LL.B.

I/School of Law, UoN

UNIVERSITY OF NAIROBI

FACULTY OF LAW

KISUMU CAMPUS

BACHELOR OF LAWS

GPR 116 - LEGAL SYSTEMS AND METHODS

COURSE DESCRIPTION AND OUTLINE, SEPTEMBER 2022

NOTE: ADOPTED FOR USE FOR PARKLANDS CAMPUS

I. DESCRIPTION

(From the LLB Curriculum)

Contact Hours: 45
Pre-requisite: None

Purpose of the course:

To explain the idea of a legal system and expose students to legal systems; explain the different
types of legal systems; expose students to the methods of law; enable students to interpret and
use legal language; the Development of the Law, where to find the Law i.e. its source, and how
to find the Law – Legal research.

Expected Learning Outcomes:

At the end of the course, the student/learner should be able to:
1. Discuss the nature of legal systems and legal methods.
2. Explain how the legal system operates.
3. Explain the different types of legal systems.
4. Describe how the law develops, where to find and how to find the law.
5. Interpret and use legal language

Content:
Nature and types of legal systems; common law, civil law, Islamic law, customary law, and
hybrid legal systems; procedure/substance distinction; legal pluralism; Kenya’s legal system;
sources and types of law; nature and use of precedent (stare decisis); nature of legal reasoning;
interpreting statutes and using legal language; the use of principles and standards in law

Mode of Delivery:
Lectures; Tutorials; Case Method; Seminar discussions; Individual Student and Group
Presentations; Problem based learning

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Instructional Materials and/or Equipment:

Computers; Internet; Laws; Law Reports; Discussion Aids; Chalk/white boards and necessary
accompaniments; Library; DVDs; DVDS; CD-ROM; Business Source Premier; E-Journals: Lexis-
Nexis; HeinOnline; JSTOR

Course Assessment:
Type Weighting (%)
Examination 70
Continuous Assessment 30
Total 100

Core Reading Materials:

1. C. Elliott & F. Quinn, English Legal System (Pearson Education Ltd, 18th Edition,
2017/2018).
2. J. Holland & J. Webb, Learning Legal Rules (Oxford University Press, 9th Edition,
2016).
3. John Henry Merryman, The Civil Law Tradition: An Introduction to the Legal Systems of
Europe and Latin America (Stanford University Press, 3rd Edition, 2007).
4. Elizabeth Mertz, The Language of Law School: Learning to Think Like a Lawyer (Oxford
University Press, 2007).

Recommended Reference Material

1. M. Fox & C. Bell, Learning Legal Rules, (Oxford University Press, 6th Edition, 2006).
2. Brent Winters, Excellence of the Common Law Compared and Contrasted with Civil Law:
In Light of History, Nature, and Scripture (Mountain Press, 2006).
3. H. Carr et al, Skills for Law Students (Oxford University Press, 2009).
4. E. Finch & S. Fafinski, Legal Skills (Oxford University Press, 4thEdition, 2013).
5. Luis Franceschi and P L O Lumumba, An Introductory Commentary: The Constitution of
Kenya (Strathmore University Press, 2014.
6. Carl F Stychin and Linda Mulcahy, Legal Methods and Systems (Sweet & Maxwell,
4th Edition, 2010).
7. John Ambani and M KivindaMbondenyi, The New Constitutional Law of Kenya:
Principles, Government and Human Rights (LawAfrica Publishing, [2013]).

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II. OUTLINE

1. SOCIAL ORIGINS OF THE STATE, LAW AND LEGAL SYSTEMS

1.1 State and law as social constructs

1.2 The concept of socio-economic formation (SEF)

o ‘SEF’ or ‘social formation’
▪ Concept
▪ Primary (aka ‘basic’ or ‘infrastructural’) relationships
▪ Secondary (aka ‘superstructural’) relationships
o Historical development
▪ Evolutionary and revolutionary social transformation
▪ ‘State of nature’ and primitive communal social formation: the predominance of
mores and customs for social regulation
▪ Slave labour and slave-owning social formation: the emergence of nascent forms
of state and law as social institutions
▪ Feudal social formation and the emergence of the artisans and merchants: the
landlords’ state and law
▪ Capitalist social formation: Mercantile capitalism, industrial capitalism, and the
development of the capitalist state and legal systems
▪ Imperialist phase of capitalism: the internationalisation of capitalism and capitalist
state and law
▪ Liberal capitalism and the development of liberal state and law
▪ Erosion of capitalism and rise of a higher, post-capitalist, social formation?
▪ Withering away of the state and law?

