INTRODUCTION TO LEGAL CONCEPTS

Law is defined as part of everyone’s life, a living part, a determining part, a controlling
and giving part. It concerns people; it’s alive.

Historic Perspective of:

1. Common Law
The term common law is used in two contexts.
 Originally it meant the law that was not confined to one particular area, but was
administered in the whole of England. There was a danger that this description
may lead the younger reader to believe that the statutory law is also included in
the term common law because the statutory law applies to the country as a whole.
 The term now is used to signify the law which originated in the ancient customs
and was developed by judges on the principle of stare decisi.We can conclude that
common law that is today consists of the whole non-statutory law of England,
excluding the law of equity.

Common Law courts

 The Court of Exchequer: This was the first court to be established in the 12th
century to deal with disputes concerning the payment of royal revenues.
 The Court of Common Pleas: This was the 2nd court to be established in the 13th
century to deal with all civil cases and matters relating to land.
 The Court of King’s Bench: This was the last to be setup in the 13th century. It’s
called the King’s Bench because occasionally the king used to preside over this
court. It mainly dealt with criminal matters and civil actions.

2. Equity Law
Equity was defined by Maine as ‘a fresh body of rules by the side of the original law,
founded on distinct principle and claiming to supersede in virtue of superior sanctity
inherent in those principles’.
It is also a set of rules formulated and administered by the Court of Chancery before 1873
to supplement the rules of common law.

Origin of Equity
Citizens dissatisfied with the decisions of the judges of common Law court often made
petitions to the King in Council .for a time these petitions were decided by the King
himself or by his Council, and then later he delegated this function to his Lord Chancellor

Contributions of Equity Law

Equity moved slowly to supplement the rules of common law; it made its contributions in
the following areas;
 It granted injunctions and would order specific performance where common law
could award only damages.
 It recognized trust and a beneficiary could compel a trustee to administer the trust
property in accordance with terms of the trust.
 It recognized equitable doctrine of part-performance and mortgagor’s right to
redemption of mortgaged property

Principles of equity
During the early development of equity the early chancellors acted as their own
discretion, but eventually they did follow the decisions of earlier Chancellors.Thus,by 8th
century, some firm rules of equity were established which guided later Chancellors in
deciding disputes. Some of these maxims are;

 He who seeks equity must do equity.

 He who comes to equity must come with clean hands.
 Equity is equal.
 Equity looks to intent rather than form.
 Equity looks on that as done which ought to be done.
3.Criminal Law
A crime may be described as an act, default or conduct prejudicial to the community, the
commission of which, by law, renders the person responsible liable to be prosecuted and
punished accordingly.
Prosecution for crimes is always conducted in the name of the State.
It is the duty of the prosecution to establish the guilt of the accused beyond any
reasonable doubt.
Crimes include offences like murder, rape, grievous bodily harm, robbery, theft etc
All these offences are included in the Penal Code of Kenya., the punishment of crime
ranges from hanging to a fine
The term criminal law, sometimes called penal law, refers to any of various bodies of
rules in different jurisdictions whose common characteristic is the potential for unique
and often severe impositions as punishment for failure to comply. Criminal punishment,
depending on the offense and jurisdiction, may include execution, loss of liberty,
government supervision (parole or probation), or fines. There are some archetypal crimes,
like murder, but the acts that are forbidden are not wholly consistent between different
criminal codes, and even within a particular code lines may be blurred as civil infractions
may give rise also to criminal consequences. Criminal law typically is enforced by the
government, unlike the civil law, which may be enforced by private parties.

Criminal law history

The first civilizations generally did not distinguish between civil and criminal law. The
first written codes of law were produced by the Sumerians. Around 2100-2050 BC Ur-
Nammu, the Neo-Sumerian king of Ur, enacted the oldest written legal code whose text
has been discovered: the Code of Ur-Nammu although an earlier code of Urukagina of
Lagash is also known to have existed. Another important early code was the Code
Hammurabi, which formed the core of Babylonian law. These early legal codes did not
separate penal and civil laws.

