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INTRODUCTION TO LAW AND FUNDAMENTAL RIGHTS

GENERAL INTRODUCTION
“ Apart from the science of Religion among all the other human sciences, the science of law is the most necessary and most important
human sciences in the social order of man in the society as it regulates aspects of justice between men. The links and engagements upon
which the society is born... Are the laws we call rights”.

It is impossible to study the human reality in the following three dimensions; socio-cultural, economic and political without hanging the
phenomenon of law. In effect, man is made to live in the society. Man cannot be isolated from his kind. When a man comes in to the world, he
needs the help of his parents and later he becomes of age, he can still not satisfy his needs without the help of his kind be it physically or

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intellectually. An isolated man does not exist as expressed in latin as “Unus Homo, nullus homo”. Thus life in the community or society is a
natural condition of man’s survival. But man also requires an organisation and regulation of human behaviour in the form of the society. For this
to be possible, an order (rules of conduct) must be established and the respect of these rules of conduct must be imposed to all that form part of
the society. This order is realized by law. There is therefore no society without law expressed in latin as “ubi societas ibi jus”, which means that
where ever there is a society, there is law.

From this premise, it is clear that the study of law emanates primordially from day to day life. We have to consider the following illustrations:

 A youth after having finished celebrating his success in GCE A level exam, he has to immediately be informed of the preinscription
procedures of the university. He has to be informed on the requirements. The totality of these procedures is called a Judicial Regime.
 When an individual is born he is called the “child of ...., i.e. He is doted with a filiation, a name, a nationality and sometimes a domicile
which determines the essential traits of a judicial status because he doted with a legal personality which makes him a subject of law.
 The most current acts of daily life like transportation, buying of items, payments of bills, borrowing of a sum of money etc are acts realized
by judicial obligations.
 The state is organized in powers (the legislative, the executive and the judiciary) exercised by the authorities (the president of the
Republic, ministers, senators, deputies, judges etc) acting in conformity to the laws which form the legal body (the constitution, civil
code, penal code, etc). The ordering of such powers, the authorities and of the legal body takes us back to the notion of judicial order.

The following three significance and illustration raises three things. The first is the permanence of the law. The second is the relativism of
the law which implies that where ever there is a society there is law, thus each society has its own proper law. However, law is the product of the
culture of a people and at the same time it is the expression of the values of these people. This is expressed in latin maxim as “cujus regio, ejus
jus” which means every society has its own law. The third thing is the power of law. This idea signifies that that law is imposed independently of

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man’s will. Law is away from but its force renders service to man.

There is a total unanimity on the idea of the permanence of the law. Nonetheless, there is a constant discussion on the real sense of law.

What is law?

A good formula is used by Justinien Le Grand in trying to answer this question. He states “jus est ars boni et aequi” which means that law is
the art of the good and the just. Despite the elegance of this formula, it lacks the three primordial ideas of law. In this sense law can be defined in
two ways:

In the OBJECTIVE sense, law is envisaged in the macro perspective i.e. It governs the relationship between individuals and the society at large.
Here, law is seen as an assembly of rules and regulations governing man in the society violation of which is tantamount to sanctions.

In the SUBJECTIVE sense, law is not seen to have direct effect on the society but rather on individuals. It is the micro perspective in which law
is defined a set prerogatives recognized on subjects of law. It governs the relationship individuals inter se.

In its general perspective, we can consider that law is a social phenomenon which has direct effect on the society and the subjects. From its
effect on the society, the problem of the study of the rule of arises (Part I) and from its subject effects, the problem of the study of the
prerogatives of law arises (Part II).

