TOPIC 1:

NATURE OF LAW AND ITS ATRIBUTES

INTRODUCTION

According to Morris writes: ‘’To zoologist, a horse suggests the genus

mammalian quadruped, to a traveler a means of transportation, to an
average man the sports of kings, To certain nations an article of food,’’
Likewise, law has been variously defined by various individuals from
different points of view and hence there could not be and is not any
unanimity of opinion regarding the real nature of law and its definitions

Various schools of law have defined law from different angles some have
defined it on the basis of its nature. Some defined it in terms of its effect on
society. There are others who defined law in terms of the end or purpose of
law.

A definition which does not cover various aspects of law is bound to be

imperfect. Moreover, law is a social science which grows and develops with
the growth and development of society.

DEFINITION OF LAW
Ulpian defined law as ‘’the art or science of what is equitable and good ‘’.
Cicero said that “law is the highest reason implanted in nature’’.
Blackstone writes: ‘’Law in its most general and comprehensive sense
signifies a rule of action and is applied indiscriminately to all kinds of
actions, whether animate or inanimate, rational or irrational. Thus, we say
the laws of gravitation, or optics or mechanics, as well as the laws of nature
and of nations.
According to Austin,’’ law is the aggregate of rules set by men as politically
superior, or sovereign, to men as politically subject.’’ In other words, Law is
the command of the sovereigh.it imposes a duty and its backed by a
sanction. Command, duty and sanction are three elements of law.
Inhering defines law as “the form of the guarantee of the conditions of life of
society, assured by state‘s power of constraint.
Hobbes “Law is the speech of him who by right commands somewhat to be
done or omitted”.
Cardozo writes: ‘’ A principle of rule of conduct so established to justify a
prediction with reasonable certainty that it will bee enforced by the courts if
its authority is challenged is a principle or rule of law.’’
Holland says: ‘’More briefly, law is general rule of eternal human action
enforced by a sovereign political authority. All other rules for the guidance
of human action are laws merely by analogy; and proposition which are not
rules for human actions are laws by metaphor only’.
According to Bentham: ‘’Law or the law, taken indefinitely, is an abstract
or collective term, which when it means anything, can mean neither more
nor less than the sum total of a number of individual laws taken together.’’
Salmond defines law as “the body of principles recognized and applied by
the state in the administration of justice.’’

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THEORIES OF LAW

There are various theories which were propounded by various philosophers

of different schools with the objective of enumerating the nature of law as
follows;
1. Imperative theory( also called Austin’s theory of law);
2. The theory of legal realism (laws are principles enforced by courts);
3. Kelsen’s pure theory of law ( law as a Norm of action);
4. Marxist theory of law;
5. Historical school;
6. Sociological school;
7. Natural law school.
IMPERATIVE THEORY (AUSTINE ‘S THEORY OF LAW)

Austine’s theory of law is also known as the imperative theory of law.

According to Austin, positive law has three main features:
1. It is a type of command.
2. It is laid down by a political sovereign.
3. It is enforced by sanction.
A typical example would be the Road Traffic Act Chapter 403 of the Laws
of Kenya, which could be describe as a command laid down by the
sovereign under the Kenyan legal system. This Act lays down certain
rules which have to be followed (Command). It has been passed by
parliament (laid down by the sovereign authority of Kenya). Its violations
are met with penalties (sanctions).

According to Austin, requests, wishes etc. are expressions of desire, while

commands are expressions of desire given by superiors to inferiors. The
relationship of superior to inferior consists for Austin in the power which the
former enjoys over the other, i.e., his ability to punish him for disobedience.

To Austin, a sovereign is any person or body of persons whom the bulk of a

political society habitually obeys and who does not himself habitually obey
some other person or persons.

A command is the expression of a wish or desire to another so that he shall

do a particular thing or refrain from doing a particular thing. In case of non-
compliance with the command, he is to be visited with certain evil
consequences. The sanction behind law is the evil which is to be infected in
case of disobedience.

CRITICISM OF AUSTINE’S THEORY OF LAW

1. Laws before state: The definition of law in terms of state has been
criticized by the jurists belonging to the historical and sociological schools.
According to this school, law is prior to and independent of political
authority and enforcement. A state enforces it because it is already law. It is
not correct that it becomes law because the state enforces it.
2. Generality of law: According to Austin, Law is a general rule of conduct,
but that is not practicable in every sphere of law. A law in the sense of the
Act of the legislature may be particular in the fullest sense of the word.

