(5Wai J held as follo"s 8

Is international law rele/ant for "onsideration in this matter@ As a member of the

international "ommunality) 9enya subs"ribes to international "ustomary law and

has ratified /arious international "o/enants and treaties. In $arti"ular it

subs"ribes to international bill of rights) whi"h is the ni/ersal 'e"laration of

uman !ights (BC67= and two international uman rights "o/enants *o/enant

in +"onomi") #o"ial and *ultural !ights and the *o/enant on *i/il and Politi"al

93&homas '. Franc$ Fairness in 4nternational >a" and 4nstitutions$ Buropean Journal of 4nternational

>a" 2**2 1!/0(*1.94Formed in 1().95rticle O4 of the =, 6onstitution pro#ides that ,his *onstitution) and the Laws of the nited #tates

whi"h shall be made in Pursuan"e thereof5 and all ,reaties made) or whi"h shall be made) under the

Authority of the nited #tates) shall be the su$reme Law of the Land5 and the Judges in e/ery #tate shall bebound thereby) any ,hing in the *onstitution or Laws of any #tate to the *ontrary notwithstanding.966ap ) >a"s of enya.97/2**70 e>;.


29/38

!ights (both ado$ted by the Deneral assembly in BC;;=. In BC76 it also

ratiofied without reser/ation) the *on/ention on the +limination of all Forms of

'is"rimination Against %omen (*+'&%=.

b. 'onceptua" >ie+ is mainly held by 4L# 4art in his positi#ism theory. Ae

opposed the #ie" that la" is al"ays baced "ith sanctions. ccording to him

sanctions are not a necessary condition for the e%istence of la". Ae claims that

such a #ie" fails to account for the internal normati#ity of la". &he essential

feature of la" is that it gi#es rise to obligations to obey. &here is a fundamental

distinction bet"een claiming that one is liely to suffer from a sanction if one

disobeys and claiming that one has an obligation to obey. 4n municipal la"$ the

criminal la"s are baced "ith sanctions but still people disobey them a clear

demonstration that la"s need not be baced "ith sanctions to be la"s. Further

there are so many other la"s especially procedural la"s that are not baced by

sanctions but are still la"s and are obser#ed.

F#)/SS ) GLO6#L /G)M

4nternational la" is e%tensi#e R co#ers #arious areas of human de#elopment and

therefore should posses certain #alues$ aims R effects especially in its response to

ine3uality and po#erty. =nfair international legal regimes may not ha#e the binding effect

that it is re3uired for it to be effecti#e. 6urrently there is a lot of ine3uality and unfairness

aspects in the "orld ranging from poor resource allocations$ biased legal regimes$ unfair

competitions$ po#erty etc.

,amp"e of Bor"d ineCua"it; ,he 'P notes that the total in"ome of the worlds

ri"hest BE of the $eo$le is e3ual to that of the $oorest


30/38

Jo(n /a+"sargues that one could get a good idea of "hat "ould be fair principles for

go#erning the bacground institutions of society e.g. 6onstitutional R Bconomic

frame"or$ procedural fairness rules etc. Ae argues that parties in their original position

"ill first of all settle on a principle that guarantees eCua" rig(ts A "ibertiesto all and

"ill secondly settle on a principle that limits socia" A economic ineCua"ities.

;a"ls recommends a difference princip"ethat permits ine3ualities in the distribution of

goods only if those ine3ualities benefit the "orst8off members of society. ;a"ls belie#es

that this principle "ould be a rational choice for the representati#es in the original

position.

