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MOI UNIVERSITY
COURSE OUTLINE
COURSE CODE : PSS 315
COURSE TITLE : LAW AND SOCIETY
LECTURER : DR. OINO PETER GUTWA
E-MAIL : oinogutwae@gmail.com
MOBILE : +254 722631856
COURSE PURPOSE
This course equips the students with knowledge and skills on various sources of law of Kenya, the
various court systems and court structure in Kenya, the processes of the court on appeals and
principles of insurance.
COURSE DESCRPTION
The course gives Definition and concept of law and society, the nature of law and legal systems,
Categorization of law; sources of Kenya law. The judiciary and its role in the administration of
justice, Organization and discipline of the bar; Role of the bar in national development, Criminal
liability and criminal trials; civil liability and civil trials, The appellate process, The individual as
a subject of international legal protection.. Constitutionalism and the rule of law, Insurance, and
commercial arbitration
COURSE CONTENT
The course covers the following areas concept of law and society, the nature of law and legal
systems, Categorization of law, sources of Kenya law. The judiciary and its role in the
administration of justice, Organization and discipline of the bar; Role of the bar in national
development, Criminal liability and criminal trials; civil liability and civil trials, The appellate
process, The individual as a subject of international legal protection.. Constitutionalism and the
rule of law, Insurance, and commercial arbitration
COURSE LEARNING OUTCOMES
By the end of the course the student is expected to
1. Develop an understanding on the meaning and definition of law
2. The various sources of law
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3. The court structure jurisdiction and composition
4. The court processes Organization and discipline of the bar; Role of the bar in national
development, Criminal liability and criminal trials; civil liability and civil trials,
1. Definition and concept of law and society.
Nature of law
The term law is used in many senses. There are physical science laws moral laws and laws of the
state.
Physical science laws are those laws or facts which have been proved to be correct and do not
change over a period of time. Such laws establish the relationship between cause and effect of
related facts e.g. law of gravity.
Moral laws are laws of human conduct as members of a society. These laws guide us on how we
should live in the society.
Laws of the state are those laws which are made and enforced by the state.
Man by nature is a social animal desiring companionship of his fellows. In primitive times he
tended to form groups, tribes or societies either for self -preservation or by reason of social instinct.
If the society or group was to continue some form of social order was necessary.
The rules or laws were therefore drawn up to ensure that members of the society live and work
together in peace and harmony. If these rules or laws were broken man was to be punished by the
state therefore the rules or laws were obeyed because of the fear of pain of punishment
Definition of law
Law
1. According to John Austin law may be defined as a rule of human conduct imposed upon
and enforced among the members of a given state.
2. According to Salmond law may be defined as a body of principles recognized and applied
by the state in the administration of justice.
3. According to Holland law may be defined as a general rule of external human action
enforced by a sovereign political authority.
3. Categorization/Classification of law;
Law may be classified in different ways. The main kinds are:
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1. Public and private law
2. Civil and criminal law
3. Procedural and substantive law
4. Written and unwritten law
5. Public and private international law
1. Public law
This is the law that governs the relationship between the state and the citizens. This is the law
which the state has an interest and it comprises of:
a) Constitutional law: These are the rules which govern and regulate the structure of the
principle organs of the government and their relationship to each other e.g. the executive,
legislature and judiciary.
b) Administrative law: This is a body of legal principles which concerns with the rights and
duties arising from the actual functioning of the executive instruments of the government.
c) Criminal law: This is a part of the law which characteristics certain wrong doings as
offences against the state.
Private law
This is the law that governs the relation of the citizens amongst themselves. It is primarily
concerned with the rights and duties of person towards other persons. It is also known as civil law.
2. Procedural and substantive law
Procedural laws: consist of rules which determine the manner in which the court proceedings are
required to be conducted in civil and criminal cases.
This law guides how a law is enforced under civil a crime is prosecuted under criminal laws e.g.
civil and criminal procedure codes.
Substantive law: Consists of actual rules regarding the civil criminal and other fields of law.
Mainly this law defines civil and criminal wrongs and provides remedies for each type of offence
or civil wrong e.g. the law of contracts the constitution or Kenya penal code.
3. Written and unwritten law
Written laws; are the laws that are found in a formal document otherwise referred to as a code. A
code is a systematic collection of laws arranged so as to avoid overlapping.
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Unwritten laws are the laws that are not found in any formal document or they are the laws that
have not been reduced into written form e.g. English common law and African customary law.
