*DISCLAIMER*
The
notes below are adapted from the Kenyatta University Teaching module
and the students are adviced to take keen notice of the various legal
and judicial reforms that might have been ocassioned since the module
was adapted. the laws and statutes might also have changed or been
repealed and the students are to be wary and consult the various
statutes reffered to herein
LEGAL
SYSTEMS & LEGAL METHODS
The legal system of any country can be
described as the set of rules of substance and procedure as well as the
institutions relating to the governance of social behaviour and resolution of
disputes which arise in the process. It
also necessarily includes the underlined social values and attitudes which
affect the operations of such values.
Legal methods on the other hand refer to
the manner in which those who make, activate or operate the law use the legal
system to arrive at specific legal consequences. This necessarily involves rules of
interpretation and other legal tools used to arrive at the desired legal
consequences.
Legal systems therefore deal with “what” “why” of law while legal methods
deal with “how” of law.
INTRODUCTION
Man is a social being. He is part and parcel of society which has
its own structure and organisation.
Society is primarily based on order which order is achieved and
maintained through social rules. Man’s
behaviour is closely controlled, either directly or indirectly through moral
standards, religious doctrines, social edicts and customs as well as legal
rules.
In today’s complex society, legal rules
are especially significant and it is difficult to find any area of society
which is completely free from legal control.
There is therefore undeniable and manifest relationship between law and
society and the individual members of society.
To a law student society is a
conglomeration of people, institutions and other social phenomena in the midst
of which law occupies a central place holding these social arrangements
together in an orderly fashion.
Law is however only one part of the
overall social structure as there are other social elements and forces. In addition to law, there are various and
diverse social phenomena all of which form part of the entire social structure
for example political institutions, economic and commercial institutions,
religious institutions etcetera. These
other institutions or social phenomena are however not completely free from
legal control or influence.
Law plays an important role in the
definition of all kinds of social relationships between individuals and also
between groups.
In the early days law as we know today
did not exist. The early man was self
sufficient in his wants. However as time
went by need arose for specialisation in production of human necessaries and
this in turn gave rise to social relationships such as trade and others for
example emergency families and other units in the society. As a consequence there arose conflicts of
interest and these necessitated the development of a system of social control
for purposes of preserving the society itself.
As the social groups became more sophisticated
and complex, there occurred increase in occupational specialisation and
division of labour and as a consequence legal rules became even more
sophisticated and complex. This is
because just as society is dynamic so is the law. The law must always change in tandem with
societal change if it is to stay relevant.
DEFINITION OF
LAW
Although scholars do differ in their
analysis of law, there is general consensus that a legal order must provide for
authorisation and recognition of legitimate authority, provide means of
resolving disputes and also mechanisms for facilitating interpersonal
relationships including adaptation to change.
There is no definition of law which has
achieved universal acceptability but different approaches have been developed
and adopted in an attempt to explain the meaning and functions of law. According to one Salmond law is a body of
principles recognized and applied by the state in administration of justice.
According to another scholar called Holland law is the rules
of external human action enforced by the sovereign political authority.
Panton on the other hand opines that law
consists of a body of rules which are seen to operate as binding rules in the
community and by means of which sufficient compliance with the rules may be
secured to enable the set of rules to be seen as binding.
FUNCTIONS OF LAW
IN SOCIETY:
1.
Structuring
and controlling public power; constitution, admin law etc
2.
Facilitating
and effectuating private relationships; family law etc
3.
Resolving
social conflicts
CLASSIFICATION
OF LAW
1. Private/Public
law:
Public law consists of those aspects of
law concerned with the regulation of the relationship between the state and
persons/citizens. For example
constitutional law and Administrative law.
Private law on the other hand is
primarily concerned with the regulation of relationships between persons as in
people inter se for example law of contract etcetera
2. Criminal/Civil
Law
Criminal law is concerned with the
definition, prevention, detection and punishment of crime for example criminal
law as codified in the penal code
Civil law is primarily concerned with the
regulation of relationship between persons.
3. Substantive/Procedural
Law
Substantive law is concerned with the
definition of legal rights, obligations and remedies for example Land law
Procedural or Adjectival law is concerned
with the procedure or steps to be followed in the enforcement of rights and
obligations defined by substantive law. for example law of evidence and law of
procedure.
4. Statutory/Non-statutory/
Written law/non written laws
Statutory laws are contained in the
statutes passed by a body mandated to make laws within a given jurisdiction.
Non Statutory laws or unwritten laws are
uncodified laws for example customary law, judicial precedent/case law
etcetera.
5. Municipal/International
Law
Municipal law comprises of domestic laws
applicable within a given state while international law regulates legal
relations at international level for example
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