TOPIC 1:

NATURE AND CLASSIFICATION OF LAW

Every society, whether large or small, powerful or weak, has created for itself a

framework of principles within which to develop. Thus in every society, there is the

idea that law is an integral part in ensuring that there is just and stable society.

Law gives effect to the standards of conduct in society and binds the members of

community together in adherence to the recognized values and standards.

The study of law is referred to as JURISPRUDENCE.

The term „law‟ is ambiguous and has no assigned meaning. Its definition may relate

to any of the following:

i. Laws of physical sciences e.g. the law of gravity,

ii. Social sciences laws e.g. the economics law of demand and supply,

iii. Laws of morality (moral laws) e.g. respect for the elderly,

iv. Laws of religion e.g. the 10 commandments,

v. State Law i.e. Law made by the machinery of Government.

Machinery of Government comprises of Legislature, Executive and Judiciary.

This particular subject shall concern with state law and not any other kind of law.

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Though different writers have attempted to define the term Law, no generally

accepted definition has been given. Among the definitions of state law are the

following:

Hart, defines Law is a coercive instrument for regulating social behavior. Law has

been defined as a command backed by sanctions. These two explanations of the

term law presuppose the existence of a sovereign, which prescribes or formulates

the commands and enforces sanctions, which is not necessarily the case.

Salmond defines law as „A body of principles recognized and applied by the state in

the administration of justice.

Woodrow Wilson has defined Law as “That portion of established thoughts and

habits which have gained distinct and formal recognition in the shape of uniform

laws backed by authority of and power backed by authority of and power of

government.

In summary therefore, Law is a dynamic aggregate of conglomeration of rules

applicable to a certain community, business entity or sovereign state enforced

by the courts of law at a given time.

NOTABLE POINTS FROM THE DEFINITION OF LAW

 A set of rules

 Guidance of human conduct

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  Such rules are binding and compulsory

 They must be applicable to a certain/ specific persons or community or a

sovereign state

 Are dynamic i.e. law is not a static phenomenon, the rules of law keep on

changing from time to time as the needs of the society may arise.

 Are made and enforced by the machinery of Government

 Their breach results into legal punishment by government

 They are codified i.e. the laws of Kenya are in writing except customary law.

Rules of law originate from Acts of Parliament, customary and

Religious practices of the people. They may also be borrowed from other

countries.

PURPOSES/ FUNCTIONS OF LAW

 Rules of law facilitate administration of Justice. It is an instrument used by

human beings to achieve justice.

 Law assists in the maintenance of peace and order. Law promotes peace and

order to avoid anarchy.

 Law promotes good governance

 Law is a standard setting and control mechanism

 Provision of legal remedies.

 Protection of fundamental rights, freedoms and duties.

 To regulate business and social transactions in the society.

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TYPES AND CLASSIFICATION OF LAW

Rules of Law may be classified as:

 Written and Unwritten

 National and International

 Public and Private

 Criminal and Civil

 Substantive and Procedural law

1. Written and Unwritten

Written law: These are rules of law that have been reduced in to a written form

i.e. they are codified. They are embodied in a formal document .e.g. The

Constitution of Kenya Laws made by Parliament (statutes). Such laws prevail over

unwritten law.

Unwritten law: These are rules of law that have not been reduced into written

form. They are not embodied in any single document. For example: African

Customary Law, Islamic Law, Hindu Law, Common Law, and Equity. Their existence

must be proved.

2. National and International

National (Municipal law)

These are rules of law operating within the boundaries of a sovereign state. It

regulates the relation between citizens and between citizens and the state. It is

based on Acts of Parliament, Customary and Religious practices of the people.

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International Law

This is the law which governs relations and disputes between sovereign states.

Matters covered under international law include:

 Treaties

 Convention (general customs)

 Trade

 Recognition of new states

 Admiralty matters

 Border conflicts

 Economic crimes

 Crimes against humanity including genocide, piracy, international terrorism

e.t.c.

Such matters will be handled by the International Court of Justice (ICJ) which is

a branch of the United Nations.

The Headquarters of this court is at The Hague in Netherland, but it can be set up

within any sovereign state where an international dispute has arisen.

It is divided into:

-Public International Law:

It is based on international agreements of treaties and customary practices of

states and general principles which regulate the relations of those states. This law

is based on treaties, conventions and laws of war.

-Private International Law:

This branch mainly concerns with determining which National law governs a case in

which there is a foreign element and the infringement of the rights of a citizen.

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 3. Public and Private

Public Law:

This is the branch of law that concerns with the relationship between the state

and the citizenry. The state is therefore an interested party in all matters

touching on public law because the primary responsibility of the modern state is to

safeguard public welfare.

Public law is further divided into the following categories:

1. Administrative Law: This relates with the functioning of the executive arm

of government.

This branch concerns with the relationship and responsibilities of the officers

within the executive arm of government.

It details the main functions of the executive

2. Constitutional Law: I t is superior to administrative law because it concerns

the three branches of government.

It identifies the relationship and responsibility of the officers within the three

branches of government and shows how they should relate with the individual

civilian.

It also provides the constitutional and fundamental rights and freedoms of the

individual.

Disputes and grievances arising between an individual civilian and the government

shall be addressed by the court basing on provisions of constitutional law.

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 3. Criminal Law: This is the main branch of public law and it concerns criminal

wrongs.

Private Law

This consists of those fields or branches of law in which the state has no direct

interest as the sovereign. The state only provides the mechanisms i.e. courts for

the citizens to settle their differences.

4. Criminal and Civil

Criminal law is the law of crimes. A crime has been defined as an act or omission,

committed or omitted in violation of public law. E.g. murder, manslaughter, robbery

rape stealing etc.

