Legal Systems & Methods Overview
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Questions and Answers

How can legal systems be described?

The set of rules of substance and procedure relating to the governance of social behaviour and resolution of disputes, as well as the institutions related to the process.

What do legal methods refer to?

The manner in which those who make, activate, or operate the law use the legal system to arrive at specific legal consequences.

Legal systems primarily deal with the 'what' and 'why' of law, while legal methods deal with the 'how' of law.

True

Society is primarily based on order that is achieved through social rules.

<p>True</p> Signup and view all the answers

In today's complex society, it's easy to find areas that are completely free from legal control.

<p>False</p> Signup and view all the answers

Law is the sole factor that determines the overall social structure.

<p>False</p> Signup and view all the answers

Social phenomena, like political institutions, are completely free from legal control.

<p>False</p> Signup and view all the answers

Law plays a significant role in defining social relationships between individuals and groups.

<p>True</p> Signup and view all the answers

What is the most important function of law in a society?

<p>To maintain order and stability, ensuring that social arrangements operate in a structured and organized fashion.</p> Signup and view all the answers

How did the need for specialization in production lead to the development of legal rules?

<p>Specialization led to the emergence of social relationships involving trade and the development of various social units. These relationships often resulted in conflicts of interest, necessitating the creation of a system of social control to preserve and protect society.</p> Signup and view all the answers

Legal rules must always change in tandem with societal change to remain relevant.

<p>True</p> Signup and view all the answers

Which of the following are considered key elements of a legal order? (Select all that apply)

<p>Authorisation and recognition of legitimate authority</p> Signup and view all the answers

There is a universally accepted definition of law.

<p>False</p> Signup and view all the answers

What are the two main legal orientations that are used to define the characteristics of law?

<p>Positivism and naturalism.</p> Signup and view all the answers

Explain legal positivism.

<p>It emphasizes the conventional nature of law, viewing law as socially constructed. Legal positivists believe that law is synonymous with positive norms, which are rules made by the legislator or recognized as customary or case law.</p> Signup and view all the answers

What is the role of the sovereign in Austin's theory of legal positivism?

<p>The sovereign is the ultimate source of legal authority. Positive laws are seen as a series of commands from the sovereign, reflecting their wishes and backed by sanctions and punishment.</p> Signup and view all the answers

What does Salmond define law as?

<p>A body of principles recognized and applied by the state in the administration of justice.</p> Signup and view all the answers

How does Holland define law?

<p>The rules of external human action enforced by the sovereign political authority.</p> Signup and view all the answers

What is the core idea behind natural law theory?

<p>Natural law theory posits that there are inherent laws that are common to all societies, whether written down or officially enacted. These laws are believed to be rational and reasonable, reflecting a universal moral order.</p> Signup and view all the answers

According to natural law legal theory, the moral merit of legal standards plays no role in determining their authority.

<p>False</p> Signup and view all the answers

Aquinas identified four types of law: eternal law, divine law, human law, and natural law.

<p>True</p> Signup and view all the answers

What does Aquinas define eternal law as?

<p>It encompasses the laws that govern the nature of the eternal universe, operating as the underlying principles that order and shape reality.</p> Signup and view all the answers

What is Aquinas's definition of divine law?

<p>It refers to the standards that humans must meet to achieve eternal salvation, revealed through divine sources rather than natural reason.</p> Signup and view all the answers

What is Aquinas's primary precept of natural law?

<p>To do good and avoid evil, a foundational principle derived from the rational nature of human beings.</p> Signup and view all the answers

What approach did Fuller advocate in his debate with Hart?

<p>Fuller sought to find a middle ground between traditional natural law theory and legal positivism, rejecting both overly religious forms of natural law and the purely positivist view of law as solely based on state authority.</p> Signup and view all the answers

Fuller believed that unjust laws should be considered morally binding.

<p>False</p> Signup and view all the answers

What are the eight minimal conditions that Fuller believed legal rules must meet to be considered genuine laws?

