1.1 Introduction
Law is an important aspect of human society. In order to avoid or at least to minimize frictions within a society, human beings have made rules to regulate their conduct. A set of such rules is called law. The law which is concerned, in some way, with business transactions is therefore important to you as bachelor of commerce students.
This lecture, therefore, introduces you to the basic concepts of law and how the law which regulates human conduct differs from other laws such as laws of nature and rules of morality.
2.2 Objective
2.2 Objective
| At the end of this lecture you should be able to: 1. Discuss various ways in which law may be classified. 2. Identify each classification of law. 3. Describe the remedies available or consequences that may follow under each classification. 4. Explain who can initiate proceedings in each category of law and the procedure that has to be followed. 5. Explain the terminology used when a case is filed in a court of law. |
2.3 Classifications of Law
The major classifications by the type of law are:
2.3.1 Public Law and Private Law
2.3.2 Criminal Law and Civil Law
2.3.3 Written Law and Unwritten Law
2.3.4 Substantive Law and Procedural Law
2.3.5 International Law and National or Municipal Law
2.3.1 Public Law and Private Law
Public Law
Public law is that branch of law which is primarily concerned with the state itself or in which the state has a direct interest. It is concerned with the organizations of the state, the relationship between the state and the people who compose it and between various state organs, the responsibilities of public officers to the state and to private persons.
Included in this category are:
Constitutional law
This branch of public law is concerned with organization, powers and framework of government, the distribution of governmental authority and functions, and fundamental principles which are to regulate the relations of government and citizens.
Administrative law
This law regulates the functions of governmental and administrative agencies. It is concerned with the matters such as establishment and functions of statutory corporations and of administrative tribunals, rules of natural justice and judicial review of administrative actions.
Criminal law
It is concerned with suppression of wrongs which the state is concerned to prevent and punish.
Public law also includes election law, local government law and revenue laws such as the income tax law and value added tax (VAT).
Private Law
Private law, on the other hand, is primarily concerned with rights and obligations of private persons, that is, individuals, associations and corporations, towards each other.
It defines, regulates, enforces and administers relationship among such persons.
Private law covers a wider field than public law.
There are many branches of private law. The following are more important:
- The law of contract – It is this branch of law which specify the conditions on which agreements made between two or more persons are to be treated as legally binding and the legal consequences for breach of contract. Law of contract has other divisions such as the law of agency, the partnership law, the law of sale of goods, the law of hire purchase, law of insurance, etc which are given special treatment.
- The law of tort – This lays down the rules regarding civil wrongs which give rise to a claim for damages assessed and awarded by the court to the person wronged. Law of tort protects a number of interests, including injury to physical person, damage to property, injury to reputation, injury to financial interests injury to trade interests, injury to family relations, injury to contractual relations, etc. There are various types of torts. The important ones are: negligence, trespass to the person – assault, battery and false imprisonment, trespass to land, interference with goods, defamation, breach of statutory duty and nuisance.
- Family law – This is concerned with family relationship such as marriage, divorce, maintenance, status of women, widows and children, including custody, guardianship, legitimacy and adoption. This sub-division also deals with rules on succession both testate and intestate. Testate succession means passing of property or right by a will. Under intestate succession the property of the deceased shall be disposed of under the law to his heirs.
- Law of succession – This lays down the rules concerning inheritance of property which determines how the property passes on the death of a persons to his successor, or to person under will.
- The law of property – This law determines the nature and extent of the rights which people may enjoy over the use of their land and/or other property.
- The law of trusts – A trust is any arrangement whereby the property is entrusted to the trustee with the intention that it be administered by the trustee for another’s benefit called the beneficiary. This law is concerned mainly with the creation of trust and, trustees, their functions and obligations and remedies for breach of trust.
- The company law – This law deals with the rules relating to the most successful form of business organization, the registered companies. It is concerned with the law governing companies while they are going concerns as well as the liquidation of the companies.
- The business law – It is a part of private law. It is a cluster of several laws such as law of contract, law of agency, law of partnership, law relating to sale of goods, hire purchase law, insurance law, banking law, law relating to negotiable instruments, law of guarantee and law of carriage of goods.
Labour law
This involves contractual relationship between employer and employee; rights and duties of the employer and employee. Termination of contract of employment dismissal, redundancy etc. It also covers rules relating to industrial relations and trade unions.
It may be noted that the above list of private law is not exhaustive and there are a number of other private laws.
Private law actions are commenced by private persons and the procedure that has to be followed is governed by the rules of civil procedure under Civil Procedure Act. The remedies provided for private law actions are same as those provided for civil law actions, which we shall be discussing in detail soon.
