TOPIC 1

ELEMENTS OF THE LEGAL SYSTEM

NATURE PURPOSE AND

CLASSIFICATION OF LA
MEANING OF LAW
Law, simply put, refers to the set of rules which guide our conduct in the society and is enforceable
by the state via public agencies.
Law in its general sense tends to be as a result of the necessary relations arising from the
nature of things. In this sense all things have their laws. Humans, material world, superior
beings and even animals all have their own laws. Simply put, the nature of these
relationships tends to determine the nature of the laws.

But the intelligent world is far from being so well governed as the physical. This is because
intelligent beings are of a finite nature, and consequently liable to error; and on the other,
their nature requires them to be free agents. Hence they do not steadily conform to their
primitive laws.
Law in general is human reason, inasmuch as it governs all the inhabitants of the earth: the
political and civil laws of each nation ought to be only the particular cases in which human
reason is applied.
According to the oxford dictionaries law can be defined as; The system of rules which a
particular country or community recognizes as regulating the actions of its members and
which it may enforce by the imposition of penalties

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 by 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 by the social rules or practices
that identify certain norms as laws
 Legal realism- it holds that the law should be understood as being determined by 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

1. It is a set of rules.
2. It regulates the human conduct
3. It is created and maintained by the state.
4. It has certain amount of stability, fixity and uniformity.
5. It is backed by coercive authority.
6. Its violation leads to punishment.
7. It is the expression of the will of the people and is generally written down to give it
definiteness.
8. It is related to the concept of 'sovereignty' which is the most important element of
state.

PURPOSES OF LAW
1. It promotes peaceful coexistence/ maintenance of law and order/ prevents anarchy
2. It is a standard setting and control mechanism. Law sets standards of behaviour and
conduct in various areas such as manufacturing, construction, trade e.g. The law also
acts as a control mechanism of the same behaviour
3. It protects rights and enforces duties by providing remedies whenever these rights or
duties are not honoured.
4. Facilitating and effectuating private choice. It enables persons to make choices and
gives them legal effect. This is best exemplified by the law of contracts, marriage
and succession.
5. It resolves social conflicts. Since conflicts are inevitable, the rule of law facilitates
their resolution by recognizing the conflicts and providing the necessary resolution
mechanism.
6. It controls and structures public power. Rules of law govern various organs of
7. Government and confer upon them the powers exercisable by them. The law creates
a limited Government. This promotes good governance, accountability and
transparency. It facilitates justice in the society.

CLASSIFICATION OF LAW
Law may be classified as:

1. Written and Unwritten.

2. Municipal (National) and International.
3. Public and Private.
4. Substantive and Procedural.
5. Criminal and Civil.

Written law

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.

Unwritten law

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.

It originates from parliament, customary and religious practices.

International law

This is a body of rules that generally regulates the relations between countries or states and
other international persons e.g. United Nations.

It originates from international treaties or conventions, general principles and customary

practices of states.

Public law

It consists of those fields or branches of law in which the state has a direct interest as the sovereign.

It is concerned with the Constitution and functions of the various organizations of

government including local authorities, their relations with each other and the citizenry.
Public law includes:
  Criminal Law
 Constitutional Law
 Administrative Law
Public Law asserts state sovereignty.

Private law

It consists of those branches of law in which the state has no direct interests as the state
sovereign.

It is concerned with the legal relationships between persons in ordinary transaction e.g.

 Law of contract
 Law of property
 Law of succession
 Law of marriage
 Law of torts

Substantive law

It consists of the rules themselves as opposed to the procedure on how to apply them.

It defines the rights and duties of the parties and prescribes the remedies applicable.

Substantive law defines offences and prescribes the punishment, for example:

 The Law of torts

 The Law of succession
 The Law of contract
 The Law of marriage
 The Penal Code

Procedural law

This is adjectival law. It consists of the steps or guiding principles or rules of practice to be
complied with in the administration of justice or in the application of substantive law. For
example:

 The Civil Procedure Code

 The Criminal Procedure Code

Criminal law
This is the law of crimes. A crime is an act or mission committed or omitted in violation of
public law e.g. murder, treason, theft, e.t.c. All crimes are created by parliament through
statutes

A person who is alleged to have committed a crime is referred to as a suspect.

As a general rule, suspects are arrested by the state through the police at the instigation of the
complainant. After the arrest, the suspect is charged in an independent and impartial court
of law whereupon he becomes the accused.

Criminal cases are generally prosecuted by the state through the office of the Attorney
General (AG) hence they are framed as R (the State) Vs Accused E.g. R v Kamenchu

Under the Constitution, an accused person is presumed innocent until proven or pleads
guilty.

If the accused pleads not guilty, it is the duty of the prosecution to prove its case against him
by adducing evidence i.e. the burden of proof in criminal cases is borne by the prosecution.

