Below is sample of our revised notes as per July 2021 review.
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NATURE, PURPOSE AND CLASSIFICATION OF LAW
MEANING OF LAW
There is no generally acceptable definition of the word ‘Law’.
Different schools of law define it in different ways. Some important definitions of law are given below:-
- Woodrow Wilson has defined law in the words “That portion of the established thought and habit which has gained distinct and formal recognition in the shape of uniform laws, backed authority and power of government”
- According to Holland, ‘A law is a general rule of external human action enforced a sovereign political authority’.
- In other words of Salmond, ‘A law is the body of principles recognized and applied the state in the administration of justice’
Law may be defined in the words “A rule of human conduct, imposed upon and enforced among the members of given state”
Notice the following points from the above definitions of law:
- Set of rules
Law is a set or body of rules. These rules may originate from customs, acts of parliament, court cases or some other acceptable sources.
- Guidance of human conduct:
These rules are enforced for the guidance of human conduct. Human beings follow these rules for their own safeguard and betterment.
- Applicable to a community:
These rules apply to a specific community. This community may be a sovereign state or a business community. The laws of different communities may be different e.g. what is law in Kenya may not be law in Uganda or Tanzania.
- Change of rules:
The law changes over a period of time. It means law is not a static phenomenon. It keeps changing with time i.e. what was law in Kenya in the 1960’s may not be the law in 2021
The law must be enforced otherwise there would be anarchy. The law enforcing agencies include police and courts of law.
From the above definitions, we may conclude that law refers to a set of rules or principles that govern the conduct of affairs in a given community at a given time, wheremachinery is provided for an aggrieved party to enforce his rights in case any of these rules or principle is broken.
NATURE OF LAW
The different schools of thought that have arisen are all endeavors of jurisprudence: Natural law school Positivism, realism among others. It is these schools of thoughts that have steered debates in parliaments, courts of law and others.
- 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 summarized the maxim: an unjust law is not a true law, in which ‘unjust’ is defined as contrary to natural law.
- Legal positivism is the view that the law is defined the social rules or practices that identify certain norms as laws
- Legal realism- it holds that the law should be understood as being determined the actual practices of courts, law offices, and police stations, rather than as the rules and doctrines set forth in statutes or learned treatises. It had some affinities with the sociology of law.
- Legal interpretivism- is the view that law is not entirely based on social facts, but includes the morally best justification for the institutional facts and practices that we intuitively regard as legal.
Generally speaking law has the following characteristics
- It is a set of rules.
- It regulates the human conduct
- It is created and maintained the state.
- It has certain amount of stability, fixity and uniformity.
- It is backed coercive authority.
- Its violation leads to punishment.
- It is the expression of the will of the people and is generally written down to give it
- It is related to the concept of ‘sovereignty’ which is the most important element of state.
PURPOSES OF LAW
Each society or community has its laws which regulate the mutual relations and conduct of its members. The laws are enforced to ensure that the members of the society may live or work together in an orderly and peaceful manner. The main purposes of law are as under:
- To regulate the conduct or behavior of the persons
- To provide justice to the members of the society
- To maintain the political and economic stability
- To protect the fundamental rights and freedoms of the individuals
- To establish the procedures and regulations regarding the dealing among the individuals.
- To maintain peace and security in the country.
CLASSIFICATION OF LAW
Law may be classified as:
- Written and Unwritten.
- Municipal (National) and International.
- Public and Private.
- Substantive and Procedural.
- Criminal and Civil.
This is codified law. These are rules that have been reduced to writing i.e. are contained in a formal document e.g. the Constitution of Kenya, Acts of Parliament, Delegated Legislation, International treaties etc.
These are rules of law that are not contained in any formal document.
The existence of such rules must be proved. E.g. African Customary law, Islamic law, Common law, Equity, Case law e.t.c
Written law prevails over unwritten law.
Municipal/ national law
This refers to rules of law that are applicable within a particular country or state. This is state law.
It regulates the relations between citizens inter se (amongst themselves) as well as between the citizens and the state.
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