2) Natural law theory
This theory posits that law is not simply a human construct but rather law is informed by nature and especially human reason, morality and any other universal standards. While proponents of this theory are not against the enactment of positive laws, they believe that natural law and all its accents precede positive law and that positive law draws its legitimacy from natural law. As such, natural law is much more superior to positive law . It therefore goes without saying that positive law that does not subscribe to natural law is bad law. While there are many proponents of this theory, my analysis will explore the works of Aristotle, Aquinas and Rousseau.
Aristotle (384-322 BC)
Born in classical Greece, he is considered by many as one of the original exponents of this theory. He was the student of Plato, another famed Greek natural law theorist. However, I chose to restrict myself to the works of Aristotle as Plato’s philosophy was more idealistic whilst the former was practical as it was based on actual legal systems. Regardless, both men’s philosophies had an element of justice as both tried to explore the true meaning of justice.
In book I of the “Rhetoric,” Aristotle differentiates between particular law and universal law . Particular law, he states is dependent on one’s society. Here every society prescribes the rules that its people will follow. The form of these rules are not prescribed so each society may choose to have written or unwritten laws . On the other hand, there exists a universal law. This law has several characteristics. It derives its power from nature, it binds all men regardless of their particular laws and it is eternal as no one knows not of its origin . This law also has elements of justice and Aristotle uses the terms “natural justice” and “natural injustice” . In book V of “The Nicomachean Ethics,” he equates justice with lawfulness and fairness . He uses this to mean that this universal law inclines human beings to seek for laws that correspond with this natural justice and reject those that are naturally injurious.
Natural justice is a term that appears severally in the laws of Kenya. Natural justice is used synonymously with fairness, goodness and justice. It is also closely related to the law of equity as equity developed as ay to mitigate the “unjustness” of common law. Natural justice principles are especially implored in courts, tribunals or in administrative functions. The two main principles of natural justice are nemo iudex in causa sua which guarantees impartiality and is a bar to bias and audi alteram partem which guarantees people the right to a fair hearing.
The Constitution of Kenya in article 22 provides for every person the right to commence court proceedings claiming enforcement of their rights or even on behalf of others . This same article provides expressly for natural justice as it implores courts to not be deterred by procedures when applying natural justice . The constitution further provides for the right to a fair hearing for all accused persons and expressly provides what constitutes a fair trial which includes the right to be tried by an impartial and independent judicial body which includes courts and tribunals . Other principles of natural justice such as cross-examination, right to prior notice and adjournment are reflected under the same provision of the constitution . In addition, these same principles are also implored in administrative manner to ensure that services are delivered in the most efficient and expedient manner as possible and the constitution provides for this . This is also present in statues such as the Fair Administrative Action Act 2015 and the Arbitration Act of Kenya.
Aside from these formal laws natural justice is also present in traditional customs as evidenced by this Luganda proverb which states, “Enkima tesala gwa kibira” . Just as a monkey is precluded from judging in matters affecting the forest, so is a person barred from deciding his or her own matter.