2.3.2 Criminal Law and Civil Law
This mode of classification overlaps with the above classification
The Criminal Law
It is that branch of law which for the purpose of preventing harm to the society, (a) declares what conduct is criminal and (b) prescribes the punishment to be imposed for such conduct. Criminal law, thus, creates crimes and provides punishment for them. A crime is considered as a wrong against society and therefore the state as a custodian of the society takes an action.
Criminal law therefore may be defined as a collection of rules which regulate individual and corporate conduct, which is regarded as wrong against society under the threat of penalty or punishment that may be imposed by or on behalf of the state.
The purpose of this law is to protect society, punish the offender, and deter him and others from committing an offence.
It must be noted that by virtue of section 77(8) of the Constitution of Kenya an offence can only be created and punished by a statutory law. This section provides that, ‘’No person shall be convicted of a criminal offence unless that offence is defined and penalty therefor is prescribed, in a written law.” Thus, African customary criminal law and common law rules of crime are not applicable in Kenya.
Crime therefore, is an act or omission in violation of penal laws created by a statute
Most of the offences are defined and punished by the Penal Code of Kenya. Crimes include serious offences such as murder, rape, and grievous body harm, theft, and robbery, robbery with violence as well as offences of technical nature such as driving a motor vehicle without a proper driving licence or trading without a trade licence.
Criminal law actions are commenced in accordance with the rules of the Criminal Procedure Code.prosecutions, which are usually commenced by the state on behalf of society, although private prosecutions may be allowed in well defined circumstances. If the accused person is found guilty, he is liable to punishment which may be a fine and/or imprisonment, death penalty, probation or community service. If the prosecution is unsuccessful the accused is acquitted. The party instituting a criminal action is called the prosecutor while the party against whom the charges are brought is the accused. The accused who has been legally convicted of a crime is the offender or criminal. Criminal cases are called
The prosecutions involving offences are brought in the name of the state. The case will then be known as: Republic v Kimani.
The Civil Law
Civil law concerns, itself with regulating the relationship between individuals, associations and corporations. It deals with civil or private rights and duties and provides remedies for breach of such rights. Civil law is basically private law and covers almost all areas covered by latter. For example, the law of contract, tort, trust, succession, property and the family law.
The purpose of civil or private law is to resolve disputes between individuals and to remedy wrong done by one individual against another. The dispute may be on matters such as whether there is a binding contract between the parties or who is the owner of the property in dispute or whether the property in the goods has passed to the buyer.
Take Note:
| Private law and civil law are almost, if not entirely, synonymous because both are concerned with right and obligations of individuals, associations and corporations towards each other. The procedure to be followed and the remedies provided under both are the same |
There are many kinds of civil wrongs, for example breach of contract, breach of trust and torts.
Unlike criminal cases but like private law actions, civil law actions are generally initiated by private persons. The procedure to be followed in such actions is governed by the rules of the Civil Procedure Act. The remedies available in civil actions are damages, injunction and declaration. In contract there are also other remedies of specific performance, rescission and rectification. Whereas in tort the remedy of specific restitution of property is also available.
Civil cases generally involve wrong by one individual against another individual or they may involve disputes between two or more private persons. The party bringing or filing a case or plaint is called the plaintiff (in England now he is called a claimant). In divorce or winding up proceedings or in a petition under the Constitution he is called a petitioner. The person who defends himself in an action is called the defendant, but a person responding to a petition is called the respondent.
In civil cases the name of the parties are used. The plaintiff’s names being placed first, for example, Mbugua s/o Gakua v MwangiMugure.
In appeal cases the appellants name is always placed first, even if he was a defendant at a lower court.
When the loser party appeals he is called the appellant and the other party who responds is called the respondent.
Take Note
| In a civil or private law action a person who files a case or plaint is called the plaintiff, while in divorce proceedings, winding up of company proceedings, election disputes or constitutional proceedings such a person is the petitioner. The person who defends himself in a case is called the defendant, but the person who responds to a petition is called the respondent. When a looser appeals he is called the appellant and the person who responds to the appeal is the respondent. |
The remedies that may be provided by the courts under private or civil law are as follows:
- Damages. It is a pecuniary or monetary compensation which may be recovered in courts by any person who has suffered loss, detriment, or injury. Damages are often provided for breach of contract, in a tort action and for breach of trust.
- It is an order of the court prohibiting someone from doing some specified act, or compelling someone to undo some wrong. Injunctions are usually granted where damages are not an adequate remedy.
- It is a remedy where the court recognizes the substantive rights and/or legal relations of the parties without making any further order for enforcement. For example, a declaration may be made in relation to a marriage whereby the marriage is declared null and void. Similarly, a lease or a will may be declared void.
- Specific performance. It is a remedy provided in contract requiring exact performance of a contract in specific form according to the precise terms of the contract.
- The remedy of restitution is provided in contract which seeks to restore
money paid or the value of a benefit conferred in circumstances in which no contract exists, or in which there is no longer any obligation to perform under a contract. For example, in contractual situation, (1) money paid under a void contract can generally be recovered back, or (2) money paid under a contract where there is a total failure of consideration can be recovered back.
