S. NO REG.

NO NAME SIGNATURE
1. BLAW/2018/32649 Richard Ogallo Abira
2. BLAW/2024/33361 Kennedy Otieno
3. BLAW /112/03468 Francisca Kyengo
4. BLAW/2024/69665 Joseph Mwangi Wangui
5. BLAW/2024/31980 Otieno Jordan Angira
6. BLAW/2024/34021 Ann Kirigo Waireri
7. BLAW/2024/33527 Cecilia Njeri Manganjo

MOUNT KENYA UNIVERSITY

FACULTY OF LAW

DEPARTMENT OF PUBLIC LAW

COURSE UNIT: SOCIAL FOUNDATIONS OF LAW

COURSE INSTRUCTOR: SAMUEL MWANGI

GROUP 8

Submitted on 7st March 2024

Topic: Discuss Law as a tool of social change and social Engineering

Table of Contents

Introduction......................................................................................................................................2

Role of judicial officers in ensuring law is used as a tool of social change....................................6

Examples of circumstances under which law has been used as a tool for social change and social

engineering In Kenya.......................................................................................................................7

Merits of using law as a tool of social change in Kenya...............................................................11

Demerits of using law as a tool of social change in Kenya...........................................................11

Conclusion.....................................................................................................................................12

Bibliography..................................................................................................................................13

Statutes.......................................................................................................................................13

Case Law....................................................................................................................................13

Books.........................................................................................................................................13

Articles.......................................................................................................................................14
Introduction
Antony Allot in his book, “The limits of law” states that law is what is made in a political society

if it is autonomous for the regulation behavior of persons in that society.

Despite several definitions of law, Salmond and Von Savigny try to define it from the context of

social life and social order. Salmond , an eminent jurist and scholar in the field of law who lived

during the last quarter of the 19th century and the early years of the 20th century, defines law as

a body of rules for the guidance of human conduct which are imposed upon and enforced among

the members of a given state while Savigny, a German jurist and historian,defines law as the will

of the people. This brings out the relationship between law and society. However, society is not

static. It is a complex network of relationships that is constantly changing. Social change

therefore represents the idea that the majority of the people in the society are engaging in

activities and relationships that are different from those in which they or their parents engaged

previously.1 Whereas most of these changes may not affect the law. Some will usually result,

sooner or later in changes in law. For this reason, just like other social institutions, law has a

dynamic character.

Social engineering on the other hand refers to the purposive, planned, and directed social change

initiated, guided, and supported by law. In this regard, law is considered a desirable, necessary,

and highly efficient means of inducing change. Through social engineering, law is used to

achieve certain objectives of social or economic policy. This is usually achieved through the

intervention of the government in the interest of the community as a whole for example

provision of health by building more health centers.2

1
Rabin Robert, ‘Lawyers for social change: Perspectives on public interest law’ (1975) Stan. L. Rev. 207.
2
Ibid

1
 For law to be used as a social for change and social engineering it must be institutionalized and

internalized against existing patterns of behavior or societal norms that may be discriminatory,

oppressive, or otherwise detrimental to certain groups or individuals within society. 3

Institutionalization of a pattern of behavior refers to the establishment of a norm with provisions

for its enforcement and internalization of a pattern of behavior means the incorporation of the

value or values implicit in the law. 4 In addition, there are several conditions necessary for the law

to be used as a tool for social change and social engineering:

a) Law must emanate from an authoritative and prestigious source.

b) Law must introduce its rationale in terms that are understandable and compatible

with the existing values

c) Advocates of change should make references to other communities, countries

with which the population identifies, and where the law is already in effect.

d) Enforcement of the law must be aimed at making the change in a relatively short

time.

e) Those enforcing the law must be themselves very much communities to the

change intended by the law.

f) The instrumentation of the law should include positive as well as negative

sanctions.

g) The enforcement of the law should be reasonable not only in the sanctions used

but also in the protection of the rights of those who stand to be violated.