<p>They must be sufficiently general, publicly promulgated, prospective, clear and intelligible, free of contradictions, relatively constant, possible to obey, and administered in a way that is not wildly divergent from their meaning.</p> Signup and view all the answers

What is the primary function of legal systems in the context of public power?

<p>To structure and control the exercise of public power, ensuring that governmental authority is exercised within defined limits set by the constitution, administrative law, and other legal frameworks.</p> Signup and view all the answers

Which of the following are considered key functions of law in society? (Select all that apply)

<p>Protecting public order</p> Signup and view all the answers

Public law regulates the relationship between the state and individual citizens.

<p>True</p> Signup and view all the answers

Private law primarily deals with the regulation of relationships between individuals and legal entities.

<p>True</p> Signup and view all the answers

What is the core focus of criminal law?

<p>The definition, prevention, detection, and punishment of crime.</p> Signup and view all the answers

Civil law is primarily concerned with the regulation of relationships between individuals and the government.

<p>False</p> Signup and view all the answers

In criminal litigation, the burden of proof always rests with the defendant.

<p>False</p> Signup and view all the answers

Civil law is always initiated by the state.

<p>False</p> Signup and view all the answers

In civil litigation, the burden of proof always rests with the plaintiff.

<p>False</p> Signup and view all the answers

In civil litigation, a plaintiff wins if the judge determines that the defendant is more than likely to be at fault.

<p>True</p> Signup and view all the answers

What is the core subject matter of substantive law?

<p>The definition of legal rights, obligations, and remedies. This includes areas like land law, which sets forth the rules governing ownership and use of property.</p> Signup and view all the answers

What is the primary focus of procedural law?

<p>The procedures and steps involved in enforcing rights and obligations defined by substantive law. Examples include laws of evidence and procedure, which govern how legal disputes are conducted within a court system.</p> Signup and view all the answers

Procedural law ensures a fair and consistent application of legal principles.

<p>True</p> Signup and view all the answers

Statutory law is the formal written law of a country, enacted by the legislative authority and ratified by the executive.

<p>True</p> Signup and view all the answers

Common law legal systems rely primarily on judicial precedents rather than legislative enactments.

<p>True</p> Signup and view all the answers

In common law systems, judges are not bound to follow previously decided cases.

<p>False</p> Signup and view all the answers

The doctrine of stare decisis ensures consistency and predictability in common law systems.

<p>True</p> Signup and view all the answers

How do disputes get settled in a common-law system?

<p>They are resolved through an adversarial process where parties present their arguments and evidence before a neutral fact-finder, a judge or a jury.</p> Signup and view all the answers

In common-law systems, appellate courts can review findings of fact as well as legal interpretations.

<p>False</p> Signup and view all the answers

Common law courts have the authority to make law through their decisions.

<p>True</p> Signup and view all the answers

What is the primary characteristic of civil law systems?

<p>Laws are typically codified and written into comprehensive collections, which are then consulted and relied upon by judges for interpretation and application.</p> Signup and view all the answers

Civil law judges are primarily concerned with interpreting and applying the law, not creating new legal principles.

<p>True</p> Signup and view all the answers

Civil law emphasizes procedural rules over substantive law.

<p>False</p> Signup and view all the answers

What is the primary source of law in civil law systems?

<p>Legislation, which is enacted by a country’s legislative authority and ratified by the executive.</p> Signup and view all the answers

Civil law courts are bound by precedent, meaning they must follow decisions from past cases.

<p>False</p> Signup and view all the answers

What is the primary difference between civil law and common law systems?

<p>The methodological approach to codes and statutes. Civil law systems consider legislation as the primary source of law, while common law systems rely heavily on case law and judicial decisions.</p> Signup and view all the answers

In civil law systems, courts interpret the general principles of law set forth in statutes.