In tort, in certain circumstances, restitution of specific property can be ordered.
(vi) Rescission.This remedy is available in contract. The purpose of this remedy is to restore
the parties to a contract to their pre-contractual position. That means that the contract is treated as though it had never existed. For example, for misrepresentation a contract maybe rescinded.
(iii) Rectification. It is a remedy in contract. Where there has been a mistake, not in actual agreement, but in its reduction into writing, equity will rectify the written document so as to reflect the true intention of the party.
(viii) Quantum meruit. Recovery under the doctrine of quantum meruit means “as much as deserved”. A quantum meruit action is a claim for a percentage of the contract price in direct proportion to the percentage of work done.
It shall be noted that the damages is a common law remedy which can be claimed as a right and courts have no power to refuse this remedy.
The remedies of injunction, specific performance, restitution, rescission, rectification and quantum meruit are equitable remedies provided by the equity. They are discretionary remedies in that they are in the discretion of the court. The court may grant them or refuse to grant them. They cannot be claimed as a right.
It must be noted that the difference between civil law and criminal law does not lie in the nature of the act but in the types of remedies provided. In many cases the same act may amount to a civil wrong and a crime and may give rise to liability under both, the civil law and criminal law. Consider the following example:
Ouma by his negligent driving hits a pedestrian Katwa, as a result Katwa is seriously injured. Ouma will be prosecuted for the offence causing grievous bodily harm and shall be punished with fines and/or imprisonment. Katwa may also bring a civil action in tort against Ouma for injuring him and will be able to recover damages.
The liability in such cases is concurrent and not alternative.
Activity 2.1
| 1. When a criminal offence is committed whom the offence is against?
2. Who initiates an action in a civil and a criminal case? 3. What procedure is to be followed in : a) A criminal case? b) A civil case? |
2.3.3 Written Law and Unwritten Law
The law is traditionally divided into two main categories according to the form in which it s made. It may be either written or unwritten.
Written Law
Written law signifies any law that is formally enacted by the National Assembly or Parliament.It is thus a statutory law- deriving its force from express legislative enactment. All Acts of Parliament that is statutes and delegated legislationsuch as rules, regulations, orders, and notifications and by- laws are written laws. In countries like Kenya where there is a written constitution, the Constitution is also a written law. Reference to the written law is to be found in section 77(8) of the Constitution of Kenya mentioned above.
Unwritten Law
Unwritten law signifies all unenacted laws. That means all that portion of law, observed and administered in the courts, which has not been enacted or promulgated in the form of a statute, is unwritten law. Unwritten law includes; common law and rules of equity, African customary law and the rules and principles established by judicial precedents.
Take Note
| Written laws supercede unwritten laws because they superior to the unwritten law. Thus, the Constitutional Law and the legislation shall prevail over judicial precedent, common law and equity, and the African customary law. |
The term unwritten law is misleading. Unwritten lawdoes not mean that the law is literally unwritten. For example, judicial precedent can be found in judicial decisions which are often reduced to writing in the form of law reports. Similarly, African customary law and common law can be found in books and articles.These laws are often in written form, but because they are not formal enactments, they are unwritten laws.
Written law is superior to the unwritten law and thus it supercedes the written law. Where provisions of the unwritten law are in conflict with the provisions of the written law, the later shall prevail.
Activity 2.2
| Give three examples each of written and unwritten law. |
2.3.4 Substantive Law and Procedural Law
Substantive Law
Substantive law lays down the actual rules of law. It is that part of law which creates, defines and regulates rights and duties among and for persons, natural or otherwise. Thus it comprises of rules of law and those legal principles that define the existence and extent of a right and obligation in a particular branch of law. For example, in law of contract, the rules which lay down the conditions under which an agreement will have force of legally binding contract, in the criminal law, defining what conduct shall amount to an offence, in the family law, rules prescribing the requirements of a valid marriage, and in the law of succession, rules providing who will inherit an intested deceased property, are all rules of substantive law. The basic rules of criminal law, tort law, contract law, family law, property law etc are thus substantive law.
Procedural Law
Procedural law or adjective law on the other hand, is that branch of law which prescribes method of enforcing or maintaining rights and duties recognized by the substantive law and obtaining redress for their invasion in a court of law. Thusprocedural law means the rules according to which the substantive law is administered.
This simply means that procedural law involves the rules by which an action may be brought and disposed of. It thus, lays down rules for regulating court proceedings during civil and criminal trials. Procedural law includes the Criminal Procedure Code, the Civil Procedure Act, the Evidence Act, and rules of the courts.
The Criminal Procedure Code contains the rules governing procedure by which crimes are investigated, prosecuted, adjudicated, and punished.
