A source of law
is the origin of the rules of law. It refers to the materials and processes out
of which law is developed. Sources of law may also mean the areas where law may
be found. They are divided into primary and secondary sources.
Primary
source of law refer to those sources which are binding on the courts because
they are the law. These are provided for under section 3 of the judicature
Act.6The authority of primary sources of law is binding on the courts. Examples
of primary source of law are the Constitution, Statutory Law, Case Law, and
Common Law among others. Secondary source of law, on the other hand, refer to
those sources which give a commentary on the primary sources of law. Their
authority is not binding on the courts. In this regard, Secondary sources of
law are merely persuasive. They include law textbooks, law journals, and
treatises among others. The following are the sources of laws;
Constitution
is the supreme law of the country whether written or unwritten. It forms a
solid basis upon which all other laws are founded. Accordingly, the validity of
other laws and all state actions are determined by the constitution. Article
2(1) of the Kenyan Constitution provides in this regard that this Constitution
is the supreme law of the Republic and binds all person and all State organs at
both levels of Government.
International law
on the other hand refers to rules and regulations agreed upon among different
countries/state or other international bodies such as the United Nations,
International Criminal Court, ICC.Its jurisdiction by pess National, boundaries
and the law is applicable on all states that are a signatory of such a law.
International law is based on agreements of treaties and customary practices of
states and general principles.
Written law
refers to that set of law which has been documented or has reduced into a
written form. Such law can be sourced or referred to form a written document.
Examples of written law are the constitution of Kenya, statute law, By-laws and
other delegated legislation. Written laws reign over unwritten laws so that in
the event of conflict between written and unwritten law, written law prevails.
Judicial precedents are
also known as judge-made law or case law. Case law refers to decisions made by
superior courts. These decisions are made and recorded in law reports. Case law
is binding on all lower courts when the issue before the court is the same as
the issue on which the superior court made the decision. However, sometimes,
although on very limited grounds, judges are allowed to depart from case law.
Customary and Religious law,
it establish under section 9 and section 11 of judicaltural and application of
law act chapter 3.According to the section two of the same act. Any court of
law may apply the role of Islamic or customary in the matter of marriage and
similar matters in the relationship to the member of community which follow
that law.
Received law,
by virtual of being British colon the English law become as one sort of
Tanzania law. There is no local written law to address the matters, is applied
there is LAKUNA.Also is applicable to Tanzania percesiction to subsection 3 of
judiciary and application. In received law the judges may make reference to
received law with such necessary modification to suit local circumstances.
However, an important point to appreciate is
that the society cannot exist without law. This is due to the important
functions that the law plays in the society, some of which are as follows;
Rules
of law facilitate administration of justice and promote cohesion in the
society.
Law
is an instrument used by human beings to achieve justice in the society.
Law
assists in the maintenance of peace and order by promoting peaceful
co-existence and prevents anarchy. This is done through punishing offenders and
providing remedies to the aggrieved parties.
Law
promotes good governance in the society. This is due to the fact that the
society follows organized rules. The laws provides legal remedies, promotes
protection of rights and duties. People are therefore able to enter into
agreements because they are sure that their agreements will be honoured by
other party to the agreement.
………………Prepared
by Faith Gabriella.