The standard of proof is beyond any reasonable doubt i.e. the court must be convinced that
the accused committed the offence as charged.

In the event of reasonable doubt, the accused is acquitted. If the prosecution proves its case
i.e. discharges the burden of proof, then the accused is convicted and sentenced.

The sentence may take the form of:-

1. Imprisonment
2. Fine
3. Probation
4. Corporal punishment
5. Capital punishment
6. Community service
7. Conditional or unconditional discharge
Under the Constitution, a person cannot be held guilty of an act or omission which was not
a criminal offence on the date of omission or commission.

Civil law

It is concerned with the rights and duties of persons i.e. individuals and corporations.
Branches of civil law include:-

 Law of contract
 Law of torts
 Law of property
  Law of marriage
 Law of succession
When a person‘s civil or private rights are violated, he is said to have a cause of action.
Examples of causes of action:

 Breach of contract
 Defamation
 Assault
 Negligence
 Trespass to goods e.t.c
Causes of action are created by parliament through statutes as well as the common law and equity.

The violation of a person‘s civil rights precipitates a civil case or action. The person whose
rights are allegedly violated sues the alleged wrongdoer hence civil cases are framed as
Plaintiff v Defendant.

It is the duty of the plaintiff to prove his allegations against the defendant. This means that
the burden of proof is borne by the plaintiff. The standard of proof in civil cases is on a
balance of probabilities or on a preponderance of probabilities i.e. the court must be satisfied
that it is more probable than improbable than the plaintiff‘s allegations are true.

If the plaintiff proves his allegations by evidence, he wins the case and is awarded judgment which
may take the form of:-

1. Damages (monetary compensation)

2. Injunction
3. Specific performance
4. Account
5. Tracing
6. Winding up a company
7. Appointment of receiver
Differences between civil wrong and crime

CIVIL WRONG CRIME

Definition offence against another individual Offence against the state
Purpose To deal with the disputes between To maintain the stability of the state
individuals, organizations, or between and society by punishing offenders
the two, in which compensation is and deterring them and
awarded to the victim. others from offending.
Standard of Claimant must produce evidence Beyond reasonable doubt
proof beyond the balance of probabilities.
Parties The plaintiff, the party that is suing Prosecution which represent the
involved The defendant , the one being sued state and the accused
Burden of Claimant must give proof however, the "Innocent until proven guilty":
proof burden may shift to the defendant in The prosecution must prove
situations of Res Ipsa Loquitur (The defendant guilty.
fact speaks for itself).
Type of Compensation (usually financial) for A guilty defendant is subject to
punishment injuries or damages, or an injunction in Custodial (imprisonment) or
nuisance. Noncustodial punishment (fines
or community service). In
exceptional cases, the death
penalty.

The rule of law

The concept of the Rule of Law is a framework developed by Dicey on the basis of the
English Legal system. It is also described as the due process.

According to Dicey, rule of law comprises three distinct conceptions namely:

1. Absolute supremacy or predominance of regular law: this means that all acts of
The State are governed by law. It means that a person can only be punished for
disobedience of the law and nothing else.

2. Equality before the law: this means equal subjection of all persons before the law.
It means that no person is exempted from obeying the law. All classes of persons are
subjected to the same judicial process regardless of their age, sex, creed, gender or
race.

3. The law (Constitution) is a consequence and not the source of rights: means that
the law is a manifestation of the will of the people.
Factors undermining rule of law

 Excessive power of the Executive

 Non - independent Judiciary
 Corruption
 Selective prosecution
 Civil unrest
 Ignorance of the law

PROFESSIONAL ETHICS AND THE LAW

Principles that have to be followed by a professional accountant include:

a) Integrity

It refers to the character of the accountant. The accountant should be one who is of unquestionable
morals, honest, trustworthy and forthright.

b) Professional Independence

This refers to the ability of the accountant to do his work without following any instructions
from the client or any other person for any reason.

The independence ensures that the accountant will be truthful and will carry out his duties
in accordance with the dictates of the profession as opposed to personal whims.

c) Confidentiality

This is the duty of secrecy. It is the duty not to divulge to third parties any information that
has been received by the accountant in his capacity as such or to use such information in any
way for any other purpose without the consent of the client or express authority of the law.

d) Professional Competence

Means that for a person to render professional services as an accountant he must have
attained the professional ability to do so i.e. he must inter alia have the necessary
qualifications after having gone through a prescribed course of study.

A person who has fulfilled the requirements of the Accountants Act5 in relation to
qualifications is deemed to be professionally competent.
LAW AND MORALITY

Morality is the sense of judgment between right and wrong by reference to certain standards
developed by society over time.

It defines standards of behavior widely accepted by a society and is binding on the

conscience of the members of that society. An action that is considered to be opposed to
morality will generally be frowned upon by that society. However, morality is not
enforceable by courts of law.