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Example: A Divorce Act is law even if it does not apply to all persons.
Law, in the sense of legal system, can be particular. The requirement that
law should be general is extremely difficult to maintain. There are degrees of
generality. The question whether a contract can create law for the parties
has peculiar urgency for the international lawyer.
3. Promulgation: According to Austin, law is a command and that
command has to be communicated to the people by whom it is meant to be
obeyed or followed. This view of Austin is not tenable. Promulgation is
usually resorted to but it is not essential for the validity of a rule of law.
4. Law of command: According to Austin, law is a command of the
sovereign but all laws cannot be expressed in terms of a command. The
greater part of a legal system consists of laws which are neither command
nor forbid things to be done. They empower people by certain means to
achieve certain results, e.g. Laws giving citizens the rights to vote, laws
conferring on leaseholders the right to buy the reversion, laws concerning
the sale of property and making of wills.
5. Sanction: Austin’s definition of law may be true of a monarchical police
state, but it cannot be applied to a modern democratic country whose
machinery is employed for the service of the people. The sanction behind
law is not the force of the state but the willingness of the people to obey the
same. To define law in terms of sanction is like defining health in terms of
hospital and diseases. Force can be used only against a few rebels and not
against the whole society.
Sanction can be applied only if there are only a few to oppose the law.
However, if everyone decides to challenge law, it is bound to fail in its
objective and no sanction can enforce the same.’’
6. Not applicable to international law: Although international law is not
the command of any sovereign, yet it is considered to be law by all
concerned
7. Not applicable to constitutional law: Austin’s definition of law does
not apply to constitutional law which cannot be called a command of any
sovereign. As a matter of fact, the constitutional law of a country defines the
powers of the various organs of the state. Nobody can be said to command
himself. Even if one makes a command to bind one’s self, it cannot have
much force.
8. Disregard of ethical elements: Austin’s theory of law is defective in as
much as it disregards that ethical element which is in essential constituent
of a complete conception. Austin’s theory is silent about the special relation
between law and justice.
9. Purpose of law ignored: Austin’s theory of sovereign ignores altogether
the purpose of law and hence is one-sided and incomplete
10. A theory of “gunman law” on the ground that it makes no real
distinction between a law and the command of a bank robber who pint s his
gun at the bank clerk and orders him to hand over the contents of the till.
MERIT OF THE THEORY
1. Austin rendered a great service by giving a clear and simple definition
of law;
2. Salmond states that Austin’s theory contains an important element of
truth with regard to the nature of law.

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 (WHAT IS THE RELEVANCE OF THIS THEORY TO YOUR DISCOURSE
AS A PROFESSIONAL – 15 MARKS)

THE THEORY OF LEGAL REALISM (LAWS ARE PRINCIPLES ENFORCED

BY COURTS)
The realists contend that law has emanated from Judges, therefore law is
what courts do and not what they say. For them, judges are the law makers.
The theory though peddles in America by Oliver Windell Holmes, Gray,
Cardozo and Jerome Frank, This theory was propounded by Salmond.
He regarded law as the practice of the court and propounded theory of legal
realism.
Like contemporary positivist, he agreed that law is an expression of the will
of the state but as a realist he felt that it is not the parliament but court
which expounds the law.
Realists define law as “generalized prediction of what the Courts will do”
Basic features of realist school
1. There can be no certainty about law as its predictability depends upon
the set of facts which are before the court for decision;
2. They do not support the formal, logical and conceptual approach to
law because the Court while deciding a case reaches it’s decision on
‘emotive rather than ‘logical grounds;
3. They lay greater stress on psychological approach to the proper
understanding of law as it is concerned with human behavior and
convictions of the lawyers and judges;
4. Realists are opposed to the value of legal terminology, for they
consider it as a tacit method of suppressing uncertainty of law;
5. The realist school prefers to evaluate any law in terms of its effects.
Criticism
1. Judges apply and enforce the law rather than defining it.
2. It is appropriate as far as case- laws is concerned but it does not seem
appropriate in respect of statute law the reason being that statute law
becomes a law as soon as it is passed and brought on the statute
book and does not await a case to come to court and receive judicial
recognition and further that statutes are recognized by law courts
because they are law, they not law simply by judicial recognition.
3. Quite a large number of law suits never reach courts therefore they do
not have judicial recognition which is an essential attribute of law
according to Salmond.
4. Case law is often made in haste without regard to wider implications;
the courts generally give decisions on the spot and only rarely take
time for consideration.
5. Realists have exaggerated the role of human factor in judicial decision,
it is not correct to say that judicial pronouncements are the outcome
of the personality and behavior of the judge;
6. Realist school is confined to local judicial setting of United States and
has no universal application in other parts of the world.