Civil Law

Civil law is concerned with violations of private rights of individuals. It is the

branch of law that deals with the relationships between persons.

Civil Law covers many branches including:

 Law of contract

This is the branch of law that deals with promises and agreements, determines the

essentials of valid agreements, and what the legal consequences of a promise are.

 Law of Tort

A tort is a civil wrong against a person or his property. The remedy for tort at

common law is an action for unliquidated damages.

 Law of Trust

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  Law of Agency

 Law of Succession

 Law of Property.

 Hire-purchase Law

 Law of Negotiable Instruments

 Law of Partnership

 Law of Sale of Goods

Difference between criminal and civil law

Criminal Law Civil Law

1.Wrong committed against the state 1. Wrong committed against an individual

2.Parties are the prosecution and the 2.Parties are the plaintiff and

accused defendant

3.Since a crime is a public wrong, the 3.This being a private wrong, the parties

action cannot be compromised by the are free to compromise an action and

parties the plaintiff may agree to have an out of

court settlement with the defendant

4. The burden of proof is beyond 4.The burden of proof is on a balance of

reasonable doubt. Any slight doubt must probabilities i.e. it is more probable than

be resolved in favour of the accused not that the plaintiff‟s case merits

success compared to that of the

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 defendant

5.Punishment is usually by imprisonment 5.A defendant who has committed a civil

or fine or death penalty in the case of wrong is usually ordered to pay the

capital punishment plaintiff damages i.e. (monetary

compensation) or some other civil

remedy may be granted

5. Substantive and Procedural law

Substantive Law

This is the branch of law that is concerned with the rules themselves as opposed

the procedure on how to apply them. It defines the rights and duties of parties

and provides remedies when those rights are violated.

It defines offences and prescribes punishment e.g. The Penal Code Cap 63

This covers both civil and criminal branches of law.

Procedural Law

This branch of law provides the regulations governing legal proceedings in both civil

and criminal branches of law.

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The regulations outline the procedures to be followed from the moment a

complaint is launched with the relevant authorities right through the moment the

matter is presented to court and judgement is delivered.

In Criminal Disputes, the procedure to be followed is laid out in the Criminal

Procedure Code and Evidence Act.

This includes lodging a formal complaint to the police, the mode of recording a

police statement filing preliminary reports, arraigning accused in court, presenting

evidence, e.t.c.

In Civil Disputes the procedure to be followed is laid out in the Civil Procedure

Act, Evidence Act and Rules of Court.

This includes the mode of drawing a plaint (statement of allegations made by a

complainant) statement of defence summons e.t.c

Where a person fails to respect the laid down procedures, he risks losing his claim

on legal technicality

ADVANTAGES OF LAW

 Brings uniformity and consistency in the administration of justice

 As the law is known to the citizens, it enables them to regulate their

conduct in accordance with it.

 As the rules are fixed, it enables the Judges in applying the law uniformly.

 Ensure impartiality and uniformity because justice is done according to the

fixed laws and judges cannot give judgments according to their own motives

and views.

 The rules of law represent the collective wisdom of the society/community,

therefore in following them; there are little chances of going wrong.

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  It brings consistency in the administration and systematic development of

law

 Ensures peaceful co-existence of men and women and members of various

communities as one big community.

 Serves as a measure of control in any given community.

 Maintains order and tranquillity in the in the society.

 Law provides a practical and comprehensive framework of legal rules and

principles to assist members of the society in various aspects of life. E.g.

commercial affairs, social aspects e.t.c.

DISASVANTAGES

 Rigidity

The same rules are applied to all the cases of similar nature and sometimes causes

hardship and injustice.

 Law tends to be conservative

It does not keep pace with the changing conditions and so it is not in accordance

with the new ideas and principles of justice

 Formality

Greater importance is attached to the form rather that the substance i.e. the

letter of the law or formalities are highly considered rather than the object of

the law.

 Complexity

It no longer remains easy to understand, because

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LAW AND MORALITY

The issue of concern here is in the relation between law and morals.

Two questions warrant address:-

1. Has the development of law been influence by moral?

2. Must some reference to morality enter into an adequate definition of

law or legal system?

Morality may be defined as a set of beliefs, values, principals and standards of

behaviour found in social groups.

Morality is however connected to law in the following ways:-

i.

the suppression of vices is as much as the law‟s business as the suppression

of subversive activities,

ii.

conduct under which a person may be held liable in law may be seen as based

on moral idea of “blame” or “fault”

iii.

some of the underlying principles in liability in law are however rooted in

conceptions of morality and the way in which these moral principles are

incorporated into the law may best appreciate by means of the criminal laws.

iv.

both law and morality have their origins in mysterious relations through

religious visionaries and are firmly rooted in social conditions and practices.

It‟s however worthy of note that there are certain instances where law and

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 morality part ways. This is founded in the belief that there must be a realm

of morality and immorality which is not the law‟s business.

DISTINCTION BETWEEN LAW AND MORALITY.

LAW MORALITY

1. 1.

these are rules made and the rules made by man

enforced by the machinery of concerning the preferred

government. upright behaviour in human

activity

2. 2. Concerns both outward action

concerns the outward action of of man and internal motives.

man and rarely touches his

internal motives.

3. 3. Vague and indefinite.

definite and precise and in most

cases appears in written form.

4. 4 Irregular and differs from

uniform and applies to large community to community.

area within the state.

5. 5.Conscience is the main reason

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 force and the fear of for being morally upright

punishment are the main

reasons for obedience of law.

6. 6. Does not change frequently

changes faster since it must and many moral rules have been

consistently adapt to social- in existence for a long period of

economic political changes. time?

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