1.3 Liberal capitalism: The modern ‘controlled’ state, and ‘pervasive’ law and legal
systems
o Predominance of law as a mechanism for social control
o State as the predominant determinant of laws
o Control of the state: democracy, rule of law, human rights and access to justice

2. NATURE AND TYPES OF LEGAL SYSTEMS

2.1 What is ‘law’?

o Variety of definitions based on approach
o Definitions and their bases: Authority (State); judicial practice; coercion (‘force’) to
enforce compliance, or as consequential punishment; justice; social integration or
binding obligations; custom
o Significance of ‘the state’ in ‘determination’ of ‘law’

2.2 What is a ‘legal system’?

o Definition
o Laws, institutions and processes

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2.3 Legal ‘monism’, ‘dualism’/‘hybrids’ and ‘pluralism’

2.4 ‘Common’ legal systems

o Broad/loose categorization
o Roman/Civil/Continental European law, Common law, Hybrid, Islamic law and
Customary law
o Socio-economic systems: ‘Liberal-democratic’ and ‘Socialist-democratic’
o Constitutional systems: ‘Sovereignty of Parliament’ and ‘Supremacy of the
Constitution’
o State systems: ‘Unitary’, ‘Federal’ and ‘Devolved’; ‘Religious’ and ‘Secular’
o Adjudication systems: ‘Inquisitorial’ and ‘Adversarial’
o International Law: ‘Public’ and ‘Private’

3. KENYA’S LEGAL SYSTEM

3.1 The ‘legal system’ in Kenya

o Predominance of law in social regulation
o Predominance of state-made or state-sanctioned law
o Place of Customary Law and Islamic Law, and social mores and
customs/practices

3.2 Sources of law

o Informal: natural environment and socio-economic formation
o Formal: Constitution; Judicature Act; Kadhi’s Courts Act; Judiciary?
▪ Constitution as a special ‘statute’: adoption and supremacy
▪ Statutes (aka legislation or Acts of Parliament)
▪ Common Law, Doctrines of Equity and Statutes of General Application
▪ Customary Law
▪ Islamic Law
▪ Judicial precedent?
▪ International law: General, Conventions and Treaties

3.3 Types of law

o Fluidity of classification
o Municipal and International: Public and Private
o National and County
o Statutory and Non-statutory
o Written and Unwritten
o ‘Substantive’ and ‘Procedural’ (aka ‘Adjectival’)
o ‘Principal’ and ‘Subsidiary’
o Divisions/branches of law: civil and criminal; international

3.4 Institutional framework: making and recognition of laws, execution, and adjudication
o Structure of the state
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▪ Separation of powers
▪ Checks and balances
o Parliament and law-generation
▪ ‘Draft Bills’, ‘Bills’ and ‘Acts’
▪ Law-making process
o County Assemblies and law-making
▪ Legislative Authority
▪ Law-making
o Judiciary and ‘declaration’ of applicable common law, doctrines of equity and
customary law
o Executive law-making and law enforcement
▪ Subsidiary legislation: definition and governing rules
▪ Enforcement: general, and execution of judgements
o Judiciary and adjudication/dispute resolution
▪ Jurisdiction: original; appellate; special
▪ Overview of the judicial and quasi-judicial institutions
• Supreme Court
• Court of Appeal
• High Court
• Special Courts
o Employment and Labour Relations Court
o Environmental and Land Court
o Kadhis’ Court
o Courts Martial
o Children’s Court
• Magistrates Courts
o Resident
o District
• Tribunals
▪ Alternative dispute resolution: independent and court-annexed
▪ Traditional justice systems: independent, recognized or incorporated
o Legal profession

3.5 Nature and use of precedent

o ‘Precedent’
▪ Meaning
▪ Binding/mandatory and persuasive authority
o Stare decisis
o Ratio decidendi
o Obiter dictum
▪ Material and non-material facts
▪ Statement of non-material principles
▪ Application by future judges
o Avoiding precedent: arguments against applying a precedent
▪ Distinguishing the facts
▪ Reversal on appeal
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▪ Decision has been overruled

▪ Overruling by the current court
▪ Proposition was an obiter dictum
▪ Articulating a different ratio from that which is assumed
▪ Competing precedents with conflicting ratios
▪ Ratio not in line with significant public policy
▪ Decision is per incuriam (‘contradictory’) existing statute

4. LEGAL REASONING AND STATUTORY INTERPRETATION

4.1 Language of the law

o ‘Technical’/‘professional’ language
o ‘Incorporated’ language

4.2 Legal reasoning

o Doctrinal (rule-based)
o Policy-based
o Abductive (inferential)
o Custom (culture)-based
o Narrative (story-based)
o Principle (value)-based
o Comparative (analogical)

4.3 Statutory interpretation

o ‘Interpretation’
o Rules and aids
▪ Literal Rule or ‘Literalism’
▪ Golden Rule
▪ Mischief Rule (specific) and Purposive Rule (broad)
▪ Legislative intention
▪ Language-based rules as aids
• Ejusdem generis
• Expressio unis est exclusion alterius
• Noscitur a sociis
▪ Internal or intrinsic aids
▪ External or extrinsic aids
▪ Interpretational presumptions as aids (illustrative examples)

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