(WHAT IS THE RELEVANCE OF THIS THEORY TO YOUR DISCOURSE

AS A PROFESSIONAL – 15 MARKS)

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Kelsen’s pure theory of law (law as a Norm of action);
Kelsen tried to modify Austin’s theory of law by propounding his pure theory
of law.
He regards law as a norm of action and jurisprudence as a normative
science as distinguished from natural science.
According to Kelsen, “state is a synonym for the legal order which is
“pyramid of norm”
He builds up his pure theory of law on the hypothesis of the grundnorm or
basic norm.
Example:
According to Kelsen, for Kenya, the grundnorm is “what the parliament lays
down as law. There is no norm above this. He contends that from the basic
norm, norm making power devolves upon a lower level, from which it flows
to a still lower level and so on.
Thus the entire hierarchy of norm- making organs and the process of
concretization of norm is called by Kelsen the “legal Order” of a particular
state.
He did not favour widening the scope of jurisprudence by co-relating it with
all social sciences and rigorously insisted on separation of law from politics,
sociology, metaphysics and all other extra-legal disciplines.
Salient features of Kelsen’s theory of pure science of law
The pure theory of Law as propounded by Kelsen is founded on certain basic
assumptions which may be summarized as follows:
1. The theory is aimed at reducing chaos and confusion created by the
supporters of natural law philosophy;
2. The theory deals with the knowledge of what law is, and it is not
concerned about what law ought to be;
3. The theory considers law as a normative science and not a natural
science;
4. It is a theory of norms not so much concerned with the effectiveness of
the legal norm;
5. It is a formal theory confined to a particular system of positive law as
actually in operation.
Kelsen’s pure theory of law is an improvement upon Austin’s
imperative theory in the following aspects;
1. There is no dualism between state and law: for Austin, law was
subordinate to the sovereign which is a personification of the state.
Since law is the command of the sovereign, it cannot control the
sovereign. But Kelsen treats state as a unity of legal order therefore,
there is no dualism between state and law.
2. Law need not be imperative: like Austin, Kelsen also thinks that
sanction is a necessary element of law but he does not treat law as a
“command” of the sovereign. There are many laws such as law of
evidence, law of procedure, limitation etc. which could not be called
law in the Austinian sense of the term but Kelsen has cleared this
confusion by asserting that law need not be necessarily imperative.

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 3. Customary law is also law strictu sensu: since custom is not
created by the sovereign, it is not law according to Austin’s theory of
law. But applying pure theory of law which treats legal order as a
‘pyramid of norms”, Kelsen brought custom within the definition of
law as it is an intermediate norm and a popular practice which finally
generates into a legal norms.
4. There is not dichotomy between private and public law: the
propounders of the positive school drew a distinction between public
and private law. They pointed out that the former deals with the rights
and duties of the sovereign (or the state) towards the subjects while
the latter deals with rights and duties of private persons inter-se.
Kelsen refuted the distinction since he denied to accept sovereignty (or
the state) as a distinct entity. This automatically brought to an end
the prevailing dichotomy between private and public law which was
created by analytical jurists.
5. International law is a law in strict sense of the term’s law:
Austin did not consider international al law as law but called it as a
mere ‘positive morality’. Since the sovereign is not himself bound by
this law, which is his own creation. Kelsen regards international
organization as superior to the legal order otherwise called the state
and therefore, its norms are binding upon the state.
Criticism
Kelsen’s theory suffers from certain glaring defects despite the facts that it
seeks to divest law from natural Law doctrines and from the elements of
justice which was a predominant characteristic feature of the laws
introduced by the totalitarian state:
1. It excludes all reference of social facts and felt needs of the
society, thus his theory of law is without any sociological foundation.
2. Kelsen’s assertion that all the norm excepting the basic norm
(grundnorm) are pure, has no logical basis. One really fails to
understand as to how subsequent norms which derive their authority
from the Grundnorm can be pure when the grundnorm itself is based
on a hypothesis that it is an outcome of a combination of various
social and political factors and circumstances in a given situation.
3. The theory is found to be based on hypothetical considerations
without any practicality. It is not possible to divest law from the
influence of political ideologies and social needs. He doesn’t consider
justice and morality as essential attributes of law.
4. The theory has no solution for the conflicts arising out of
ideological differences. Law cannot be completely divorced from
ethics and morality which gives it a honourable place in the society.
5. The account of legal dynamics is inadequate; it ignores the
purpose of law. Example, while considering the validity or otherwise of
a particular enactment. The courts do take into account the prevailing
custom or the motive of the legislature and try to correlate it with the
social purpose which the Act seeks to achieve.
6. The theory suffers from methodological shortcomings. He ignores
the fact that the action of the authority enforcing law to be valid has
to be in accordance with the procedure and therefore it becomes

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 necessary to probe into the content of law, mere use of force would not
validate a law.
Merits of the theory
Despite the shortcomings, Kelsen’s contribution to legal theory cannot be
ignored and they are as follows:
1. He attempted to break away with the traditional natural law theory on
the one hand and legal positivism on the other.
2. He asserts that legal knowledge is free from foreign elements such as
ethics, psychology, sociology etc.
3. His normative theory separates law from morality on the one hand
and law and facts on the other.

