THE NATURE AND SOURCES OF LAW
THE NATURE, CLASSIFICATION AND SOURCES OF LAW
1. What is law
Law is a rule prescribed for human action/conduct.
It concerns human beings
It is a rule prescribed for human action by a determinate authority
2. Characteristics of Law
(a) Social control mechanism
• It is a means to persuade its members to think and act in compliance with the norms which make up its culture
• The most important feature of law is that, it is normative.
• By normative it means that certain norms characteristic of human social life and indicative of what is done by the majority in a given situation have taken on the quality of what ought to be done.
• What is the case is transformed into what ought to be the case
• The word Norm-originate from the word square or norma, that is used by carpenters and masons to make right angles, which afforded them a ready means of achieving standardization.
Conclusion
Law is generally similar to social custom, positive morality and convention since it shares with them the characteristics of a normative system.
Law is of a uniform and general nature. It also entails elements of official authority and regulated coercion as opposed to unpredicted of sanction associated with positive morality conventions and etiquette.
Note
The term LAW indicates both the concrete and abstract connotation.
Law should be taken to represent a form of language, which language is designed to convey amongst other things, the idea that certain rules of conduct are obligatory.
Law Techniques
(i) Penal
(ii) Grievance-remedial
(iii) Private-arranging
(iv) Constitutive
(v) Administrative-regulatory
(vi) Fiscal
(vii) Conferment of social benefits
(b) Classification of Law
(i) Positive Law and Natural Law
Law is a social rule posted by human beings to regulate in a general and binding manner the social behaviour of human beings as social beings in a given society.
Characteristics of Positive Law
(a) Command
(b) Sovereign authority
(c) Punishment
(d) Sanctions
Natural Law-Law is God given
(ii) Common Law and Civil Law( as system of law)
(iii) Public Law and Private Law
Public law-administrative law
Private Law-torts, contracts
(iv) Substantive Law and Procedural law (civil and criminal law)
Substantive law- refers to portions of a country’s legal system which defines the contents of legal norms or determines the legal subject’s rights and duties.
Procedural Law- refers to a country’s law of procedure or the means by which substantive norms are enforced.
(v) Common law and Equity
Common law comprises of the body of rules which were developed by the common law courts of England. Equity- Form of law developed by the court of chancery in England as a supplementary system to cure the mischiefs of common law.
Alternatively we can categorise law into two groups, that is :-
(a) Criminal law
(b) Civil law
NOTE:
There are many ways to classify laws, but to narrow things down the law is divided into two broad categories:-
(a) criminal law, and
(b) Civil law.
CIVIL LAW
To make it easy, civil law is all law other than criminal law, such as property law, which governs transfer and ownership of property, and contract law, which is the law of personal agreements; When a person has a grievance and it can’t be settled any other way, than an action has to be taken were the courts will settle the differences. This type of law is called a tort law and it’s a civil action in which an individual asks to be compensated for personal harm done to him or her. The harm may be either physical or mental and includes such wrongful acts as trespassing, assault and battery, invasion of privacy, libel (false and injurious writings against you), and last but not least, slander (false or injurious writings).
Torts happen when someone is injured by the actions of another. Remember O.J. Simpson, who was found “not guilty” during his criminal trial, but was found “guilty” during his civil trial? This discrepancy happens because the standard of evidence for a finding is less in civil cases. Criminal trials are based on the evidence of “beyond a reasonable doubt”, while for a civil case the evidence has only to prove the “preponderance of the evidence/probability.
A violation of civil law may also happen when a behavior indirectly causes injury that starts a chain of events that end in d--th. Some torts are similar to criminal acts and that is why a person can be held on both counts. For example, if one man hits another in the mouth, it is possible for the assailant to be charged by the state with assault and battery, be imprisoned, plus be sued by the victim in a tort action of assault in which the attacker will have to pay the victim for the damages he caused. An important similarity between criminal law and civil law is they have a common purpose, and this is to control people’s behavior by setting limits on what acts are permissible in this country.
CRIMINAL LAW
A body of rules and statutes that defines conduct prohibited by the government because it threatens and harms public safety and welfare and that establishes punishment to be imposed for the commission of such acts.
The term criminal law generally refers to substantive criminal laws. Substantive criminal laws define crimes and may establish punishments. In contrast, Criminal Procedure describes the process through which the criminal laws are enforced. For example, the law prohibiting murder is a substantive criminal law. The manner in which government enforces this substantive law—through the gathering of evidence and prosecution—is generally considered a procedural matter.