'osmopo"itans argue that there are at least three reasons for holding that the current

global distribution of "ealth$ income R resources is unjust

a. Protectionist trade po"icies in de#eloped countries substantially harm the

de#eloping countries. For e%ample #merican subsidies t(eir farmers. &his

maes it possible for =, to e%port food so cheaply that farmers in poorer nations

cant possibly compete.b. Foreign de>e"opment aidis meagerto trigger any de#elopment and comes "ith

conditionalities that are unpractical and not intended to benefit poor nations. For

e%ample$ 4'F imposed se#eral loan based conditions against enya in the 1((*s

to push the enyan go#ernment to end corruption. &hese conditions are imposed

and not agreed and therefore do not in most cases achie#e the results intended.c. !(e e,isting g"oba" institutions (a>e been in e,istence for man; ;ears and ;et

no commendab"e progress has been made in de#elopingLpoor nations.

lternati#e global institutions may increase the "ell being of the least de#eloped.

!(omas Poggerecommends a global resource di#idend ta% to the e%tension of

natural resources.

ddressing global ine3uality is necessary in order to de#elop a fair comprehensi#e global

legal regime. >egal and institution creation or reforms may be needed in a number of

areas in order to ensure that globali:ation results in fair outcomes.

4ed"e; 6u""argues that to generate international consensus on "hat la"s R institutions

are re3uired may be profoundly affected by the bacground condition of g"oba"


31/38

ineCua"it;.() &o address the unfairness or global ine3ualities$ it is central to address

distribution of "ealth$ resources R po"er in international organi:ations. reas that need

urgent redress to instill e3uality and fairness include the trade regime$ the global climate

and human rights.

W;>9 &;9B

Bor"d !rade Organiation

W& "as founded in 1((7 after the =ruguay ;ound to administer multilateral trade

treaties including General greements of &ariffs and &rade. 4t has legal personality lie

many =@ organs. -y the 2! July 2**)$ W& membership had risen to 17! countries.((

enya became a W& member on the 1stJanuary 1((7.

Functions of W&

a. &he W& pro>ides a "ega" and institutiona" frame+ork for t(e

imp"ementationand monitoring of #arious trade agreements.

b. &he W& pro>ides a forum for negotiating agreements aimed at reducing

obstacles to international trade and ensuring a le#el playing field for all$ thus

contributing to economic gro"th and de#elopment.

c. Faci"itate dispute reso"ution9ispute settlement =nderstanding /9,=08it settles

disputes arising from their interpretation and application.

,tructures

a. Ministeria" 'onferenceof all members "hich meets after e#ery 2 years and it

has met 5 times since 1((


32/38

c. Secretariat8&he responsibility of the W& ,ecretariat is to pro#ide top83uality$

independent support to W& member go#ernments on all of the acti#ities that are

carried out by the rgani:ation$ and to ser#e the W& "ith professionalism$

impartiality and integrity.

'ritiCue on t(e mode of decision making

n all matters e%cept amendments to e%isting agreements R general principles$ decision

maing is based onnegotiation and consensus.bser#ers are in disagreement on the

e%tent to "hich W& go#ernance procedures are fa#ourable to less po"erful nations.

Optimistsargue that consensus is ideal since it gi#es all members e3ual opportunity but

critics argue that poor countries lac the means to participate in meetings. For e%ample

poor nations do not ha#e missions in Gene#a to push for their agenda. Poor @ations ha#e

a poor staffing in the negotiations that formulate and implement ne" rules hence more

often than not get a lo" deal. &here is therefore need to subsidi:e the participation of

poor countries.

W& Principles

'embers of the W& abide by negotiated trade rules guided by four basic principles

"hich are highlighted belo"

a. on-discrimination Princip"e11-=nder the W& agreements$ countries cannot

normally discriminate bet"een their trading partners. 4f you grant someone a

special fa#our /such as a lo"er customs duty rate for one of their products0 then

you ha#e to do the same for all other W& members. 4mported and locally8

produced goods should be treated e3ually8at least after the foreign goods ha#e

entered the maret. &he same should apply to foreign and domestic ser#ices$ and

to foreign and local trademars$ copyrights and patents.

101rticle ! and of G&&$ 'ost Fa#oured @ation and @ational &reatment.