(WHAT IS THE RELEVANCE OF THIS THEORY TO YOUR DISCOURSE AS A

PROFESSIONAL – 15 MARKS)

MARXIST THEORY OF LAW

The same was propounded by Carl Marx and Engel.
It is also called the communist theory of law.
The theory considers law as an instrument of suppression its main function
being to secure power relationship. It is essentially meant to further the
ends of the economically dominant class of society at the expense of the
suppressed class.
Carl Marx in his “communist Manifesto” pointed out that the history of all
hitherto existing society is nothing but the history of class struggle. The
social and economic development of society is essentially an outcome of
class struggle between the dominant and the suppressed classes of the
society. In either stage it existed in the form of privileged class and the
slaves which subsequently changed into the class struggle between the
feudal Lords and the serfs. With the evolution and development of trade,
commerce and industries this class struggle transformed onto a clash if
interest between the capitalists and the working class i.e. the haves and the
have not’s.
Propositions of Marxists theory
1. Law is essentially one form of politics and the two are inseparable;
2. Law and state are closely related but law exhibits relative autonomy
from the state;
3. Law in its legal form replicates the prevailing economic relations;
4. Law has in it a coercive element and manifests the state’s monopoly of
the means of coercion;
5. The contents and procedure of law reflects the interest of dominant
class or the power – block;
6. Law is ideological and provides legitimation for the inherent values of
the dominant class.
Carl max believed that state and law are bound to wither away sooner or
later because with the abolition of classes, the power of the state would
disappear.
However, the Marxist view about law and state has radically changed in the
preceding decades with the emergence of socialism and democracy. With
these changes, the power and authority of the state and law has

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considerably increased and the theory of their withering away now stands
completely discarded.

(WHAT IS THE RELEVANCE OF THIS THEORY TO YOUR DISCOURSE AS A

PROFESSIONAL – 15 MARKS)

HISTORICAL SCHOOL
The exponents of this school take social institutions in their sequence with
primacy to primitive legal institutions of the society.
The school doesn’t attach importance to relation of law to the state but gives
primacy to the social institutions in which the law develops itself. It
concentrates on evolution of law from the primitive legal institutions of the
ancient communities.
Backdrop
The revolutionary ideas generated by positivist’s legal thinking had a
devastating effect as they failed to meet the needs of the people.
Consequently it led to the emergence of new approach to the study of
jurisprudence based on history and historic concept of law.
Vico in Italy, Montesquieu in France, Burke in England and Hugo and
herder in Germany heralded a new era in the development of legal theory
and viewed law as a legacy of the past and product of customs, traditions
and beliefs prevalent in different communities.
The historical jurists believe that law has biological growth and it has not
evolved in an arbitrary and erratic manner.
Stages of development of law

Supporters of Historical school have traced the evolution and development

of law through four main stages:
1. Divine law: in the beginning law originated from Themes, which
meant the goddess of justice. It was generally believed that while
pronouncing judgements, the king was acting under divine inspiration
of goddess of justice. Themestes were the awards pronounced by the
goddess of justice to be executed by the king as a custodian of justice
under divine inspiration. Thus the kings were merely the executors of
judgement of God.
2. Customary law: the recurring application of judgements led to
uniform practice which crystallized into customary law to be followed
in the primitive societies. Custom is to society what law is to state as
enumerated by Henry Maine.
3. Priestly class as a sole repository of customary law: in the next
stage of development of law, the authority of the king to enforce the
executed law was usurped by the priestly class who claimed
themselves to be learned in law as well as religion. The priestly class
memorized the rules of customary law because the art of writing had
not developed until then. The applied and enforced the customary law.
4. Codification: the era of codification marks the fourth the probably
the last stage of development of law. With the discovery of the art of
writing, a class of learned men and jurists came forward to denounce
the authority of priests as law givers. They advocated codification of

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 law to make it accessible and easily knowable. This broke the
monopoly of priestly class in matters of administration of law.

(WHAT IS THE RELEVANCE OF THIS THEORY TO YOUR DISCOURSE

AS A PROFESSIONAL – 15 MARKS)

SOCIOLOGICAL SCHOOL OF LAW

This school has emerged as a result of synthesis of various juristic thoughts.
The exponents of the school considered law as social phenomena; they are
concerned with relationship of law to other contemporary social institutions.
The exponents include:Montesque,Auguste compte,Herbert spencer,Rudolph
Von Ihiring
They emphasize that jurists should focus their attention on social purpose
and interest served by law rather than on individuals and their abstract
rights.
It is majorly to study the effect of law and society on each other.
They treat law as instrument of social progress.
The supporters of sociological jurisprudence linked law with other social
science disciplines and treated it as a synthesis of
‘psychology,philosophy,economics,politics.science and sociology.
Law according to them was an applied science employing functional
methods of investigation and analysis for solving the social and individual
problems.
Features of sociological jurisprudence
1. Law is a result of constant struggle: the role of law is to harmonize
conflicting interest of individuals for the purpose of protection of
interest of the society as a whole.
2. Law is to serve a social purpose: the ultimate end of the law is social
purpose and not the individual purpose or interest. The state should
ensure the avoidance of clashes between the individual and social
interest.
3. Law alone is not means to control the society: there are some other
conditions such as climate, topography wherein law need not
intervene.
4. It lays greater stress on functional aspect of law rather than its
abstract contents.
5. They consider law as a social institution essentially inter-linked with
other disciplines bearing direct impact on the society.
6. They uphold the view that law is designed on the basis of human
experience in order to meet the needs of the society.
7. It discards the abstract notions of analytical positivism which lay
great emphasis on command or power aspect of law.
8. It discards the dead weight of past culture and traditions which
constituted the main theme of the historical jurisprudence.
9. It has a multifaceted approach to resolve problems of society that is
some prefer to adopt pragmatic empirical recourse while others prefer
to look at it in terms of court ruling thus realistic approach.