Crimes are usually categorized as felonies or misdemeanors based on their nature and the maximum punishment that can be imposed. A felony involves serious misconduct that is punishable by death or by imprisonment for more than one year. Most state criminal laws subdivide felonies into different classes with varying degrees of punishment. However, the words felony and misdemeanor are no longer used in Tanzania context, all crimes are termed crimes. Crimes that do not amount to felonies are misdemeanors or violations. A misdemeanor is misconduct for which the law prescribes punishment of no more than one year in prison. Lesser offenses, such as traffic and parking infractions, are often called violations and are considered a part of criminal law.
Criminal law requires either of the following:-
(a) Intent
(b) Malice
(c) Motives
The general principle here is “ actus non facit reum nisi mens sit rea” again the one who alleges must prove the allegations and ignorance of the law never excuses “ignorantia juris non excusant”
The main purpose of criminal law is to give the state the power to protect the public from harm by punishing individuals whose actions threaten the social order of things. In tort law, the harm or injury is considered a private wrong, and the main concern is to compensate the victim for the harm that was inflicted on them. For criminal actions, the state initiates the legal proceedings by bringing charges against the criminal, then prosecuting him or her.
Once it is determined that a criminal law was broken, the state will then proceed to impose a sentence against the defendant such as imprisonment, probation, or a fine, payable to the state. In civil actions, the injured person must file an action in order to initiate proceedings, if the offender is found guilty, then he or she must pay restitution to the person that was harmed. Of all cases, criminal or civil laws that are brought up on charges, only 10% of these charges actually go to trial and are heard in front of a judge or jury. Most cases are settled out of court, by both parties coming to an agreement that they both can live with.
QUESTION
In which of the above two broad categories of law is business law or commercial laws found?
ANSWER
Commercial law or business law which sometimes is referred to as mercantile law is a branch of civil law which regulates private relationship between individuals or an individual and the institution or between entities.
SUMMARY ON THE NATURE AND CHARACTERISTICS OF LAW
Legal norms are enforceable.
Legal norms regulate human conduct in that they are guides to human behaviour.
Characteristics of legal norms
(i) Uniformity
(ii) Law is hypothetical or relative
(iii) Law is of general nature
(iv) Law entails the element of authority
(v) Regulated coercion
SOURCES OF LAW
1. Statutes
Primary or principal legislation
Subordinate or subsidiary legislation
2. The Constitution
All other legal rules in the country derive their authority from it. Any other law that is inconsistent with the constitution will therefore be declared invalid by courts of law
3. Case law or precedent
The reasons for decisions of the higher courts may serve as precedent for future courts to follow in the event that a similar fact situation is adjudicated again
The courts are bound to follow precedent cases in accordance with the doctrine of stare decisis.
Essentially the common law contains a set of principles enunciated through the decisions of courts over the past six hundred years.
Characteristics of Precedent
(i) Certainty
(ii) Continuity
(iii) Precision
(iv) Flexibility
(v) Uniformity
(vi) Rigidity
(vii) Predictability
4. Customary Law or customs
Read section 11(1)(a)-(c) of JALA
Customary law shall be applicable to, and courts shall exercise jurisdiction in accordance therewith in, matters of a civil nature.
5. Islamic law or shariah
Began about 600 A.D
S.11 (2) (a)-(b) of JALA. It is used in matters of marriage, divorce, guardianship, inheritance, waqf and similar matters in relation to members of a community which follows that law.
6. Received Laws
Section 2 of the JALA, 1961
The jurisdiction of the High court shall be exercised in conformity with the written laws, the common law, the doctrines of equity and the statutes of general application in force in England on the 22nd day of July 1920.
Provided always that, the said common law, doctrines of equity and statutes of general application shall be in force in Tanzania only so far as the circumstances of Tanzania and its inhabitants permit and subject to such qualifications as local circumstances may render necessary
Section 9-The provisions of the acts of parliament of the united kingdom.....as amended prior to the 22nd day of july 1920 shall apply to and have effect within Tanzania subject to the exceptions, adaptations and modifications set out therein.
These are:-
(i) The common law
(ii) The doctrines of equity
(iii) The statutes of general application
In force in England on the 22nd day of July, 1920
TANZANIA COURT SYSTEM HIERARCHY
Court system refers to the legal framework of judicial organs in Tanzania. i.e how the judicial organs have been organised or arranged in Tanzania.