The Civil Procedure Act is concerned with methods, procedures and practices used in civil litigation.
The Evidence Act contains the aggregate rules and principals regulating the burden of proof, admissibility, relevancy, and weight and sufficiency of evidence in legal proceedings.
2.3.5 International Law and National or Municipal Law
(a) International Law
International law is that law which contains foreign elements. International law is of two types – Public International Law or Law of Nations and Private International Law or Conflict of laws.
(i) Public International Law. It sets out rules that govern the relationship between sovereign states. It is composed for its greater part of the principles and rules of conduct which states feel themselves bound to observe and therefore do commonly observe in their relations with each other. It regulates their mutual coexistence and relationship. The sources of international law include international customary practices, treaties, bilateral agreements, conventions, general principals of law recognized by states and the resolution and Declarations of the General Assembly of United Nations. The disputes between states are generally adjudicated by the international Court of Justice. The International Criminal Courts tries offences such as war crimes and genocide.
(ii)Private International Law
Private internationallaw is concerned with difference between the laws of different states or countries arising in the case of persons who have acquired rights or incurred obligations, within the territory of two or more jurisdictions. Private International Law therefore consists of rules which are primarily concerned with determining what system of law should properly be applied by the Kenyan courts in cases which contain foreign elements. Suppose, for instance, a seller in England makes a contract to sell certain goods to a buyer in Kenya. If the seller breaks the contract and the buyer sues him in Kenya, Kenyan law is not necessarily the correct law to be applied in that situation. In order to determine which is the correct law to apply, Kenyan courts will consult the rules of Private International Law.
National or Domestic or Municipal Law
National law otherwise called municipal law or domestic law means all laws operating within the territory of a particular state, that is, law emanating from a particular country and having the force of law within its boundaries. Thus municipal law of Kenya means all laws of Kenya whether public or private, civil or criminal, written or unwritten, and substantive or procedural.
It should be borne in mind that above classifications are, to some extent, arbitrary, each classification of law tends to overlap with the other and no one classification can be fully understood in isolation from the rest. For example, the company law is a branch of private law but has elements of public law. Apart from providing civil remedies, it contains many offences under which the company itself and its officers may be punished; Similarly, constitution law and administrative law are branches of public law but they are civil in nature.
2.4 Distinction between Common Law System and Civil Law System
This is not classification of law but of legal system. Legal system of any country can be described as:
- a set of rules of substance and procedural;
- a system of courts to determine what the rules are, whether they have been broken, and what the appropriate remedy is: and a body whose responsibility is to make and alter the rules.
The legal systems may broadly be classified as the common law system and the civil law system.
Common Law System
Common law system is that system of law in which principles of law are derived mainly from the decisions of judges in actual cases, that, is, the case law. In this system judicial determinations in earlier court cases are extremely critical to the court’s resolution of the matter before it. It relies heavily on judicial precedents in formal adjudication. The system of law used in Kenya and other former British colonies, i.e. in Tanzania, Uganda, Zambia, Canada, Australia, India and United States of America is common law system.
Civil Law System
Civil law system relies less on judicial precedent and more on codes, which explicitly provide rules of decisions for many specific disputes. When a judge needs to go beyond the letter of a code in disposing of a dispute, the judges resolution will not be binding or even relevant in the subsequent determinations involving other parties. This system of law is based on the ancient Roman law and is the system of law in many jurisdictions in continental Europe and many other countries, including French speaking African countries.
1.6 Summary
Summary
| In this lecture we have discussed the nature of law and pointed out that that term “law” has wide connotations. It is used in several senses such as laws of nature and economics, rules of club, society, sport, association or church and rules of morality. The law of our purposes means law of a particular state consisting of a body of rules to regulate human conduct which are of binding nature and enforceable by the authority of the state. We considered various definitions of law and found that there does not exist any generally accepted definition of law. So far no definition is considered as perfect. We also pointed out that rules of morality and law in many cases overlap but in many other they diverge. We have also examined various important functions of law of law and concluded that without a system of law, it would be most difficult, if not impossible for any society to function. Without law there can only be anarchy. |
Activity 1.2
| 1)Explain the nature of law. 2)Discuss what you understand by law and how law for our purpose differs from other laws. 3)Law and morality usually coincide on major issues, but may differ on other. Discuss. 4)Describe important functions of law. |
2.6 References
2.6 References
|
1. AshiqHuisen, (1978, Reprint). A textbook of General Principles of Law. (Nairobi: East African Educational Publishers Ltd.,) Chapter1. 2. Helen J, Bond and Peter Key, (1995). Business Law (London: Blackstone Press 2nd Edition), ) Chapters 1 and 2. 3. John O. Asein, (2005) Introduction to Nigerian Legal system, (Nigeria: Ababe Press Ltd, 2ndEdition ), Chapter 1. |
