TAITA TAVETA UNIVERSITY

ICS 2210: PROFESSIONAL ISSUES IN INFORMATION TECHNOLOGY

Session 1: HISTORICAL PERSPECTIVE

Session Topics
Topics to be covered in this session:
1. Common law
2. Equity Law
3. Criminal Law
4. Civil Law
5. International Law
6. Public and Private Law

THREE ARMS OF GOVERNMENT

There are three arms of government namely the legislature, the executive and the judiciary.
These three arms of government have evolved in order that the goals and business of
government may be achieved and carried out effectively. The legislature is the law making body
of the government.

The legislature in Kenya

The Parliament of Kenya is the bicameral legislature of Kenya. It is based at Parliament

Buildings in Nairobi and consists of two houses: Senate (upper house) The National Assembly
(lower house). (A Bicameral Parliament consisting of the National Assembly and the
Senate; creation of 47 County Assemblies in each of the 47 counties; and the requirement
for public participation in policy making and legislation.)

Common Law System

The Kenyan legal system is descended from the British Common Law system. One of the
fundamental doctrines of this Common Law is the doctrine of precedent, which is captured in

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the Latin maxim: stare decisis et non quieta movere, meaning: it is best to adhere to decisions
and not to disturb questions put at rest.

Common law is defined as a body of legal rules that have been made by judges as they issue
rulings on cases, as opposed to rules and laws made by the legislature or in official statutes. An
example of common law is a rule that a judge made that says that people have a duty to
read contracts.

There are two main types of legal system in the world, with most countries adopting features from
one or other into their own legal systems, Common Law and Civil law.

Countries following a common law system are typically those that were former British colonies or
protectorates, including the United States.

Features of a common law system include:

 There is not always a written constitution or codified laws;

 Judicial decisions are binding – decisions of the highest court can generally only be
overturned by that same court or through legislation;
 Extensive freedom of contract - few provisions are implied into the contract by law (although
provisions seeking to protect private consumers may be implied);
 Generally, everything is permitted that is not expressly prohibited by law.
A common law system is less prescriptive than a civil law system. A government may therefore wish
to enshrine protections of its citizens in specific legislation related to the infrastructure program being
contemplated. For example, it may wish to prohibit the service provider from cutting off the water or
electricity supply of bad payers or may require that documents related to the transaction be
disclosed under a freedom of information act. There may also be legal requirements to imply into a
contract in equal bargaining provisions where one party is in a much stronger bargaining position
than the other.

There are few provisions implied into a contract under the common law system – it is therefore
important to set out ALL the terms governing the relationship between the parties to a contract in the
contract itself. This will often result in a contract being longer than one in a civil law country.

Civil Law System

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Countries following a civil law system are typically those that were former French, Dutch, German,
Spanish or Portuguese colonies or protectorates, including much of Central and South America.
Most of the Central and Eastern European and East Asian countries also follow a civil law structure.

The civil law system is a codified system of law. It takes its origins from Roman law. Features of a
civil law system include:

 There is generally a written constitution based on specific codes (e.g., civil code, codes
covering corporate law, administrative law, tax law and constitutional law) enshrining basic
rights and duties; administrative law is however usually less codified and administrative court
judges tend to behave more like common law judges;
 Only legislative enactments are considered binding for all. There is little scope for judge-
made law in civil, criminal and commercial courts, although in practice judges tend to follow
previous judicial decisions; constitutional and administrative courts can nullify laws and
regulations and their decisions in such cases are binding for all.
 In some civil law systems, e.g., Germany, writings of legal scholars have significant influence
on the courts;
 Courts specific to the underlying codes – there are therefore usually separate constitutional
court, administrative court and civil court systems that opine on consistency of legislation and
administrative acts with and interpret that specific code;
 Less freedom of contract - many provisions are implied into a contract by law and parties
cannot contract out of certain provisions.
A civil law system is generally more prescriptive than a common law system. However, a
government will still need to consider whether specific legislation is required to either limit the scope
of a certain restriction to allow a successful infrastructure project, or may require specific legislation
for a sector. Please go to Legislation and Regulation and “Organizing Government to think PPP”
sections for more information on this.