33/38

b. /eciprocit;8mutual liberation R tariff reduction in trade. mutual or cooperati#e

interchange of fa#ors or pri#ileges$ especially the e%change of rights or pri#ileges

of trade bet"een nations.

c. Market access8 'aret access for goods in the W&means the conditions$ tariff

and non8tariff measures$ agreed by members for the entr; of specific goods into

t(eir markets. &ariff commitments for goods are set out in each members

schedules of concessions on goods.

d. Fair competition8means a le#el playing ground. 6ountries are allo"ed to

inter#ene if competition is injurious to domestic industries$ public health or

national security.

Free !rade Pros and 'ons

Free trade is a system in "hich goods$ capital$ and labor flo" freely bet"een nations$

+it(out barriers"hich could hinder trade process. Free trade is based on a comparati>e

ad>antage t(eor;"hich means that a country "ith an ad#antage in producing a certain

product should do so and e%change goods "ith another country "hich has a high

ad#antage in another product. 4t is the ability of a country to produce a particular good or

ser#ice at a lo"er opportunity cost than another party. 4t is the ability to produce a

product most efficiently gi#en all the other products that could be produced.

Bconomic liberali:ation is one mode of ac3uiring free trade and it is intended to increase

efficienc; in aggregate production and consumption. Aigh rate of economic

interaction is belie#ed to speed up the absorption of frontiers in technology R global

management best practices$ spurs inno#ation$ cost cutting R competes a"ay monopoly.

'riticism of free trade

a. 9isrupts traditional production methods "hich ha#e been embraced by certain

countries for a long time.

b. >iberali:ation threatens the benefits of many "ho ha#e pre#iously gained from

import tariffs R starts subsidies.

c. Worers rights might be endangered since countries "ill lo"er them to reduce the

cost of production.
http://en.wikipedia.org/wiki/World_Trade_Organizationhttp://en.wikipedia.org/wiki/World_Trade_Organization


34/38


35/38

join the international community in combating the problem of climate change.1*2 &he

main objecti#e of this con#ention is to achie#e stabili:ation of greenhouse gas

concentrations in the atmosphere. &o achie#e this objecti#e$ the parties are guided by the

follo"ing principlesE

a. Cuit; and en?oining "eaders(ipfrom de#eloped "orld countries in combating

climate change.

b. Fu"" consideration of t(e needs of t(e de>e"oping countries$ "hich are more

#ulnerable to climate change.

c. #d(erence to t(e precautionar; princip"e +(ic( is to anticipate= pre#ent or

minimi:e the causes of climate change and mitigate its effects. Where there are

threats of serious or irre#ersible damage$ lac of full certainty should not be used

as an e%cuse for postponing measures.

d. /ig(t to sustainab"e de>e"opment

e. 'ooperation of parties in promotingan open international system leading to

sustainable economic de#elopment for all.

&hese principles are good but they do not prescribe limits$ goals or timetables$ especially

for the first four. Ao"e#er$ by ratifying the =@F666$ de#eloped countries incur an

obligation to transfer en#ironmentally sustainable technology to de#eloping countries as

contemplated in principle fi#e.

!(e K;oto Protoco"

&he yoto Protocol "as adopted b; t(e Parties to t(e 3F''' in 1EE . s of

@o#ember 2**($ 1)5 states had signed and ratified the protocol.1*!Ken;a ratified K;oto

102&he =nited @ations Frame"or 6on#ention on 6limate 6hange /=@F6660. #ailable at

httpLL""".nema.go.eLinde%.php?optionMcomNcontentRtasM#ie"RidM1)5.ccessed on the 2< January2*1*.103yoto Protocol ,tatus of ;atificationK/P9F0. =nited @ations Frame"or 6on#ention on 6limate

6hange.2**(8*181.

httpLLunfccc.intLfilesLyotoNprotocolLstatusNofNratificationLapplicationLpdfLpNratification.pdf. ;etrie#ed

2


36/38

Protoco" on 2 Februar; 2.,ome major emitters lie =, ha#e not ratified the

protocol. &he protocol sets out specific timetables for the reduction of green houses gas

emissions. 4t binds de>e"opedcountries of the rganisation for Bconomic 6o8operation

and 9e#elopment /B690 and the former 6ommunist bloc to cut their greenhouse

gases by of t(eir 1EE "e>e"s b; 212.4t establishes a maret for emission credits.

