Chapter one introduction to law

Definition of law
Law consists of rules of action or conduct. These rules are issued by an authority. In addition,
these rules have binding force and are obeyed and followed by citizens. Sanction or other legal
consequence may help the law to be abided (accepted) by citizens.

Law is the system of rules which a particular country or community recognizes as regulating the
actions of its members and which it may enforce by the imposition of penalties.
Basic Features of Law
1. Generality: It does not specify the names of specific persons or behaviours.
2. Normativity:
a. Permissive Law example, have the right to/permitted/allowed, entitled to.
b. Directive law example, must, shall, obliged to, and ordered to.
c. Prohibitive law example, must not, shall not, may not, prohibited.
d. Sanction law example, every member of a society is required to follow the law.
Where there is violation the law sanction would follow.
Major Theories of Law
1. Natural law theory: is the earliest of all theories. It was developed in Greece by
philosophers like Socrates, Plato, and Aristotle. These philosophers have arrived at the
conclusion that there are two types of law that govern social relations.

a. One of them is made by person to control the relations within a society and so it may
vary from society to society and also from time to time within a society and is called
positive laws.
b. The other one is that not made by person but controls all human beings of the world and
is called natural laws.

Natural law is given different names based on its characteristics. Some of them are law of
reason, eternal law, rational law, and principles of natural justice.

2. Positive law theory is also called, imperative or analysts law theory: It has the belief that
law is the rule made and enforced by the sovereign body of the state and there is no need
to use reason, morality, or justice to determine the validity of law.

This theory has criticized by scholars for defining law in relation to sovereignty or state because
law is older than the state historically and this shows that law exists in the absence of state.
3. Marxists theory: believe that private property is the basis for the coming into existence of
law and state. They provide that property was the cause for creation of classes in the
society in which those who have the means of production can exploit those who do not
have these means by making laws to protect the private property.

4. Realist theory of law: is interested in the actual working of the law rather than its traditional
definitions. It provides that law is what the judge decides in court.

This theory has its basis in the common law legal system in which the decision previously given
by a court is considered as a precedent to be used as a law to decide future similar case.
This is not applicable in civil law legal system.

Functions Of Law

a. Social control – members of the society may have different social values, various
behaviours and interests. It is important to control those behaviours and to inculcate
(instruct) socially acceptable social norms among the members of the society. (Roscoe
Pound).

b. Dispute settlement- Disputes are un avoidable in the life of society and it is the role of
the law to settle disputes. Thus, disagreements that are justiciable will be resolved by
law in court or out of court using alternative dispute settlement mechanisms

c. Social change- A number of scholars agree about the role of law in modern society as
instrument to social change. Law enables us to have purposive, planned, and directed
social change

The object of law is to ensure justice. Justice may be either distributive or corrective.
Distributive justice: seeks to ensure fair distribution of social benefits and burden among the
members of the community.
Corrective justice: on the other hand, seeks to remedy the wrong. Thus if a person wrongfully
takes possession of another’s property, the court shall direct the former to restore it to the latter.
This is corrective justice.

Major Legal Systems In The World

Legal system is defined by Hart, as that it includes a fundamental rule for the identification of the other
rules of system.

Common law legal system is a system of law that is originated from the judgments of judges.
The rules and principles are not written by the legislature (Parliament), but created by courts in
solving the disputes that are given to them to be decided. Thus, the law develops through
times.
Civil law legal system: on the other hand, is a system of law whereby the rules and principles
intended to govern the behaviours of the society are given by the Parliament, i.e. the
legislature.
Germany, French, and Italy are the forerunners of civil law legal system.

Common Law And Civil Law Legal Systems Compared

1. Beginnings: The common law was conceived in 1066, the civil law was older than the
common law is now.

2. Nurture: The common law was nurtured in London law courts by judges and barristers.
The older Roman law was developed to an important extent by jurists, who were not
practising lawyers but public-minded citizens.

3. Spread: The common law spread only by conquest and colonization: no one ever
accepted it freely. The Roman part of the civil law, preserved in the collection of
Justinian of AD 533, was rediscovered in the 11th century, embraced by the university
law schools of northern Italy, and spread from them throughout continental Europe.

4. Language Although originally written in Latin and spoken in Norman French, the
language of the common law today is virtually exclusively English. In most civil law
systems the terminology is likely to be wholly in the local language.

5. .Makers the main creators of the common law are the judiciary, while deciding cases,
judges lay down the law. In civil-law systems, at least until very recently, judges played
the comparatively minor role of settling the dispute in front of them. They did not make
the rules of the system, and their decisions are not cited in later cases.

6. Precedent in civil law legal system, judges did not see their job as creating law, the
professional fact that they are career civil servants, and the political fact that it is
thought more democratic to entrust law-making to the elected representative of the
people.
Common-law perceptions are quite different. Historically, judges made the law.

