ASSIGNMENT PHIL 106
GROUP 1 COMMUNITY DEVELOPMENT
LYDIA WANJIKU CB5/73237/24
PURITY WANGUI CB5/73238/24
ANTONY NYAGAH CB5/73222/24
JEREMIAH EJERE CB5/78492/24
STELLA NYAMBURA CB5/73188/24
FLAVIAN KANINI CB5/73214/24
MERCY MUTHOKI CB5/73253/24
DORCAS CHERONO CB5/73243/24
JOYCE WANGUI CB5/73189/24
MARIA MARCELLA CB5/73266/24
1: INTRODUCTION TO LAW
1.The origins and evolution of legal systems in African societies.
a) Pre-colonial: Customary and indigenous law
Before colonial rule African societies had customary legal systems based on
traditions, it was oral and it was passed down through generations, based on
community traditions, kinship and local customs which was enforced by chiefs,
elders and traditional courts for example, conflict resolutions during pre-
colonial conflicts were resolved by the elders through arbitration and
mediation but nowadays one can be taken to court for the judges to resolve
the case.
b) Colonial era influence on legal system
European colonial powers imposed their legal systems, often replacing
customary laws. Africa was colonized and the legal system was introduced
which led to dual legal systems and codification of laws for example Kenya
adopted common law based on English legal traditions. Customary law was
limited to personal matters for example marriage and inheritance.
c) Post independence legal evolution
After independence African countries sought to reform their legal systems in
order to reflect indigenous and modern values. This led to recognition of
customary laws and Islamic within national legal frameworks, for example
Kenya adapted a new constitution in 2010 to promote devolution and human
rights. Also, South Africa replaced apartheid law with a democratic constitution
in 1996.
d) Modern era legal harmonization and human rights
African legal system continued to evolve influenced by globalization human
rights and regional cooperation, for example harmonization of laws, adoption
of alternative dispute resolution in African countries it encourages mediation
and arbitration while in present days people resolve cases by the use of courts
since there are no more African systems.
2. Philosophical foundation of law and justice
a) Natural law theory
It is based on moral principles that are universal in human nature.
Philosophers: Aristotle and Thomas Aquinas
Principles: It is based on justice, morality and reason. An unjust law is not a
true law
Human rights and moral values are above state made laws
For example, abolition of slavery and murder it was illegal but natural law
thinkers argued it was morally wrong.
b) Legal positivism
Law is a human made system that exists independently of morality.
Philosopher: John Austin
Principle: Laws are valid if properly enacted by authorities.
Legitimacy of law came from state power. Focuses on obedience to the law.
For example, Laws governing taxation and traffic rules are valid even if they
don’t involve moral issues.
c) Legal realism
It is shaped by social, political and economic realities not just written rules.
Philosophers: Oliver Wendell Holmes JR
Principle: Judges interpret and apply law based on real-life situations rather
than rigid principles.
Law is what judges say it is in practice.
For example, Judicial decisions on civil rights case often reflect evolving social
values.
d) Critical legal studies
Law is not neutral but serves the interests of the powerful and dominant
groups.
Philosopher: Robert Unger
Principle: Law reinforce social inequality and need reform.
Justice should challenge economic and political oppression.
For example, Laws on property rights often favors the wealthy over the poor.
e) Distributive Justice
Justice is about fairy distributing wealth, opportunities and power in society.
Philosopher: Aristotle, John Rawls
Principle: Resources should be distributed based on need and fairness.
Inequalities are justified if they benefit the least advantaged.
For example, Progressive taxation where the rich pay higher taxes to support
public welfare.
f) Retributive justice
Justice requires punishment for those who broke the law.
Philosophers: Immanuel Kant, Hegel
Principle: Punishment should fit the crime.
People must be held accountable for their actions.
For example, criminal sentencing for murder, theft and corruption.
Relationship between law and justice
Law and justice are not always the same, some laws may be legal but unjust for
example apartheid.
A just law system ensures fairness, protection of human rights. It checks on
government power.
It is moral and ethical reasoning.
3.Neccesity of law in maintaining societal order and stability
Conflict resolution
Legal system provides a structured process of resolving disputes between
individuals or groups through court, minimizing the potential for violence for
example by use of elders, arbitrators, mediators or courts.
Protecting individual rights
Laws safeguard fundamental right and freedoms ensuring that individuals are
not arbitrarily deprived of their basic liberties.
Promoting social cohesion
By applying rules equally to all members of societies, Laws can help foster a
sense of fairness and shared values, contributing to social cohesion.
Enabling economic activity
A stable legal environment with clear property rights is crucial for facilitating
economic growth and investment, as individuals can confidently engage in
transactions with the assurance that their interests will be protected.
Defining acceptable behavior
Laws set clear boundaries for what actions are considered acceptable and
unacceptable within the society, providing a standard to follow and preventing
arbitrary interpretations of right and wrong.
Deterrence
The threat of punishment for breaking the law discourages individuals from
engaging in harmful and disruptive behavior contributing to social stability.
Preventing Anarchy and ensuring security
Laws empower law enforcement agencies to maintain order without laws,
society fall into anarchy where individuals act without accountability.
Establishing rules and expectations
Laws provide clear guidelines and acceptable and unacceptable behavior.
They help prevent conflicts and misunderstanding by defining rights and
responsibilities.
4. The interplay between law, morality and social norms
Law – This is a formal system of rules enacted and enforced by the state to
regulate behavior.
Morality – Set of ethical principles that guide human behavior based on right
and wrong.
Social norms – Unwritten rules that guide acceptable behavior in the society.
The relationship between law, morality and social norms
When morality and law align –Many laws are based on moral principles to
ensure justice and fairness e.g. law against murder, fraud and child abuse
reflect moral behavior of protecting life and honesty.
When law and morality conflict –Laws exist that are legal morally questionable
for example apartheid law in South Africa was legal according to the law but
morally unjust.
When social norms influence law – Long standing social norms for example
marriage laws evolved to recognize gender equality due to changing in societal
view.
When laws change social norms and morality – Laws can shape morality and
social attitudes by discouraging harmful behaviors for example banning
smoking in public places led to a decline in its social acceptability.
5. The relationship between law and power in shaping social structures.
Law as a tool for power and social control
Those in power create and enforce laws to maintain authority and order. It
defines acceptable behavior and punish violations, reinforcing norms and
power structures. Example colonial rules in Africa used laws to suppress
resistance movements and control land ownership.
Laws reflect the interest of the powerful
Political and economic elites often influence legislation to protect their
interest. It can favor certain groups by giving them privileges while restricting
others.
Example, Apartheid laws in South Africa legally institutionalized racial
segregation and economic disparity.
Legal reforms as a tool for social change
Societies use legal reforms to challenge unfair power structures example civil
rights movements in united states and Africa’s post-independence
constitutions abolished discriminating laws.
Human rights and legal protection
Laws protect citizens from abuse by limiting government and corporate power,
International human rights law set global standards. Example, anti-corruption
laws in many African countries hold government activities accountable.
Political system
The rule of law defines governance while power determines who holds
authority and how laws are made these affect society citizen’s rights and
freedom.
Economic system
Law regulates wealth distribution, property rights and labor laws while power
control access to resources and opportunities.
It creates economic classes and inequality.
Social hierarchy
Law enforce norms e.g. marriage, education and citizenship.
Power decides whose interests are prioritized thus it shapes privileges,
discrimination and inclusion.
Justice system
Law protects rights, punishes crimes and resolve disputes. Power influence
how justice is applied this can create fairness or reinforce oppression.
