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Legal Systems and Methods Consolidated Notes-1-1
LEGAL SYSTEM AND LEGAL METHODS (University of Nairobi)
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LEGAL SYSTEMS & METHODS
Session 1
INTRODUCTION TO LEGAL SYSTEMS AND LEGAL
METHODS
What is the Essence of Legal Systems & Legal Methods?
The legal system of any country can be described as the set of rules of substance and
procedure as well as the institutions relating to the governance of social behaviour and
resolution of disputes which arise in the process. It also necessarily includes the underlined
social values and attitudes which affect the operations of such values.
Legal methods on the other hand refer to the manner in which those who make, activate or
operate the law use the legal system to arrive at specific legal consequences. This necessarily
involves rules of interpretation and other legal tools used to arrive at the desired legal
consequences.
Legal systems therefore deal with “what” and “why” of law while legal methods deal with
“how” of law.
The Essence of the Legal System in the Society
Man is a social being. He is part and parcel of society which has its own structure and
organisation. Society is primarily based on order which order is achieved and maintained
through social rules. Man’s behaviour is closely controlled, either directly or indirectly
through moral standards, religious doctrines, social edicts and customs as well as legal rules.
In today’s complex society, legal rules are especially significant and it is difficult to find any
area of society which is completely free from legal control. There is therefore undeniable
and manifest relationship between law and society and the individual members of society.
1
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, lOMoARcPSD|46946146
To a law student society is a conglomeration of people, institutions and other social
phenomena in the midst of which law occupies a central place holding these social
arrangements together in an orderly fashion.
Law is however only one part of the overall social structure as there are other social elements
and forces. In addition to law, there are various and diverse social phenomena all of which
form part of the entire social structure for example political institutions, economic and
commercial institutions, religious institutions etcetera. These other institutions or social
phenomena are however not completely free from legal control or influence.
Law plays an important role in the definition of all kinds of social relationships between
individuals and also between groups.
In the early days law as we know today did not exist. The early man was self-sufficient in
his wants. However as time went by need arose for specialisation in production of human
necessaries and this in turn gave rise to social relationships such as trade and others for
example emergency families and other units in the society. As a consequence there arose
conflicts of interest and these necessitated the development of a system of social control for
purposes of preserving the society itself.
As the social groups became more sophisticated and complex, there occurred increase in
occupational specialisation and division of labour and as a consequence legal rules became
even more sophisticated and complex. This is because just as society is dynamic so is the
law. The law must always change in tandem with societal change if it is to stay relevant.
What is Law?
Although scholars do differ in their analysis of law, there is general consensus that a legal
order must provide for authorisation and recognition of legitimate authority, provide means
of resolving disputes and also mechanisms for facilitating interpersonal relationships
including adaptation to change.
There is no definition of law which has achieved universal acceptability but different
approaches have been developed and adopted in an attempt to explain the meaning and
2
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functions of law. What such attempts mostly achieve is to define the characteristics of the
law and also indicate the legal orientation of the person defining it.
Generally the orientations are either defined as positivism and naturalism.
1.3.1 Legal Positivism
Legal positivism is a philosophy of law that emphasizes the conventional nature of law - that
it is socially constructed. According to legal positivism, law is synonymous with positive
norms, that is, norms made by the legislator or considered as common law or case law.
According to Austin, positive law is a series of both explicit and implicit commands from a
higher authority. The law reflects the sovereign's wishes and is based on the sovereign's
power. Backed by sanctions and punishment,
According to one Salmond, law is a body of principles recognized and applied by the state
in the administration of justice.
According to another scholar called Holland law is the rules of external human action
enforced by the sovereign political authority. Similarly, Austin defines law as a command of
the sovereign that is backed by sanction.
Panton on the other hand opines that law consists of a body of rules which are seen to operate
as binding rules in the community and by means of which sufficient compliance with the
rules may be secured to enable the set of rules to be seen as binding.
Hart has defined law in terms of primary and secondary rules which govern the state and the
conduct of people.
1.3.2 Natural Law Theory
Naturalism or natural law theory is a philosophy of law that focuses on the laws of nature.
This school of jurisprudence represents the belief that there are inherent laws that are
common to all societies, whether or not they are written down or officially enacted. This
school of thought tells us that law is rational and reasonable.