3
Matnuh Harpani, Law as a tool of social engineering (In 1st International Conference on Social Sciences
Education-" Multicultural Transformation in Education, Social Sciences and Wetland Environment"(ICSSE
2017), Atlantis Press, 2017) 118-120
4
Ibid

2
The concept of using law as a tool for social engineering and change acknowledges the impact

that legal frameworks have on societal norms and values. According to this approach, legislation

that redresses inequities, advances equality, and defends fundamental rights can all be utilized to

positively impact society.5

Redressing inequities refers to the process of rectifying or addressing existing disparities,

injustices, or unfairness within society. This can involve actions taken by legal frameworks to

correct historical or systemic inequalities that have disadvantaged certain groups or individuals

based on factors such as race, gender, ethnicity, socioeconomic status, or disability. For example,

laws aimed at addressing wage gaps, providing access to education and healthcare, or promoting

affirmative action programs are all measures designed to redress inequities and create a more

level playing field for marginalized or disadvantaged groups.6

Advancing equality involves promoting the principle of equality before the law and ensuring that

all individuals are treated fairly and without discrimination. This can encompass legislative

measures that prohibit discrimination based on protected characteristics such as race, gender,

religion, sexual orientation, or disability. Additionally, laws that promote equal opportunities in

areas such as employment, education, housing, and public services contribute to advancing

equality by removing barriers and creating pathways for equal participation and access to

resources and opportunities for all members of society.7

Defending fundamental rights involves protecting the basic rights and freedoms of individuals

from infringement by the state or other actors. These rights may include civil and political rights,

such as freedom of speech, assembly, and religion, as well as economic, social, and cultural

5
Murphy Jane, ‘Lawyering for social change: The power of the narrative in domestic violence law reform’ (1992)
Hofstra L. Rev. 1243.
6
Merryman John Henry, ‘Comparative law and social change: on the origins, style, decline & revival of the law
and development movement’ (1977) The American Journal of Comparative Law 457-491.
7
Bachmann Steve, ‘Lawyers, Law and Social Change’ (1984) NYU Rev. L. & Soc. Change 1.

3
rights, such as the right to education, healthcare, and adequate housing. Legal frameworks play a

crucial role in safeguarding these rights through legislation, judicial decisions, and enforcement

mechanisms, ensuring that individuals are able to exercise their rights and live with dignity and

autonomy. Defending fundamental rights also involves holding accountable those who violate

these rights and providing remedies and redress for victims of rights violations, thereby

upholding the rule of law and promoting a just and democratic society.8

Thus, social change is the reorganization of the fundamental ways in which members of a

society interact with one another about political, social, and economic matters, such as language,

education, religion, family, life, and leisure. A systematic program for monitoring the laws in

effect in society and, if necessary, incorporating appropriate social change into the law can be

created through an effective law reform program, resulting in a harmonious interaction between

the law and social, economic, and political development.9

In using the law as a tool for social change and social engineering, there has been a debate about

whether the law should lead or whether it should cautiously follow changes in society.

According German legal scholar Friedrich Karl Von Savigny, believes that law should follow

social change. This is because laws are developed from customs, which grow out of the habits

and beliefs of specific people, and fully developed customs should serve as the foundation for

social transformation.10 However, British social reformer Jeremy Bentham believes that law

should bring about reforms partly in response to and partly in stimulation of social needs. Law

should therefore lead as well follow social change.11

8
Moore Sally Falk, Law and social change: the semi-autonomous social field as an appropriate subject of study
(Law & Soc'y Rev. 7 (1972) 719.
9
Friedman, Lawrence M., and Jack Ladinsky, Social change and the law of industrial accidents (In Governing
Risks, Routledge, 2021) pp. 127-159.
10
Ibid
11
Johnson Kevin, ‘Lawyering for a Social Change: What's A Laywer to Do’ (1999) Mich. J. Race & L. 201.

4
 Roscoe Pound was an American jurist who postulated that social engineering aims to build a

structure of society that requires the fulfillment/ satisfaction of maximum wants with minimum

usage of resources.12 He states that law is the means to social engineering and social engineering

means the balance of interest which includes individual interest, public interest, and social

interest.According to him, law is the body of knowledge and experience with the aid of which a

large part of social engineering is carried on. It is more than a body of rules and like an

engineer’s formulae, laws represent experience, scientific formulations for experience, and

logical development.13

Therefore, according to him, law is social engineering which means a balance between the

competing interests in society. For instance, a lawyer should study the actual social effects of

legal institutions and legal doctrines and study the means of making legal rules effective. For

Pound, the social-legal task of law is that of social engineering which involves the building of an

efficient legal structure, through the reconciliation of conflicting interest. 14

Role of judicial officers in ensuring law is used as a tool of social change

Judicial officers are pivotal figures in harnessing the law as a catalyst for social change. Their

role encompasses a spectrum of duties aimed at upholding justice, equality, and human rights.

