Nature, Function and Classification of Law

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 the scholars 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