There are a number of provisions implied into a contract under the civil law system – less importance
is generally placed on setting out ALL the terms governing the relationship between the parties to a
contract in the contract itself as inadequacies or ambiguities can be remedied or resolved by
operation of law. This will often result in a contract being shorter than one in a common law country.

It is also important to note in the area of infrastructure that certain forms of infrastructure projects are
referred to by well-defined legal concepts in civil law
jurisdictions. Concessions and Affermage have a definite technical meaning and structure to them
that may not be understood or applied in a common law country. Care should be taken, therefore, in
applying these terms loosely. This is further considered under Agreements.

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Summary of Differences between Civil law and Common law legal
systems

Feature Common Law Civil Law

Written constitution Not always Always

Judicial decisions
Writings of legal scholars
Freedom of contract
Court system applicable
to PPP(Public Private
Partnership) projects
Binding
Little influence
Extensive – only a few provisions implied
by law into contractual relationship
In most cases contractual relationship is
subject to private law and courts that
deal with these issues
Not binding on 3rd parties;
however, administrative and
constitutional court decisions on
laws and regulations binding on
all
Significant influence in some civil
law jurisdictions
More limited – a number of
provisions implied by law into
contractual relationship
Most PPP arrangements (e.g.
concessions) are seen as relating
to a public service and subject to
public administrative law
administered by administrative
courts

Equity Law
Equity is a particular body of law that was developed in the English Court of Chancery. It is not
a synonym for 'general fairness' or 'natural justice'. It exists in domestic law, both in civil law and
in common law systems, and in international law. The tradition of equity begins in antiquity with
the writings of Aristotle (epieikeia) and with Roman law (aequitas). Later, in civil law systems,
equity was integrated in the legal rules, while in common law systems it became an independent
body of law.

Equity in common law jurisdictions (general)

In jurisdictions following the English common law system, equity is the body of law which was
developed in the English Court of Chancery and which is now administered concurrently with

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the common law. In common law jurisdictions, the word "equity" "is not a synonym for 'general
fairness' or 'natural justice'", but refers to "a particular body of rules that originated in a special
system of courts."

For much of its history, the English common law was principally developed and administered in
the central royal courts: the Court of King's Bench, the Court of Common Pleas, and
the Exchequer. Equity was the name given to the law which was administered in the Court of
Chancery. The Judicature Reforms in the 1870s effected a procedural fusion of the two
bodies of law, ending their institutional separation. The reforms did not effect any substantive
fusion, however. Judicial or academic reasoning which assumes the contrary has been
described as a "fusion fallacy".

Jurisdictions which have inherited the common law system differ in their current treatment of
equity. Over the course of the twentieth century some common law systems began to place less
emphasis on the historical or institutional origin of substantive legal rules. In England and
Wales, Australia, New Zealand, and Canada, equity remains a distinct body of law. Modern
equity includes, among other things:

 The law relating to express, resulting, and constructive trusts;

 Fiduciary law;
 Equitable estoppel (including promissory and proprietary estoppel);
 Relief against penalties and relief against forfeiture;
 The doctrines of contribution, subrogation and marshalling; and
 Equitable set-off.

The latter part of the twentieth century saw increased debate over the utility of treating equity as
a separate body of law. These debates were labeled the "fusion wars". A particular flashpoint in
this debate centered on the concept of unjust enrichment and whether areas of law
traditionally regarded as equitable could be rationalized as part of a single body of law known as
the law of unjust enrichment.

Criminal Law

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Criminal law, the body of law that defines criminal offenses, regulates the apprehension,
charging, and trial of suspected persons, and fixes penalties and modes of treatment applicable
to convicted offenders.

Criminal law is the body of law that relates to crime. It prescribes conduct perceived as threatening,

harmful, or otherwise endangering to the property, health, safety, and moral welfare of people

inclusive of one's self. Most criminal law is established by statute, which is to say that the laws are

enacted by a legislature. Criminal law includes the punishment and rehabilitation of people who

violate such laws.

Criminal law varies according to jurisdiction, and differs from civil law, where emphasis is more on

dispute resolution and victim compensation, rather than on punishment or rehabilitation.

Criminal procedure is a formalized official activity that authenticates the fact of commission of a

crime and authorizes punitive or rehabilitative treatment of the offender.