4. Public and private international law
This is a body of rules that generally regulates the relations between countries or states and other
international persons UN.
International law is the law that regulates the relation between countries and states which is based
on international agreements or treaties and customary practices of the states. Private international
law is the law that regulates the relation between citizens of different countries or nationalities
5. Civil and criminal law
Civil law
It is that law which governs the relation of individuals amongst themselves. It is also referred to
as private law.The proceedings in civil cases are instituted in the courts by the insured party called
the plaintiff against the wrong doer called defendant. If the plaintiff succeeds in such action the
defendant is asked to compensate him by way of damages.
Civil law includes the following branches/divisions/kinds:
Law of contract
This is an agreement enforceable of which the normal remedy for breach of it is damages.
Law of tort
Tort is a civil wrong which gives rise to a claim for unliquidated damages.
Law of trust
This occurs where a person called a settler transfers property such as money or land to another
called a trustee for the benefit of another person called a beneficiary.
Law of property
This deals with how one acquires the rights, thenature and extent of those rights which people may
enjoy over land and other property.
Law of succession
This determines how property passes from the dead person to his heirs.
Criminal law
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This is also referred to as public law. A crime is public wrong the commission of which may result
to prosecution and punishment of the wrong doers.The punishment is usually by way of
imprisonment or fine. This crimes committed by individuals known as accused are prosecuted by
the state known as the prosecution. This is because it is the duty of the state to protect its citizens
against the wrong committed against them.
DISTINCTION BETWEEN CIVIL AND CRIMINAL LAW
i. Crime is a public wrong the commission of which may result in the prosecution and
punishment of the wrong doer while a civil wrong is a violation of the private rights of an
individual
ii. The parties in criminal law are the prosecution and the accused. The prosecution represents
the state while the accused is the offender. In civil wrongs the parties are the plaintiff and the
defendant. The plaintiff is the innocent/insured party who is suing while the defendant is the wrong
doer who is being sued.
iii. Punishment is criminal law is usually by imprisonment corporal punishment or fine while
punishment in civil wrongs a defendant once found guilty is usually ordered to pay to the plaintiff
damages.
iv. In criminal law the prosecution must prove its case against the accused beyond any
reasonable doubt while in civil wrongs the plaintiff need only to prove his case on public
wrong .The action cannot be compromised by the parties but in civil cases the parties are free to
compromise and can withdraw cases against each other
v. The burden of prove in criminal court cases usually lies on the prosecution while in civil
case the burden of prove usually lies on the plaintiff
SOURCES OF LAW
Source- is that from which a rule of law derives its force and validity from. This is the will of the
state manifested in statutes or court cases. Section 3 of the judicature act cap and sets forth the
sources of law in Kenya in the following order;
1. The constitution
2. Legislation/ statute law
3. Delegated legislation
4. Substance of the common law and doctrine of equity.
5. Statutes of general application enforced in England on 12 August 1897
6. African customary law
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7. Islamic law
8. Judicial precedent/case law (stare decisis)
1. The constitution
Any modern state or institution must be expected to deal with various types of social economic
and political problems. To carry out these functions smoothly the state/institution must have a
comprehensive framework of the rules through which to operate.
These rules are known as the constitution
The constitution may be defined as a body of principles and rules written that enable people within
the state to live and work together, in order and harmony. It sets or determines their organization
of the state, the constitution provides that this shall be the constitution of the republic of Kenya
and shall have a full force of the law throughout Kenya and if there is any other law that is enacted
in Kenya or else where and is inconsistent with this constitution, this constitution shall prevail and
the other law shall to the extent of its inconsistency be avoided.
Supremacy of the constitution
Supreme means greatest of highest. The constitution is supreme because it is a public document;
it regulates the relation between the state and the citizens. It establishes the relation between the
executive, judiciary and legislature.
The fundamental rights and freedoms of individuals are also guaranteed by the constitution. Any
law which is enacted in Kenya or elsewhere and is inconsistent with this constitution is regarded
void therefore all the laws derived their force and validity from this constitution.