9e#eloping "orld countries are not legally bound by these emission reduction

re3uirements. &he protocol applies the princip"e of proportiona"it;"here the de#eloped

countries "ho are the major emitters to reduce by a higher amount than de#eloping

countries.

SO&/)G!8= )!/&!)O #0 43M# /)G4!S

&here is a diminishing po"er of state so#ereignty and corresponding rising importance of

human rights. 9emocrati:ation has been used as a tool in preser#ation of human rights

and se#eral military regimes ha#e been replaced by ci#ilian regimes. )nternationa" "a+

containsboth statist and cosmopo"itan conceptson inter#ention of one state or =nited

@ations in another in case of human rights #iolations causing confusion.

9a: !(e 3 '(arter and Statism

,tatist conception of international la" is based on principle of self8determination and

respect of so#ereignty.

#rtic"e 2 e%presses statism by identifying t"o main interests of states as territoria"

integrit; and po"itica" independence.1* &his effecti#ely pre#ents one state in

inter#ening in another. &he article ho"e#er$ seen to allo" unilateral inter#ention that does

not #iolate territorial integrity and political independence and "hich is consistent to the

purpose of the =@.

#rtic"e 29: also allo"s co""ecti>e inter>entions that either does not affect mattersespecially "ithin the domestic jurisdiction of a state or that are re3uired by =@ charter. 1*7

104rticle 2 &he rgani:ation and its 'embers$ in pursuit of the Purposes stated in rticle 1$ shall act in

accordance "ith the follo"ing Principles.

&he rgani:ation is based on the principle of the so#ereign e3uality of all its 'embers.105rticle 2/50 @othing contained in the present 6harter shall authori:e the =nited @ations to inter#ene in

matters "hich are essentially "ithin the domestic jurisdiction of any state or shall re3uire the 'embers to

submit such matters to settlement under the present 6harterE but this principle shall not prejudice the


37/38

#rtic"e %Eof the =@ charter allo"s ,ecurity 6ouncil to inter#ene in case of a threat to

international peace.1*o"ering the bar against inter#ention need not open international affairs to super

hegemony since inter#ention "ould only be permitted +(en it is reasonab"e

and e,pected to promote ?ustice.

d. Auman rights come first to state so#ereignty and therefore inter>entionism on

>io"ations of (uman rig(ts is ?ustified.&he =@ 6harter preamble$ the =ni#ersal

9eclaration of Auman ;ights$ the 4nternational 6o#enant on Bconomic$ ,ocial$

and 6ultural rights$ the 4nternational 6o#enant on 6i#il and Political ;ights$

frican 6harter on Auman Peoples+ rights$ Oarious 6onstitution including enya

6onstitutions1*(recogni:e the importance of human rights.

application of enforcement measures under 6hapter Oll.

106rticle !( pro#ides &he ,ecurity 6ouncil shall determine the e%istence of any threat to the peace$ breach

of the peace$ or act of aggression and shall mae recommendations$ or decide "hat measures shall be taen

in accordance "ith rticles 1 and 2$ to maintain or restore international peace and security.1*56ompare 4ra3 in#asion of u"ait. &he in#asion started on ugust 2$ 1((*.1*)&he ;"anda genocide e%perience in 1((. 6ountries ept 3uite despite massi#e1*(&he enya @ational 6ommission on Auman ;ights ct @o. ( of 2**2$ no" in the Proposed draft

6onstitution.


38/38

'O'L3S)O

-oth economic integration and the de#elopment of international regulatory regimes are

major aspects of the process of global integration no"n as globali:ation. &here are

ho"e#er$ a lot of ine3ualities as the process of globali:ation taes place hence the need

for a legal regime that addresses the ine3ualities.

Documents

Seminar 11- Other Approaches