Objectives of Criminal Law

Criminal law is distinctive for the uniquely serious, potential consequences or sanctions for
failure to abide by its rules. Every crime is composed of criminal elements. Capital
punishment may be imposed in some jurisdictions for the most serious crimes. Physical
or corporal punishment may be imposed such as whipping or caning, although these
punishments are prohibited in much of the world. Individuals may
be incarcerated in prison or jail in a variety of conditions depending on the jurisdiction.
Confinement may be solitary. Length of incarceration may vary from a day to life. Government
supervision may be imposed, including house arrest, and convicts may be required to conform
to particularized guidelines as part of a parole or probation regimen. Fines also may be
imposed, seizing money or property from a person convicted of a crime.

Five objectives are widely accepted for enforcement of the criminal law
by punishments: retribution, deterrence, incapacitation, rehabilitation and restoration.
Jurisdictions differ on the value to be placed on each.

 Retribution – Criminals ought to Be Punished in some way. This is the most widely seen
goal. Criminals have taken improper advantage, or inflicted unfair detriment, upon others
and consequently, the criminal law will put criminals at some unpleasant disadvantage to

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 "balance the scales." People submit to the law to receive the right not to be murdered and if
people contravene these laws, they surrender the rights granted to them by the law. Thus,
one who murders may be executed himself. A related theory includes the idea of "righting
the balance."
 Deterrence – Individual deterrence is aimed toward the specific offender. The aim is to
impose a sufficient penalty to discourage the offender from criminal
behavior. General deterrence aims at society at large. By imposing a penalty on those who
commit offenses, other individuals are discouraged from committing those offenses.
 Incapacitation – Designed simply to keep criminals away from society so that the public is
protected from their misconduct. This is often achieved through prison sentences today.
The death penalty or banishment have served the same purpose.
 Rehabilitation – Aims at transforming an offender into a valuable member of society. Its
primary goal is to prevent further offense by convincing the offender that their conduct was
wrong.
 Restoration – This is a victim-oriented theory of punishment. The goal is to repair, through
state authority, any injury inflicted upon the victim by the offender. For example, one
who embezzles will be required to repay the amount improperly acquired. Restoration is
commonly combined with other main goals of criminal justice and is closely related to
concepts in the civil law, i.e., returning the victim to his or her original position before the
injury.

Selected Criminal Laws

Many laws are enforced by threat of criminal punishment, and the range of the punishment
varies with the jurisdiction. The scope of criminal law is too vast to catalog intelligently.
Nevertheless, the following are some of the more typical aspects of criminal law.

i. Actus reus
Actus reus is Latin for "guilty act" and is the physical element of committing a crime. It may be
accomplished by an action, by threat of action, or exceptionally, by an omission to act, which is
a legal duty to act. For example, the act of A striking B might suffice, or a parent's failure to give
food to a young child also may provide the actus reus for a crime.

Where the actus reus is a failure to act, there must be a duty of care. A duty can arise
through contract, a voluntary undertaking, a blood relation with whom one lives, and

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occasionally through one's official position. Duty also can arise from one's own creation of a
dangerous situation.

An actus reus may be nullified by an absence of causation. For example, a crime involves
harm to a person, the person's action must be the but for cause and proximate cause of the
harm. If more than one cause exists (e.g. harm comes at the hands of more than one culprit) the
act must have "more than a slight or trifling link" to the harm.

Causation is not broken simply because a victim is particularly vulnerable. This is known as
the thin skull rule. However, it may be broken by an intervening act (novus actus interveniens)
of a third party, the victim's own conduct, or another unpredictable event. A mistake
in medical treatment typically will not sever the chain, unless the mistakes are in themselves
"so potent in causing death."

ii. Mens rea

Mens rea is another Latin phrase, meaning "guilty mind". This is the mental element of the
crime. A guilty mind means an intention to commit some wrongful act. Intention under criminal
law is separate from a person's motive (although motive does not exist in Scots law).

A lower threshold of mens rea is satisfied when a defendant recognizes an act is dangerous but
decides to commit it anyway. This is recklessness. It is the mental state of mind of the person
at the time the actus reus was committed. For instance, if C tears a gas meter from a wall to get
the money inside, and knows this will let flammable gas escape into a neighbour's house, he
could be liable for poisoning. Courts often consider whether the actor did recognize the danger,
or alternatively ought to have recognized a risk. Of course, a requirement only that one ought to
have recognized a danger (though he did not) is tantamount to erasing intent as a requirement.
In this way, the importance of mens rea has been reduced in some areas of the criminal law but
is obviously still an important part in the criminal system.