The similarly significant Commentaries of Gaius on the Twelve Tables also conflated the
civil and criminal aspects, treating theft or furtum as a tort. Assault and violent robbery
were analogized to trespass as to property. Breach of such laws created an obligation of
law or vinculum juris discharged by payment of monetary compensation or damages.

The first signs of the modern distinction between crimes and civil matters emerged during
the Norman Invasion of England. The special notion of criminal penalty, at least
concerning Europe, arose in Spanish Late Scolasticism , when the theological notion of
God's penalty (poena aeterna) that was inflicted solely for a guilty mind, became
transfused into canon law first and, finally, to secular criminal law. The development of
the state dispensing justice in a court clearly emerged in the eighteenth century when
European countries began maintaining police services. From this point, criminal law had
formalized the mechanisms for enforcement, which allowed for its development as a
discernible entity

4.International law
This term is commonly used for referring to the system of implicit and explicit
agreements that bind together nation-states in adherence to recognized values and
standards, differing from other legal systems in that it concerns nations rather than
private citizens. However, the term "International Law" can refer to three distinct legal
disciplines:
 Public international law, which involves for instance the United Nations, maritime
law, international criminal law and the Geneva conventions.
 Private international law, or conflict of laws, which addresses the questions of
which legal jurisdiction may a case be heard; and also the law concerning which
jurisdiction(s) apply to the issues in the case law of supranational organizations,
which concerns at present regional agreements where the special distinguishing
quality is that laws of nation states are held inapplicable when conflicting with a
supranational legal system.

The two traditional branches if of the field are:

 jus gentium — law of nations

 jus inter gentes — agreements among nations
5.Public law

is a theory of law governing the relationship between individuals (citizens, companies)

and the state. Under this theory, Constitutional law, administrative law and criminal law
are sub-divisions of public law. This theory is at odds with the concept of Constitutional
law, which requires all law to be specifically enabled, and thereby sub-divisions, of a
Constitution.

Generally speaking, private law is the area of law in a society that affects the
relationships between individuals or groups without the intervention of the state or
government. In many cases the public/private law distinction is confounded by laws that
regulate private relations while having been passed by legislative enactment. In some
cases these public statutes are known as laws of public order, as private individuals do
not have the right to break them and any attempt to circumvent such laws is void as
against public policy.

Areas of public law

 Constitutional law deals with the relationship between the state and individual,
and the relationships between different branches of the state, such as the
executive, the legislative and the judiciary.
 Administrative law refers to the body of law which regulates bureaucratic
managerial procedures and defines the powers of administrative agencies.
 Criminal law involves the state imposing sanctions for crimes committed by
individuals so that society can achieve justice and a peaceable social order

6. Private law

As most U.S. states share a heritage with English law, the private law of the United States
is generally called the common law (as it is in other Anglo-American common law
jurisdictions). Some states, such as New York, have strong civil law influences, and have
enacted laws relating to obligations such as the General Obligations Law and the General
Business Law.

Public/private law distinction

The distinction between the public and the private in law is often a hazy one. Many
consumer protection laws are of a public law nature, which limits the ability of
companies dealing with consumers to engage in transactions that fail to respect the rights
of consumers. Most laws that impose criminal penalties are considered to be public laws,
as these are intended to protect all members of society and not just the areas of interaction
covered by contract and tort.

JUDICIAL SYSTEM

Kenya’s Judiciary is established under chapter IV of the Constitution. The country’s

superior courts of record are the Court of Appeal and the High Court. The High
Court has unlimited original jurisdiction in all civil and criminal matters as well
as appellate jurisdiction over matters emanating from the magistrate’s courts and
statutory tribunals. The Court of Appeal, on the other hand, exercises appellate
jurisdiction over the decisions of the High Court.