The judiciary is the body empowered by the constitution to dispense justice by giving decisions on various legal issues brought before it and interpret the laws. This is by virtue of article 4 of the constitution of the United Republic of Tanzania, 1977.
In view of the above, the court hierarchy is arranged as follows
THE COURT OF APPEAL
This is the apex and supreme court of the land that is established by virtue of article 117 of the URT constitution, 1977. It has original and appellate jurisdiction.
THE HIGH COURT
The High court of Tanzania is established by virtue of article 108 of the URT Constitution, 1977 and it has both original and appellate jurisdiction as well as unlimited jurisdiction in all legal matters. The High court of Tanzania is organised through divisions which are the Main registry, the Land Division, the Labour Division and the Commercial division.
When cases reach the High court all land matters will be dealt with land division, if its a labour matter it goes to the labour division and if it is a commercial matter it goes to the commercial division. Take note that, land matters do not go to ordinary courts, they have their own hierarchy of dealing, which is the Village Land Tribunal, The Ward Tribunal, The District Land and Housing Tribunal then the High Court Land Division.
THE RESIDENT MAGISTRATE COURT/ DISTRICT MAGISTRATE COURT
These are two courts with concurrent jurisdiction and they are established through the Magistrate’s Court Act, 1984. The district court is established by virtue of section 4 (1) of the MCA 1984 in every district of Tanzania and it has jurisdiction to exercise powers within the district it is formed. A district court exercise jurisdiction in all proceedings of a criminal nature and in all such other proceedings under any written law where the value of the property does not exceed 150 million shillings
The court of the Resident Magistrate is established by order of the chief justice vested in him under section 5(1) of the MCA, 1984, to exercise jurisdiction in such areas as may be specified in the order establishing it. A resident magistrate court shall have jurisdiction in all proceedings in respect of which jurisdiction is conferred and any law for the time being in force conferring power to the resident magistrate.
THE PRIMARY COURT
The primary court is established by virtue of section 3 of the MCA 1984 in every district and it has jurisdiction in all proceedings of a civil nature where the law applicable is customary law or Islamic law, and for the recovery of civil debts, rent or interest where the value of the subject matter does not exceed 5 million shillings and for the recovery of civil debt arising out of contract where the value does not exceed 3 million shillings.
1. What is law
Law is a rule prescribed for human action/conduct.
It concerns human beings
It is a rule prescribed for human action by a determinate authority
2. Characteristics of Law
(a) Social control mechanism
• It is a means to persuade its members to think and act in compliance with the norms which make up its culture
• The most important feature of law is that, it is normative.
• By normative it means that certain norms characteristic of human social life and indicative of what is done by the majority in a given situation have taken on the quality of what ought to be done.
• What is the case is transformed into what ought to be the case
• The word Norm-originate from the word square or norma, that is used by carpenters and masons to make right angles, which afforded them a ready means of achieving standardization.
Conclusion
Law is generally similar to social custom, positive morality and convention since it shares with them the characteristics of a normative system.
Law is of a uniform and general nature. It also entails elements of official authority and regulated coercion as opposed to unpredicted of sanction associated with positive morality conventions and etiquette.
Note
The term LAW indicates both the concrete and abstract connotation.
Law should be taken to represent a form of language, which language is designed to convey amongst other things, the idea that certain rules of conduct are obligatory.
Law Techniques
(i) Penal
(ii) Grievance-remedial
(iii) Private-arranging
(iv) Constitutive
(v) Administrative-regulatory
(vi) Fiscal
(vii) Conferment of social benefits
(b) Classification of Law
(i) Positive Law and Natural Law
Law is a social rule posted by human beings to regulate in a general and binding manner the social behaviour of human beings as social beings in a given society.
Characteristics of Positive Law
(a) Command
(b) Sovereign authority
(c) Punishment
(d) Sanctions
Natural Law-Law is God given
(ii) Common Law and Civil Law( as system of law)
(iii) Public Law and Private Law
Public law-administrative law
Private Law-torts, contracts
(iv) Substantive Law and Procedural law (civil and criminal law)
Substantive law- refers to portions of a country’s legal system which defines the contents of legal norms or determines the legal subject’s rights and duties.
Procedural Law- refers to a country’s law of procedure or the means by which substantive norms are enforced.
(v) Common law and Equity
Common law comprises of the body of rules which were developed by the common law courts of England. Equity- Form of law developed by the court of chancery in England as a supplementary system to cure the mischiefs of common law.