PART I: THE STUDY OF THE RULE OF LAW

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The rule of law is a component of objective law since objective law is seen as an assembly of rules of law. To study and understand the rule of
law, the following questions must be asked. The first question is on the Identification of the rule of law (chapter 1), the second is on the types of
rule of law (chapter 2), the third is on the sources of the rule of law (chapter 3) and the fourth is on the application of the rule of law (chapter 4).
CHAPTER 1: THE IDENTIFICATION OF THE RULE OF LAW
In a simple and operational perspective, the rule of law is perceived as a rule of social conduct, respect of which is guaranteed by public
authorities. From this definition we can say that the rule of law can be identified or characterized by at least three elements.
Firstly, the rule of law appears like a command. It refers to some sort of prohibition in which the rule of law is synonymous to a prescription.
Secondly, the rule of law is seen as the literal expression of will. Finally, the rule of law is normative i.e. It emphasizes on a mode of conduct.
In combining these three definitions, the rule is seen as a reflection and an expression of what is and not to trace the direction the society has to
take. It orientate the behaviour of men in the society. These considerations despite their pertinent does not still enable us to identify the rule of
law. In effect, there are several norms:
 Social Norms: norms that are very close to reality and normality
 Moral Norms: rules of politeness, rules of ethics etc
 Religious Norms
 Judicial Norms
By this diversity, there is therefore need for a positive coexistence between the rule of law and other rules of conduct given that there are several
norms or rules of social conduct in the society. It is thus imperative to identify the rule of law and for this reason, we must be interested in the
following two questions. What are the characteristics of the rule of law? This question enables us to master the characteristics of the rule of
law and to understand the main difference between the rule of law and other rules of social conduct (Section 1). The second question is that of
knowing, what are the Finalities of the rule of law? (Section2). Thus the identification of the rule of law lays on the characteristics and the
finalities.
Section 1: THE CHARACTERISTICS OF THE RULE OF LAW

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The rule of law is essentially different from the other rules of social conduct by the presence of two main characters: The General character
(Paragraph 1) and the Obligatory character (paragraph 2).
Paragraph 1: THE GENERAL CHARACTER OF THE RULE OF LAW
The general character lays on two characters i.e. The Impersonal character (A) and on the other hand the Permanent character (B).
A. THE IMPERSONAL CHARACTER OF THE RULE OF LAW
While a moral rule or a religious rule applies only to those belonging to particular a group (example; the rules of the christian religion makes
sense only to the Christians and the rules of the Muslim religion makes sense only to the muslims), the rule of law applies to all citizens in a
state. The latter does not concern only men, women, children, but every body at the same time. However, the impersonal character of the rule of
law does not signify only the abstractness of the rule of law. It is therefore important to emphasis on the forms of expression of the impersonal
character of the rule of law (1) and the definition of the impersonal character of the rule of law (2).
1. Some Forms of Expression of the Impersonal character of the Rule of Law
Several expressions in law translates the impersonal character of the rule of law. For example; article 1382 of the Civil Code “whoever causes
harm or damage to another shall be obliged to repair”. From this disposition, the word “whoever” signifies the general and thus the
impersonal character of the rule of law. Article 275 of the Penal Code is to the effect “whoever intentionally causes another’s death shall be
punished with life imprisonment”. This article which defines murder in the Cameroonian penal code is impersonal by reason of the word
“whoever”. The impersonal character implies that rule of law is not an individual dispositions but a general one.
2. The Meaning of the Impersonal Character (impersonality) of the Rule of Law
Impersonality here signifies that the rule of law does not apply only to a particular group of people but to every one in the society at large and at
the same time. It does not take in to consideration whether or not a particular group of people are women or handicaps or minors, it applies to all.
Thus the rigid and abstract application of the rule of law depends on the latin maxim”Dura Lex Sed Lex”( meaning the law is hard but it
remains the law) and lead to grievous injustices. However, the there are some particular laws consecrated for positive discrimination such
as law governing women or handicaps or minors.

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According to the maxim “summun jus summa injuria” (meaning the law when pushed to the wall may create great injustices). In the same
strand of reasoning, impersonality of the rule of law signifies that there is no particular author of the rule of law but the author is the
society at large which expresses its will through the parliament or through the executive power since law is the expression of the general
will.
In summary, the impersonality of the rule of law signifies that the rule of law emanates from the society.
B. THE PERMANENT CHARACTER OF THE RULE OF LAW
The permanent character of the rule of law does not mean that laws will last for eternity for laws have a beginning and an end. What it entails is
that, when we talk of permanence of the rule of law we mean the constant applicability of the rule of law during its existence (the intention of the
legislator at the time of making the law must be for its permanence). The rule applies each time the conditions of applicability have been fulfilled
no matter whether they are applied frequently or less frequently.
The permanence of the rule of law must lead to an objectivity of the rule of law. It is the element of the stability of judicial rules and judicial
foreseability.
In a nutshell, the first character of the rule of law which can also be called the formal character, is the general character which at the same time
impersonal and permanent. For a rule to be rule of law this general character must be fulfilled. However, the there are some particular laws
consecrated for positive discrimination such as law governing women or handicaps or minors in a population.Thus the rigid and abstract
application of the rule of law depends on the latin maxim”Dura Lex Sed Lex”( meaning the law is hard but it remains the law) and lead to
grievous injustices.
According to the maxim “summun jus summa injuria” (meaning the law when pushed to the wall may create great injustices). In the same
strand of reasoning, impersonality of the rule of law signifies that there is no particular author of the rule of law but the author is the
society at large which expresses its will through the parliament or through the executive power since law is the expression of the general
will.
In summary, the impersonality of the rule of law signifies that the rule of law emanates from the society. As completed by the obligatory

