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APP 200: Principles of Public Law Notes

Institution: Kenyatta University

Course: Principles of Public Law

Content Category: Lecture Notes

Posted By: davidkariuki1010

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Number of Pages: 66

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Summary

A. The legal definition of Law
In its strict sense, law can be understood to be “that portion of the established thought and habit which has gained distinct and formal recognition in the shape of uniform laws, by authority and power of Government” (Woodrow Wilson). Again, “Law is a general rule of external human action enforced by a sovereign political authority” (Holland). “Law is the body of principles recognized and applied by the state in the administration of justice” (Salmond). It is “A system of rules that enables society to function efficiently and harmoniously” (Latimer). “Law consists of a body of rules which are binding in the community within which they operate and sufficient compliance thereof is secured so as to make the rules binding” (Panton). It entails the notions of justice, principles and Rule of Law. Any system of regulations to govern the conduct of the people of a community, society or nation, in response to the need for regularity, consistency and based upon collective human experience can be said to be law. Twining and Miers in their book (How to do things with Rules -1991), define law in terms of rules; “A rule is a general norm guiding conduct or action in a given type of situation”. A rule prescribes what activity may, should or should not be carried out, or refers to activities which should be carried out in a specified way. They may forbid certain activities- murder, rape and theft are prohibited under certain areas of the criminal law. Rules may also impose conditions e.g incase of traffic rules and TV rights, rules; and rules can as well be meant to guide certain social processes like marriage, inheritance and contractual processes. Law is the embodiment of the moral sentiment of the people, William Blackstone English jurist and professor (1723-1780). We may conclude that law refers to a set of rules or principles that govern the conduct of affairs in a given community or society at a given time, whereby machinery is provided for an aggrieved party to enforce his rights in case of these rules or principles are broken.
The law is part of everyone’s life. A living part, a determining part and a controlling / giving part; It concerns people. It is alive according to J.R Lewis. There is no one generally or universally accepted definition of the word ‘Law.’ Different scholars define it in different ways.
B. Definition of Public law (its scope and nature)
It is that part of law which governs relationships between individuals and the government, and those relationships between individuals which are of direct concern to the society. Public law comprises constitutional law, administrative law, tax law and criminal law, as well as all procedural law. In public law, mandatory rules prevail. Laws concerning relationships between individuals belong to private law. The relationships public law governs are asymmetric and unequal – government bodies (central or local) can make decisions about the rights of individuals. However, as a consequence of the rule of law doctrine, authorities may only act within the law. The government must obey the law. For example, a citizen unhappy with a decision of an administrative authority can ask a court for judicial review.
Rights, too, can be divided into private rights and public rights. A paragon of a public right is the right to welfare benefits – only a natural person can claim such payments, and they are awarded through an administrative decision out of the government budget. The distinction between public law and private law dates back to Roman law. It has been picked up in the countries of civil law tradition at the beginning of the 19th century, but since then spread to common law countries, too. The borderline between public law and private law is not always clear in particular cases, giving rise to attempts of theoretical understanding of its basis.
C. Key Theories in Public Law As in any other branch of law the analysis of public law and the specification of the distinction between law and other rules have proved surprisingly difficult to articulate. Writers have over the years adapted various perspectives on legal analysis, sometimes concentrating on law as a system of rules of an official nature (e.g in the work of H.L.A. Hart), sometimes focusing upon individual legal rules, their origin and their operation as part of their overall system (e.g R. Conterrell- in his Sociology of Law), while others analyze law as if it were a “closed” system operating within its own logical framework and divorced in important ways from the wider social context. John Austin is an example of this school of thought. In recent Years, others have insisted that law and the legal system can only be analyzed by considering them in relation to the other processes and institutions within the society in which they operate. A.V Dicey, in his Introduction to the Study of Law of the Constitution (1959) looks at law through the prism of what he calls a unitary democracy. Dicey basis his view of administrative Law on a certain view of democracy- he terms it as “unitary”. He believes that parliament through its sovereignty of parliament and parliamentary monopoly (all government power is channeled through parliament for legislation
and oversight) hence parliament’s control of the executive as well as of all public power. His basic assumption is that parliament; an all powerful parliament accurately reflecting on the will of the people would control the executive but would not enact laws that are contrary to the wishes of the electorate. Still, other legal writers have provided accounts of law which take as their central issue the various functions which law is supposed to perform in a society. A utilitarian approach to law. American writer Karl Llewellyn (1940) expounded his “law jobs-theory”. To him, a general account of the functions of legal institutions in social groups does exist. Every social group has certain basic needs which are catered for by the social institution of law by having to ensure that the groups survives as such, with the law providing for the prevention of disruptive disputes within the group. The law provides a mechanism of resolving such disputes. The law has both substantive nuances as well as procedural rules for carrying out of the law’s job. Closely related to this thinker is R. Summers. In his book “The Technique Element in Law-1971”. He sees five law’s techniques: (i) the use of law to remedy grievances among members of a society. (ii) Use of law as a penal code instrument to prohibit and prosecute forbidden behavior (iii) Law as an instrument of promotion of certain defined activities. (iv) Law as instrument of managing government public benefits e.g education and welfare. (v) use of law so as to give effect to certain private arrangements.
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APP 200: Principles of Public Law Notes

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