From avoidance to constitutionalisation of private law: The puzzle of horizontality

Mattias Kumm, in his seminal work ‘Who is afraid of the total constitution’,1 coined the term 'total constitution'. Kumm borrows Carl Schmitt's thoughts on a total state where 'everything is up for grabs politically'.2 A total state is defined by the prevalence of politics over the law such that the relationship between the public and private domains is blurred.3 A total constitution, in contrast, reverses the ideals of a total state. The law, in a total constitution, thus supersedes politics and imposes substantive constraints on the resolution of any and every political question.4 Therefore, the defining features of a total constitution include the provision of rights and freedoms to provide individuals with a defensive mechanism against the latent excesses of the state as well as other individuals, judicial enforcement of the rights and liberties, and entrenching basic structures such as the rule of law.5

The Constitution of Kenya has been pronounced a total constitution.6 Article 1 of the Constitution of Kenya declares itself as the foundational norm from which all other norms draw their legitimacy. It also spells out the general normative standards for the resolution of all legal disputes. It follows therefore that the Kenyan constitution is, borrowing the words of Ernst Forsthoff,7 A juristisches Weltenei, meaning a special ‘kind of juridical genome that contains the DNA for the development of the whole legal system’.8 The Constitution of Kenya Therefore creates a value system that spreads to all areas of legal conflict rocks cannot withstand the volcanic outburst of the values that imbue the constitutional system. Nonetheless, Joshua Nyawa maintains that the Constitution, in and of itself cannot transform the Kenyan society and thus demands a ‘willing and able judiciary to enforce the progressive bill of rights.