<p>True</p> Signup and view all the answers

Common law systems typically adopt a 'bottom-up' approach to legal principles, where specific cases shape general rules.

<p>True</p> Signup and view all the answers

Civil law systems are characterized by their revolutionary nature, with frequent changes to the law.

<p>True</p> Signup and view all the answers

Common law systems, with their evolutionary nature, change gradually over time.

<p>True</p> Signup and view all the answers

In civil law systems, customary law and practice are generally considered as the primary source of law.

<p>False</p> Signup and view all the answers

Common law systems place a significant emphasis on precedent, making judicial decisions a crucial source of law.

<p>True</p> Signup and view all the answers

In civil law systems, prior judicial decisions are generally not considered binding.

<p>True</p> Signup and view all the answers

The role of legal scholarship in civil law systems is typically more extensive and influential than in common law systems.

<p>True</p> Signup and view all the answers

How do common law and civil law systems differ in their approach to judicial review of statutes and executive action?

<p>Common law jurisdictions typically have a more extensive system of judicial review, where courts can actively scrutinize and challenge the constitutionality of legislative statutes and executive actions. In contrast, civil law systems generally place less emphasis on judicial review, relying more on legislative oversight and control.</p> Signup and view all the answers

Study Notes

Legal Systems & Methods

  • Legal systems are the set of rules and institutions governing social behavior and dispute resolution
  • Legal methods are the procedures used to apply and enforce these rules
  • Legal systems deal with the "what" and "why" of law, legal methods deal with the "how"
  • Society has a structure and organization controlled by social, religious, and legal rules
  • Law and society, and individuals have a manifest relationship and are intertwined.

The Essence of Legal Systems & Legal Methods

  • Legal systems represent rules of substance and procedure used to regulate social conduct
  • Institutions are crucial to resolving disputes and implementing social control
  • Social values and attitudes are foundational to understanding and applying legal concepts
  • Legal methods describe the strategic application of rules and legal tools for consequences
  • Legal systems and methods are interwoven, both necessary to understand and enforce law

What is Law?

  • There is no universally accepted definition of law
  • A legal order provides for legitimate authority, dispute resolution, and adaptability to change
  • Legal systems are dynamic and must transform as societies evolve
  • Law must adapt in tandem with social change to remain relevant
  • Legal positivism emphasizes the conventional nature of law as socially constructed
  • Law is synonymous with positive norms made by legislators or considered as common law or case law (examples)
  • Law reflects the sovereign's wishes and is backed by sanctions
  • Law, according to Austin and Holland, relates to the rules of external human action enforced by the State.
  • According to Hart, law consists of primary and secondary rules which shape State and individual conduct

Natural Law Theory

  • Natural law theory emphasizes inherent, universal laws common to all societies
  • Law is rational and reasonable with an inherent moral component
  • Authority stems from the moral merit of the laws

Functions of Law

  • Functions of law, structure and control public power, resolve social conflicts
  • Facilitate and control private relations, maintain social control, preserve public order
  • Resolve disputes and protect certainty of systems, facilitate orderly change
  • Outline the scope of government authority and clarify its limits.

Classification of Law

  • Public law governs the State's relationships with citizens
  • Private law concerns the regulation of relationships between private individuals Examples: Constitutional law, administrative law, commercial law, family law

Criminal Versus Civil Law

  • Criminal law defines, prevents, detects, and punishes crimes as determined by penal law
  • The state initiates, not the injured party, while in civil law the individual or organization claiming to be injured begins the process
  • The burden of proof in criminal cases lies with the State, whereas in civil cases it lies with the plaintiff
  • Substantive law defines rights and obligations while procedural law outlines the procedures for enforcing such rights and obligations

Statutory and Non-Statutory Law

  • Statutory law comprises written, codified laws by legislative authorities
  • Non-statutory (common law) law stems from judicial decisions and precedents

Municipal and International Law

  • Municipal law covers domestic legislation within a nation
  • International law regulates relations between nations

Distinction between International Law and Municipal Law

  • Municipal law operates within a specific country (intrastate), international law operates between countries (interstate)

  • Municipal law creation rests on national institutions like parliaments and courts, international law is made primarily through treaties and customary practices

  • Municipal law typically has a rigid hierarchical structure with supreme laws at the top, international law is more horizontal in character where all states have equal status in decision-making.