Wrongfulness of intent also may vary the seriousness of an offense and possibly reduce the
punishment but this is not always the case. A killing committed with specific intent to kill or with
conscious recognition that death or serious bodily harm will result, would be murder, whereas
a killing effected by reckless acts lacking such a consciousness could be manslaughter. On the
other hand, it matters not who is actually harmed through a defendant's actions. The doctrine
of transferred malice means, for instance, that if a man intends to strike a person with his belt,
but the belt bounces off and hits another, mens rea is transferred from the intended target to the
person who actually was struck.[Note: The notion of transferred intent does not exist within

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Scots' Law. In Scotland, one would not be charged with assault due to transferred intent, but
instead assault due to recklessness.

iii. Strict liability

Strict liability can be described as criminal or civil liability notwithstanding the lack of mens rea or
intent by the defendant. Not all crimes require specific intent, and the threshold of culpability required
may be reduced or demoted. For example, it might be sufficient to show that a defendant
acted negligently, rather than intentionally or recklessly. In offenses of absolute liability, other than
the prohibited act, it may not be necessary to show the act was intentional. Generally, crimes must
include an intentional act, and "intent" is an element that must be proved in order to find a crime
occurred. The idea of a "strict liability crime" is an oxymoron. The few exceptions are not truly crimes
at all – but are administrative regulations and civil penalties created by statute, such as crimes
against the traffic or highway code.

iv. Fatal offenses

A murder, defined broadly, is an unlawful killing. Unlawful killing is probably the act most frequently
targeted by the criminal law. In many jurisdictions, the crime of murder is divided into various
gradations of severity, e.g., murder in the first degree, based on intent. Malice is a required
element of murder. Manslaughter (Culpable Homicide in Scotland) is a lesser variety of killing
committed in the absence of malice, brought about by reasonable provocation, or diminished
capacity. Involuntary manslaughter, where it is recognized, is a killing that lacks all but the most
attenuated guilty intent, recklessness.

Settled insanity is a possible defense.

v. Personal offenses
Many criminal codes protect the physical integrity of the body. The crime of battery is traditionally
understood as an unlawful touching, although this does not include everyday knocks and jolts to
which people silently consent as the result of presence in a crowd. Creating a fear of imminent
battery is an assault, and also may give rise to criminal liability. Non-consensual intercourse, or rape,
is a particularly egregious form of battery.

vi. Property offenses

Property often is protected by the criminal law. Trespassing is unlawful entry onto the real property
of another. Many criminal codes provide penalties for conversion, embezzlement, theft, all of
which involve deprivations of the value of the property. Robbery is a theft by force. Fraud in the UK
is a breach of the Fraud Act 2006 by false representation, by failure to disclose information or by
abuse of position.

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vii. Participatory offenses
Some criminal codes criminalize association with a criminal venture or involvement in criminality that
does not actually come to fruition. Some examples are aiding, abetting, conspiracy, and attempt.
However, in Scotland, the English concept of Aiding and Abetting is known as Art and Part
Liability. See Glanville Williams, Textbook of Criminal Law, (London: Stevens & Sons, 1983);
Glanville Williams, Criminal Law the General Part (London: Stevens & Sons, 1961).

viii. Mala in se v. mala prohibita

While crimes are typically broken into degrees or classes to punish appropriately, all offenses
can be divided into 'mala in se' and 'mala prohibita' laws. Both are Latin legal terms, mala in
se meaning crimes that are thought to be inherently evil or morally wrong, and thus will be
widely regarded as crimes regardless of jurisdiction. Mala in se offenses are felonies, property
crimes, immoral acts and corrupt acts by public officials. Mala prohibita, on the other hand,
refers to offenses that do not have wrongfulness associated with them. Parking in a restricted
area, driving the wrong way down a one-way street, jaywalking or unlicensed fishing are
examples of acts that are prohibited by statute, but without which are not considered wrong.
Mala prohibita statutes are usually imposed strictly, as there does not need to be mens rea
component for punishment under those offenses, just the act itself. For this reason, it can be
argued that offenses that are mala prohibita are not really crimes at all.