The Judges of the High Court and the Court of Appeal are appointed by the President
acting in accordance with the advice of the Judicial Service Commission. The
Constitution prescribes a minimum of eleven judges for the High Court and two for the
Court of Appeal. Presently, there are 46 Judges of the High Court and eight Judges of
Appeal. The Chief Justice is a member of both courts.

In the lower hierarchy of the court system are the Magistrates’ Courts and the Kadhis’
Court. The former are established under an Act of Parliament under a power donated by
the Constitution and their jurisdiction has limitations defined both by geography and the
nature or value of the subject matter. They deal with both civil and criminal matters and
are responsible for the bulk of the litigation carried on in Kenya’s justice system. The
jurisdiction of the Kadhis’ Courts is constitutionally limited to the determination of
questions of Muslim law relating to personal status, marriage, divorce or inheritance in
proceedings in which all the parties profess the Muslim religion.

Kenya’s court hierarchy consists of the Court of Appeal, High Court, resident and district
magistrates’ courts, and kadhis courts, which adjudicate Muslim personal law concerning
personal status, marriage, divorce, and inheritance among Muslims. Kenya’s president
appoints judges, including the chief justice, who presides in the Court of Appeal. The
High Court is responsible for judicial review. Kenya accepts compulsory International
Court of Justice jurisdiction, with reservations. The judiciary is constitutionally
independent, and judges have security of tenure. This constitutional status and the
theoretical life tenure of judges have not, however, ensured immunity from executive-
branch pressure.

Court of Appeal.
The Kenya Court of Appeal serves as the Supreme Court of the country. It has final
appellate jurisdiction in both criminal and civil cases. Appeals are brought to the Court
of Appeal from the Kenya High Court.
The Court of Appeal is made up of the Chief Justice and three other members. The
Court of Appeal has the power, authority, and jurisdiction over the court from which the
appeal originated.
Appeals from any Kenyan Court to the Privy Council in England are no longer allowed.
Kenya Court of Appeal sits mostly in Nairobi, the capital of Kenya but travels on circuit
to other principal towns in Kenya to hear appeals.

High Court.
The High Court has original jurisdiction for certain serious crimes and hears appeals from
the lower courts. It can adjudicate the constitutionality of acts of the National Assembly
and enforcement of the Bill of Rights. The High Court is the second highest court and is
presided over by judges of the High Court (puisne judges). The high court can attend to
any civil case. In criminal matters however, Kenya High Court only hears cases of
murder and treason. On all other criminal cases, the High Court only attends to appeals
from subordinate courts.
The Chief Justice is also a member of the High Court. The High Court can also act as
assize courts, moving from one region to another.

Resident Magistrate's Courts.

The Resident Magistrate's Courts are presided over by either a senior resident magistrate
or a resident magistrate. There is a Resident Magistrate's Court in each province, each of
which can hear both serious and non-serious criminal cases.
Appeals from this court are brought to the High Court. The Resident Magistrate's Court
is divided into First, Second, and Third Class, which differ according to the severity of
punishment they are empowered to impose.

District Magistrate's Courts.

The District Magistrate's Courts are based at every district headquarters. There is a
District Magistrate's
Court in every province. The District Magistrate's Courts are also qualified to hear cases
involving African customary law. Like the Resident Magistrate's Court, this court is also
divided into three classes.
2. Special Courts.

Traditional Courts.
A chief or a council of elders at the village level can try minor criminal cases. The case
decisions are accepted as final for certain customary issues (Constitution of Kenya,
1963).

Kadhi's Courts.
The Kadhi's courts exist at the same hierarchical level as the Resident Magistrate's Court.
However, they mainly try criminal cases involving personal Muslim law. Both parties to
the case must be of Muslim faith (Nyachae and Kinuthia, 1993). Kadhi's Courts are
subordinate courts that determine cases relating to personal status, marriage, divorce and
inheritance in proceedings in which all the parties profess the Muslim religion.

