This study examines the possibility of managing the tension between formalism and flexibility in Uganda’s commercial adjudication. Using content analysis of the country’s commercial ‘hard cases’, the study reveals the tension as a reality in Uganda, its foundations, and how to manage it. The central argument is that the tension should and can be managed by creating coexistence between formalism and flexibility, such coexistence being not only theoretically justifiable, but also practically viable.
The tension is revealed as a reality in Uganda, defined by judging based on two seemingly polarised views. One is the formalistic view of law as logic, a value free science, predictable, certain, clear, neutral, conceptually ordered, and determinate. The courts’ role is limited to literal interpretation and mechanical application, and enforcement of law and contracts. The other is flexibility, the antithesis to formalism that is sceptical about the formalistic conception of law; and following which, courts have authority to interfere with contracts, and make or change law, to meet ends. This study contributes to challenging the dominant view, that the two are irreconcilable. I make a case for coexistence, arguing that: there are more areas of theoretical convergence than admitted; justifications advanced for either approach can be served by the other; no single theory of adjudication or contract fully accounts for all judging; and in Uganda, coexistence is the ideal judging paradigm.
Theoretically, I review conceptual and normative prescriptive adjudicatory theories and find that none offers a convincing solution to the tension, the nearest being Eisenberg’s conventionism and interests jurisprudence. However, the latter offers a more methodical mechanism to coexistence, but not devoid of weaknesses. I, for example acknowledge its failure to articulate a theory of values; lack of a formulae for a contextual elaboration of the competing interests; failure to guide on how the competing interests can be discovered from judicial opinions; and its putting trust in judges to undertake the whole tension
management task, including formulation of ultimate judging guidelines. To overcome these weaknesses, I extend interests jurisprudence by modifying the search for interests to that of values, interests being a sub-set of values; and am guided by the theory, in combination with the institutional theory of law. Further, I employ content analysis methodology, in the search for values that have competed in Uganda’s commercial adjudication, demonstrating the affinity between the methodology and interests jurisprudence.
Following content analysis methodology, the values underlying legal phenomena can be understood from an analysis of as well as inferences from words, phrases and themes used in judicial opinions. The inferences are guided by hypotheses or presuppositions from relevant legal theory and literature. Using this methodology, I operationalise two of interests jurisprudence’s views. Firstly, that underlying the tension is a competition of interests (in this study widened to values) to be discovered from judicial opinions, guided by the context’s jural postulates. Secondly, the discovered values should be weighed, and a balance of the dominant ones used to arrive at ultimate commercial judging guidelines.
Accordingly, the study identifies the values that have competed in Uganda’s commercial adjudication from colonial times up till today, guided by presumptive values (value postulates) proposed by other scholars in legal and contract theory. However, I challenge monist theories that advance single values as the ultimate goal of adjudication and contract law, as well as those restricting the search to doctrinal analysis. Instead, the study adopts institutional lens to the analysis of findings, and their implications in coexistence theory. I find that underlying the tension in Uganda’s commercial adjudication, are multiple values, internal and external to the judiciary, legal as well as extra-legal. I elaborate these values, against the backdrop of existing literature, as well as the legal and institutional contexts that have surrounded Uganda’s commercial judging. In line with interests jurisprudence, I use the dominant amongst these values to arrive at Uganda’s commercial adjudicatory scheme of values.
Finally, I propose and illustrate that by balancing such dominant value, judging guidelines can be constructed, with clear coexistence oriented goals, and containing rules, principles and standards; as a way towards coexistence between formalism and flexibility, thus management of the tension