Criminal law

Elements

1) Actus reus
2) Mens rea
3) Causation
4) Concurrence

Scope of criminal liability

a. Accessory
b. Accomplice
c. Complicity
d. Corporate
e. Principal
f. Vicarious

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 Severity of offense

 Felony
 Infraction (also called violation)
 Misdemeanor

Inchoate offenses

 Attempt
 Conspiracy
 Incitement
 Solicitation

Crimes against the person

 Assassination
 Assault
 Battery
 Child abuse
 Criminal negligence
 Defamation
 Domestic violence
 False imprisonment
 Harassment
 Home invasion
 Homicide
 Intimidation
 Kidnapping
 Castration
 Manslaughter (corporate)
 Mayhem
 Murder
 corporate
 Negligent homicide
 Invasion of privacy
 Robbery
 Stalking
 Torture

 Sexual offenses

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  Adultery
 Bigamy
 Cybersex trafficking
 Fornication
 Legality of incest
 Indecent exposure
 Masturbation
 Obscenity
 Pedophilia
 Prostitution
 Rape
 Sex trafficking
 Sexual assault
 Sexual slavery
 Sodomy

Crimes against property

 Arson
 Blackmail
 Bribery
 Burglary
 Embezzlement
 Extortion
 False pretenses
 Forgery
 Fraud
 Gambling
 Intellectual property violation
 Larceny
 Payola
 Pickpocketing
 Possessing stolen property
 Robbery
 Smuggling
 Tax evasion
 Theft
 Vandalism

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 Crimes against justice

 Compounding
 Malfeasance in office
 Miscarriage of justice
 Misprision
 Obstruction
 Perjury
 Perverting the course of justice

Crimes against the public

 Apostasy
 Begging
 Censorship violation
 Dueling
 Miscegenation
 Illegal consumption (such as prohibition of drugs, alcohol,
and smoking)
 Suicide
 Terrorism

Crimes against animals

 Cruelty to animals
 Wildlife smuggling
 Bestiality

Crimes against the state

 Lèse-majesté
 Treason

Defences to liability

 Automatism
 Consent
 Defence of property
 Diminished responsibility
 Duress
 Entrapment
 Ignorantia juris non excusat

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  Infancy
 Insanity
 Justification
 Mistake (of law)
 Necessity
 Provocation
 Self-defence

Other common-law areas

 Contracts
 Evidence
 Property
 Torts
 Wills, trusts and estates

Portals

 Law

International Law

International law, also known as public international law and law of nations, is the set of rules,
norms, and standards generally recognized as binding between nations. International law
aims to promote the practice of stable, consistent, and organized international relations.

The sources of international law include international custom (general state practice accepted
as law), treaties, and general principles of law recognized by most national legal systems.
International law may also be reflected in international comity, the practices and customs
adopted by states to maintain good relations and mutual recognition, such as saluting the flag of
a foreign ship or enforcing a foreign legal judgment.

International law differs from state-based legal systems in that it is primarily—though not
exclusively—applicable to countries, rather than to individuals, and operates largely through
consent, since there is no universally accepted authority to enforce it upon sovereign states.
Consequently, states may choose to not abide by international law, and even to break a
treaty. However, such violations, particularly of customary international law and peremptory
norms (jus cogens), can be met with coercive action, ranging from military intervention to
diplomatic and economic pressure.

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The relationship and interaction between a national legal system (municipal law) and
international law is complex and variable. National law may become international law when
treaties permit national jurisdiction to supranational tribunals such as the European Court of
Human Rights or the International Criminal Court. Treaties such as the Geneva
Conventions may require national law to conform to treaty provisions. National laws or
constitutions may also provide for the implementation or integration of international legal
obligations into domestic law.

Sources of International Law

Sources of international law have been influenced by a range of political and legal theories.
During the 20th century, it was recognized by legal positivists that a sovereign state could limit
its authority to act by consenting to an agreement according to the contract principle pacta sunt
servanda. This consensual view of international law was reflected in the 1920 Statute of the
Permanent Court of International Justice, and remains preserved in Article 7 of the ICJ
Statute. The sources of international law applied by the community of nations are listed under
Article 38 of the Statute of the International Court of Justice, which is considered authoritative in
this regard:

1. International treaties and conventions;

2. International custom as derived from the "general practice" of states; and
3. General legal principles "recognized by civilized nations".

