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TOPIC ONE

NATURE, FUNCTION AND CLASSIFICATION OF LAW

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.

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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

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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.

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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”

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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

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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.

b) 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.

c) Law of Succession. This is the law that governs the administration and distribution of

the estate of a deceased person.

d) 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.

e) 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.

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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 of the 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.