2. Legislation/statute law
This is law made by parliament directly in exercise of the legislative power conferred upon it by
the Constitution. The product of parliament’s legislative process is an Act of Parliament. Statute
law /legislation must be consistent with the Constitution. Under the Constitution, the legislative
power of the republic is vested in the parliament of Kenya which consists of;
a) Elected members
b) Nominated members
c) Ex-officio members
Under the Constitution, the legislative power of parliament is exercisable by passing Bills in the
National Assembly. A bill is draft law and may be classified as:may 2010 q 1b cpa
a) Government Bill
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This is a Bill mooted by the government which it introduces to the National Assembly for debate
and possible enactment to law. All government bills are drafted by the office of the Attorney
General. Most bills are government bills.
b) Private Members Bill
This is a Bill mooted by a member of parliament in his capacity as such which he introduces to the
National Assembly for debate and passage to law e.g. The Hire Purchase Bill, 1968.
c) Public Bill
This is a bill that seeks to introduce or amend law applicable throughout Kenya. It may be
government or private members
d) Private Bill
This is a Bill that seeks to introduce or amend law applicable in some parts of Kenya or it regulates
a specific group of persons. The bill may be government or private members.
LAW MAKING PROCEDURE-
The procedure of law-making in Kenya is contained in the Constitution and the National Assembly
Standing Orders. A bill passes through various stages before enactment to law.
1. Publication of Bill in the Kenya Gazette
All bills must be published in the Kenya Gazette to inform the public and M.P’s of the intended
law. As a general rule, a Bill must be published at least 14 days before introduction to the National
Assembly.
2. 1st Reading
The Bill is read out to members for the 1st time. No debate takes place. This reading is a mere
formality.
3. 2
nd
Reading
The Bill is read out to members for the 2nd time. This is the debating stage. All members are given
the opportunity to make contributions. Amendments or alterations may be proposed. After
exhaustive debate, the Bill proceeds to the next stage.
4. Committee/Committal Stage
The bill is committed either to a select committee of members or to the entire National Assembly
as a committee for a critical analysis. At this stage, the bill is analyzed word for word. In the case
of a select committee, it makes a report for submission in the National Assembly
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5. Reporting Stage
The chairman of the Select Committee tenders its report before the National Assembly. If the
report is adopted, the bill proceeds to the third reading
6.3
rd
Reading
The bill is read out to members for the third time. Generally no debate takes place but the Bill is
voted on by members of the National Assembly and if supported by the required majority, it
proceeds for presidential assent
7. President’s Assent
Under the Constitution, all Bills passed by the National Assembly must be presented to the
president for his assent. The president must within 21 days of presentation of the bill signify to the
speaker of the National Assembly his assent or refusal. If the president refused to give his assent,
he must within 14 days thereof deliver to the speaker, a memorandum on the specific provisions
which in his opinion should be reconsidered including his recommendations for amendment. The
National Assembly must reconsider the bill taking into account the president’s recommendations
and must either:
1. Approve the recommendations with or without any amendments OR
2. Ignore the president’s recommendations and repass the Bill in its original state-, the
president must signify his assent within 14 days of the resolution.
4) Publication of Law in the Kenya Gazette
Under the Constitution, a law passed by the National Assembly must be published in the Kenya
Gazette before coming into operation. A statute or Act of parliament comes into operation either
on the date of publication in the Kenya Gazette or on such other dates as maybe signified by the
minister by a notice in the Kenya Gazette.
Advantages
Statute law is recognized as a source of law in Kenya by the judicature act and the main advantages
are:
a. Democratic in nature
Parliamentary law making is the most democratic approach to legislation. This is because
parliament is composed of elected representatives of then people hence statute law is a
manifestation of the wishes of the people.
b. Uniformity
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Statute law applies indiscriminately. I t regulates the conduct of all persons irrespective of their
race, religion or political backgrounds
c. Dynamic
Statute law enables the society to keep pace with the changes in other fields e.g. economic, social
or political by enacting the laws.
d. Resolution of legal problems
Statute law enables the society through parliament to resolve legal problems as and when they
arise by enacting new laws or amending the existing ones.
e. Publicity
Statute law is widely publicized in that it attracts media attention and must be published in the
Kenya gazette as a bill and as a law.
Disadvantages
1. Inflexible: Parliamentary procedure is not flexible in the sense that making or amending
the laws must be made in the same long and slow procedure of parliament.
2. Technical bills are passed without sufficient treatments as most members are not
technically competent.
3. Law making is tied to the constitution and therefore parliamentary procedure is
unresponsive to agent needs.
4. Some legislative enactments are imposed on the people and reflect the views of the
executive.
3. Delegated legislation
It is also referred to as subsidiary/indirect or secondary legislation
Delegated legislation means laws imposed by rules, regulations, orders, by laws or statutory
instruments made by subordinate bodies under specific powers given to those bodies by acts of
parliament.
