Mount Kenya University

SCHOOL OF LAW

BACHELOR OF LAW

MOGERE AMOS OBADIAH

DAY CLASS

BLAW/2018/31272

UNIT CODE: BLW 3212

UNIT TITLE: INFORMATION TECHNOLOGY AND

THE LAW

FACILITATOR: MADAM CONSOLATA MBAITHA

DATE: 31/10/2020
 Pragmatic Instrumentalism Theory

This theory treats the law to be a form in action and not only is it concerned with the general
nature of law as social means but also with law as it is actually used and with the practical
differences that law's uses make. Through this it extends beyond the law's external effects to
the workings of its internal processes the operation of its complex implementive technology.
Thus, the theory addresses official legal personnel their roles as social engineers and the
technical skill they must deploy in those roles. Pragmatic instrumentalism is concerned with
the effectiveness of legal action.

The theory instrumentalist’ were like John Chipman Gray, Oliver Wendell Holmes,
Roscoue Pound, John Dewey and others. The theory is in the instrumentalist form in four
related distinguishable ways. (Summers,1991)1 states that first, law is not as a set of general
conceptions from which legal personnel may formally derive particular decisions, but as a
body of practical tools that are used for the serving of specific substantive goals. Second, it
assumes that a particular use of law cannot be a self-justifying or an end in itself. The uses of
law can be justified only by reference to whatever values they fulfil. Third, law is conceived
not to being an autonomous and self-sufficient system, but as a means to achieve external
goals that are derived from sources outside the law including the dictates of democratic
processes and policy sciences. Finally, the law is considered to serve generally instrumental
values rather than the intrinsic ones. This implies that the function of law is to satisfy the
democratically expressed rights, needs, wants and interests of individuals that are within
the constitutional limits.

Pragmatic Instrumentalists can be likened to the liberal/dynamic school of thought where

their propounders support massively support the fast developing change in law so as to suit
technological developments. In the late 19th and early 20th Centuries, the technological
advancement sharpened the instrumentalist thinking within the law. The new technology in
many respects was even more visible than that developed during the Industrial Revolution
and it spread beyond the factory gates and transformed the social setting in which people
conducted daily life. The period from 1880 to 1920 saw the development of the automobile,
airplanes, the telephone, the electric light and new range of business machines. This

1
Summers,S.,R.(1981). Pragmatic Instrumentalism in Twentieth Century American Legal Thought-a Synthesis and Critique
of Our Dominant General Theory About Law and Its Use. 66 Cornell L. Rev. Vol 6. Article 1. Issue 5
reinforced the instrumentalist view that by his own effort, man could transform the social
order. Instrumentalist writings were filled with analogies and metaphors that relate law and
government to instruments, tools, machines and engines.

These thinkers viewed law as a technology, legal personnel as social engineers and law's uses
as social engineering. They held that the social order should endeavour to maximize the
satisfaction of wants and interests of the time. Similarly, John Dewey stressed that laws are a
social means of instruments of progress. To the pragmatists, solutions to legal problems
would have to be specific and above all plural. In addition, given the nature of knowledge and
the nature of social reality particularly the changing character, lawmakers cannot be certain of
the efficacy of particular uses of law, (Summers, 1981).

The IT aspect in relation to my jurisprudential approach that I have chosen is the Right to
Privacy that has been envisaged under Article 31 of the Constitution of Kenya. Privacy is
expressly stated as a right to keep everything that entails an individual like a property, home,
body, feelings and thoughts, identity and secrets free from being accessed and controlled by
others. A Privacy Law has been termed to be the regulation of personal information about
individuals that can be collected by entities like the government, private and public
organizations for purposes of storage and use. Right to privacy is deemed as a fundamental
right and it is corroborated with other fundamental rights like right to participation in public
and political affairs, freedom of expression, religion and assembly. This right is relevant to
development and expression of other rights and allows individuals to realize ideas. Law
should embrace the changes in technology so as to achieve its primary goal of justice,
satisfaction of wants of individuals and interests of the time. Thus technology in relation to
law with the right to privacy, this right should be championed and more legislatives made so
as to protect and enable it in jurisdictions where it is limited and breached. Technology
should support and supplement the law and integrate it positively in the lives of the different
individuals who use technology in their daily lives.