CHAPTER 1
NATURE PURPOSE AND CLASSIFICATION OF LAW
Introduction
By the end of this topic the learner should be in a position to answer the following questions
from general detailed perspective.
What do you understand by the term law?
What are the distinct features of law that make it what it is?
Explain using relevant examples, the various ways in which law in your country is
classified?
Explain the relation that exist between law, morality and ethics, citing various examples
where need be?
Explain the purpose of law in your country
While “the law” may appear to be abstract or far fetched from your daily activities, it is in reality
within the framework of what you do. Think of returning something you just bought, filling tax
returns, wondering what to do with the annoying neighbor who insists on holding loud gathering
in his/her house or who keeps insisting on hanging stuff on your fence. Well mostly these
activities require some level of legal know how.
This book aims at answering how to handle most of these scenarios and such equivalent in legal
sense. What is law, where does it come from, what makes it binding, all these and more.
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.
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
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.
,FUNCTIONS/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
7. Government and confer upon them the powers exercisable by them. 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:
Criminal Law
Constitutional Law
Administrative Law
Public Law asserts state sovereignty.
NATURE PURPOSE AND CLASSIFICATION OF LAW
Introduction
By the end of this topic the learner should be in a position to answer the following questions
from general detailed perspective.
What do you understand by the term law?
What are the distinct features of law that make it what it is?
Explain using relevant examples, the various ways in which law in your country is
classified?
Explain the relation that exist between law, morality and ethics, citing various examples
where need be?
Explain the purpose of law in your country
While “the law” may appear to be abstract or far fetched from your daily activities, it is in reality
within the framework of what you do. Think of returning something you just bought, filling tax
returns, wondering what to do with the annoying neighbor who insists on holding loud gathering
in his/her house or who keeps insisting on hanging stuff on your fence. Well mostly these
activities require some level of legal know how.
This book aims at answering how to handle most of these scenarios and such equivalent in legal
sense. What is law, where does it come from, what makes it binding, all these and more.
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.
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
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.
,FUNCTIONS/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
7. Government and confer upon them the powers exercisable by them. 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:
Criminal Law
Constitutional Law
Administrative Law
Public Law asserts state sovereignty.