When parliament delegates or transfers its power to make laws to another person, body orauthority
that becomes delegated legislation. Due to enormous increase in social legislation it becomes
almost indispensable for parliament to delegate its law making authority to subordinate competent
bodies such as ministries or local authority
Forms/kinds of delegated legislation
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- Orders,
- Rules
- Regulations or statutory instruments
These are made by ministers in charge of government department and such rules or order must be
submitted to parliament either before or after they come into force.
By laws
These are made by local authorities or public corporations. By laws require the approval of the
appropriate minister before they can be enforced in the courts.
All delegated legislations are made under express authority of an act of parliament and it
must comply with the procedures laid down by the principle act. Where the legislation in question
exceeds such powers it is declared by the courts as ultra vires (beyond the powers)
Reasons for delegated legislation
1. Lack of parliamentary time
Parliament had insufficient time to legislate on all aspects of national issues for running efficient
government.
By delegating some of its law making authority, parliament can save time to solve much more
problems.
2. Technicality of the subject matter
Sometimes the proposed legislation is so technical in its nature that it demands the experts to
handle it. Such legislation can best be dealt with by a minister assisted by experts in the area of
proposed legislation.
3. Urgency
The law making procedure in parliament is slow. Parliament is not always in session to cope with
any emergency or urgent problems that may arise. To delegated legislation.
4. Flexibility
Parliament is generally inflexible in it’s procures and if situations arise which necessities the
immediate repeal or amendments of an act it has to be done through the long and slow procedure
of parliament. A quicker way would be to have the regulation in question amended or repealed by
the minister who issued it.
Advantages of delegated legislation
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1. Delegated legislation fill in the gaps of the principle act i.e. all the details are filled in by
delegated legislation to avoid overloading the principle act with unnecessary details.
2. The members of parliament have no time for details. They are only concerned with the
growth proposals and would not avail the time for details.
3. Delegated legislation is flexible as it does not need to go through parliament for debate to
become law. It becomes operational only upon the publication in the gazette.
4. In case of natural disaster or emergency the president can use delegated legislation since it
can be enacted quickly without going through parliament.
Disadvantages of delegated legislation
1. The opportunity for abuse of power is great since the government has based on the
individuals the authority to make the laws.
2. Powers once delegated can only be determined or revoked by the courts.
3. There is adequate publicity.
4. There is a tendency towards excessive legislation which makes the law more complex and
bulky.
5. The method used to amend delegated legislation is very complicated to the ordinary
citizens to comprehend.
Statutes of general application enforced in England on 12/8/1897
These are the acts of general application enforced in England on 12 August 1897 When the settlers
first came to Kenya they naturally brought with them the rules of English law as they existed at
that time. The statues of general application formed the largest number of legislative laws in
Kenya.
They gave judges difficulties in interpretation as there were no definitions of statues of general
applications, consequently if the courts were to determine whether a statutes was of general
application they were:
i. To determine whether the statute at issue was of general application
ii. Was the statute enacted in England on or before 12/8/1897.
iii. If found to be a statute of general application in England was the statute suitable to the
circumstances of the colony.
Substance of the common law and doctrine of equity
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Common law strictly means the rules which have been developed by the common law courts in
England before 1873 when the judicature act was established.
It consists of the whole non statutory laws of England excluding the rules of equity. This is the law
which originated in the ancient customs of England and was developed by the judges based on the
principles of stare decisis (let the decision stand).
The common law was administered by the courts of common plea, exchequer or kings bench.
Section 3 of the judicature act cap 8 of Kenya recognizes the substance of the common law and
doctrine of equity as a source of law in Kenya.
They apply as a source of law subject to the following limitations:
a) If the local circumstances permit
b) If it is not inconsistent with the local needs
c) If it does not conflict with the written laws or Kenya
d) If it is necessary.
Doctrine of equity
In ordinary language equity means fairness or justice. In the legal sense equity means the rules
originally based on ideas of fairness with the developed by the courts or chancery to remedy some
of the main detects of the common law. It was a complete legal system as it dealt only with those
cases which common law provided no remedy or the remedy provided for was inadequate.
Origin and development of equity
The early common law system had a number of major defects in particular;
i. Common law courts provided no remedy for certain wrongs
ii. The remedies provided for in some situations were not satisfactory as the only remedy
available was damages.
iii. The common law courts sometimes acted partially
iv. There were a lot of delays
v. There was no effective system of appeals.