JUDGES
* Number of judges.
The High Court has a total of twelve justices including the Chief Justice.
* Appointment and qualifications.
The Chief Justice, who is appointed by the President of the Republic, is also the President
of the Court of Appeal and a member of the High Court. The President of the Republic
appoints other judges of the Court of Appeal and appoints the judges of the High Court
upon the advice of the Judicial Service Commission.
The Resident Magistrates are appointed by the Judicial Service Commission. The
magistrates must be academically and professionally certified lawyers with at least five
years on the bench.
The magistrates at the District Magistrate's Courts are not expected to be qualified
lawyers.
Rather, they are civil servants who have been trained to hold adjudicatory positions at the
District court levels. However, they are appointed by the Judicial Service Commission
and are gradually being replaced with certified lawyers.

Contracts

Contract is an agreement set out between two or more parties. They set out aim of the
parties; they create a legal binding obligation, ways of terminating the contract and
consequences of terminating the contract.
Anson defines contract as, an agreement enforceable at law, made between two or more
persons, by which rights are acquired by one or more, to acts or forbearance on the part
of the other.
The law of contract as administered in Kenya, is an adaptation of the rule of English law
of contract as modified by section two and three of the law of Kenya Act (cap 23)
1962.section 3(3)
of the Act, expressly exclude s the application of the English statute of frauds Act, while
section 4 abolishes the application of the Indian law of contract in Kenya . Contract law
help in handling disputes.
Valid contract is an agreement that is binding and enforceable it has all the essential
elements.
Voidable contract, is an agreement that is binding and enforceable, but because of lack of
one or more of the essential of valid contract, it may be set aside at the option if the
aggrieved party.
Void contract is not a contract at all. it means an agreement which is completely destitute
of any legal effect.e.g where one of the basic ingredients to create legal relations is
missing.
Contracts should be setout in a clear and logical manner and should be complete and
consistence. There should not be ambiguity and the parties to the agreement should not be
left in no doubting into their rights and duties.

Essentials of valid contract:

According to Ashiq Hussein [2003], there are six features that any valid contract should
have:
1. There must be offer and acceptance
The most important feature of a contract is that one party makes an offer for an
arrangement that another accepts. This can be called a 'concurrence of wills' or 'ad
idem' (meeting of the minds) of two or more parties. There must be evidence that the
parties had each from an objective perspective engaged in conduct manifesting their
assent, and a contract will be formed when the parties have met such a requirement.
Offer and acceptance can be oral or written (Lord Steyn, 1997).

2. There must be an intention to create legal relations.

There is a presumption for commercial agreements that parties intend to be legally
bound .On the other hand, many kinds of domestic and social agreements are
unenforceable on the basis of public policy, for instance between children and
 parents. Example is found in the case of Balfour v. Balfour. (Balfour v. Balfour,
1919)Using contract-like terms, Mr. Balfour had agreed to give his wife £30 a month
as maintenance while he was living in Sri Lanka. Once he left, they separated and Mr.
Balfour stopped payments. Mrs. Balfour brought an action to enforce the payments.
At the Court of Appeal, the Court held that there was no enforceable agreement as
there was not enough evidence to suggest that they were intending to be legally bound
by the promise

3. There must be consideration or the contract must be under deed

Consideration is known as 'the price of a promise' and is a controversial requirement for

contracts under common law. Consideration can be defined as some right, interest, profit
or benefit accruing to one party, or some forbearance, detriment, loss or responsibility
given, suffered or undertaken by the other.

The idea is that both parties to a contract must bring something to the bargain, where
both parties must confer some benefit or detriment e.g. money. This can be either
conferring an advantage on the other party, or incurring some kind of detriment or
inconvenience towards oneself. Three rules govern consideration.

 Consideration must be real, but need not be adequate. For instance, agreeing to
buy a car for a penny may constitute a binding contract. While consideration need
not be adequate, contracts in which the consideration of one party greatly exceeds
that of another may nevertheless be held invalid for lack of real consideration.

