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[법률] The Application of Positivism in Kenya: an Analysis of the Supreme Court Decision in Odinga & Another V Independent Electoral and Boundaries Commission & 2 Others
케냐 국외연구자료 연구보고서 - SSRN 발간일 : 2024-04-11 등록일 : 2024-04-18 원문링크
Positivism is not an abstract concept that is worth academic debates alone. No wonder, during its development, legal scholars and thinkers spent much of their time developing this concept through arguments and counterarguments. The Hart-Fuller debate is living testimony to this assertion. Gone are the days when such debates were appreciated; this is not to say that they are not in this era. However, they have decreased significantly. It is against this backdrop that this paper demonstrates how the Supreme Court of Kenya applied legal positivism to nullify the Kenyan presidential election in 2017. It argues that legal schools of thought debates and their applications are not overtaken by events because they cannot. The papers argue that in the wake of people-centred constitutions such as the Constitution of Kenya 2010, where power is directly derived from the people, legal positivism finds a fertile platform for its application. The Re Raila Odinga was chosen to illustrate this proposition. This paper intentionally omits the introduction and conclusion parts to allow a flow of thought and argument right from the beginning.
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