LEGAL METHODS – 1ST TRIMESTER NOTES – LECTURER FREDA KABATSI Faculty Vision:
To train the students in the Faculty of Law to become conscientious and ethical lawyers who have an excellent grounding in legal principles and who will provide leadership in Kenya, East Africa and beyond. OVERVIEW OF LEGAL METHODS
* Legal Methods is the study of how law operates in the society and how lawyers, judges and legislative think and do things according to the law. * It is commonly referred to a set of techniques used to analyze and apply the law and to determine the appropriate weight that should be accorded to different sources of law. SOURCES OF CLASSIFICATION OF LAW
Means the origin from which human conduct comes into existence and derives legal forms. TERMS TO DEFINE AS SOURCES OF LAW
1. Common Law
3. Customary Law
5. Criminal Law
6. Civil Law
7. International Law
1) COMMON LAW (also known as LAW OF PRECEDENTS)
* Common Law if a legal system that is largely formed by the decisions previously made by the court and similar tribunals. * It is also known as Case Law or Law of Precedents.
* It is developed by Judges through decisions of courts.
* It binds future decisions.
* It is based on the principle that it is unfair to treat similar facts differently on different occasions. * This principle is known as staredecisis which literally mean “Let the decision stand”. HISTORY OF COMMON LAW
* It is rooted in centuries of English history.
* It began to develop after the Norman Conquest of England in 1066. * Matters which had previously been handled by tribunal courts began to be handled by the Kings Court. * The King’s Court evolved into a branch of professional justices who were royals with training in Canon of Roman Law. * They appeared periodically in all the countries around England. It was this moving that began the process whereby the custom of the King’s Court eventually became the law of England i.e. The Law Common to All. * The King’s Courts were the only courts in England. In order to bring matters before this court, a special request was made to a Royal official called Chancellor asking him to deliver a writ to the court. * If a particular type of action was brought before the Chancellor often enough, the writ would acquire a common form. * The prescribed form of writ for each type of action required strict adherence as did the oral pleadings which were required to follow the form of the writ. * Because of their dissatisfaction with Common Law and its system of writs, the people began to appeal to the King. The petitions were delegated to the Chancellor who established the Court of Chancery also known as The Court of Equity. * The decisions were based on natural justice derived from mutual laws. Overtime the Equity Law of Doctrine applied became additions to legal rules applied by Common Law Courts. The dual system has continued up to present day. * The Common Law of Courts of Chancery are no longer separate courts, they were fused unto one court in the later of the 19th Century but their principles were not fused. * What happens in the Civil Court applies both Common Law and Equity.
* It was developed after Common Law as a system to resolve disputes where damages were not suitable remedy and to introduce fairness into the legal system. * It is based on judicial assessment of fairness as opposed to strict and rigid rules of Common Law. * It allows the court to use the discretion and apply justice in accordance with law. * An example of maxim equity “He who comes to Equity must come with clean hands”. STATUTE
* It is direct source of law.
* It consist in the declaration of legal ruler by a competent authority e.g. Parliament.
A custom is a rule which in a particular community has from long usage obtained the force of...