Objectives of the course:• Enable the students to think in a more abstract or general fashion than is generally achieved in the study of specific areas of law and demonstrate the same in answering questions. • Enable the student to develop the willingness to question and think independently and to find out more in the study of law. • Discuss critically the definition of law.
• Explain the various scholars position on their attempt to define the meaning of law • Distinguish law from morality; justice • Explain the various classification of laws • Discuss the functions of law in society Nature of law Meanings given to the word law The word law has various meaning which are used by different classes & types of people. Examples •Regulations that help in the smooth and proper running of institutions such as colleges and Universities could be referred to as laws/ rules.
There are laws of science, which are basis formulas and set standards to be applied in the field of different sciences. There is also the layman’s idea of what law is. He will have a rough idea of where the law came from – the politicians (which are his description of parliament) and the judges. He knows that if he steals and he is caught he will be punished. He also knows that if a drunk driver knocks him down and injures him, he will have the law on his side. However, he will know nothing of the branches of law (law of tort and criminal law) which gives him a remedy in law. He will normally obey law because of the punishment that accompanies disobedience.
Normally, he will obey laws because they will appear to him to be common sense. There is also the definition given to the word law by different scholars and by different schools of thought i.e. jurisprudence. This is the science of the theory of law it is the study of the principles of law, and the philosophical aspect of the knowledge of law. Proper law: A basic definition of law that focuses on its practical nature is that it is the totality of rules made and/or approved by parliament and the courts which govern how people are supposed to conduct themselves and which are enforced by courts of law. 1
With such a wide diversity of possible conceptions of the term law, in this course we will concern ourselves with the conception of law within the Kenyan legal system. What is law? The quest to find the nature or essence of law has perplexed legal and political philosophers. It is also not within our course content to try and produce a conclusive answer to the question. However, an analysis of the works of legal scholars in the field of jurisprudence shows that the failure to produce a conclusive answer in this matter is not because the question is difficult but such a question is ambiguous.
For example: To the question: What is the nature, or essence, of law? Two conceptions of the question could be derived and therefore producing different answers:1. The question could be looked as addressing the definition of law (i.e. what is the definition of “law”) therefore being a linguistic question rather than being a question about the phenomenon of law. … What we have looked at in the different conception of law. 2. The other possible answer could seek to answer what is the formula or in other words what is the criterion of validity of law? In this the analyst would be aiming at producing a criterion or rules for identifying law regardless of the legal system that law applies.
However a criterion of validity is necessary in relation to a particular legal system. Scholars have espoused theories in trying to establish the phenomenon of law. These theories have been categorized in various schools of thought based on the scholar’s orientation. We will consider some schools of thought as follows:Natural Law:Natural law theory asserts that there are laws that are immanent in nature, to which enacted laws should correspond as closely as possible. This view is frequently summarised by the maxim an unjust law is not a true law , lex iniusta non est lex, in which ‘unjust’ is defined as contrary to natural law. • Natural law is closely associated with morality and, in the version of the many scholars who ascribe to these school natural law ascribe to the intentions of God.
• To oversimplify its concepts somewhat, natural law theory attempts to identify a moral compass to guide the lawmaking power of the state and to promote ‘the good’. • Notions of an objective moral order, external to human legal systems, underlie natural law. What is right or wrong can vary according to the interests one is focused upon. Some of thescholars who ascribe to this school of thought include:Aristotle, Thomas Aquinas, Thomas Hobbes; Lon Fuller, John Finnis
Legal Positivists:The scholars in this school of thought (positivists) view on law can be seen to cover two broad principles: (a) That laws may seek to enforce justice, morality, or any other normative end, but their success or failure in doing so does not determine their validity. Provided a law is properly formed, in accordance with the rules recognized in the society concerned, it is a valid law, regardless of whether it is just by some other standard. (b) That law is nothing more than a set of rules to provide order and governance of society.