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AS A PROFESSIONAL – 15 MARKS)

Distinction between historical and analytical school of law

Analytical school Historical school

1. Law is the creation of the state.
2. Without a sovereign, there can be
law.
3. The hallmark of law is enforcement
the sovereign.
4. The law rests upon the force
politically organized society.
5. Judges should confine themselves
interpreting the law.
6. The typical law is statute.
7. Emphasis is an empirical a priori
method.
1. Law is found and not made. It
no is self existent.
2. Law is antecedent to the state
by and it existed even before states
came into existence.
of 3. Law is independent of political
authority and enforcement.
to
4. Law rests on social pressure.
5. In construing a statute, judges
should consider the history of
legislation in question.
6. The typical law is custom.

7. Emphasis is on comparative
method.

PURPOSE AND FUNCTION OF LAW

The object of law is to maintain law and order in the country.
According to Hobbes: “Law was brought into the world for nothing else but
to limit natural liberty of particular men in such a manner as they might not
hurt but assist one another and join together against a common enemy.’’
‘’The aim of law is freedom and the fundamental process of law is the
adjustment of one’s freedom to that of every other member of the
community.’’ The maximization of the happiness of the greatest number of
the members of the community in question as stated by Jeremy Bentham.’’
Maintain law and order within a given society and that has to be done at
any cost. The second purpose of law is to maintain the status quo in society.
The third purpose is to enable individuals to have the maximum satisfaction
of the needs of the people.
‘’The rule which determines the sphere within the existence and activity of
each individual may obtain of the obtain secure and free play’’

USES OR ADVANTAGES OF LAW

(1)They provide uniformity and certainty to the administration of
justice: The same law has to apply in all cases. There can be no
distinction between one case and another case if the facts are the same.
Law is not respector of personality. Not only this, law is also certain. The

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 legal system of a country is put down in black and white and it is
possible for all the people to know the law of the land.
(2) The existence of fixed principles of law avoids the dangers of
arbitrary, biased and dishonest decisions: Law is certain and known.
Therefore, a departure from a rule of law by a judge is visible to all. It is
not enough that justice should be done, but it is also necessary that it
should be seen to be done. If the administration of justice is left
completely to the individual discretion of a judge, improper motives and
dishonest opinions could effect the distribution of justice.
(3) The fixed principles of law protect the administration of justice
from the errors of individual judgment: In most cases, the law on the
subject is clear and judges are not expected to twist the same. They are
not expected to substitute their own opinion for law of the country.
Experience shows that people have lived happier lives when they are
ruled by the fixed principles of law than when there are no laws as such.
(5) It is more reliable than individual judgment: Human mind is
fallible and judges are no exception. The wisdom of the legislature which
represents the wisdom of the people in a safer and more reliable means of
protection than the momentary fancy of the individual judge.
DISADVANTAGES OF LAW
(1) Law is rigid: An ideal system keeps on changing according to the
changes in times and circumstances. The lack of flexibility in law results
in hardship and injustice in several cases.
(2)It’s conservative in nature: Both the lawyers and judges favour the
continuation of the existing law. The result is that very often law is static.
(3) Formalism: More emphasis is put on the form of the law than its
substance. A lot of time is wasted in raising technical objections of law
which have nothing to do with the merits of the case in dispute. While
insisting on the formalities of the law, injustice may be done in very
many cases.
(4) Undue and needless complexity: It is true that every effort is made
to make law as simple as possible but it is not possible to make every law
simple. That is due to the complex nature of modern society. Lawyers
also insist on drawing fine distinctions on the various points of law.
KINDS OF LAW
Imperative law, physical or scientific law, natural or moral law, conventional
law, customary law, practical or technical law, international law and civil
law.
A. Imperative law
According to Salmond: “imperative law means a rule which prescribes
course of action imposed by some authority which enforces it by superior
power either by physical force or any other form of compulsion.”
Imperative laws have been classified with reference to the authority from
which they proceed. They are either:
1. Divine: Divine laws consist of the commands imposed by God upon men
and they are enforced by threats of punishment in this world or in the next
world or
2. Human: Human law consists of imperative rules imposed upon men.