One fundamental aspect of their function lies in interpreting legal statutes and constitutional

provisions in a manner that resonates with evolving societal values and norms. Through their

nuanced interpretations, judicial officers contribute to the evolution of jurisprudence that mirrors

contemporary understandings of justice and equality.15

12
Friedman Lawrence, ‘Legal culture and social development’ (1969) Law and society review 29-44.
13
Ibid
14
Ibid
15
Ozoemena Rita , ‘Legislation as a critical tool in addressing social change in South Africa: Lessons from
Mayelane v Ngwenyama’ (2015) Potchefstroom Electronic Law Journal/Potchefstroomse Elektroniese Regsblad
18, no. 4 ; 970-992.

5
Moreover, judicial officers adjudicate disputes brought before them, including cases involving

rights violations, discrimination, or social injustices. In these proceedings, they wield the

authority to rectify grievances, redress injustices, and set legal precedents that drive social

change. Serving as guardians of constitutional rights, they are tasked with safeguarding

fundamental liberties, such as freedom of expression, equality before the law, and the right to

due process.16

In addition to their adjudicative role, judicial officers have the latitude to engage in judicial

activism, leveraging their authority to address systemic inequalities and champion progressive

reforms. Through landmark decisions and innovative legal reasoning, they can challenge

entrenched norms and push for transformative change. Furthermore, they serve as educators,

enlightening the public on legal rights, responsibilities, and the transformative potential of the

law. Through their judgments and public statements, they foster a deeper understanding of the

law's role in promoting societal progress and justice for all.17

Examples of circumstances under which law has been used as a tool for social change and
social engineering In Kenya
In Kenya, the constitution has been used as a tool of social change, particularly since the

promulgation of the 2010 Constitution, which enshrines a comprehensive Bill of Rights that

guarantees various rights including the right to equality, non-discrimination, and access to

justice. This has led to significant legal reforms addressing historical injustices and promoting

social inclusion.18

16
Kim E. Tammy, ‘Lawyers as Resource Allies in Workers' Struggles for Social Change’ (2009) NY City L. Rev.
13: 213.
17
Rosenberg Gerald, The hollow hope: Can courts bring about social change? (University of Chicago Press,
2008) 77
18
The constitution of Kenya, 2010.

6
When existing laws are seen as unjust or discriminatory, legal reform can be used to create a

more equitable society. For example, the civil rights movement in the United States used legal

challenges to segregation laws to bring about desegregation and equal rights for all citizens.

Firstly, Laws can be used to address social problems such as poverty, inequality, and

discrimination. For example, laws can be passed to protect workers' rights, ensure access to

healthcare, and prevent discrimination based on race, gender, or sexual orientation.19

For instance, in the EG case, The Kenyan Supreme Court has today ruled that the National Gay

and Lesbian Human Rights Commission (NGLHRC) must be allowed to officially register as a

non-governmental organisation (NGO). In their judgment, the Supreme Court judges held that,

‘it would be unconstitutional to limit the right to associate, through denial of registration of an

association, purely on the basis of the sexual orientation of the applicants.’ Importantly, they also

ruled, ‘Given that the right to freedom of association is a human right, vital to the functioning of

any democratic society as well as an essential prerequisite enjoyment of other fundamental rights

and freedoms, we hold that this right is inherent in everyone irrespective of whether the views

they are seeking to promote are popular or not.’20

Secondly, Legal advocacy can raise awareness about social issues and mobilize public support

for change. Similar examples of using law as a tool for social change and social engineering can

be found in other countries. In the United States, for instance, the Supreme Court decision in
21
Brown v Board of Education led to the desegregation of schools and was a key moment in the

civil rights movement. This decision helped to promote social equality and challenge

discriminatory practices in The criminal justice system.