This is compared to rules of law, which are binding, enforceable and have sanctions in all
cases. Wrongs in society are contraventions of law or morality or both. However, the law
incorporates a significant proportion of morality. In such instances, where law and morality
overlap, morality is enforced as a rule of law. Such morality becomes part of the law. E.g.
Killing a person is immoral as well as a crime. So is theft.

However, certain wrongs in society contravene morality but not the law e.g. disrespects
failure to provide for parents, failure to rescue a drowning person e.t.c.

What then is the relation of morality to law?

1. The existence of unjust laws (such as those enforcing slavery) proves that morality
and law are not identical and do not coincide.
2. The existence of laws that serve to defend basic values such as laws against murder,
rape, malicious defamation of character, fraud, bribery, etc. proves that the two can
work together.
3. Laws govern conduct at least partly through fear of punishment. When morality, is
internalized, when it has become habit-like or second nature, governs conduct
without compulsion. The virtuous person does the appropriate thing because it is the
fine or noble thing to do, not because not doing it will result in punishment.
4. As such, when enough people think that something is immoral they will work to
have a law that will forbid it and punish those that do it. However, if there is a law
that says doing X is wrong and illegal and enough people no longer agree with that
then those people will work to change that law.
BUSINESS ETHICS AND CORPORATE SOCIAL RESPONSIBILITY

In the recent years, nation have been surprised by a number of major corporate scandals
triggering widespread public skepticism, shock among other behaviors towards the
executives who run them. Such tend to range from inflating profits, obstruction of justice,
manipulating the market, etc.
In most business set ups, it would appear, when a behavior has a direct identifiable price, it
is much easier to motivate corporate behavior. However;

1. Should corporate managers consider moral choices or should their focus be based on
profit and loss
2. In a world of ever increasing complexity and interdependency, how does one go
about determining what conduct is or is not ethical

PROMINENT ETHICAL THEORIES

Let us look at four ethical theories in relation to the above questions. The theories are; rights
theory, justice theory, utilitarianism, and profit maximization. The rights theory is also
referred to as deontological ethical theory since it focused on the actions and process and
not just consequences. The other three which focus on the consequences of an action are
teleological ethical theories.

Rights theory
This is based on the view that certain human rights are fundamental and should be observed.
This therefore means that its primary focus is on individuals in society. There are two primary
category of rights theory 1) Kantianism 2) The modern rights theory

Kantianism
Immanuel Kant was a strict deontologist. He viewed humans a moral actors free to make
choices. According to this philosopher morality of a given action was determined by
applying categorical imperative, that is, judge an action by applying it universally. For
instance, if you are to steal then the question is, are you will to let everyone steal freely?
Since this threatens your future security then you may conclude that stealing is wrong.

Modern right theories

One major problem with Kantianism is that it imposes duties to be absolute. This implies
that lying or killing for instance would be perceived to be unethical. Modern theorist
believes that there may be circumstances when action like lying and killing could be
morally acceptable for instance self-defense. One popular theory believes that you should
abide by a moral rule unless a more important rule conflicts with it, that is, our moral
compulsion is not to compromise a person’s right unless a greater right takes priority over
it.
Due to this moral relativism, modern rights theorists have choices to make. They must
determine what the fundamental rights are and how they are ranked in importance. Most
courts tend to use this approach.
Justice theory
This is derived from John Rawls’s book A Theory of Justice, which argued for just
distribution of society’s resources. This can be referred to as a fair allocation of society’s
benefits and burdens among all members of society.

Rawls argues that self-interested rational persons behind the veil of ignorance would
choose two general principles of justice to structure society in the real world:

1. Principle of equal liability- each person has equal right to basic rights and liberties.
2. Difference principle- social inequities are only acceptable if they cannot
be eliminated without making the worst-off class even worse off.
Under the justice theory, the decision makers’ choices are to be guided by fairness and
impartiality, however, the focus in on the outcome of the decision.
Consider a company that has two choices in terms of production, that is, produces locally or
outsource, based on this theory the company can choose to outsource assuming the workers
in the other country are badly off than the local workers.

Utilitarianism
This derived from the workings of Jeremy Bentham and John Stuart Mill. Under
utilitarianism, an ethical decision is one that maximizes utility for society as a whole. Thus,
in our individual decision we should always calculate their costs and benefits for every
member of society. An action is ethical only if the benefits to society outweigh their costs.
This means that at times decision makers have to sacrifice their own interest if doing so
gives greater benefit to society.

Profit maximization
This is a teleological theory that is based on the laissez faire theory of capitalism
championed by Adam Smith.
It proposes that managers should managers should maximize a business’ long run profits
within the limits of law. Unlike utilitarianism, in profit maximization the managers focus
solely on those decisions result into more profits for the organization.

Critics view this to be entirely untrue since in the quest for more profit other issues such as
employees’ welfare could be ignored.