Legal positivists do not concern themselves with the level of obedience to a given law since their view is that, its seen as a separate question entirely. • What the law is – is determined by social facts (or “sources’) • What obedience the law is owed – is determined by moral considerations. Some of the proponents of this school of thought are: • Jeremy Bentham who is credited to answering to the question what is law as; “commands, backed by threat of sanctions, from a sovereign, to whom people have a habit of obedience”. His views were popularized by his student John Austin
• Hans Kelsen propounded the notion of a grundnorm (or a “presupposed” ultimate and basic legal norm). The grundnorm is a hypothetical norm on which all subsequent levels of a legal system such as constitutional law and other laws are based. • H. L. A. Hart who argued that law is a ‘system of rules’. These rules, are divided into primary rules (rules of conduct (substantive law)) and secondary rules (rules addressed to officials to administer primary rules).
Secondary rules are divided into rules of adjudication (to resolve legal disputes (procedural law)), rules of change (allowing laws to be varied) and the rule of recognition (allowing laws to be identified as valid). • Joseph Raz argues that law is authority, identifiable purely through social sources, without reference to moral reasoning. Marxist Theory Marxist theories of political economy, expounded upon the notions of Karl Marx (1818-83) and Friedrich Engels (1820-95), consider law an instrument of class oppression that benefits the ruling class through oppression of the proletariat.
The common law system of criminal and civil law, which protects personal and private property rights, as well as facilitating predicability in social life, is regarded as “no more than a system of coercion designed to protect bourgeois ownership of the means of production” Marxist theory of law asks: what part, if any, does law play in the reproduction of the structural inequalities which characterize capitalist societies?
The Marxist theorists play majorly an oppositional role rather than the role played by conventional theorists and therefore does not produce an alternative theory. It’s most frequent manifestations have been directed toward providing a critique of liberal legal thought. The critique is “oppositional” in the sense that it has been directed at controverting the conventional wisdom of liberal legalism. 3
Marxist theory of law exhibits a number of general themes which have been reworked into new and variant combinations. In summary form the major themes which are present in Marx’s own writing and in subsequent Marxist approaches to law are: 1. Law is inescapably political, or law is one form of politics. 2. Law and state are closely connected; law exhibits a relative autonomy from the state.
3. Law gives effect to, mirrors or is otherwise expressive of the prevailing economic relations. 4. Law is always potentially coercive and manifests the state’s monopoly of the means of coercion. 5. The content and procedures of law manifest, directly or indirectly the wishes of those who control capital (bourgeois)
Law Proper For this course we will be considering law as “A collection of rules of human conduct prescribed by human beings for the obedience of human beings” These laws are made by parliament (statutory law: acts of parliament) and by Judges (common law).
Distinguishing Law from Morality Certain crimes are immoral however, not all forms of immoral conduct are illegal. e.g. if you watch a child drowning in a pool and do nothing about it, the police will not say you killed the child unless it is proven that you actually caused the child to jump into the pool with the intention of killing him, or it was your duty to protect him from drowning (i.e. you were working as a lifeguard) It is immoral to steal according to all religious teachings, and it is also illegal to steal. In most cases you will find that the law will generally reflect morality.
However the recent legalization of gay marriages in the developed countries may not necessarily be moral in relation to most of our beliefs Summary Conclusions:• Law may keep on changing from time to time but morals may not easily change without the change in societal dynamics. • Law is enforceable in a court of law.
However morals may not be enforced in a court of law unless where law and morality converge and in that case the enforcement will be on law. (Students should look for more points on the differences) Distinguishing Law and Justice Law may not necessary be justice. The functions of the court are to administer justice. Whether the courts actually administer justice is another matter.
William Temple a famous Archbishop of Canterbury once when speaking to a group of law students started by saying “I can only tell you what the law is if you are interested in justice you had better go to a school of divinity” Justice will normally not occur in situations where one is not represented by a good advocate.
The work of the advocate is to represent before the judge the best case for his client. If a clever advocate defends a man who actually murdered so well that it appears to the court that the murderer did not kill, the murderer will walk free. Law will be done, justice will not. It is legal for a father to leave nothing to his children in his will. This is clearly unjust if the children are in need of financial support. It is not easy to define justice. Justice is not something you see or feel but rather, what the ordinary man in the streets believes to be fair.
