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ELEMENTS OF THE LEGAL SYSTEM
NATURE PURPOSE AND CLASSIFICATION OF LAW
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.
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 Government and confer upon them the powers exercisable by them.
7. 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:
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.
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:
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:
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 casei.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:-
When a person�s civil or private rights are violated, he is said to have a cause of action. Examples of causes of action:
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 thatthe 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 
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
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.
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 lawincorporates 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.. The existence of unjust laws (such as those enforcing slavery) proves that morality and law are not identical and do not coincide.
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�s 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.