NATURE, PURPOSE AND KINDS/CLASSIFICATION OF LAW
Introduction
There are laws of physical sciences, laws of social sciences, moral laws and the
laws of the state. Our study is concerned with the laws of the state. Nature of
law consists of definition and characteristics of law.
DEFINITION OF LAW
Jurists have defined law differently from different point ... from time to time
and different scholars define the term variously.
Salmond’s definition of Law
“The body of principles recognized and applied by the state in the administration
of justice”.1
“A Law is a general rule of external human action enforced by a sovereign political
authority.” –Holland2
It may be concluded from the two definitions that law refers to a set or body of
rules to govern the conduct of affairs in a given community at a given time.
CHARACTERISTICS OF LAW
A set or body of rules. The rules of law may originate from Acts of
parliament, customs, court cases and other acceptable sources.
It regulates human conduct. The main reason of enforcing the law is for
the guidance of human conduct
It applies to a specific community. Each community has laws governing
its people
Enforcement. The rules of law must be capable of being enforced by the
police and the court. It’s violation leads to punishment.3
1
. [Link] accessed on 3RD July
2020
2
. [Link] accessed on 3RD
July 2020
3
[Link] accessed on 3RD July 2020
Rules of law change. Law is not static; it keeps changing with time.
KINDS/CLASSIFICATION OF LAW
WRITTEN AND UNWRITTEN
Unwritten law refers to the law based upon custom, usage, and judicial
decisions. An unwritten law may be collected, gathered or implied from under
statute, it need not be expressly evidenced in court decisions.4
WRITTEN LAWS
This are laws that have been enacted by governments or have been reduced into
writing.5
International Law and Municipal Law
International Law
Further, it can also be classified as
1. Public international law: these are rules or law that governs relations of
states with others.6
2. Private international law: This is the law that is mainly concerned with rules
and principles that govern cases having foreign elements. For example,
where there is a dispute between a Kenyan and Ugandan who happen to be
in Tanzania, it will be decided by the private international law.7
Municipal Law
Municipal Law is Law of that nation. It is the law governing a country or a state.
It is also known as National law.8
Public Law and Private Law
Public Law
4
. [Link] accessed on3RD July 2020
5
. [Link] accessed on 3RD July
2020
6
[Link] accessed on 9TH July 2020
7
ibid
[Link]
This law governs the relationship between the state and its citizens. Examples
are the constitutional law, administrative law and the criminal law.9
Private Law
Private law is the law governing the relations between the citizens amongst
themselves. Examples are the law of contract, law of torts, law of property, law
of succession, law of trust and family law. 10
Civil Law and Criminal Law
Civil Law
It is a body of rules that governs relations between individuals amongst
themselves and covers areas of law such as contracts, torts, property, and family
law. 11
Criminal law
It refers to the laws that apply to crimes. Where an individual commits a criminal
act by breaking the law or fails to adhere to a particular criminal statute, the
criminal law applies. 12
DISTINCTION BETWEEN CIVIL AND CRIMINAL WRONGS
A crime is a public wrong against the state while a tort is a private wrong
against an individual
In a crime, the parties are the prosecutor and the accused. The prosecutor
represents the state while the accused is the offender who is being
prosecuted.
In a civil wrong, the parties are the plaintiff and the defendant. The plaintiff
is the aggrieved party who is suing while the defendant is the wrongdoer
who is being sued.
There is no compromise in crimes while in civil wrongs parties are free to
compromise an action brought by one of them.
9
[Link] accessed on7TH July 2020
10
[Link] accessed on 3RD July 2020
11
[Link]
law-and accessed on3RD July2020
12
[Link] accessed on6TH
July 2020
In crimes, the prosecutor must proof the case against the accused, beyond
reasonable doubt while in civil wrongs, the standard of proof is on a
balance of probabilities and not beyond reasonable doubt.
Usually there is punishment in crimes in the form of payment of fines,
imprisonment and death penalty in case of capital offences while the aim
of civil law is not to punish but to compensate the wronged party through
the award of damages.13
Substantive Law and Procedural Law
Substantive Law refers to the actual laws which govern how the facts of the case
will be accepted and presented or laws by which a crime may be charged. 14
Procedural law
Procedural law are the rules for regulating court procedures both in civil and
criminal trials. Examples are the law of evidence, Civil Procedure Code and
Criminal Procedure code. 15
FUNCTIONS OF LAW
Regulates conduct of individuals by acting as a deterrent through the
issuance of punishment.
Settlement of disputes for instance, Contract law sets out rules for making &
enforcing agreements.
Guarantees fundamental rights and freedoms of individuals.
Provides remedies to those whose rights have been violated.
Provides both political and economic stability
Directs Parliament on how to make laws.
Sets up the structure of government- The Constitution assigns power & duties
to the various levels of government.
Maintains Order & provides protection- prohibits certain acts & provides for
an authority-(police) to protect us. 16
13
[Link]
Civil-wrong/ accessed on 9THJuly 2020
14
[Link] accessed on 9TH July 2020
15
[Link] accessed on 9TH July 2020
16
[Link] accessed on 9TH July 2020
LAW and MORALITY
The two can be compared in the following ways:
Rules of law may be enforced by an action in the court while the rules of morality
cannot be enforced by an action in the court. Law is heteronymous (it is imposed
upon men from the outer life of men) but morals are autonomous (it comes from
the inner of men). Law is enacted but morality is not enacted. The rules of law
change while those of morality do not change. However, there are some rules of
law which are also rules of morality for example theft. 17
Branches of civil law
1. Law of contract
A contract is an agreement made between two or more parties that is legally
binding or enforceable by law. The law of contract basically determines whether
the promises or agreements made are legally binding.
2. Law of Tort
According to Salmond, a tort is a civil wrong for which the remedy is a common
law action for unliquidated damages and which is not exclusively the breach of
contract, breach of trust or other merely equitable obligation.
3. Law of Succession
This is a branch of civil Law which deals with the transmission of property
upon the death of a person to his heirs.
4. Law of property
Property means a personal belonging or what can be owned. The law of
property deals with the nature and extent of rights which can be enjoyed over
land and other properties.
5. Law of Trust
This law deals with various aspects of trust, among them the relationship
between a settlor, a trustee and a beneficiary.
17
[Link] accessed on
8TH July 2020