 Consideration must not be from the past. For instance, in (Eastwood v. Kenyon,
1840) the guardian of a young girl obtained a loan to educate the girl and to
improve her marriage prospects. After her marriage, her husband promised to pay
off the loan. It was held that the guardian could not enforce the promise because
taking out the loan to raise and educate the girl was past consideration--it was
completed before the husband promised to repay it.

 Consideration must move from the promisee. For instance, it is good

consideration for person A to pay person C in return for services rendered by
person B. If there are joint promisees, then consideration need only to move from
 one of the promisees.

4. There must be contractual capacity

The law presumes every person is competent to enter into contracts, but certain
categories of persons due to age, status or mental instability, have disabilities in this
connection. Lack of contractual capacity of one or both the parties may render the
contract void, voidable or unenforceable. The special rules affecting each class of
person’s included: infants or minors, insane or drunken persons, corporations and
married women.

5. There must be genuine consent i.e. the consent must not be obtained through
mistake, misrepresentation or undue influence

6. The object of the contract must be lawful.

Terms of a contract
In an ordinary contractual transaction, the terms are of two kinds
1 Conditions: These are terms of major importance and it’s said that they go to the
root of the contract. Their breach entitles the innocent party to avoid the contract
and claim damages. Under the sale of Goods Act, the innocent party is permitted
if he wishes so, to continue with the contract and claim damages for breach of the
conditions.
2 Warranty: Is a term of lesser importance and as such does not go to the root of the
contract. its breach entitles the innocent party to claim damage, but gives no right
to the termination of the contract .
Only breach of condition terminates the contract but not of warranty. The court is the
one that determines whether a term is a condition or warranty, taking into
consideration the circumstance in which such a term was agreed.

Types on contracts
1. Contract of deed
This includes court judgment and personal recognisances. They are not true contracts
since the obligations under them are imposed on the parties by the courts, and do not
result through mutual agreement.

2. Contract under deed or specialty contracts

Also known as under seal contract and is the only formal contract. It must be (I)in
writing (ii)signed, sealed and delivered. Sealing and delivering are usually mere
formalities. Delivery can be actual (i.e. hading over the sealed document)or
constructive(i.e. party delivering the deed touches the seal with his fingers saying “I
deliver to you as my act and deed”).

3. Simple contracts (parol)

This is a contract, which does not satisfy the requirement of the contract under deed.
It may be oral, written or partly oral and partly written, or merely implied by conduct

The following contracts must be in writing, otherwise they are void

1. All contracts which require to be stamped e.g. bills of exchange, promissory notes
and transfer of shares in limited companies
2. Acknowledgement of statute barred debts. In case of a simple contract, if an
action is not maintained to recover the debt within six years, the claim becomes
time-barred. but if the debtor acknowledges this statute barred debt in writing the
right of action in favor of the creditor is revived for another six years.
3. Transfer of immovable property, the law requires the transfer of immovable
property by registered instrument.
4. Representation of character or credit worthiness. Section 3(2) of the law of
contract Act provides that any representation made relating to character, credit,
and ability of any other person must be in writing and signed by the party to be
responsible in case the default is made by a person for whom the representation
was made.

The following contracts must be supported by written evidence otherwise they are
unenforceable
1. Contracts for sale of goods of two hundred shillings or more: by section 6 of the
Kenya sale of Goods Act the contracts for the sale of goods for the value of two
hundred shillings or over are required to evidence in writing, otherwise he
contract is unenforceable.

2. Every Hire purchase Agreement must be evidenced in writing and registered

within 30 days of its execution

3. Contracts of Guarantee:” A special promise to answer for a debt, default of

miscarriage of another person” is required to be evidenced in writing by section
3(1) of the law court Act. In the absence of any memorandum or note thereof in
writing and signed by the person to be charged, no action can be maintained.

4. Contracts for the sale of land: By section 3(3) as amended by the law of Contract
Act 1968,all agreements for the sale of land or other disposition of land must be
supported by written evidence, signed by the party to be charged or by his agent.

