Understanding the law, I must admit takes a lot in terms of the bulks that one has to read to fully get the idea of what it contains and why it exists. My understanding of the law at this juncture is influenced by a number of factors. Before I got into law school, I had never taken the time to check up the meaning of law but I had an idea of what law is. I viewed the law to be a set of rule that is written or understood by people and that concerns itself with the behaviours and their consequences. Normally, I’d imagine them to come from an authority like the government or my parents or the school administration, teachers, priests, anyone in authority could be the source of law. However, my stay at the law school has opened my eyes to some things I never really paid attention to like the society as a social unit, the principle of justice and equality, liberty, etc. In declaring what stand I take in this paper, I will discuss the factors that have influenced my understanding of the law, then I will give a description on what I understand the law to be. This will be followed by the scholars I agree with and those I disagree with in the context of how I understand the law.
As a third year student, my perception of the law has changed. I now view things differently than I viewed them when I first joined the university. I understand differently. Some of the factors that have influenced my understanding of the law today are;
1. The societal setting- I live in a society where people share cultural aspects like language and dressing. We often engage in common interests and deliberate towards a common goal. This act of oneness, and doing thing together is what makes us a society. I was born and bred in a family setting where the father is the head of the family, then the mother comes second and then the children. The father is the source of the family rules, whatever he says holds. One time as I was growing up, I asked for permission to go swimming with my friends and my father denied me the permission to join them. I was however mentally prepared to go swimming because of how much hype the activity had been given while planning for it. So I defied my father’s orders and went. It was of course found out that I went and for that I was given a thorough beating, not necessarily because I went swimming, but because I was expressly told not to go but I went; disobedience. That was my first time to ever go swimming and I never got back because the consequences of my behavior taught me the hard way. I still do not know how to swim. Back to the family setting, the mother comes second to the father. She too follows orders of the father and submits to him. They are both superiors of the house, but the father is the greater superior. In my mother language, there is a proverb that refers to parents as second gods.
Speaking of gods, I come from the Christian family where we recognize God as the only god. We view God as a supreme, supernatural being with supernatural powers and who is not susceptible to death- He is immortal. There is a higher principle behind everything and every happening. Virtues of Christianity were instilled in me at home, in school and in church. Normally religion will go hand in hand with education. Throughout my primary and secondary education, I have taken the Christian Religious Education (C.R.E) as a compulsory subject. I therefore – by choice – hold God in very high esteem. Christianity teaches of virtues like love (‘Love one another’, and it added ‘and if you do, there is a reward – life everlasting’), humility, kindness, faithfulness, doing unto others what you would want them do unto you, etc. All these teachings are in accordance to God’s nature of unconditional love and care to humankind and other creation. He is the creator of all things and therefore the father to all. This makes Him the source of authority over every creation. Nature obeys Him (the calming of the storm), external forces are commanded by Him and they do as ordered (exorcism of demons). It may sound confusing because these things were done by Jesus, but I view God the father, the son and the holy spirit as one. Growing up with my two siblings and other children has also instilled aspects like those of sharing, respecting others and etiquette, being obedient, distinguishing between what is right and wrong guided by my conscience and my ethical judgement in the profession or at work or where I am in an organization whereby we are deliberating towards a common agenda.
2. My interaction with the law- I have come across the law or rules as I carry out my day’s activities. For example, I observe traffic rules on a daily basis. They dictate when cars should move or stop and when pedestrians should cross the road or not. I have been involved in a buying- selling contract where an offer is made and accepted, consideration paid, good handed over to buyer and the contract can be considered to be performed in accordance with the law of contract. At the university, there is a class attendance policy which is given by the university to dictate the minimum number of classes a student is supposed to attend while taking courses. That policy is part of the university constitution. Less than two months ago, I was doing my judicial attachment at the magistrates’ courts where I witnessed people getting convicted for breaking the law- defiance. Imprisonment or payment of fines or other non-custodial sentence given to a person is meant to act as a sanction for disobedience of the law.
3. Justice, equality and equity- the law is that which is just. By just I mean being correct or conforming to the reality. The law should bring fairness to everyone. Everyone should get what they deserve- giving Caesar what belongs to Caesar. It is at this point I dare say that I advocate for equity other than equality. An example is the division of matrimonial property; every party to the marriage should get part of the property that was acquired by the two while they were in still in matrimony. Everyone should get what they brought in. If acquisition was done jointly, then each member’s contribution should be determined so that there does not arise a situation where one is going to take advantage of the other by having that which he did not contribute to. That is equity. Equality means the property is going to be divided equally between the two parties, regardless of how much each contributed. Away from matrimonial property, equality should be upheld in the distribution and availing of resources, opportunities and the welfare or well-being to all, without fear or favour.
4. The study of philosophy- although it is very difficult to understand, the study of the different schools of thought has enlightened me and helped enhance my understanding of the law. It is from them that I am supposed to declare my stand in this paper.
In totality, I can hereby say the law is a set of directives, meant to instruct or give guideline on what to do or how to act (behaviour) and the consequences that follow in the event there is failure to follow the instructions. These directives are to be made up of what is right according to human conscience and should put into consideration our way of living that is our culture, customs and beliefs. The law should be in such a way that it serves people as they are instead of requiring them to change their way of living so as to fit in. It should make people comfortable, other than disrupt their norms because they feel threatened by the consequences it lays down in the case of non- adherence. The law should also be informed by our history which has influenced our current way of lives. Life is like a work in progress. Wherever you left yesterday, you shall pick from today. It is a continuous process and there is a link between yesterday and today, today and tomorrow.
The constitution of Kenya provides that all sovereign power belongs to the people of Kenya. Such sovereign power may either be exercised directly or through democratically elected representatives as is the case in our country. Citizens exercise their power through the elected leaders that we elect in election every five years. In them we vest authority to act on our behalf and in our interests. They act in both national and county level in inter alia legislating law that is required to be in accordance with the constitution which is a reflection of our true values and beliefs as the people of Kenya.
These representatives are also mandated to ensure that the law is followed duly. They (representatives) ,just like any other public officers, are subjects to the law and might they defy it, they are to be punished notwithstanding the fact that they are the makers of such law. Everyone should be equal in the eyes of the law. This has been a problem in our country with the rampancy of corruption. Government officials launder public money and disregard the procedures by shamelessly award tenders to themselves and their people instead of giving them to the deserving citizens using due process, and still they go unpunished. They defy the same law they make or supposed to defend but because they hold power and status, they buy their freedom from judges and bribe their ways into not being charged at all. The fact that none of them has faced disciplinary action, in my opinion, is making them bask in the ‘glory’ that no one has the audacity and means to publicly bring down a leader because they are too powerful to be made subjects to the law. Law should be blind to its subject’s social statuses. The leader of the country who is the president, a cabinet secretary, a university lecturer, a nurse working in the patients’ ward and I, a mere student, should be viewed as equals in the eyes of the law.
I identify the historical school of thought as the school subscribe and impute to. My reasons for doing so are outlined as you proceed in the reading of this paper. I go ahead and borrow ideologies from other schools of thoughts to fill in that which I feel has been left out or is absent from my school of thought. I do this by adopting the thoughts of some scholars who I feel express my sentiments as I feel them.
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