Alternatively we can categorise law into two groups, that is :-
(a) Criminal law
(b) Civil law
NOTE:
There are many ways to classify laws, but to narrow things down the law is divided into two broad categories:-
(a) criminal law, and
(b) Civil law.
CIVIL LAW
To make it easy, civil law is all law other than criminal law, such as property law, which governs transfer and ownership of property, and contract law, which is the law of personal agreements; When a person has a grievance and it can’t be settled any other way, than an action has to be taken were the courts will settle the differences. This type of law is called a tort law and it’s a civil action in which an individual asks to be compensated for personal harm done to him or her. The harm may be either physical or mental and includes such wrongful acts as trespassing, assault and battery, invasion of privacy, libel (false and injurious writings against you), and last but not least, slander (false or injurious writings).
Torts happen when someone is injured by the actions of another. Remember O.J. Simpson, who was found “not guilty” during his criminal trial, but was found “guilty” during his civil trial? This discrepancy happens because the standard of evidence for a finding is less in civil cases. Criminal trials are based on the evidence of “beyond a reasonable doubt”, while for a civil case the evidence has only to prove the “preponderance of the evidence/probability.
A violation of civil law may also happen when a behavior indirectly causes injury that starts a chain of events that end in d--th. Some torts are similar to criminal acts and that is why a person can be held on both counts. For example, if one man hits another in the mouth, it is possible for the assailant to be charged by the state with assault and battery, be imprisoned, plus be sued by the victim in a tort action of assault in which the attacker will have to pay the victim for the damages he caused. An important similarity between criminal law and civil law is they have a common purpose, and this is to control people’s behavior by setting limits on what acts are permissible in this country.
CRIMINAL LAW
A body of rules and statutes that defines conduct prohibited by the government because it threatens and harms public safety and welfare and that establishes punishment to be imposed for the commission of such acts.
The term criminal law generally refers to substantive criminal laws. Substantive criminal laws define crimes and may establish punishments. In contrast, Criminal Procedure describes the process through which the criminal laws are enforced. For example, the law prohibiting murder is a substantive criminal law. The manner in which government enforces this substantive law—through the gathering of evidence and prosecution—is generally considered a procedural matter.
Crimes are usually categorized as felonies or misdemeanors based on their nature and the maximum punishment that can be imposed. A felony involves serious misconduct that is punishable by death or by imprisonment for more than one year. Most state criminal laws subdivide felonies into different classes with varying degrees of punishment. However, the words felony and misdemeanor are no longer used in Tanzania context, all crimes are termed crimes. Crimes that do not amount to felonies are misdemeanors or violations. A misdemeanor is misconduct for which the law prescribes punishment of no more than one year in prison. Lesser offenses, such as traffic and parking infractions, are often called violations and are considered a part of criminal law.
Criminal law requires either of the following:-
(a) Intent
(b) Malice
(c) Motives
The general principle here is “ actus non facit reum nisi mens sit rea” again the one who alleges must prove the allegations and ignorance of the law never excuses “ignorantia juris non excusant”
The main purpose of criminal law is to give the state the power to protect the public from harm by punishing individuals whose actions threaten the social order of things. In tort law, the harm or injury is considered a private wrong, and the main concern is to compensate the victim for the harm that was inflicted on them. For criminal actions, the state initiates the legal proceedings by bringing charges against the criminal, then prosecuting him or her.
Once it is determined that a criminal law was broken, the state will then proceed to impose a sentence against the defendant such as imprisonment, probation, or a fine, payable to the state. In civil actions, the injured person must file an action in order to initiate proceedings, if the offender is found guilty, then he or she must pay restitution to the person that was harmed. Of all cases, criminal or civil laws that are brought up on charges, only 10% of these charges actually go to trial and are heard in front of a judge or jury. Most cases are settled out of court, by both parties coming to an agreement that they both can live with.
QUESTION
In which of the above two broad categories of law is business law or commercial laws found?
ANSWER
Commercial law or business law which sometimes is referred to as mercantile law is a branch of civil law which regulates private relationship between individuals or an individual and the institution or between entities.
SUMMARY ON THE NATURE AND CHARACTERISTICS OF LAW
Legal norms are enforceable.
Legal norms regulate human conduct in that they are guides to human behaviour.
