What is Law?

1. Definition of Law:
 Law refers to a system of rules, regulations, and principles established by
a government or authority to regulate behavior within a society. It is a
set of norms and standards that guide and govern human conduct.
2. Functions of Law:
 Regulation of Behavior: Law sets boundaries for individual and
collective actions, defining what is permissible and what is prohibited.
 Conflict Resolution: Law provides a framework for resolving disputes
and conflicts through a structured legal process.
 Protection of Rights and Interests: It safeguards individual rights,
property, and interests, ensuring fairness and justice.
 Maintenance of Order: Law helps maintain social order and stability by
deterring unlawful behavior and providing mechanisms for enforcement.
 Promotion of Justice: Law seeks to achieve justice by ensuring fairness,
equity, and equal treatment under the law.
3. Characteristics of Law:
 Prescribed Authority: Law is established and enforced by a recognized
authority, such as a government or legislative body.
 Enforceability: Laws are backed by the power of the state and are
enforceable through legal mechanisms, including courts and law
enforcement agencies.
 Uniformity: Laws are typically applied uniformly to all individuals and
entities within a jurisdiction.
 Prospective Nature: Laws are usually forward-looking and apply to
future actions and conduct.
 Public Nature: Laws are generally accessible to the public, promoting
transparency and accountability.
4. Sources of Law:
 Statutory Law: Laws created by legislatures, such as acts of parliament
or statutes, are a primary source of law in many legal systems.
 Common Law: Legal principles and precedents established by court
decisions over time, also known as case law or judge-made law.
  Constitutional Law: The fundamental law of a country or state that
establishes the framework for government and delineates individual
rights.
 International Law: Rules and treaties governing relations between
nations and international organizations.
 Customary Law: Traditional practices and customs recognized as legally
binding in some societies.
 Administrative Law: Rules and regulations established by
administrative agencies and government bodies.
5. Types of Law:
 Criminal Law: Concerned with offenses against society, punishable by
the state, with a focus on punishment and deterrence.
 Civil Law: Deals with disputes between individuals or entities, with a
focus on compensation or remedies for harm.
 Public Law: Governs the relationship between individuals and the
government, including constitutional, administrative, and criminal law.
 Private Law: Concerned with the relationships between individuals or
entities, including contract, property, and family law.
6. Legal Systems:
 Legal systems vary worldwide, including common law, civil law, Islamic
law (Sharia), customary law, and hybrid systems.
 Legal systems influence the development, interpretation, and
application of law within a particular jurisdiction.

Understanding the nature, functions, and sources of law is foundational for

students studying legal systems and pursuing a career in law. It forms the
basis for analyzing and applying legal principles in various contexts within a
legal system.

DIPLOMA IN LAW STUDENTS NOTES ON SOCIAL FUNCTIONS OF LAW AND

RULE OF LAW
Certainly! Here are some key notes on the social functions of law and the rule
of law for students pursuing a Diploma in Law:
 Social Functions of Law:

1. Regulation of Behavior:
 Law serves as a system of rules and regulations that prescribe and
proscribe certain behaviors within a society.
 It defines what is legally acceptable conduct and what is prohibited,
providing a framework for orderly coexistence.
2. Conflict Resolution:
 Law provides mechanisms for the peaceful resolution of disputes and
conflicts.
 Through the legal system, parties can seek redress, have their grievances
heard, and obtain a fair and just resolution.
3. Protection of Rights and Interests:
 Law safeguards individual rights, freedoms, and property interests.
 It ensures that individuals can exercise their rights without unwarranted
interference and that their interests are protected.
4. Maintenance of Social Order:
 Law plays a vital role in maintaining social stability and order.
 By deterring unlawful behavior and imposing consequences for
violations, it helps prevent chaos and anarchy.
5. Promotion of Justice:
 Law seeks to achieve justice by ensuring fairness, equity, and equal
treatment under the law.
 It aims to correct imbalances and rectify injustices within society.
6. Facilitation of Predictability:
 Law provides predictability and consistency in society by setting clear
standards and expectations.
 Individuals and businesses can make informed decisions and plan their
actions based on established legal principles.
7. Public Policy and Regulation:
 Law serves as a tool for governments to implement public policies,
regulate industries, and address social issues.
 It can promote public welfare, health, safety, and environmental
protection through regulations and statutes.
 The Rule of Law:

1. Definition:
 The rule of law is a fundamental principle that no one is above the law,
and laws are applied consistently and fairly to all individuals, including
government officials.
 It ensures that the legal system is predictable, transparent, and
accountable.
2. Key Principles:
 Equality Before the Law: All individuals are equal in the eyes of the law,
regardless of their status or position.
 Legal Certainty: Laws are clear, accessible, and consistently applied.
 Procedural Fairness: Legal proceedings are conducted impartially, with
due process and fair hearings.
 Accountability: Government officials, including those in positions of
power, are subject to the law and accountable for their actions.
 Respect for Human Rights: The rule of law upholds and protects
human rights, ensuring that they are not violated by the state or
individuals.
3. Role in Legal Systems:
 The rule of law is a foundational principle in democratic societies,
ensuring that governance is based on law and not arbitrary actions.
 It underpins the legal framework and institutions that protect individual
rights and freedoms.
4. Challenges:
 Upholding the rule of law can be challenging, as it requires an
independent judiciary, effective legal mechanisms, and a commitment to
justice and fairness.
 Political interference, corruption, and violations of human rights can
undermine the rule of law.

Understanding the social functions of law and the rule of law is essential for
legal professionals and students, as these concepts form the basis for the legal
system and its role in maintaining order, justice, and the protection of rights
within society.
 MAJOR LEGAL SYSTEMS IN THE WORLD

1. Common Law System:

 Origin: Evolved in England and spread to countries with British colonial

histories, including the United States, Canada, Australia, and India.
 Characteristics: Rely heavily on precedents and case law. Decisions from
higher courts serve as binding authority for lower courts. Emphasis on judicial
decisions and legal principles.
 Role of Judges: Judges play a significant role in interpreting and developing
the law through their decisions.
 Sources of Law: Case law, statutes, regulations, and legal commentary.
 Flexibility: Common law systems can adapt to changing circumstances and
evolving social norms.
 Examples: United Kingdom, United States, Canada, Australia.

2. Civil Law System:

 Origin: Rooted in Roman law, codified systems developed in continental

Europe. Also influenced by Napoleonic Code.
 Characteristics: Laws are codified and written into comprehensive legal codes.
Less reliance on precedent compared to common law.
 Role of Judges: Judges have a narrower role in interpreting and applying the
law, as the law is primarily found in written codes.
 Sources of Law: Statutes, codes, and comprehensive legal texts.
 Inquisitorial System: Many civil law systems use an inquisitorial model, where
judges play an active role in investigating cases.
 Examples: France, Germany, Japan, Brazil.

3. Islamic Law (Sharia) System:

 Origin: Derived from Islamic religious texts and jurisprudence (fiqh).

 Characteristics: Based on religious principles and moral values. Addresses
both secular and religious matters.
 Role of Judges: Judges interpret and apply Sharia law, which is often codified
in some areas.
 Sources of Law: Quran, Hadith (sayings and actions of Prophet Muhammad),
consensus of legal scholars (ijma), and analogical reasoning (qiyas).
 Variations: Different interpretations and applications of Sharia exist among
Sunni and Shia branches and across countries.
 Examples: Saudi Arabia, Iran, UAE.

4. Socialist Law System:

 Origin: Developed in socialist and communist countries, notably the Soviet

Union and Eastern Bloc nations.
 Characteristics: Legal systems are heavily influenced by socialist ideology and
central planning principles. Ownership of property and means of production
may be state-controlled.
 Role of Judges: Judges often have a role in enforcing state policies and may
be subject to state influence.
 Sources of Law: Laws are often codified, and legal principles reflect socialist
values.
 Transition: Some former socialist states have transitioned to mixed legal
systems with market-oriented reforms.
 Examples: Former Soviet Union, China (prior to economic reforms), Cuba.