FUNCTIONS OF LAW
a) Structuring and controlling public power
The law creates the structure of government, and allocates powers to those structures. This function of law safeguard against oppressive use of governmental power. By creating the structure and allocating powers to the offices and office bearers; law promotes good governance by limiting the excessive exercise of power. b) Facilitating and effecting personal choice
Law provides the framework for persons to make personal choice, and gives these choices efficacy e.g. inheritance, contracts etc. This function is best illustrated by the law of contract which facilitates contractual relationship, laws of marriage and succession etc. c) Resolution of Social Conflicts Since the society cannot exist without conflicts, law is critical in that it creates the techniques of conflict resolution. This is necessary to enhance or promote justice. d) Standard setting and control mechanism Rules of law describe standards in human behaviour conduct of business etc. e) Prevention of anarchy Law sets standards so that they are not set by individuals e.g. gun ownership.
CLASSIFICATION OF LAW The law of the state is divided into two main categories. (i) public law (ii) private law Public law This consists of the fields of laws which regulate the relationship between the private organs of the state or a collective body of people or states
Constitutional law – These are the rules that deal with the distribution and exercise of sovereign power. Administrative law – This is the law relating to public administration. Criminal law – This law consists of the laws committed against the state.
The Penal Code of Kenya (Cap 63) contains the bulk of crimes that can be committed against the Republic of Kenya these laws are, inter alia, offences against another person, offenses against property, and offenses against the security of the state. Private law This is the part of law which is primarily concerned with the rights and duties of persons towards persons. It embraces the following, inter alia: a) Law of Contract: A contract is an agreement between two or more persons giving rise to legal obligations. The set of laws that govern this agreement is what is termed as the Law of Contract. Law of Torts: A tort is a civil wrong which gives rise to an action in court. The right of action in tort springs from the breach of duty, which a person owes to other persons in general. Law of Succession.
This is the law that governs the administration and distribution of the estate of a deceased person. Law of Agency: Agency is a legal relationship which arises when a person called an agent is appointed or entitled to represent another, called of the principal in a transaction with another person called a third party.
The rules which govern these rules of agency are what comprise the Law of Agency. Law of Insurance: An insurance contract is one whereby a person called the insurer agrees in consideration of money paid to him called the premium by another person called the assured to indemnify (pay a debt owed) the latter against loss resulting to him on the occurrence of certain events.
Substantive Law Public or private law may either be substantive or procedural. Substantive law is a body of rules which define or specify what is lawful or unlawful to do. For example the substantive law under family law indicates that a marriage can occur only between a man and woman. Therefore two men or two women cannot get married. This law also indicates that a person below the age of 18 cannot get married.
Procedural Law This is the body of legal rules which define or specify the steps to be taken for the procedure to be followed by a person who intends to do a lawful act. For example, a man who has been hit by a drunk driver cannot just get up from his hospital bed, walk into court and demand that his case be heard. There are certain procedures to be followed in order for him to order a case in court. These are found in the Civil Procedure Code. Criminal matters are governed by the Criminal Procedure Code. These two codes hold the bulk of rules of procedural law in Kenya. International Law
This is a branch of public law and has two categories in • Public international law • Private international law Public International Law This is the body of law that regulates the relations between different states ofthe world. It is based on customs, treaties and conventions. These are adapted by the states of the world either bilaterally or collectively. NB: Bilaterally: when there are two states. Collectively: U.N, W.H.O., World Bank. When they are Bilateral, the customs, treaties and conventions are agreed upon between one country and another on a one-on-one basis. When they are collectively agreed it is under the auspices / patronage of the U.N.
Disputes between states are settled by the International count of Justice at The Hague in Holland. However, the litigant states must consent to the jurisdiction of this court. A clause to this effect is found in most conventions, treaties and customs. There are no means of enforcing its judgments. There is no international police force for parliament to enact statutes articulating the rules or decisions of the court. The resolution of the disputes depends greatly on mutual trust and understanding.
Private International law This law comes into play when two or more country’s laws are involved in a court case. What has to be determined through the principles of international law is which law of which country is to be applied? For example, a Kenyan agrees to sell timber from his sawmill in Tanzania to a Ugandan. Some of the timber is stolen in Tanzania and on it’s way to Uganda through Kenya, the truck carrying the rest of the timber is involved in an accident and all the timber is burnt. The Ugandan buyer having already, paid for the timber, institutes a court case in Uganda. The court will look into the principles of private international law to decide which country’s law to apply. Private international law is also referred to as Conflict of Laws.