Characteristics of legal norms
(i) Uniformity
(ii) Law is hypothetical or relative
(iii) Law is of general nature
(iv) Law entails the element of authority
(v) Regulated coercion
SOURCES OF LAW
1. Statutes
Primary or principal legislation
Subordinate or subsidiary legislation
2. The Constitution
All other legal rules in the country derive their authority from it. Any other law that is inconsistent with the constitution will therefore be declared invalid by courts of law
3. Case law or precedent
The reasons for decisions of the higher courts may serve as precedent for future courts to follow in the event that a similar fact situation is adjudicated again
The courts are bound to follow precedent cases in accordance with the doctrine of stare decisis.
Essentially the common law contains a set of principles enunciated through the decisions of courts over the past six hundred years.
Characteristics of Precedent
(i) Certainty
(ii) Continuity
(iii) Precision
(iv) Flexibility
(v) Uniformity
(vi) Rigidity
(vii) Predictability
4. Customary Law or customs
Read section 11(1)(a)-(c) of JALA
Customary law shall be applicable to, and courts shall exercise jurisdiction in accordance therewith in, matters of a civil nature.
5. Islamic law or shariah
Began about 600 A.D
S.11 (2) (a)-(b) of JALA. It is used in matters of marriage, divorce, guardianship, inheritance, waqf and similar matters in relation to members of a community which follows that law.
6. Received Laws
Section 2 of the JALA, 1961
The jurisdiction of the High court shall be exercised in conformity with the written laws, the common law, the doctrines of equity and the statutes of general application in force in England on the 22nd day of July 1920.
Provided always that, the said common law, doctrines of equity and statutes of general application shall be in force in Tanzania only so far as the circumstances of Tanzania and its inhabitants permit and subject to such qualifications as local circumstances may render necessary
Section 9-The provisions of the acts of parliament of the united kingdom.....as amended prior to the 22nd day of july 1920 shall apply to and have effect within Tanzania subject to the exceptions, adaptations and modifications set out therein.
These are:-
(i) The common law
(ii) The doctrines of equity
(iii) The statutes of general application
In force in England on the 22nd day of July, 1920
TANZANIA COURT SYSTEM HIERARCHY
Court system refers to the legal framework of judicial organs in Tanzania. i.e how the judicial organs have been organised or arranged in Tanzania.
The judiciary is the body empowered by the constitution to dispense justice by giving decisions on various legal issues brought before it and interpret the laws. This is by virtue of article 4 of the constitution of the United Republic of Tanzania, 1977.
In view of the above, the court hierarchy is arranged as follows
THE COURT OF APPEAL
This is the apex and supreme court of the land that is established by virtue of article 117 of the URT constitution, 1977. It has original and appellate jurisdiction.
THE HIGH COURT
The High court of Tanzania is established by virtue of article 108 of the URT Constitution, 1977 and it has both original and appellate jurisdiction as well as unlimited jurisdiction in all legal matters. The High court of Tanzania is organised through divisions which are the Main registry, the Land Division, the Labour Division and the Commercial division.
When cases reach the High court all land matters will be dealt with land division, if its a labour matter it goes to the labour division and if it is a commercial matter it goes to the commercial division. Take note that, land matters do not go to ordinary courts, they have their own hierarchy of dealing, which is the Village Land Tribunal, The Ward Tribunal, The District Land and Housing Tribunal then the High Court Land Division.
THE RESIDENT MAGISTRATE COURT/ DISTRICT MAGISTRATE COURT
These are two courts with concurrent jurisdiction and they are established through the Magistrate’s Court Act, 1984. The district court is established by virtue of section 4 (1) of the MCA 1984 in every district of Tanzania and it has jurisdiction to exercise powers within the district it is formed. A district court exercise jurisdiction in all proceedings of a criminal nature and in all such other proceedings under any written law where the value of the property does not exceed 150 million shillings
The court of the Resident Magistrate is established by order of the chief justice vested in him under section 5(1) of the MCA, 1984, to exercise jurisdiction in such areas as may be specified in the order establishing it. A resident magistrate court shall have jurisdiction in all proceedings in respect of which jurisdiction is conferred and any law for the time being in force conferring power to the resident magistrate.
THE PRIMARY COURT
The primary court is established by virtue of section 3 of the MCA 1984 in every district and it has jurisdiction in all proceedings of a civil nature where the law applicable is customary law or Islamic law, and for the recovery of civil debts, rent or interest where the value of the subject matter does not exceed 5 million shillings and for the recovery of civil debt arising out of contract where the value does not exceed 3 million shillings.
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