7. Fact: The judges who built up the common law system were few in number, and left the
hard work of fact-finding to laypeople: that is, the jury. The civil-law systems, by
contrast, have always left the task of finding the facts to a professional judge.

8. Structure: One result of the above features is that in common-law countries the legal
system is not organized in a coherent and clear structure. Civil lawyers lay great
emphasis on system and structure.
There are three main legal theories with regard to the relationship between law and state.
They are:
The state is superior to and creates law; 2. Law precedes the state and binds it when it comes
into existence; 3. Law and the state are the same thing looked at from different points of view.
UNIT THREE: CLASSIFICATION OF LAWS

UNIT INTRODUCTION

Classification is a shaping and developing of traditional systematic conceptions and traditional

systematic categories in order to organize the body of legal precepts, so that they may be:
1. stated effectively with a minimum of repetition, over lapping and potential conflict;
2. administered effectively;
3. Taught effectively, and developed effectively for new situations.

We get three views as to the nature and end of classification. One is that the exhaustion. Another
is that classification is a means of revealing natural law that it may be made to reveal the real
order of interdependence in the things classified. A third is that it is simply a means of
organizing knowledge and thus of making it more effective for some purpose. It is difficult to
establish a sharp division between the different branches of the law.

Under this unit, classification of laws into public and private will be dealt. Next, the
classification of law into international and national, substantive and procedural, civil and
criminal will be considered respectively.

3.1) PUBLIC AND PRIVATE LAW

Public law regulates the acts of persons who act in the general interest, in virtue of a direct or
mediate delegation emanating from the sovereign [What is Law? Pp, 8-9]. As Salmond
propounded ‘public law’ is not the whole of the law that is applicable to the state in its relations
with its subjects, but only those parts of it which are different from the private law concerning
the subjects of the state and their relations to each other. Private law is thus the residue of the law
after we subtract public law [Paton, 1967, Pp. 291-92]. Private law regulates the acts, which
individuals do in their own names for their own individual interest. Public law is sub divided into
constitutional and administrative law [What is Law? Pp, 8-9].
Constitutional law defines the organization of the state, its fundamental rules, mode of
government, and the attributions of its political organs, their limits and their relations [What is
Law? Pp, 8-9]. Constitutional law deals with the ultimate questions of the distribution of legal
power and of the functions of the organs of the State [Paton, 1967, P. 292].

Administrative law regulates the operation of the executive power in all its degrees, beginning
with cabinet ministers and descending to its most humble representatives. It also regulates such
local, departmental and communal administrations. Very wide in its application administrative
law comprises many matters, which impinge upon private law. This is because the administration
often takes individuals under its tutelage. It is thus that the operation of mines, of waterfalls, and
of railways is governed by provisions of administrative law. In addition, the creation and
functioning of certain groups of persons, such as labour unions, associations, and mutual aid
societies are governed by administrative law, even though private persons may be acting in their
own private interest [What is Law? Pp, 8-9].

Criminal law, the infliction of punishment directly by the organs of the state, is also usually
regarded as falling under the head of public law. Some would say that civil procedure should
also be placed in this section, since these rules regulate the activities of courts, which are mere
agencies

of the State; but civil procedure is so linked with the enforcement of private rights that it is more
convenient to regard it as belonging to both public and private law [Paton; 1967: 292].

Private law governs in principle all the acts of individuals in their private capacity. However, in
France and in most civilized states, it is at present divided into three sections. They are civil law,
procedure, and commercial law.

LEARNING ACTIVITIES

1) What is public law?

2) Explain the scope of private law.
 3) What are the criteria to distinguish law into public and private? Explain.

Law may be classified into international and local law. [Paranjape; 2001: 150-52]

A) International law – The law of nations of the 18th century was named as international law
by Bentham in 1780. It consists of rules which regulate relations between State inter se.
Oppenheim has defined international law as “the body of customary and conventional rules
which are considered legally binding by civilised States in their intercourse with each other.”
[Paranjape; 2001: 150-52]

Starke defines International law as “rules of conduct which states feel themselves bound to
observe and therefore do commonly observe in their relations with each other and which includes
also (a) the rules of law relating to functioning of international institutions and organisations,
their relations with each other and their relations with States and individuals; and (b) certain
rules of law relating to individuals so far as the rights and duties of such individuals are the
concern of the international community.” [Paranjape; 2001: 150-52]

Salmond, however, believes that international law is essentially a species of conventional law
and has its source in international agreements. These international agreements may be of two
kinds, namely – (1) express agreements as contained in treaties and conventions; and (2) implied
agreements as found in customary practices of the States.