The citizens were dissatisfied with the decisions of the judges of the common law courts. They
often made petitions to the king in council. Due to pressure of work the king delegated this function
to the Lord Chancellor who sat in the chancery courts. He was a clergy man and he began to decide
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appeals applying the rules of natural justice and morally. This led to the doctrine of equity and to
administer this doctrine the maxims of equity was developed.
Maxims/principles of equity
a) Equity is equality
b) Delay defects equity
c) Equity imputes an intention to fulfill an obligation
d) He who comes to equity must come with clean hands
e) He who seeks equity must do equity
f) Equity will never suffer a wrong without a remedy
g) Equity does not favour the indolent
In general equity sublimated the rules of common law and it recognized in suctions, trust, specific
performance and quantum merit.
6. African customary law
These were rules applicable to Kenya to the different tribes. These rules formed what is described
as the African customary law.
It originates from habitual practices and traditions of people. During the colonial rule, the
indigenous customary laws of various African tribes were administered alongside the English law
which was the primary law.
After independence African customary law was accorded recognition and it became a source of
law but subject to the following limitations:
a) It applies in civil cases only
b) If it is not repugnant to natural justice and morality
c) If it is not in consistent with any written law
d) If it is necessary.
The magistrate court act cap 10 provides that a claim under African customary law can only be
made concerning any or the following matters/claims:
i. Land held under customary law
ii. Marriage, divorce, dowry or maintenance
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iii. Seduction or pregnancy of unmarried woman or girl
iv. Enforcement of or adultery with a married woman
v. Matters affecting status in particular the status of women, windows and children including
guardianship, adoption, custody or legitimacy.
vi. Instate succession in so far as not governed by any written law.
Section 3 of the judicature act states that the high court, court of appeal and still subordinate courts
shall be guided by African customary law in civil cases in which one or all the parties are subject
or affected by it.
7. Islamic law
Islamic law is a very limited source of law in Kenya. The rules of Islamic law are derived from the
Muslim holy book. It is applied in the Kadhis courts when all or both parties profess Muslim faith.
It is applicable only in the matters of personal status relating to:
a) Marriage
b) Divorce
c) Inheritance
This is provided for under section 5 of the Kadhis courts act cap 11
8. Judicial precedent/case law
The essential of good law are on the other hand certainty uniformity and consistency.
Common law was judgment i.e. the judges molded/created the law out of the original customary
rules whose principles are today found in case law.
Case law is that law which has accumulated out of the doctrine or precedent. This principle applies
where a superior court has decided a particular matter the same may be binding on an inferior or
subordinate court so long as a similar matter or states of facts are in question.
This led to the doctrine of stare decisis which means let the decision stand.
The principle behind this doctrine is that in each case the judge applies the existing principles of
the law following an example or precedent of an earlier decision.
It is in this way that the judges may develop and expand the law.
Types of precedent
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1. Original precedent
It may happen that in a particular case there is no precedent on which the court can rely.
The judges must then decide the case on the basis of general principles of the law and evidence.
In this way it forms an original precedent to be followed in future in similar cases.
2. Declaratory precedent
Where a judge applies an existing rule of law without extending it he is nearly declaring the law
and his judgment forms what is known as declaratory precedent.
3. Distinguishing precedent
Obviously no two cases coming before the court of law are identical. This fact enables the judges
to point to some material differences which justify him of refusing no apply an existing principle
of the law previously laid down.
In this way the judge is distinguishing the present case from the earlier one.
4. Overruling precedent
This is usually done where it is felt that the earlier case was wrongly decided or that it was decided
without regard to existing principles of the law. Therefore overruling occurs when a higher court
decides a similar case on the basis of a different legal principle. The previous rule laid down is
said to be overruled.
Not everything in the decision reached by a judge in case catties the same weight. The only part
of the decision which will be treated as binging is the legal principle applied to the material part
of the case and this is known as ratio decidedi which means reason for making the decision. This
is binding and forms part of the precedent. The rest of the judgment is described as obiter dicta
which means things said as a by the way. This is not binding and does not form part of the
precedent.
Advantages of judicial precedent/case law
i. It is rich in detail: Each principle of law is supported by elaborate judgment of distinguished
judges. These judgments are of tremendous value to judges and lawyers and they use them to apply
to practical problems
ii. Flexibility/possibility of growth: Case law grows out of the practical problems and
therefore it keeps pace with the changing needs of the society.
iii. Certainty: The doctrine of precedent has contributed certainly and consistency in the test
of the rules of law
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iv. It saves time: Judges and lawyers go to the volumes of law reporting and got decided cases
which they can apply and solve the current problems
v. It maintains uniformity in justice.