19
Ogburn William F, Social change with respect to culture and original nature (BW Huebsch, Incorporated,
1922) 70
20
Eric Gitari v NGO Co-ordination Board & 3 others 2023 eKLR
21
Brown v. Board of Education, 347 U.S. 483, 74 S. Ct. 686, 98 L. Ed. 873 (1954).

7
Public interest litigation, for example, can bring attention to human rights violations and push for

legal reforms to address them. Kituo cha Sheria and Others vs Attorney General 22 if was held

that a policy that does not make provision for the examination of individual circumstances and

anticipated exceptions is unreasonable and a breach of Article 47(1) of the Constitution 2010.

Thirdly, Laws can be used to regulate industries and businesses to protect the environment,

public health, and consumers. In South Africa, a parliamentary act has been used as a tool of

social change by passing the Employment Equity Act in 1998 aimed to address employment

discrimination and promote equality in the workplace. The law requires companies to implement

affirmative action measures to promote the representation of historically disadvantaged groups,

such as women, Black South Africans, and people with disability.23

In Kenya, environmental regulations have been used to reduce pollution and promote sustainable

practices. There is recognition that any person who felt that the entitlement under Section 3(1) of

EMCA “has been, is being or is likely to be contravened in relation to him, then without

prejudice to any other action with respect to the same matter which is lawfully available, that

person may apply to the High Court for redress.” To address the specific past obstacles through

the locus standi rule, EMCA stipulated that a person approaching court to litigate the right to a

clean and healthy environment would “have the capacity to bring an action notwithstanding that

such a person cannot show that the defendant’s act or omission has caused or is likely to cause

him any personal loss or injury”. These provisions relaxed the rules of standing for

environmental matters, including climate change cases.24

22
Kituo cha Sheria and Others vs Attorney General [2013] eKLR
23
South Africa Employment Equity Act in 1998
24
EMCA, Act Number 8 of 1999, Section 3(3).

8
Fourthly, in some cases, laws can be used to incentivize behavior change. Case law in Kenya has

also been used to promote social change in the criminal justice system. For example, in the case

of Republic v Ouko25, the Kenyan High Court held that evidence obtained through torture was

inadmissible in court. This decision helped to reinforce the constitutional prohibition on torture

and inhuman treatment and promote respect for human rights in the criminal justice system

Another example is , tax incentives can be used to encourage businesses to adopt

environmentally friendly practices or individuals to invest in renewable energy. In times of crisis

or emergency, laws can be used to protect public safety and welfare. For example, during a

pandemic, laws can be put in place to enforce social distancing and mask-wearing to prevent the

spread of disease.26Similarly, the High Court of Kenya in Nairobi confirmed the ban imposed by

the Kenya Film Classification Board (the Board) on filmmaker Wanuri Kahiu’s film ‘Rafiki’.

The film covered issues related to homosexuality, which is prohibited in Kenya.The filmmaker

initially sought a conservatory order to lift the ban to allow the film’s distribution in order to

meet the requirement for the film to be considered by the Oscar Selection Committee. The High

Court granted an interim conservatory order and allowed the film to be shown for seven days,

available only to consenting adults. However, when the final determination on the merits was

made, the ban was upheld and the Court held that the Board’s actions in limiting the filmmaker’s

freedom of expression were constitutional as they sought to protect the Kenyan public’s moral

values.27

25
2004 eKLR
26
Modern view of the law reforms of Jeremy Bentham https://heinonline.org/hol-cgi-bin/get_pdf.cgi?
handle=hein.journals/clr10&section=8
27
Petition No. 313 of 2018

9
Merits of using law as a tool of social change in Kenya
Promoting equality and justice: Laws can provide a framework for ensuring equal rights and

opportunities for all members of society, regardless of their background or social status. For

example, the Kenyan Constitution guarantees the right to equality and non-discrimination.

