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The Interface Between Academia And The Bench

Remarks made on the occasion of the Inaugural Chief Justice’s Legal Scholarship Dinner, Nairobi, July 9, 2012

By The Hon. Justice (Prof.) J.B. Ojwang, Justice of the Supreme Court of Kenya

THE HON. JUSTICE (PROF.) J.B. OJWANG'S PHOTO

THE HON. JUSTICE (PROF.) J.B. OJWANG

Content

  1. Academia and Bench, Two Sides of the Same Coin: Introduction
  2. Academia and Bench – The Functional Link
  3. Evolving Jurisprudence under New Governance Trends
  4. Records of Common Interest: Bench and Academia
  5. Conclusion
    1. Academia and Bench, Two Sides of the Same Coin: Introduction

Although legal academia and the Bench belong to one fraternity, that of law, the two mostly approach this discipline from different sides. For legal academia, there is a shared platform with most specializations of research and learning: the platform of inquiring into, discovering, and propounding information and ideas. The academic takes up legal phenomena, probes them, and relates them to the broader institutional scenario – to the intent that the role of law in society be better understood. That end by itself, fulfils the legal scholar’s mission, except where he or she is specifically asked to illuminate some special element in the functioning of a public or private institution.

In effect, the primary task of legal academia is to generate law-related information and knowledge, for the purpose of lighting-up important processes of the society; and the outcome is in the first place intended for pedagogy. The recipient intended, therefore, is a “captive” one, not a “choosing” one.

The scholar’s contribution in this regard is important, because the trends of history have shown that good governance in all spheres, public and private, ought to be based on beacons defined by law and legality. It is thus of no consequence, that no supplicant may have moved legal academia to generate some particular body of knowledge: the mere availing of such knowledge, and its incorporation into pedagogy, is a positive input into functions of governance at large.

The immediate concern of the Bench, by contrast, is not such an open-ended focus on legal ideas. Instead, the Bench acts by the defined constitutional mandate, to be performed only upon being moved: moved by an aggrieved party, afflicted by dispute that may involve (i) a private citizen or private citizens; (ii) a private citizen or private citizens vis-à-vis the Executive Branch; (iii) a private citizen or private citizens vis-à-vis the Legislative Branch; (iv) a private citizen or private citizens vis-à-vis any autonomous constitutional organ; or (v) contests among such public bodies, or concerning any of them.

Thus, the precise grievance or contest falling to the mandate of the Bench is, in every respect, contingent. However, such grievances or contests though unforeseen, are destined to happen, and, as experience from time immemorial shows, may be profound, and even fateful, in terms of good governance and civil order. This is the reason why the Constitution of every State accords a prominent place to the Judicial Branch.

It is clear, therefore, that the Bench, in all cases, sets out to resolve a specific cause; and in that behalf it considers the pleadings of the parties, the evidence and the law, and on that basis, dispenses judgments that proclaim the ultimate constitutional position, binding on the parties.

    1. Academia and Bench – the Functional Link

The judicial task as it delivers the final constitutional statement, ought – in all conceptions of good governance – to carry legitimacy: legitimacy in the view of the litigants, just as much as in that of the community at large. Where the grievances raised involve public institutions, the people have a broad-based interest in the final judgment. And where the dispute concerns only private parties, the legitimacy of the judgment has a bearing on the maintenance of social tranquility.

Therefore, the Bench is under professional and ethical obligations to adhere to rational and equitable paths of decision-making. The judgment rendered will have to be a reflection of recognized principles and values attending judicialism, notably, impartiality, fairness, independence. The Bench is not to engage in a capricious enterprise, with no beacons of decision-making.

The beacons of judgment are laid in the law; but this law, though frequently conspicuous in form, quite often has to be discovered through learning and further inquiry. This, precisely, is how legal academia gives a helping hand to the judicial process. Although the Judge has direct access to the evidence adduced, to the statutes of immediate relevance, and to cases of precedent-value, in many cases further light needs to be shed on such material, so as to open up the rational course of decision-making; and recourse to legal scholarship will, in such cases, be the solution.

    1. Evolving Jurisprudence under New Governance Trends

The interface between Bench-work and legal academia is enhanced in Africa, with the contemporary adoption of more progressive governance paradigms. A prototype in this regard is the Constitution of Kenya, 2010, which lays down “national values and principles of governance”, and proclaims a detailed, innovative law on human rights.

The Bench, in rendering judgment on disputes entailing “national values and principles of governance”, is not dealing with a trodden path in which precedents abound: it has to draw on the directions of legal scholarship, as a basis for rational and legitimate judgment. Such is the case too, with the complex issues arising from the human rights provisions of the Constitution.

    1. Records of Common Interest: Bench and Academia

While the Bench’s imprint from the courtroom takes the form of jurisprudence recorded in the law reports, academia’s research findings and learned propositions are contained in the law journals and other works of scholarship. Between the two categories of “record”, there is a functional meeting-point: the Bench’s jurisprudential output quite frequently features in the scholastic expositions recorded in the law journals. The two categories of publication, thus, have a prominent common ground; and from this common ground, the further works of the Bench, in the form of judgment, will be nourished by the legal scholar’s exposition.

    1. Conclusion

On account of the constitutional mandate of the Bench, in dispute settlement, and in the interpretation of all law as well as the Constitution itself, the path of its judgment must be illuminated by a radiant source: that source is knowledge of law-in-broader-context, flowing through the scholar’s pen, and from halls of academia. In quest of objectivity, rationality and legitimacy of judgment, therefore, the Bench has to recognize the constant relevance of the contributions of academia.

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