5. Customary Law System:

 Origin: Evolved organically in indigenous and tribal societies based on local

customs and traditions.
 Characteristics: Primarily oral, passed down through generations. Focus on
community and group rights.
 Role of Judges: Traditional leaders or elders play a central role in dispute
resolution.
 Sources of Law: Customary practices, oral traditions, and community norms.
 Variability: Highly diverse, as customary law varies among different
indigenous groups and regions.
 Examples: Indigenous communities worldwide, particularly in Africa, Asia, and
the Americas.
 Understanding these major legal systems is crucial for legal professionals and
students, as it provides valuable insights into the diversity of legal traditions,
sources of law, and approaches to justice and governance around the world.
The Kenyan Legal System:
.
Sources of Law:
.
 The Kenyan legal system draws from multiple sources of law, including:
 Constitution: The 2010 Kenyan Constitution is the supreme law of
the land and establishes the framework for governance and
protection of fundamental rights.
 Legislation: Laws are passed by the Kenyan Parliament and
include acts, statutes, and regulations that govern various aspects
of society.
 Common Law: Kenya inherited a common law legal tradition from
British colonial rule, and judicial decisions and precedents play a
significant role in the legal system.
 Customary Law: Customary practices and norms are recognized
and applied, particularly in matters related to family law and land.
 Islamic Law (Sharia): Sharia law is applicable to Muslims in
matters of personal status and family law.
 International Law: Kenya is a signatory to various international
treaties and conventions, and international law is incorporated
into domestic law.
.
The Judiciary:
.
 The Kenyan judiciary is independent and comprises various courts,
including:
 The Supreme Court: The highest court in Kenya, responsible for
interpreting the constitution and dealing with matters of national
importance.
 The Court of Appeal: Hears appeals from the High Court and
other specialized courts.
  The High Court: Handles a wide range of civil and criminal cases,
including constitutional petitions.
 Magistrates' Courts: Handle less complex civil and criminal
matters.
 The judiciary plays a vital role in upholding the rule of law and ensuring
access to justice.
.
Legal Professions:
.
 The legal profession in Kenya includes advocates (lawyers) and judges.
 The Law Society of Kenya (LSK) is the professional body for advocates.
 Legal education in Kenya is overseen by the Council of Legal Education
(CLE).
.
Constitutional Framework:
.
 The 2010 Constitution introduced a devolved system of government,
with 47 counties each having its government.
 It guarantees a wide range of fundamental rights and freedoms,
including equality, freedom of expression, and the right to a fair trial.
.
Land Law:
.
 Land is a significant aspect of Kenyan law, and land rights and
ownership are governed by various laws.
 The Land Act, Land Registration Act, and Community Land Act regulate
land matters, including land tenure, acquisition, and disputes.
.
Criminal Law and Procedure:
.
 Criminal law in Kenya is codified in statutes such as the Penal Code and
the Criminal Procedure Code.
 The criminal justice system includes the police, prosecution, and the
judiciary.
.
Human Rights:
.
 The Constitution of Kenya emphasizes the protection and promotion of
human rights.
 Kenya has ratified various international human rights treaties and has
mechanisms for addressing human rights violations.
.
Commercial and Business Law:
.
 Commercial and business activities in Kenya are governed by various
laws, including the Companies Act, the Partnership Act, and the
Competition Act.
 The Capital Markets Authority regulates securities and financial markets.
.
Legal Reforms:
.
 Kenya has undertaken legal reforms to modernize its legal system and
improve governance and access to justice.
 The judiciary has played an active role in implementing these reforms.
.
Challenges:
.
 The Kenyan legal system faces challenges related to backlog of cases,
corruption, and access to justice, particularly in marginalized areas.

Understanding the Kenyan legal system is essential for legal professionals and
students interested in practicing law or working in Kenya or other jurisdictions
with similar legal traditions. The 2010 Constitution brought significant
changes, and ongoing legal reforms continue to shape the legal landscape in
Kenya.

Here are some key points and notes on the concept of ratio decidendi:

.
Definition: Ratio decidendi refers to the rationale behind a court's decision. It is the
legal principle or rule of law on which a case's judgment is founded or the point in a
case that determines the judgement.
.
.
Binding Precedent: The ratio decidendi of a case, forms binding precedent for future
cases with similar facts or legal issues. This means that lower courts are generally
obligated to follow the ratio decidendi of higher courts when dealing with similar cases.
.
.
Distinguishing Case Law: Lawyers and judges often distinguish cases by comparing the
facts and legal principles in the current case with those in previous cases. If there is a
significant difference in either the facts or the legal principle (ratio decidendi), it may be
possible to argue that the previous case is not applicable.
.
.
Obiter Dicta: In a court's judgment, you may also find obiter dicta, which are
statements made by the court that are not part of the ratio decidendi. These are not
legally binding as precedent but may provide valuable insights or commentary on the
case.
.
.
Hierarchy of Precedent: In common law systems, there is often a hierarchy of courts.
The decisions of higher courts, like appellate courts or supreme courts, have more
authority and can establish precedent for lower courts.
.
.
Persuasive Precedent: Sometimes, courts may consider decisions from other
jurisdictions or from lower courts as persuasive precedent, even though they are not
binding. These decisions can influence the court's decision.
.
.
Case Analysis: When analyzing a case, it's crucial to identify the ratio decidendi to
understand the legal principle that the case establishes. This can be challenging in
complex cases with multiple issues.
.
.
Stare Decisis: The principle of stare decisis, which means "to stand by things decided,"
is closely related to the concept of ratio decidendi. It emphasizes the importance of
adhering to precedent and maintaining consistency in the law.
.
.
 Evolution of the Law: Over time, the ratio decidendi in various cases may evolve, adapt,
or be overturned by higher courts. This is how the law develops and adapts to changing
social, technological, and legal norms.
.
The doctrine of stare decisis, a Latin term meaning "to stand by things decided," is a
fundamental principle in the common law legal system. It dictates that decisions made
in higher courts serve as binding precedents for lower courts to follow in similar cases.
Here are some notes on the doctrine of stare decisis:

.
Binding Precedent: Stare decisis establishes a hierarchy of court decisions. Decisions
made by higher courts, such as appellate or supreme courts, are binding on lower courts
within the same jurisdiction. This means that lower courts are obligated to follow the
legal principles (ratio decidendi) established by higher courts.
.
.
Consistency and Predictability: The doctrine of stare decisis promotes consistency and
predictability in the legal system. It ensures that similar cases are decided similarly,
creating a stable and reliable body of legal principles.
.
.
Respect for Precedent: The principle reflects the respect for past judicial decisions.
Courts should not lightly depart from established precedents, as this maintains the
integrity of the legal system and ensures fairness in the application of the law.
.
.
Hierarchy of Courts: The strength of a precedent depends on the hierarchy of the court
that set it. Decisions from the highest court in a jurisdiction carry the most weight and
are the most binding. Lower courts are typically required to follow the decisions of
higher courts.
.
.
Overruling and Distinguishing: While stare decisis is a powerful doctrine, it is not
absolute. Higher courts can overrule their own previous decisions, especially if they
believe a past decision was wrongly decided or no longer relevant. Lower courts can
also distinguish cases when there are meaningful differences in the facts or legal
principles.
.
.
 Persuasive Precedent: Courts may consider decisions from other jurisdictions or from
lower courts within the same jurisdiction as persuasive precedent. While not binding,
these decisions can influence a court's decision-making process.
.
.
Evolution of the Law: The doctrine of stare decisis allows for the gradual evolution of
the law as courts adapt legal principles to changing societal norms and values. Over
time, some precedents may become less applicable or be replaced by new ones.
.
.
Role of Dissenting Opinions: Dissenting opinions in court decisions can sometimes
become the majority opinion in future cases. They may offer alternative interpretations
and legal reasoning, which can influence the development of the law.
.
.
Application of Precedent: When applying precedent to a current case, the court must
identify the ratio decidendi (the legal principle or reasoning) in the prior case. This
requires a careful analysis of the facts, legal issues, and the court's decision.
.
.
Balancing Precedent and Justice: Judges often face the challenge of balancing the
need for consistency through precedent with the pursuit of justice in individual cases.
They must consider the unique circumstances of each case.
.
Obiter dictum, often referred to as "obiter" for short, is a Latin term used in legal
contexts to describe statements or remarks made by a judge in a judicial opinion that
are not directly related to the core issue or the ratio decidendi (the reason for the
decision) of the case. Obiter dicta are not legally binding as precedent, but they can
provide valuable insights, commentary, or additional legal perspectives. Here are some
notes on obiter dictum in the context of legal studies:

.
Definition: Obiter dictum means "by the way" or "in passing." It is a legal principle or
statement in a judicial decision that is not essential to the case's outcome and,
therefore, is not considered binding precedent.
.
.
Non-Binding: Unlike the ratio decidendi, which is the legally binding part of a
judgment, obiter dicta do not create legal obligations for future cases. Lower courts are
not required to follow obiter dicta in their decisions.
.
.
Distinguishing from Ratio Decidendi: It can sometimes be challenging to distinguish
between obiter dicta and ratio decidendi, as both are parts of a court's opinion. The key
difference is that the ratio decidendi is the reasoning that directly supports the decision,
while obiter dicta are additional comments or opinions offered by the judge.
.
.
Persuasive Value: Although obiter dicta are not binding, they can have persuasive
value. Judges may reference obiter dicta from higher courts or respected jurists when
making their decisions, especially if they find the commentary to be insightful or
relevant.
.
.
Example: For instance, if a court is deciding a case involving a contract dispute, and the
judge, in a side comment, discusses the general principles of contract law without it
being necessary for the case's outcome, that comment would be considered obiter
dictum.
.
.
Historical Context: Obiter dicta often reflect the judge's personal views, philosophy, or
legal theories. They can be seen as historical artifacts that provide context to the legal
culture and debates of the time.
.
.
Use in Legal Argumentation: Lawyers may cite obiter dicta in their arguments to
support their positions or provide context for the law. However, they should be aware
that obiter dicta do not carry the same weight as the ratio decidendi.
.
.
Court Composition: The composition of the court and the specific judges involved can
influence the presence of obiter dicta in a judgment. Different judges may offer varying
obiter dicta based on their legal philosophies.
.
.
Changing Legal Landscape: Over time, societal changes and evolving legal principles
can lead to the reassessment of obiter dicta. What was once a non-binding statement
might gain more significance in later cases.
.
.
 Appellate Review: When a case is appealed to a higher court, that court is primarily
concerned with the ratio decidendi, but it may comment on or modify obiter dicta from
the lower court's decision.
.
"Judicial restraint" and "judicial activism" are two contrasting approaches to judicial
decision-making that have significant implications for how judges interpret and apply
the law. Here are some notes on both concepts:

Judicial Restraint:

.
Definition: Judicial restraint is an approach in which judges limit the exercise of their
own power and defer to the other branches of government, such as the legislative and
executive branches. This approach emphasizes adherence to precedent and a cautious
interpretation of the law.
.
.
Textualism and Originalism: Judicially restrained judges tend to interpret the law
based on its plain text and the original intent of the framers. They prioritize the words of
the Constitution or statutes and avoid broad or creative interpretations.
.
.
Respect for Precedent: Judges who practice judicial restraint typically follow the
principle of stare decisis, meaning they adhere to established legal precedent and are
reluctant to overturn previous decisions.
.
.
Legislative Process: In cases involving policy matters, judicial restraint encourages
judges to defer to the legislature, believing that elected representatives are better suited
to make policy decisions.
.
.
Narrow Interpretation: Judicial restraint often leads to a narrower interpretation of
constitutional rights and a more limited role for the courts in shaping social or legal
policies.
.
.
Limitation on Activism: Judicial restraint is seen as a way to limit judicial activism, as it
restricts judges from making expansive or controversial rulings that may go beyond the
text of the law.
.

Judicial Activism:

.
Definition: Judicial activism is an approach in which judges are more willing to interpret
the law broadly and make decisions that may have a significant impact on policy and
society. Activist judges may be less bound by precedent and more inclined to use their
power to shape the law.
.
.
Expansive Interpretation: Activist judges may interpret constitutional provisions and
statutes more broadly, taking into account evolving societal norms and values.
.
.
Protection of Rights: Judicial activism often involves actively protecting individual
rights and liberties, even if this requires challenging existing precedent or making bold
decisions.
.
.
Correction of Injustice: Activist judges may see their role as correcting societal
injustices or addressing issues that the other branches of government have not
adequately resolved.
.
.
Policy-Making: Critics of judicial activism argue that it blurs the line between judicial
and legislative roles, as judges may effectively make or change laws rather than simply
interpret and apply them.
.
.
Controversy: Activist decisions are often more controversial and may face backlash
from those who believe judges are overstepping their bounds.
.
.
Evolution of the Law: Proponents of judicial activism argue that it allows the law to
evolve and adapt to changing societal needs and values.
.