5. Contracts of employment for over one month. Section 5 of Kenya Employment

act (Cap 226) provides that a contract of service which is not in writing or
supported by sufficient memorandum is not enforceable for a longer period than
one month from the date of entering it.

6. Money lending contracts: Section 11(1) of the Kenya moneylenders Act provides
that no action may be brought for payment of the loan unless a note or
memorandum in written signed by the borrower can be produced in court
Liability

Liability is any legal responsibility, duty or obligation. The state of one who is bound in
law and justice to do something which may be enforced by action. This liability may arise
from contracts either express or implied or in consequence of torts committed.
in legal terms, the word liability refers to fault. The person who is at fault is liable to
another because of his or her actions or failure to act.

Categories of liability

Traditionally there are three categories of liability that the courts use to deal with claims
that products or services have caused physical or economical injury to consumers e.g.
In so far as computers software is part of a machine and the machine injures someone
physically or economically the producer of software and operator can be held liable.

1. Warranty

A warranty can be expressly stated by seller of good implied by simply being sold in
market place where it’s assumed by court that the merchant is making an impression that
products are of good quality and are in good condition.
If software is part of machine it will be treated as a machine and warrant promises are
enforceable. If software is a service warrant, the law does not apply unless the software
author makes some specific warranties in performance of the software. If software is a
book then warranty does not apply.

2. Negligence
This occurs when the product cause physical or economic harm to individuals, when the
injury could have been prevented and when the producer has a duty to care about the
consumer of the product. Negligence require fault.
Producers of software have been found liable in cases where software is part if machine
but not as services
 3. Strict liability in tort
This is a separate class of liability that arises when a defective product causes injury. In
this case individuals can bring fret against the manufacturers, independent of question of
fault, warranty or care. Meaning a manufacturer of a product that injures people, can be
held strictly liable regardless of whether or not he could have prevented the defect.
The software act as part of product rather than a service the strict liability applies.

Breach of contract

A contract may be discharged (terminated) by breach; that is, the failure of one of the
parties to perform his obligation under the contract.
Breach of contract may occur in any one of the three ways:

1. Failure to Perform: where a person fails to perform a contract, when then

performance is due, the other party can hold him liable for the breach, provided
the time of performance was made as the essence of the contract.
2. Renunciation: It may sometimes happen that even before the time of performance
arrives, one party to a contract repudiates (rejects) his liabilities. This is known as
an anticipatory breach. Here it requires that the aggrieved party sues immediately
before the actual time stipulated for performance of the contract if remedy is to be
given.
3. Self-disablement: this occurs when the defendant disables himself from
performing his contractual obligation, or does some act which makes the
performance of contract impossible.
Remedies for breach of contract
Refusal of further performance
A party who suffers by a breach of contract is entitled to treat the contract as ended and
may refuse any further performance on his own part.
Damages
This is the normal remedy for breach of contract. The aim of law is to place the injured
party as far as possible in the position he would have been if the contract had been
performed.
It is not for every kind of damage that the plaintiff is entitled to recover compensation. In
some cases, the law considers that the loss sustained from breach of contract is too
remote to merit any compensation.
The condition is that the accused has to have been aware of the loss incurred, in order to
claim damages.

Specific performance
This is an order requiring a person to carry out a contractual obligation.
It is usually granted where a contract is for:
a) The sale of land
b) Taking debentures in a company.
c) Sale of rare goods which are not easily available in the market or the value of
such could not be measured in money.
It is not granted where:
a) Damages would provide an adequate remedy
b) Contract is to render personal services.
c) One party to the contract is an infant
d) The contract is to lend money
Injunction
This is an order of the court restraining the doing, continuance or repetition of a
wrongful act. The court will not however, enforce contract by injunction if damages are a
more suitable remedy since it can always award damages in lieu of an injunction.

