Sources of law

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Sources of law

From positivist respective a law can originate from a recognized human authority. This is to differentiate it from the spiritual sources. 

A law must have the correct pedigree. On this matter you need to find out whether the law was created by the correct authority. Did the correct authority follow the right procedure? The law is valid if the answer to the two questions is yes.  

Criticism of positivism 

The rule that governs lawmaking is socially acceptable. What if we have civil disobedience and protests against the new laws, does the law remain valid? 

Norm 

A norm is something that you can accept or reject. If you accept the norm, then the law is valid. If you do not accept the norm then the law is invalid. 

What is the similarity between a tax collector and a gangster? 

They both want money from you and will unleash violence on you if you refuse to path with the money. This is a good distinction between natural law and positivism. 

Other important sources of law are: 

  • law reports: judgments from superior courts are required by law to be in writing. 
  • authoritative texts: – these are writings by leading authorities in the field of law. 
  • African customary law 
  • Customs – These are rules that become binding over time.  There is the general custom and the African Customary law.  Zimbambwe operates under two legal systems: the African Customary Law and the general law. 
  • common law – laws applicable to people of a particular society their sex, tribe or race notwithstanding; 
  • legislation – statutory law made by parliament, presidential decrees and ministerial regulations; 

In most colonies, the western powers imposed on us a western legal system. In fact, we adopted some foreign laws at that time. For instance, until 2016 Kenya had been operating under the archaic mining act of 1948 which was enacted by the colonial masters. 

 

 

 

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Editor-in-Chief

Geoffrey Kerosi, economic and public policy analyst based in Nairobi City. Email: geoffrey@kerosi.com. WhatsApp: +254713 639 776 YouTube: Kerosi TV

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