Protecting human rights: Laws can serve as a mechanism for protecting the fundamental rights

and freedoms of individuals, such as the right to life, liberty, and property. Kenya has enacted

various laws to protect human rights, including the Children's Act.28

Addressing societal issues: Laws can be used to address social problems such as poverty,

corruption, and environmental degradation. For example, Kenya has laws aimed at combating

corruption, such as the Anti-Corruption and Economic Crimes Act.29

Enforcing accountability: Laws can hold individuals and institutions accountable for their

actions, promoting transparency and good governance. Kenya has laws that establish

mechanisms for holding public officials accountable, such as the Leadership and Integrity Act. 30

Demerits of using law as a tool of social change in Kenya

Limited enforcement: Despite the existence of laws aimed at promoting social change, their

enforcement in Kenya is often weak due to factors such as corruption, inadequate resources, and

lack of political will. This can undermine the effectiveness of laws in bringing about meaningful

social change.

Resistance to change: Some segments of Kenyan society may resist social change that is

mandated by law, leading to challenges in implementation and compliance. For example,

traditional practices and customs may conflict with legal provisions promoting gender equality.

28
Children Act 2022
29
Anti-Corruption and Economic Crimes Act No. 3 OF 2003(Revised 2014)
30
The Leadership and Integrity Act NO. 19 Of 2012

10
Unintended consequences: The use of law as a tool of social engineering in Kenya may have

unintended consequences, such as creating new social inequalities or exacerbating existing ones.

For example, laws aimed at promoting economic development may result in displacement and

marginalization of certain communities.

Legal complexity: The legal framework in Kenya can be complex and difficult to navigate,

particularly for marginalized groups who may lack access to legal resources and information.

This can hinder the effectiveness of laws in promoting social change.

Conclusion
While law serves as a potent instrument for social change and engineering, its impact hinges on

several critical factors, including political determination, societal perceptions, and the capability

of legal institutions to enforce legislation. As such, it is imperative to conduct a thorough

assessment of the role of law in fostering social justice and advocating for the rights of

marginalized communities. By critically evaluating the effectiveness of legal mechanisms in

addressing societal inequalities and promoting inclusive development, we can harness the full

potential of law as a force for positive transformation and advancement towards a more just and

equitable society.

11
Bibliography
Statutes
Anti-Corruption and Economic Crimes Act No. 3 OF 2003(Revised 2014)

Children Act 2022

Constitution of Kenya 2010

Environmental Management and Coordination Act Number 8 of 1999

South Africa Employment Equity Act in 1998

The Leadership and Integrity Act NO. 19 Of 2012

Case Law
Brown v. Board of Education, 347 U.S. 483, 74 S. Ct. 686, 98 L. Ed. 873 (1954).

Eric Gitari v NGO Co-ordination Board & 3 others 2023 eKLR

Kituo cha Sheria and Others vs Attorney General [2013] Eklr

Petition No. 313 of 2018

Books
Matnuh Harpani, Law as a tool of social engineering (In 1st International Conference on Social

Sciences Education-" Multicultural Transformation in Education, Social Sciences and

Wetland Environment"(ICSSE 2017), Atlantis Press, 2017)

Ogburn William F, Social change with respect to culture and original nature (BW Huebsch,

Incorporated, 1922)

Rosenberg Gerald, The hollow hope: Can courts bring about social change? (University of

Chicago Press, 2008)

12
Articles
Bachmann Steve, ‘Lawyers, Law and Social Change’ (1984) NYU Rev. L. & Soc. Change

Friedman Lawrence, ‘Legal culture and social development’ (1969) Law and society review

Johnson Kevin, ‘Lawyering for a Social Change: What's A Laywer to Do’ (1999) Mich. J. Race

& L. 201.

Kim E. Tammy, ‘Lawyers as Resource Allies in Workers' Struggles for Social Change’ (2009)

NY City L. Rev. 13:

Merryman John Henry, ‘Comparative law and social change: on the origins, style, decline &

revival of the law and development movement’ (1977) The American Journal of

Comparative Law

Murphy Jane, ‘Lawyering for social change: The power of the narrative in domestic violence law

reform’ (1992) Hofstra L. Rev. 1243.

Ozoemena Rita , ‘Legislation as a critical tool in addressing social change in South Africa:

Lessons from Mayelane v Ngwenyama’ (2015) Potchefstroom Electronic Law

Journal/Potchefstroomse Elektroniese Regsblad 18, no. 4

Rabin Robert, ‘Lawyers for social change: Perspectives on public interest law’ (1975) Stan. L.

Rev. 207.

13