Introduction to Law and Governance Study Guide

NATURE, PURPOSE AND CLASSIFICATION OF LAW

Meaning of Law

Law refers to the set of rules which guide conduct in society and is enforceable by the state via public agencies. Generally, law results from necessary relations arising from the nature of things. While the physical world follows primitive laws steadily, the intelligent world (humans) does not, because intelligent beings are finite, liable to error, and are free agents. Law in general is human reason as it governs the inhabitants of the earth.

Nature of Law

Jurisprudence explores the nature of law through various schools of thought:

  • Natural Law Theory: Asserts that laws are immanent in nature; enacted laws should correspond to these. Maxim: "An unjust law is not a true law."
  • Legal Positivism: View that law is defined by social rules or practices that identify certain norms as laws.
  • Legal Realism: Law is determined by actual practices of courts and police, rather than just statutes.
  • Legal Interpretivism: Law is based on the morally best justification for institutional facts.
Characteristics of Law
  1. A set of rules.
  2. Regulates human conduct.
  3. Created and maintained by the state.
  4. Possesses stability, fixity, and uniformity.
  5. Backed by coercive authority.
  6. Violation leads to punishment.
  7. Expression of the will of the people.
  8. Related to the concept of 'sovereignty'.

Purposes of Law

  1. Peaceful Coexistence: Maintenance of law and order to prevent anarchy.
  2. Standard Setting: Establishing behavior standards in manufacturing, construction, and trade.
  3. Protection of Rights: Enforcing duties and providing remedies for breaches.
  4. Facilitating Private Choice: Enabling legal effect for choices in contract, marriage, and succession.
  5. Resolving Social Conflict: Providing resolution mechanisms for inevitable conflicts.
  6. Structuring Public Power: Governing government organs and promoting accountability.
  7. Justice: Facilitating justice within society.

Classification of Law

  • Written vs. Unwritten: Written law (codified) is found in formal documents like the Constitution. Unwritten law (customary law, common law) is not in formal documents and must be proved. Written law prevails.
  • Municipal (National) vs. International: Municipal law applies within a country; International law regulates relations between states/international persons (e.g., UN).
  • Public vs. Private: Public law involves the state as a sovereign (Criminal, Constitutional, Administrative). Private law involves legal relationships between persons (Contract, Tort, Property).
  • Substantive vs. Procedural: Substantive defines rights/duties and offences. Procedural (adjectival) defines the steps for the administration of justice.
  • Criminal vs. Civil: Criminal deals with crimes against public law; Civil deals with rights and duties of individuals/corporations.

THE COURT SYSTEM AND LEGAL PROCESSES

Criminal Law Specifics

  • Terminology: Suspect (before charge), Accused (after charge).
  • Parties: State (R) vs. Accused.
  • Burden of Proof: Borne by the prosecution.
  • Standard of Proof: Beyond any reasonable doubt.
  • Sentences: Imprisonment, Fine, Probation, Corporal/Capital punishment, Community service, Discharge.

Civil Law Specifics

  • Cause of Action: Violation of private rights (e.g., Breach of contract, Defamation, Negligence).
  • Parties: Plaintiff vs. Defendant.
  • Burden of Proof: Borne by the plaintiff.
  • Standard of Proof: Balance of probabilities.
  • Remedies: Damages, Injunction, Specific Performance, Account, Tracing, Winding up, Appointment of receiver.

The Rule of Law

Developed by A.V. Dicey, it consists of three conceptions:

  1. Absolute Supremacy of Regular Law: No one is punished except for a breach of law.
  2. Equality Before the Law: All persons are subject to the same law and judicial process.
  3. Constitution as a Consequence of Rights: The law manifests the will of the people.
  • Factors Undermining Rule of Law: Excessive executive power, non-independent judiciary, corruption, and selective prosecution.

PROFESSIONAL AND BUSINESS ETHICS

Professional Ethics for Accountants

  • Integrity: Honesty and forthright character.
  • Professional Independence: Working without following client instructions that contradict professional dictates.
  • Confidentiality: Duty of secrecy regarding client information.
  • Professional Competence: Attaining necessary qualifications and study.

Prominent Ethical Theories

  • Rights Theory (Deontological): Focuses on fundamental human rights. Kantianism uses the "categorical imperative" (universal application). Modern rights theory allows exceptions (e.g., self-defense).
  • Justice Theory: Focuses on fair distribution of benefits/burdens. John Rawls’s "Veil of Ignorance."
  • Utilitarianism (Teleological): Maximizing utility for society as a whole; benefits must outweigh costs.
  • Profit Maximization: Managers should maximize long-run profits within legal limits.

SOURCES OF LAW IN KENYA

Identified by the Judicature Act and Constitution:

  1. The Constitution: Supreme law. Any inconsistent law is void (Article 2(4)).
  2. Legislation (Acts of Parliament): Primary law-making process.
  3. Delegated Legislation: Rules made by bodies empowered by an Enabling Act.
  4. Statutes of General Application: UK statutes applicable before 12/8/1897.
  5. Common Law & Equity: Substance of English common law and equitable doctrines.
  6. Case Law: Judicial precedents.
  7. African Customary Law: Guided by customs not repugnant to justice/morality.
  8. Islamic/Hindu Law: Specifically for personal status, marriage, and inheritance for followers.

The Legislative Process (Passing a Bill)

  1. First Reading: Title read, no debate.
  2. Second Reading: Main features explained, house debate.
  3. Committee Stage: Detailed scrutiny by a committee.
  4. Report Stage: Reporting amendments to the house.
  5. Third Reading: Final vote.
  6. Presidential Assent: Bill becomes law upon signing or becomes law if Parliament overrides a veto by a two-thirds majority.

ADMINISTRATIVE LAW

Relates to the performance and control of governmental power to protect citizens from abuse.

  • Separation of Powers: Montesquieu’s theory involving three organs: Legislature (makes law), Executive (administers), and Judiciary (interprets).
  • Principles of Natural Justice:
        * Nemo Judex in causa sua: Rule against bias (pecuniary or actual).
        * Audi Alteram Partem: Right to be heard (includes prior notice, opportunity to present a case, and disclosure of information).

Judicial Review Remedies

  1. Certiorari: Quashes a decision made irregularly or ultra vires.
  2. Prohibition: Stops a body from continuing wrongful proceedings.
  3. Mandamus: Commands the performance of a public duty that has been refused.

LAW OF TORT

A civil wrong involving a breach of duty fixed by law towards persons generally.

  • Negligence: Breach of a legal duty of care resulting in damage. Elements: Duty of care, Breach, Loss. (Case: Donoghue v Stevenson).
  • Vicarious Liability: An employer is liable for torts committed by employees in the course of employment.
  • Strict Liability (Rule in Rylands v Fletcher): Liability for the escape of a dangerous thing accumulated on land during non-natural use.
  • Defamation: Libel (permanent) or Slander (transient). False statements lowering a person's reputation.
  • Nuisance: Unlawful interference with the use or enjoyment of land.
  • Occupier’s Liability: Duty owed by occupiers to lawful visitors to ensure they are reasonably safe.