As one can observe from the above discussion, international law is classified into public
international law and private international law. Public international law regulates the relation
between states. For example the relations between Ethiopia and Sudan are governed by public
international law. Private international law, on the other hand, governs the relations between
individuals of different nationals. Different nationals involve in commercial and other civil
transactions beyond their countries. Since the laws of different countries are not the same, the
problem arises as to which law should be applied to the relations of different nationals. For
example, let us assume that Ethiopian national and Chinese are married in Addis, and they live in
Beijing. Let us further assume that a dispute arises between them with regard to the
administration of their household. Whose law is to apply to solve their dispute: the Ethiopian or
Chinese law? Private international law solves this problem. Private international law is known
by different names. For instance it is called conflict of laws [See Alpha University College;
2006: 36-7]

B) National law- law that pertains to a particular nation (as opposed to international law) [Roger
and Frank; 2002: 17]. It is a law of a nation, for example the law of the United States of
America, France, or Ethiopia. Such law is applicable all over a country in question. It is also
known as law of the land. It is in effect in a country and applicable to its members. The law may
be statutory, i.e. enacted law, administrative or case law [Garner; 2004: 904].

Local Law [Paranjape; 2001: 157] - Local law is the law of a particular locality and not the
general law of the whole country. They may be of two kinds – local customary law and local
enacted law.

Local customary law has its roots in those immemorial customs, which prevail in a particular
part of the State and therefore, have the force of law. The local enacted law, on the other hand,
has its source in the local legislative authority of municipalities of other corporate bodies
empowered to govern their spheres by by-laws, supplementary to general law.

LEARNING ACTIVITIES

1) What do you understand by local law?

2) Explain the essence of international law.
3) There is no a concept as such international law. Comment.

3.3) SUBSTANTIVE AND PROCEDURAL LAW

Civil procedure is nothing but a detached part of the civil law governing the manner of asserting
and defending rights before courts. Neither the Romans nor the Old French jurists segregated
actions from the body of the law… [What is Law? P. 10]

According to Salmond, substantive law is that which defines a right while procedural law
determined the remedies. Procedural law is also called ‘law in action’ as it governs the process of
litigation. Substantive law is concerned with the administration of justice seeks to achieve while
procedural law deals with the means by which those ends can be achieved. For example, law of
contract, transfer of property, negotiable instruments, crimes etc are substantive laws whereas the
laws of civil procedure or criminal procedure are procedural laws [Paranjape; 2001: 157]. The
rules that are provided under procedural law are inseparable from the substantive law. For
example, civil procedure law is inseparable from the civil; code that deals about contract,
filiations, adoption, and the like [What is Law? p. 10].

EVIDENCE LAW
Law of Evidence is the law that consists of the rules and principles, which govern the relevancy,
admissibility, weight and competency of evidence. It compress the legal rules regulating those
means by which any alleged matter of fast, the truth of which is submitted to investigation is
established or disproved [Carter; 1990: 3].
3.4) CIVIL AND CRIMINAL LAW [What is Law?]

Civil law is that branch of law dealing with the definition and enforcement of all private or
public rights, as opposed to criminal matters [Roger and Frank; 2002: 15].The law enforced by
the State is called civil law. In Somalia, we have a civil law codified in 1960, which is known as
Civil Code. The force of State is the sanction behind this law. Civil law is essentially territorial
in nature as it applies within the territory of the State concerned. The term civil law is derived
from the Roman word jus civile. Austin and Holland prefer to call civil law as ‘positive law’
because it is enforced by the sovereign political authority. However, Salmond justifies the term
‘civil law’ as the law of the land. He argues that positive law is not necessarily confined to the
law of the land. For example, international law is a kind of jus positivism but it is not a civil law.

On the other hand, Penal law unquestionably forms part of public law. The state alone,
representing the nation, has the right to punish. Prosecutions and condemnations are carried out
in its name. The application of penalties is a part of the administration of a state. Today we have
a criminal law enacted in 2004 which is a revision of the 1957 Penal; Code of Ethiopia. The
designation is changed to criminal law because penal law has negative connotation which carries
penalty only.
CONCLUSION

We have seen that law can be grouped in different categories. Classification of law is a
systematic grouping of law so as to understand easily.

Law can be classified into public and private law. We have seen that public law is that regulates
public interest. Constitutional law and administrative law are the two main sub divisions of
public law. On the other hand, we have seen that private law is one that consists of rules that
regulate relations between individuals. It is divided into substantive and procedural law. Further,
we have seen that substantive law defines rights of persons. We have discussed that procedural
law governs the process of litigation.

Furthermore, we have observed that law may be divided into international and local law.
International law includes rules that govern the States and other international subjects like
multinational corporations. Local law, as we have seen, encompasses rules that are applicable to
a locality.

What is more, we have discussed that law may be classified into civil and criminal law. Civil law
is that which is enforced by the state. It is also called as ‘positive law’ since it is enforced by a
state as sovereign. Criminal law, called as penal law, on the other hand, is intended to keep the
peace of the people and order of the State. We have seen that criminal law is one type of public
law.