Towards legal certainty in Uganda’s commercial adjudication : managing the tension between formalism and flexibility

Abstract

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 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; with court’s role limited to literal interpretation and mechanical application of law and contract. The other is the flexibility antithesis to formalism, 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. 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 - one whose steps demonstrate its affinity with content analysis methodology. Using content analysis methodology, following which, the values underlying legal phenomena can be understood from an analysis of words, phrases and themes used in judicial opinions, as well as inferences, guided by hypotheses or presuppositions from relevant legal theory, I operationalise some of interests jurisprudence’s views. These are that, underlying the tension is a competition of interests (values) to be discovered from judicial opinions, guided by the context’s jural postulates. The discovered values should then be weighed, and a balance of the dominant ones used to arrive at ultimate judging guidelines. Accordingly, Uganda’s competing values are identified, guided by presumptive values (value postulates) proposed by other scholars in contract theory – but challenging 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, in line with coexistence theory; multiple values, internal and external to the judiciary, legal as well as extra-legal, are found to underlie the tension in Uganda’s commercial adjudication. These values are elaborated, against the backdrop existing literature, and the relevant legal and other institutional contexts have surrounded judging. The values found dominant are then used to draw the country’s commercial adjudicatory scheme of values. As a way towards management of the tension, it is proposed that coexistence between formalism and flexibility can be achieved through constructing judging guidelines with clear coexistence-oriented goals, and containing rules, principles and standards, informed by balancing such key values.