Disadvantages
i. Rigidity; superior courts bind the interior courts and this destroys the original thinking of
thejudge of an inferior court as he is restricted from using his own reason for giving a different
judgment. Therefore judges of the lower court has less discretion bulky and complex
ii. Bulky and complex; It is embodied in multitude of decisions made out in a number of years
and contained in a number of volumes of law report. To rely on a particular decision one must look
at a particular decision in a number of subsequent decision on some matter and this is unnecessary
bulky and complex.
iii. Sharp minded/over subtly: The concept of binding precedent is sharp minded that no
magistrate or judge of a lower court can change it
iv. It can be annulled or cancelled.
4. The judiciary and its role in the administration of justice;
Relationship between Law and Society:
Theorists have traditionally maintained that there are certain broad on the substantive criminal law.
One set of such constraints concerns the sorts of behavior that may legitimately be prohibited. Is
it proper, for example, to criminalize a certain kind of action on the grounds that most people in
one’s society regard it as immoral? The other set of constraints which concern what is needed in
order to establish criminal responsibility that is liability, independently of the content of the
particular statute whose violation is in question.
Legal system reflects all the energy of life within in any society. Law has the complex vitality of
a living organism. We can say that law is a social science characterized by movement and
adaptation. Rules are neither created nor applied in a vacuum, on the other hand they created and
used time and again for a purpose. Rules are intended to move us in a certain direction that we
assume is good, or prohibit movement in direction that we believe is bad.
The social rules are made by the members of the society. Disobedience of the social rules is
followed by punishment of social disapproval. There is no positive penalty associated with the
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violation of rules except excommunication or ostracism. On the other hand, Law is enforced by
the state. The objective of law is to bring order in the society so the members of society can
progress and develop with some sort of security regarding the future.
The state makes laws. Disobedience of state laws cause penalty, which is enforced by the
Government by the power of the state. Which is not enforceable is not Law
Approaches in law and society
1. Structural functionalism/functionalism,
It is a framework for building theory that sees society as a complex system whose parts work
together to promote solidarity and stability. It asserts that our lives are guided by social
structures, which are relatively stable patterns of social behavior. Social structures give shape to
our lives - for example, in families, the community, and through religious organizations. And
certain rituals, such as a handshake or complex religious ceremonies, give structure to our
everyday lives. Each social structure has social functions, or consequences for the operation of
society as a whole. Education, for example, has several important functions in a society, such as
socialization, learning, and social placement.
Thus, one of the key ideas in Structural Functionalism is that society is made-up of groups or
institutions, which are cohesive, share common norms, and have a definitive culture. Robert K.
Merton argued that functionalism is about the more static or concrete aspects of society,
institutions like government or religions. However, any group large enough to be a
social institution is included in Structural Functionalist thinking, from religious denominations to
sports clubs and everything in between. Structural Functionalism asserts that the way society is
organized is the most natural and efficient way for it to be organized.
Gender inequality offers a good illustration. According to Structural Functionalist thought, women
being subordinate to men allows the cogs of society to function smoothly as everyone in the society
knows his or her respective position in the hierarchy. The implication, of course, is that, because
society is functioning smoothly with gender stratification, such stratification is acceptable and
efforts should not be made to change the arrangement. This example illustrates that Structural
Functionalism is generally seen as being supportive of the status quo.
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Another key characteristic of Structural Functionalism is that it views society as constantly striving
to be at a state of equilibrium, which suggests there is an inherent drive within human societies
to cohere or stick together. This is known as the cohesion issue. Societies strive toward
equilibrium, not through dictatorial mandate by the leaders of society but rather because the social
structure of societies encourages equilibrium.
For example, Jim Crow laws in the southern United States were a formalized version of informal
structural advantages that empowered whites. Because of the history of slavery in the southern
United States, whites had amassed more wealth than blacks. During slavery, whites controlled the
government and all of the major institutions in the South. After slavery ended, whites continued to
control many of these institutions, but because they were outnumbered in some areas by blacks,
threatening their dominance, they instituted formal laws, Jim Crow laws, that allowed them to
maintain their structural advantages. And whites were able to pass these laws because they already
controlled many of the social institutions instrumental in the passage of laws (e.g., courts,
government, businesses,