Property law
The term property is normally used in two different senses, and it is important to
distinguish between them:
1. When the sale of goods act talks of property in goods, it means the ownership of
them. In contract for the sale of specific goods, the seller transfers the property
(ownership) in goods to the buyer when the contract is made, and it is immaterial
whether the line of delivery or of payment or both is postponed.
2. Usually the word property means the things, which are capable of being owned
although they need not exist in tangible form. Hence in this sense the term
property includes:
a) Things in possession – such as pens, books, desks, chairs, etc.
b) Things in action – these have no physical existence and include things
such as debts, patents, copyrights, etc. they are called choses in action,
which can be enforced only by action and not by taking possession.
Ownership and possession
All legal systems distinguish between ownership and possession. It is, therefore,
necessary to deal with them briefly. Ownership’s a matter of law and it denotes
the relation between a person and any right that is vested in him over property.
A person is an owner of property if he has the ultimate legal right over its use and
disposal.

Ownership may be acquired in three ways:

a) Originality: where a person creates something new, or acquires something,
which no one claims or has been abandoned by its previous owner.
b) Derivatively: when a person sells his goods to the buyer or he makes a gift
to another person, the right of ownership is transferred to the latter.
c) By succession: where a previous owner dies, the property may pass to his
heir or to someone else under a will.
While ownership is a matter of law, possession is a matter of fact. Possession is
physical detention coupled with the intention to hold the things in detention as
one’s own.
Possession can be converted into ownership under the following two
circumstances:
 a) If wrongful possession of land continues for twelve years, and of goods
for six years.
b) The holder of a negotiable instrument, a factor, and a seller in market overt
can give a better title than they themselves have, provided the buyer takes
what they offer for value and in good faith.

European law; the influence of European law on English law

The European Union consists mainly of countries which use civil law and so the civil law
system is also in England in this form, and the European Court of Justice, a
predominantly civil law court, can direct English and Welsh courts on the meaning of EU
law.
The Law of the European Union is the unique legal system which operates alongside the
laws of Member States of the European Union (EU). EU law has direct effect within the
legal systems of its Member States, and overrides national law in many areas, especially
in terms of economic and social policy. The EU is not a federal government, nor is it an
intergovernmental organization. It constitutes a new legal order in international law for
the mutual social and economic benefit of the Member States. It is sometimes classified
as supranational law.

English law, the legal system of England and Wales, is the basis of common law legal
systems throughout the world (as opposed to civil law or pluralist systems in other
countries, such as Scots law). It was exported to Commonwealth countries while the
British Empire was established and maintained, and it forms the basis of the
jurisprudence of most of those countries. English law prior to the American revolution is
still part of the law of the United States, except in Louisiana, and provides the basis for
many American legal traditions and policies, though it has no superseding jurisdiction.

The essence of English common law is that it is made by judges sitting in courts,
applying their common sense and knowledge of legal precedent (stare decisis) to the facts
before them. A decision of the highest appeal court in England and Wales, the House of
Lords, is binding on every other court in the hierarchy, and they will follow its directions.
For example, there is no statute making murder illegal. It is a common law crime - so
although there is no written Act of Parliament making murder illegal, it is illegal by
virtue of the constitutional authority of the courts and their previous decisions. Common
law can be amended or repealed by Parliament; murder, by way of example, carries a
mandatory life sentence today, but had previously allowed the death penalty.

England and Wales are constituent countries of the United Kingdom, which is a member
of the European Union and EU law is effective in the UK. The European Union consists
mainly of countries which use civil law and so the civil law system is also in England in
this form, and the European Court of Justice, a predominantly civil law court, can direct
English and Welsh courts on the meaning of EU law.