Additionally, judicial decisions and the teachings of prominent international law scholars may be
applied as "subsidiary means for the determination of rules of law".

Public Law
Public law is the part of law that governs relations between legal persons and
a government, between different institutions within a state, between different branches of
governments, as well as relationships between persons that are of direct concern to society. Public
law comprises constitutional law, administrative law, tax law and criminal law, as well as
all procedural law. Laws concerning relationships between individuals belong to private law.

The relationships public law governs are asymmetric and inequalized. Government bodies (central
or local) can make decisions about the rights of persons. However, as a consequence of the rule-of-
law doctrine, authorities may only act within the law (secundum et intra legem). The government

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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, where
the Roman jurist Ulpian (c. 170 – 228) first noted it. It was later adopted to understand the legal
systems both of countries that adhere to the civil-law tradition and of those that adhere to common-
law tradition.

The borderline between public law and private law is not always clear. Law as a whole cannot neatly
be divided into "law for the State" and "law for everyone else". As such, the distinction between
public and private law is largely functional rather than factual, classifying laws according to which
domain the activities, participants, and principle concerns involved best fit into. This has given rise to
attempts to establish a theoretical understanding for the basis of public law.

Areas of Public Law

1. Constitutional law
In modern states, constitutional law lays out the foundations of the state. Above all, it postulates
the supremacy of law in the functioning of the state – the rule of law.

Secondly, it sets out the form of government – how its different branches work, how they are
elected or appointed, and the division of powers and responsibilities between them.
Traditionally, the basic elements of government are the executive, the legislature and the
judiciary.

And thirdly, in describing what are the basic human rights, which must be protected for every
person, and what further civil and political rights citizens have, it sets the fundamental borders to
what any government must and must not do.

In most jurisdictions, constitutional law is enshrined in a written document, the Constitution,

sometimes together with amendments or other constitutional laws. In some countries, however,
such a supreme entrenched written document does not exist for historical and political reasons –
the Constitution of the United Kingdom is an unwritten one.

2. Administrative law

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Administrative law refers to the body of law that regulates bureaucratic managerial procedures
and defines the powers of administrative agencies. These laws are enforced by the executive
branch of a government rather than the judicial or legislative branches (if they are different in
that particular jurisdiction). This body of law regulates international trade, manufacturing,
pollution, taxation, and the like. This is sometimes seen as a subcategory of civil law and
sometimes seen as public law as it deals with regulation and public institutions.

3. Criminal law
Criminal law is the body of law that relates to crime. It prescribes conduct perceived as
threatening, harmful, or otherwise endangering to the property, health, safety, and moral
welfare of people inclusive of one's self. Most criminal law is established by statute, which is to
say that the laws are enacted by a legislature. Criminal law includes
the punishment and rehabilitation of people who violate such laws.

Criminal law varies according to jurisdiction, and differs from civil law, where emphasis is more
on dispute resolution and victim compensation, rather than on punishment or rehabilitation.

Criminal procedure is a formalized official activity that authenticates the fact of commission of a
crime and authorizes punitive or rehabilitative treatment of the offender.

4. Tax law
Tax law first became an area of public law during the 17th century, as a consequence of new
theories of sovereignty that began to emerge. Until this point, taxes were considered gifts under the
law, given to the State by a private donor – the taxpayer. It is now considered an area of public law,
as it concerns a relationship between persons and the State.

Private Law
Private law is that part of a civil law legal system which is part of the jus commune that
involves relationships between individuals, such as the law of contracts and torts (as it is called
in the common law), and the law of obligations (as it is called in civil legal systems).

Examples of Private Law

Private law includes civil law (such as contract law, law of torts and property law), labor law,
commercial law, corporations’ law and competition law. Public law includes constitutional law,
administrative law and criminal law.

These laws are designed to regulate specific types of information. Some examples include:

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  Health privacy laws
 Financial privacy laws
 Online privacy laws
 Communication privacy laws
 Information privacy laws
 Privacy in one's home

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