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They are of three kinds: a) Civil law: Civil law consists of commands issued
by the state to its subjects and enforced by its physical power.
b) Law of positive morality: The law of positive
morality consists of rules imposed by society upon its members and
enforced by public censure or disapprobation and
c) Law of nations or international law:
International law consists of rules imposed upon states by the society of
states international laws are followed compulsorily and their breach is
visited by punishment. Those may be war, the severance of diplomatic
relations, enforcement of economic sanctions and condemnation by other
states.
B. PHYSICAL OR SCIENTIFIC LAWS
According to Salmond: “physical or the laws of science are expressions of the
uniformities of nature. Physical laws are also called natural laws or laws of
nature . There is uniformity and regularity in those laws. They are not the
creation of men and cannot be changed by them.
C. NATURAL LAW OR MORAL LAW.
According to Salmond: “These are the principles of natural right and wrong
– the principles of the natural justice if we use the term justice in its widest
sense to include all forms of rightful action.” It is called the command of
God imposed upon men.
It is universally obeyed in all places and by all people.
It has existed from the beginning of the world and hence is called eternal.
Divine law is also called natural law as its principle are supposed to have
been laid down by God for the guidance of mankind.
It is called rational law as it is not to be based on reason.
It is called unwritten law as it is not to be found in the form of a code.
Natural law appeals to the reason of man. It is addressed to intelligent
beings.
The view of Dias and Hughes is that some of the contributions of the
philosophy of natural law to human are:
(1)The various doctrines have always served the social need of the age.
(2)They have helped to maintain stability against changes as in the time of
the Greeks and the medieval church. They have inspired change against
stability, notably after the Reformation and the Renaissance.
(3)The philosophy of natural law has inspired legislation and the use of
reason in formation systems of law.
(4)The period from the Renaissance down to the 18 th century witnessed a
lasting distinction drawn between positive law and morality.
(5)The same period also brought about the emancipation of the individual.
(6)A strong connection was established between positive law and freedom of
the individual.
(7)The natural rights of the individual acquired great significance.
4. CONVENTIONAL LAW
According to Salmond, conventional law means “any rule or system of rules
agreed upon by persons for the regulations of their conduct towards each
other.”
It is a form of special law.

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 It is law for the parties who subscribe to it. Examples of conventional law
are the laws of cricket or any other game, rules and regulations of a club or
any other voluntary society.
Conventional law in some cases is enforced by the state.
When it is enforced by writers or international law or the law of nations is
also a kind of conventional law on the ground that its principles are
expressly or impliedly agreed by the states concerned.
5. CUSTOMARY LAW
Means “any rule action which is actually observed by men any rule which is
the expression of some actual uniformity of some voluntary action.”
Customary law is an important source of law. This is particularly so among
the conservative people who want to keep as much of the past as possible.
6. PRACTICAL OR TECHNICAL LAW
Practical or technical law consists of rules for the attainment of certain ends
e.g. the laws of health, the law of architecture etc. These rules guide us as to
what we ought to do in order to attain a certain end.
7. INTERNATIONAL LAW
International law consists of rules acknowledged by the general body of
civilized independent states to be binding upon them in their mutual
relations. It consists of those rules which govern sovereign states.
International law is the body of principles and rules which civilized states
consider as binding upon them in their mutual relations.
8. CIVIL LAW
According to Salmond, civil law is “the law of the state or of the land, the law
of the lawyers and the law courts”.
Civil law is the positive law of the land or the law as it exists.
Like any other law, it is uniform and that uniformity is established by
judicial precedents.
It is noted for its consistency because without that, it would be nothing but
the law of the jungle.
It is enjoyed by the people who inhabit a particular state which commands
obedience through the judicial process. It is backed by the force and might
of the state for purpose of enforcement. Civil law has imperative character
and has legal sanction behind it. It is essential of territorial nature. It
applies within the territory of the state concerned. It is not universal but
general. It creates legal rights, whether fundamental or primary. It also
creates secondary rights
CONSTITUTIONAL LAW
The term constitutional law has been defined by many writers. Hibbert
defines constitutional law as “the body of rules governing the relation
between the sovereign and his subjects and the different parts of the
sovereign body.

TOPIC 2:

SOURCES OF LAW

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The term “sources of law” has been interpreted by different writers in
various ways. It is thus necessary to distinguish between its various
meanings and determine the premises of each.

Meaning

1. “The sovereign from where the law emanates”;

2. “Where one must resort to get at law”.

THE SOURECES ARE CLASSIFIED BY SALMOND AS FOLLOWS

A. Material sources (the law derives its matter and not validity).

B. Formal sources (that from which a rule of law derives its force and
validity).

Material sources

They are further classified as:

1. Legal sources(these are authoritative)

2. Historical sources(these are unauthoritative e.g. writings of

eminent jurists, foreign judgments)

Legal sources

Legal sources are further classified as:

1. Legislation(enacted law)

2. Precedent(case law)

3. Customary law(law based on customs)

4. Conventional (based on agreements e.g. local laws, treaties).

CUSTOM

According to Salmond, custom is the embodiment of those principles which

have commended themselves to the national conscience as principles of
justice and public utility.