EU law covers a broad range which is comparable to that of the legal systems of the
Member States themselves. Both the provisions of the Treaties, and EU regulations are
said to have "direct effect" horizontally. This means private citizens can rely on the rights
granted to them (and the duties created for them) against one another. For instance, an air
hostess could sue her airline employer for sexual discrimination. The other main legal
instrument of the EU, "directives", have direct effect, but only "vertically". Private
citizens may not sue one another on the basis of an EU directive, since these are
addressed to the Member States. Directives allow some choice for Member States in the
way they translate (or 'transpose') a directive into national law - usually this is done by
passing one or more legislative acts, such as an Act of Parliament or statutory instrument
in the UK. Once this has happened citizens may rely on the law that has been
implemented. They may only sue the government "vertically" for failing to implement a
directive correctly. An example of a directive is the Product liability Directive, which
makes companies liable for dangerous and defective products that harm consumers.

England and Wales are constituent countries of the United Kingdom, which is a member
of the European Union and EU law is effective in the UK. The European Union consists
mainly of countries which use civil law and so the civil law system is also in England in
this form, and the European Court of Justice, a predominantly civil law court, can direct
English and Welsh courts on the meaning of EU law.

Overseas influences

The influences are two-way.

The United Kingdom exported its legal system to the Commonwealth countries during
the British Empire, and many aspects of that system have persisted after the British
withdrew or granted independence to former dominions. English law prior to the Wars of
Independence is still an influence on United States law, and provides the basis for many
American legal traditions and policies. Many states that were formerly subject to English
law (such as Australia) continue to recognise a link to English law - subject, of course, to
statutory modification and judicial revision to match the law to local conditions - and
decisions from the English law reports continue to be cited from time to time as
persuasive authority in present day judicial opinions. For a few states, the Judicial
Committee of the Privy Council remains the ultimate court of appeal. Many jurisdictions
which were formerly subject to English law (such as Hong Kong) continue to recognise
the common law of England as their own - subject, of course, to statutory modification
and judicial revision - and decisions from the English Reports continue to be cited from
time to time as persuasive authority in present day judicial opinions.

The UK is a dualist in its relationship with international law, i.e. international obligations
have to be formally incorporated into English law before the courts are obliged to apply
supranational laws. For example, the European Convention on Human Rights and
Fundamental Freedoms was signed in 1950 and the UK allowed individuals to directly
petition the European Commission on Human Rights from 1966. Now s6(1) Human
Rights Act 1998 (HRA) makes it unlawful "... for a public authority to act in a way which
is incompatible with a convention right", where a "public authority" is any person or
body which exercises a public function, expressly including the courts but expressly
excluding Parliament. Although the European Convention has begun to be applied to the
acts of non-state agents, the HRA does not make the Convention specifically applicable
between private parties. Courts have taken the Convention into account in interpreting the
common law. They also must take the Convention into account in interpreting Acts of
Parliament, but must ultimately follow the terms of the Act even if inconsistent with the
Convention (s3 HRA).

Similarly, because the UK remains a strong international trading nation, international

consistency of decision making is of vital importance, so the Admiralty is strongly
influenced by Public International Law and the modern commercial treaties and
conventions regulating shipping.

Reference:
1. Lord Steyn, Contract Law: Fulfilling the Reasonable Expectations of Honest Men
(1997) 113 LQR 433; c.f. § 133 BGB in Germany,
2. Balfour v. Balfour [1919] 2 KB 571
3. law.com Law Dictionary
4. Chappell & Co Ltd v Nestle Co Ltd [1959] 2 All ER 701
5. Eastwood v. Kenyon (1840) 11 Ad&E 438
6. Ashiq Hussain (2003),General principles and commercial law of Kenya, Nairobi.
East African publishers ltd.
7. Carlill v. Carbolic Smoke Ball Company [1893] 1 QB 256
8. Shaw, Malcolm N (2003). International Law. Cambridge University Press; 5
edition, 1-2. ISBN 978-0521531832.
9. C-26/62 Van Gend en Loos v. Nederlanse Administrative Der Belastingen
10. Farmer, Lindsay (2000), "Reconstructing the English Codification Debate: The
Criminal Law Commissioners, 1833-45", Law and History Review 18(2),
<http://www.historycooperative.org/journals/lhr/18.2/farmer.html>