According to natural law legal theory, the authority of legal standards necessarily derives, at
least in part, from considerations having to do with the moral merit of those standards. The
3
Downloaded by Ashya Agarwal ()
Legal Systems and Methods Consolidated Notes-1-1
LEGAL SYSTEM AND LEGAL METHODS (University of Nairobi)
Scan to open on Studocu
Studocu is not sponsored or endorsed by any college or university
Downloaded by Ashya Agarwal ()
, lOMoARcPSD|46946146
LEGAL SYSTEMS & METHODS
Session 1
INTRODUCTION TO LEGAL SYSTEMS AND LEGAL
METHODS
What is the Essence of Legal Systems & Legal Methods?
The legal system of any country can be described as the set of rules of substance and
procedure as well as the institutions relating to the governance of social behaviour and
resolution of disputes which arise in the process. It also necessarily includes the underlined
social values and attitudes which affect the operations of such values.
Legal methods on the other hand refer to the manner in which those who make, activate or
operate the law use the legal system to arrive at specific legal consequences. This necessarily
involves rules of interpretation and other legal tools used to arrive at the desired legal
consequences.
Legal systems therefore deal with “what” and “why” of law while legal methods deal with
“how” of law.
The Essence of the Legal System in the Society
Man is a social being. He is part and parcel of society which has its own structure and
organisation. Society is primarily based on order which order is achieved and maintained
through social rules. Man’s behaviour is closely controlled, either directly or indirectly
through moral standards, religious doctrines, social edicts and customs as well as legal rules.
In today’s complex society, legal rules are especially significant and it is difficult to find any
area of society which is completely free from legal control. There is therefore undeniable
and manifest relationship between law and society and the individual members of society.
1
Downloaded by Ashya Agarwal ()
, lOMoARcPSD|46946146
To a law student society is a conglomeration of people, institutions and other social
phenomena in the midst of which law occupies a central place holding these social
arrangements together in an orderly fashion.
Law is however only one part of the overall social structure as there are other social elements
and forces. In addition to law, there are various and diverse social phenomena all of which
form part of the entire social structure for example political institutions, economic and
commercial institutions, religious institutions etcetera. These other institutions or social
phenomena are however not completely free from legal control or influence.
Law plays an important role in the definition of all kinds of social relationships between
individuals and also between groups.
In the early days law as we know today did not exist. The early man was self-sufficient in
his wants. However as time went by need arose for specialisation in production of human
necessaries and this in turn gave rise to social relationships such as trade and others for
example emergency families and other units in the society. As a consequence there arose
conflicts of interest and these necessitated the development of a system of social control for
purposes of preserving the society itself.
As the social groups became more sophisticated and complex, there occurred increase in
occupational specialisation and division of labour and as a consequence legal rules became
even more sophisticated and complex. This is because just as society is dynamic so is the
law. The law must always change in tandem with societal change if it is to stay relevant.
What is Law?
Although scholars do differ in their analysis of law, there is general consensus that a legal
order must provide for authorisation and recognition of legitimate authority, provide means
of resolving disputes and also mechanisms for facilitating interpersonal relationships
including adaptation to change.
There is no definition of law which has achieved universal acceptability but different
approaches have been developed and adopted in an attempt to explain the meaning and
2
Downloaded by Ashya Agarwal ()
, lOMoARcPSD|46946146
functions of law. What such attempts mostly achieve is to define the characteristics of the
law and also indicate the legal orientation of the person defining it.
Generally the orientations are either defined as positivism and naturalism.
1.3.1 Legal Positivism
Legal positivism is a philosophy of law that emphasizes the conventional nature of law - that
it is socially constructed. According to legal positivism, law is synonymous with positive
norms, that is, norms made by the legislator or considered as common law or case law.
According to Austin, positive law is a series of both explicit and implicit commands from a
higher authority. The law reflects the sovereign's wishes and is based on the sovereign's
power. Backed by sanctions and punishment,
According to one Salmond, law is a body of principles recognized and applied by the state
in the administration of justice.
According to another scholar called Holland law is the rules of external human action
enforced by the sovereign political authority. Similarly, Austin defines law as a command of
the sovereign that is backed by sanction.
Panton on the other hand opines that law consists of a body of rules which are seen to operate
as binding rules in the community and by means of which sufficient compliance with the
rules may be secured to enable the set of rules to be seen as binding.
Hart has defined law in terms of primary and secondary rules which govern the state and the
conduct of people.
1.3.2 Natural Law Theory
Naturalism or natural law theory is a philosophy of law that focuses on the laws of nature.
This school of jurisprudence represents the belief that there are inherent laws that are
common to all societies, whether or not they are written down or officially enacted. This
school of thought tells us that law is rational and reasonable.
According to natural law legal theory, the authority of legal standards necessarily derives, at
least in part, from considerations having to do with the moral merit of those standards. The
3
Downloaded by Ashya Agarwal ()