According to Carter: “The simplest definition of custom is that it is the

uniformity of conduct of all persons under like circumstances.’’

According to Holland, custom is a generally observed course of conduct.

Requisites of a valid custom

In order to be a valid custom, it must conform to certain requirements laid

down by the law.

These include:

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 1. Reasonableness: it must be remembered that the authority of a
prevailing custom is never absolute, but it is authoritative provided it
conforms to the norms of justice and public utility/ policy.

A general observance of a custom leads to the presumption that it has

a rational basis and that it is useful and convenient. The party
disputing the validity of a custom must satisfy the court of its
unreasonableness.

2. Consistency: a custom to be valid must be in conformity with statute

law. It should not be contrary to an Act of Parliament.

3. Compulsory observance: a custom to be legally recognized as a valid

custom must be observed as of right. It must have been followed by all
concerned without recourse to force and without the necessity of
permission of those who are adversely affected by it. Before accepting
a custom as a binding source of law, the Court should satisfy itself
that it had transformed into an un mistakable conviction of the
community as to the rights and obligations of its members towards
one another.

4. Continuity and immemorial antiquity: for a custom to be valid, it

should have been continuously in existence from the time
immemorial. The long existence of a custom gives it the force of a right
to make it legally recognizable.

5. Certainty: in order to prove the existence of a custom since time

immemorial, it must be shown that it is being observed continuously
and uninterruptedly with certainty.

6. Public policy: a custom should not be opposed to public policy.

7. The custom must be general or universal: According to Carter:

“Customs is effectual only when it is universal or nearly so. In the
absence of unanimity of opinion, custom becomes powerless or rather
does not exist.”

8. The enjoyment of a custom must be a peaceable one: If that is not

so, consent is presumed to be wanting in it.

KINDS OF CUSTOMS

They are as follows:

1. Conventional custom(usage, certain trade practices);

One whose authority is conditional on its acceptance and

incorporation in the agreement between the parties to be bound by it.
It is an established practice which is legally binding because it has
been expressly or impliedly incorporated in a contract between the
parties concerned.

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 Certain conditions must be satisfied before a court is entitled to
incorporate the usage into contracts. The usage must be so well-
established as to be notaries. This is necessary because without
notoriety, it will be impossible to show that both parties were
contracting in the right of the usage. The usage cannot alter the
general law of the land whether statutory or common law. The reason
is that usage derives its force from its incorporation into an agreement
and can have no power to the alter law than an express agreement.
Usage must be reasonable. A custom or usage will not be enforced in
a particular case if it purports to nullify or vary the express terms of
the contract.

2. Legal custom: one whose legal authority is absolute. It possesses the

force of law. The parties effected may agree to a legal custom or not
but they are bound by the same. Legal customs are of two kinds:

a) Local (practiced in a particular locality only)

b) General (practiced throughout the realm).

Local customs apply only to a locality and general custom applies to the
whole country.

PROFESSIONAL OPINIONS AND RELIGION

Professional opinions are also a source of law. These can be discussed

under the heads of the obiter of judges, general opinions of the legal
profession and opinions of writers upon legal subjects.

(1) The obiter dicta are the statements of law made by a judge in the
course of a decision, arising naturally out of the circumstances of
the case, but not necessary for the decision. The value of these
dicta as a source of law depends upon the reputation of the judge
and the relation and the relation of the law upon the specific point
in question and upon similar topics.

(2) The legal profession consists of the judges, the practicing lawyers
and teachers of law. These branches of the legal profession exercise
a powerful influence upon the development of law. Many existing
rules of law owe their origin to the support of the legal profession.

(3) The opinions of the writers of text-books also help the growth of
law. It has been particularly son the case of international law. Its
rules have frequently depended upon the opinion of jurists.

RELIGION

Religion is also a source of law. According to Sir Henry Maine and

Sir James Frazer, the religion fear of civil was the principle
instrument in securing uniformity of conduct in primitive society at
a time when law did not enjoy an independent existence.

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 In the case of cowan v. Milbourne it was held that “Christianity is
part of the law of England”.

AGREEMENT

According to Sir John Salmond, an agreement is also a source of

law as to gives rise to two kinds, legal and conventional law.

Agreements play an important part in international law. There may

be an agreement among a large number of states to follow a
particular procedure with regard to a certain matter.

LEGISLATION AS A SOURCE OF LAW

The word Legislation means “making of law”

From the latin words, legis meaning “law” and latum meaning “to make or
set”.

Definitions

1. Austin, legislation includes activities which result into law making or

amending, transforming or inserting new provisions in the existing
law”.

2. Salmond, legislation is that source of law which consists in the

declaration of legal rules by a competent authority.

Kinds of Legislation

Legislation may be either:

1. Supreme Legislation:- legislation that proceeds from the sovereign

power in the state and is incapable of being repealed, annulled or
controlled by any other legislative body.

