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CHAPTER 1
DEMONSTRATE FOUNDATIONAL CONCEPTS IN BUSINESS LAW AND ETHICS
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 by authority and power of government”
- According to Holland, ‘A law is a general rule of external human action enforced by a sovereign political authority’.
- In other words of Salmond, ‘A law is the body of principles recognized and applied by 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
- Enforcement
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, whereby machinery is provided for an aggrieved party to enforce his rights in case any of these rules or principle is broken.
THE JURISDICTION OF THE STATE
The jurisdiction of the state refers to the legal authority of a government or other official body to make and enforce laws within a certain geographic area. This includes the power to interpret and apply the law, as well as to enforce it through the use of penalties or other measures.
ENFORCEMENT
Enforcement refers to the process of ensuring that laws are followed and that violators are held accountable for their actions. This can involve a range of activities, such as issuing fines or penalties, issuing orders or directives, or taking other legal or administrative action to ensure compliance with the law.
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 theseschools ofthoughts 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
- It is a set of rules.
- It regulates the human conduct
- It is created and maintained by the state.
- It has certain amount of stability, fixity and uniformity.
- It is backed by 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.
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:-
- Imprisonment
- Fine
- Probation
- Corporal punishment
- Capital punishment
- Community service
- 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:-
- Damages (monetary compensation)
- Injunction
- Specific performance
- Account
- Tracing
- Winding up a company
- 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 individuals, organizations, or between the two, in which compensation is awarded to the victim. | To maintain the stability of the
state and society by punishing offenders and deterring them and others from offending. |
| Standard of proof | Claimant must produce evidence beyond the balance of probabilities. | Beyond reasonable doubt |
| Parties involved | The plaintiff, the party that is suing The defendant , the one being sued |
Prosecution which represent the state and the accused |
| Burden of proof | Claimant must give proof however, the burden may shift to the defendant in situations of Res Ipsa Loquitur (The fact speaks for itself). | “Innocent until proven guilty”: The prosecution must prove defendant guilty. |
| Type of punishment | Compensation (usually financial) for injuries or damages, or an injunction in nuisance. | A guilty defendant is subject to Custodial (imprisonment) or 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:
- 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.
- 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.
- 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
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?
- The existence of unjust laws (such as those enforcing slavery) proves that morality and law are not identical and do not coincide.
- 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.
- 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.
- 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.
SOURCES OF LAW
The various sources of law of Kenya are identified by:
- Judicature Act
- Constitution
- Hindu Marriage and Divorce Act
- Hindu Succession Act
- Kadhis Court Act.
Sources identified by the Judicature Act
- The Constitution
- Legislation (Act of Parliament) (Statutes)
- Delegated legislation
- Statutes of General Application
- Common law
- Equity
- Case law or (judge–made law)
- Africa Customary law
