WHAT IS LAW

Theorists who tackle What is law? usually acknowledge the difficulty of the
question, because law involves multiple social-historical phenomena which
have taken on different forms and functions in different times and places and
therefore cannot be captured by singular definition of law. All concepts of law
suffer from over-and under- inclusiveness and that legal theorist often
erroneously conflate rule systems with legal systems. Tamanaha argues; law is
an evolving social institution that has taken on multiple forms and functions in
ways that cannot be captured by any singular conception. This article seeks to
analyse, discuss and establish what is law as from the Article by Brian z.
Tamanaha who establishes three major concepts of what law :

The first concept holds that law is a matter of custom, usages, and ordered
social relations. This is perhaps the oldest view of law; the identification of law
with custom has a rich history. Customary law was a major form of law in
primitive societies and throughout medieval period. Theorists who espouse this
view of law assert that judges do not make law but merely declare already
existing immanent law of the community. Law, then, is custom transformed,
Harold Berman asserts, and not merely the will or reason of the lawmaker.
Law spread upward from the bottom and not only downward from the top.

Prominent sociologists and anthropologists have also espoused versions of this

view of law. Eugen Ehrlich identified law with concrete usages and social
practices.. From this we can establish that ; some laws are derived from
customs which makes customary law an origin of law but not the only source
that regulates all individuals in the society.A custom may be described as a
continuing cause of conduct which by the acquiescence or expressed approval
of the community observing it has come to be regarded as fixing a rule or a
norm of conduct for the members of the community. For a custom to have the
force of law it must be accepted or approved in the community as a rule of
conduct. Generally customs is associated with society while law is associated
with the state but both of them are defined as what both society and state
consider to be good and necessary for them. That is why customary law is
called unofficial law because is not pronounced by the state, but by the
community1.

Therefore customary applies to a particular law and cannot be considered as

state law. Thus the state through the judiciary can interpret and make some
judicial decisions which with time will be precedents through the doctrine of
Stare decisis and the position held above that ; judges do not make laws but
merely declare already existing immanent law of the community is far from the
truth.

The second concept is that law involves rules and decisions issued by the state.
This concept is based on the facts that law comes from a sovereign, law is
governmental social control tool, law is a coercive rule system, law is social
norms backed by institutional enforcement, and law involves obligatory rules
administered within a system that identifies what counts as valid laws, how to
change them, and how to apply them. Primitive law or customary law and
international law have been disqualified as law by theorists who adopt this
concept, H.L.A. Hart saw both primitive law and international law not as law.

The state through the legislature, the executive and the judiciary established
under Chapter eight, nine and ten respectively make, enforce and interpret the

1
Kenya Law Resource Center
law that is they are delegated with sovereign authority as provided under
Article 1(3) of the constitution of Kenya2.

Law is a governmental social control tool; it achieves this by self-sanctioning

and informal mechanisms of social control like gossip, ridicule, humiliation in a
homogenous society. Law is a coercive system of rule it achieves this
by forcing another party to act in an involuntary manner by use
of intimidation or threats or some other form of pressure or force.] It involves a
set of various types of forceful actions that violate the free will of an individual
to induce a desired response, for example: Under section 204 of the penal code
any person convicted of murder shall be sentenced to death; such threat instils
fear in people.

On the other hand we differ with the fact that customary law and international
are considered as not law. Customary law is law that governs a particular
community. Section 3(2) of the judicature Act; The High Court, the Court of
Appeal and all subordinate courts shall be guided by African customary law in
civil cases in which one or more of the parties is subject to it or affected by it,
so far as it is applicable and is not repugnant to justice and morality or
inconsistent with any written law, and shall decide all such cases according to
substantial justice without undue regard to technicalities of procedure and
without undue delay3.

Accordingly article 2(5) states that, the general rules of international law shall
form part of the law of Kenya.

2
The Constitution of Kenya, 2010
3
The Judicature Act,Cap 8
The third concept is based on the fact that Law is based on natural law theory
that is the relationship between law and morality overlap with each in such a
way that morality forms the basis of law Conceptions of law in this vein insist
that law is right reason reflected in a just social order, or that law furthers the
common good.

To be precise am of the option that morality does not attract the sanction of
court for its enforcement unless it also forms part of law. There is a public
morality which is an essential part of the bond which keeps society together.
The public can use criminal law to preserve morality4. In Shaw v D.P.P the
appellant published a 'ladies directory' which listed contact details of
prostitutes, the services they offered and nude pictures. He would charge the
prostitutes a fee for inclusion and sell the directory for a fee. He was convicted
of conspiracy to corrupt public morals, living on the earnings of prostitution
and an offence under the Obscene Publications Act 1959. The appellant
appealed on the grounds that no such offence of conspiracy to corrupt public
morals existed. According to lord Simonds In the sphere of criminal law I
entertain no doubt that there remains in the Courts of Law a residual power to
enforce the supreme and fundamental purpose of the law, to conserve not only
the safety and order but also the moral welfare of the State, and that it is their
duty to guard it against attacks which may be the more insidious because they
are novel and unprepared for. That is the broad head (call it public policy if you
wish) within which the present indictment falls. It matters little what label is
given to the offending act. To one of your Lordships it may appear an affront to
public decency, to another considering that it may succeed in its obvious
intention of provoking libidinous desires; it will seem a corruption of public

4
Lord Devlin, The Enforcement of Morals
morals. Yet others may deem it aptly described as the creation of a public
mischief or the undermining of moral conduct. The same act will not in all ages
be regarded in the same way. The law must be related to the changing standards
of life, not yielding to every shifting impulse of the popular will but having
regard to fundamental assessments of human values and the purposes of
society."5

5
[1962] AC 220 House of Lords