2. Subordinate Legislation:- proceeds from any authority other than the

sovereign authority

Validity of Subordinate Legislation

In order that the exercise of delegated legislative power may be valid, certain
conditions must be satisfied. These conditions are:

1) The parent Act must be valid:- the Act under which the power to make
subordinate legislation is exercised must be valid.

2) The delegation clause within the parent Act must be valid.

3) The statutory instrument so made, must be in conformity with the

delegation clause in point of substance, procedure and form.

4) The statutory instrument must not violate certain general norms laid
down by judicial decision e.g. norms regarding ouster of court
jurisdiction.
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 5) The statutory instrument must not violate any of the fundamental
rights guaranteed by the constitution or any other provision of the
constitution.

Kinds of subordinate legislation

The chief forms of subordinate legislation are as follows:

1. Colonial legislation: the British colonies and other dependencies

were conferred limited powers of self-government in varying
degrees by the imperial legislation.

2. Executive legislation:- the legislature quite often delegates it’s rule

making powers to certain departments of the executive organs of
the Government. They are known as administrative laws which are
commonly called ‘public law’.

3. Judicial legislation: - in certain cases, the legislative power of rule-

making is delegated to the judiciary and the superior courts are
authorized to make rules for regulation of their own procedure in
exercise of this power.

4. Municipal legislation (county):- county authorities are allowed

within their areas to make by-laws for limited purposes such as
revenue.

5. Autonomous legislation: - the state may occasionally allow private

entities or bodies i.e. universities, companies, corporations to make
by- laws for regulating their conduct and procedures within the
stated perimeters.

Legislation compared to other sources of law

Advantages of Legislation over Precedence

(i) Legislation is both constitutive and abrogative, but precedent is

merely constitutive.

(ii) Legislation is not only a source of new law but also the most
effective instrument of abolishing the existing law.

(iii) Legislation is based on the principle of division of Labour and

consequently enjoys the advantages of efficiency. The legislative
and judicial functions are separated and consequently both of
them are done better by different organs.

(iv) Legislation satisfies the requirements of natural justice that laws

shall be known before they are enforced. Law is declared in the
form of legislation and the same is later on enforced by the courts.
Law is formally declared to the people and if after that they dare to
violate the same, they are punished. However, that is not the case
with precedent. It is created and declared in the very act applying
and enforcing it.

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 (v) Legislation makes rules for cases that have not yet risen but
precedent must wait until the actual concrete incident comes
before the courts for decision. Precedent is dependent on the
accidental course of litigation but legislation is independent of it.

(vi) Legislation is superior in form to precedent. It is brief, clear, easily

accessible and knowable. Case- law is buried from sight and
knowledge in the huge and daily growing mass of the records of
litigation.

Codification

According to the oxford dictionary: Code is a systematic collection of

statutes, body of laws, so arranged as to avoid inconsistency and
overlapping.”

Codification implies collection, compilation, methodical arrangement,

systematization and reduction to coherent form the whole body of law on
any particular branch of it so as to present it in the form of a systematic,
clear and precise statement of general principle and rules.

KINDS OF CODIFICATION

Codes may be of the following kinds:

(i) A creative code: - that which makes a law for the first time without
any reference to any other law. It is law-making by legislation. The
Penal Code belongs to this category.

(ii) A consolidating code: - that code which consolidates the whole law-
statutory, customary and precedent-on a particular subject and
simplifying the law. The code of Justinian belongs to this category.
The same is the case with the Indian Transfer of property Act,
1882.

(iii) A code may be both creative and consolidating. It may make new
law as well as consolidate the existing law on a particular subject.
The recent legislation in Marriage Act is an example of this kind.

MERITS

(I) Law can be known with the certainty. The law of the contract in
Kenya can be found by a reference to the contract Act .Likewise,
the rules of evidence in the country can be known by a study of the
rules of the Evidence Act. The certainty of law avoids confusion in
the public mind.

(II) The evils of judicial legislation can be avoided. According to

Macaulay judge-made law in a country where there is an absolute
government.

(III) Codification is necessary to preserve the customs which are suited

to the people of a country.

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 (IV) The codification of law is necessary to bring about a sense of unity
in the country.

DEMERITS

(i) Codification brings rigidity into the legal system. It cramps and
impedes the free growth of law.

(ii) Codification results in the regimentation of the life of the people.A

code give a uniform law to the whole country. It does not bother
about the differences in the sentiments, convictions,aspirations,
customs and traditions of the people living in different parts of the
country.

(iii) A code is the work of many persons and no wonder the provisions
of a code are found to be incoherent. However, if the work is done
by competent persons, this defect can be avoided to a greater
extent.

(iv) Codification makes the law simple and thereby enables the knaves
to flourish. They know the law and before committing a crime, they
can provide against the same.

(v) A code is likely to disturb the existing rights and duties of the
people by creating new rights and duties in place of the old ones.

(vi) No code can be complete and self-sufficing. In course of time, every

code is overlaid with an accumulating mass of comment and
decisions.

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