  • Municipal law focuses on relations between individuals and the State, whereas international law centres on the relations between states and international bodies.

  • Common Law Legal Systems

  • The sources of law is precedents from past court decisions

  • This approach to law relies heavily on judicial interpretations and precedents

  • Judges play a significant role in creating legal rules and guiding future disputes

  • Uses the concept of stare decisis, which refers to the principle of following past precedents.

  • Civil Law Legal Systems

  • Codified laws form the primary source of law (explicit legal rules)

  • The concept of stare decisis is less influential in the judicial processes

  • Legislative bodies play a primary role in establishing laws

  • Legal systems rooted in religious texts and interpretations of divine law.
  • Canon law, Halakha, and Sharia are examples.
  • Methodology can differ for these systems - some are static, others rely on precedent or reasoning.
  • Religious laws are often influential in personal status matters and, historically, have shaped legal systems in numerous countries.
  • Plural legal systems exist where two or more legal systems operate under one geographical area; typically where formerly colonized lands retain traditions and customs alongside the law of the colonizing power.
  • Legal pluralism also occurs where different systems apply to different groups within a country.
  • A combination of the two primary legal systems (civil and common law), sometimes with religious components as well.
  • These systems can be highly complex and may generate issues regarding priority rules, conflicts, or application of principles

Material Sources of Law in Kenya

  • The Kenyan legal system is shaped by a hierarchy of sources, with the Constitution at the top
  • The Constitution, legislation, common law/equity, and customary law are considered material sources shaping the structure of Kenyan legal matters
  • Judges' interpretation and application of the Constitution and statutory rules are key
  • African customary law is recognized where applicable and doesn't clash with formal law
  • International law is part of Kenyan law when ratified as a convention

Legislative Law-Making

  • Acts of Parliament (primary legislation) and legislative bodies create law.
  • Delegated legislation (secondary) is created by parties or individuals granted power.
  • Statutes created by Parliament are supreme above other statutes and are only overridden by the Constitution
  • Formal procedures for legislation entail specific stages like readings, committee review, and eventual assent

Doctrine of Precedent

  • Precedent involves applying decisions from earlier court cases
  • Stare decisis principles dictate adherence to previous rulings on similar cases
  • Judges are obliged to follow binding cases, but not merely persuasive ones
  • Courts interpret precedents and shape legal principles, while legislative bodies often modify laws
  • Case law often focuses on actual legal controversies

Constitutionalism

  • Constitutionalism refers to a system of governance where power is outlined, limited, and regulated by a constitution.
  • The constitution is the supreme law of the land and all other laws are subordinate to it
  • The supreme law framework can be used to create checks and balances to prevent the abuse of power.

Separation of Powers

  • Division of governmental power amongst legislative, executive, and judicial branches
  • This ensures that no single branch becomes too dominant
  • Checks and balances prevent abuse of power by allowing each branch to limit the others
  • Separation of powers is fundamental in limiting government and safeguarding liberty.

Alternative Dispute Resolution (ADR)

  • ADR methods include mediation, negotiation, arbitration, and other methods alternative to court litigation
  • These proceedings are generally faster, more cost-effective, and often less adversarial
  • ADR can be a valuable means for accessing justice

Access to Justice in Kenya

  • Access to justice is a fundamental right
  • The Constitution and other enacted laws guarantee and underpin access to justice for all Kenyans
  • However, various challenges affect access, including lack of legal awareness, poverty and ineffective judiciary
  • Accessibility and efficiency of dispute resolution is dependent on these provisions being well integrated

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