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character of the rule of law.

Paragraph 2: THE OBLIGATORY CHARACTER OF THE RULE OF LAW
The rule of law is characterized by its obligatory character. This characteristic is a decisive character of the rule of law. It entails the attribution
of sanctions for the respect of the rule of law. This sanction is attributed by the state. A state sanction is that which is pronounced by the public
authorities or all the other authorities that constitute the fundamental criteria for the distinction between the rule of law and other rules of social
conduct. It therefore important to emphasis on the etatic or state sanction which characterizes the rule of law (A) and also to examine the
substance of such etatic sanction (B).
A. Etatic Sanction as a Substance of the Obligatory character of the rule of law
Here we must immediately avoid the confusion which the popularity of Criminal law can cause: criminal law punishes or sanctions individual
who violate laws in the society. In effect, the notion of sanctions must be envisaged in wider sense. It signifies that it is possible to execute
sanctions by seizing an organ of justice instituted by the state i.e. The execution of the rule of law, the respect of the rule of law or its observation
is left on the free will of the subjects of law; for it is guaranteed by constraints or conviction. There exist therefore from this point of view,
several types of sanctions.
 Execution (specific performance): For example a creditor who siezes and sells the property of the debtor to obtain payment owed him by
the debtor.
 Separation: separative sanctions are frequent and its application is very current. We shall distinguish two types;
 Nullity; which is a sanction for the violation of a rule of law relative to the violation of a judicial act.
 Damages and interest; this is the most used sanction. It is generally that sanction pronounced by article 1382 of the Civil Code i.e.
Payment of damages for the damage or injury caused on another.
 Punishment: the violation of a rule of law can be sanctioned by a punishment. A punishment is a sanction which is drawn from criminal
law. It is made up of penalties (such as death penalty, imprisonment penalty and fines) and security measures.
In general manner the nature of judicial sanction varies with respect to the branches of law considered. But beyond these types of sanctions, the

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obligatory character of the rule of law resides also in the rights of taking action in justice. In effect, the obligatory character supposes that the
violated rule could be examined by the judge. In this case a distinction between judicial obligation contained in the rule of law and religious,
moral, and ethical or natural obligations contained in other rules of social conduct.
B. Substance of Sanction as a Criteria of the Rule of Law
The search of the substance of the obligatory or coercive character of the rule of law or the etatic constraint which characterizes the rule of law is
a philosophical question. In effect, two theories emanate; the theory of natural law (1) and the positivism theory (2).
1. The Natural Law School of Thought
The natural law school of thought postulated with respect of their intuition i.e. The rule of law is imposed on man because it comes from
nature, the natural order of things and from human reason. The general idea of this school of thought is that the rule is obligatory because it is
revealed to man by a supreme Deity. The respect of the law is thus the respect of the supreme deity. Natural law forms the authority of the
living law, the written and practical law on the legitimacy of the rule of law and human conscience. This view is not accepted by the positive
school of thought.
2. THE POSITIVE LAW SCHOOL OF THOUGHT

The doctrines which are designed in the way of legal positivism or etatic positivism are those in which hold on positive law, those which stand
on and relate the constraining character of the rule of law to the authorities of the state. Here, the rules of law are obligatory since they are made
by men to govern men as authorized by the state.
Finally, it is important to note that the obligatory character of the rule of law arises from an expression of political will on the one hand and on
the other hand the fact that the rule of law is inspired from the fundamental values of human beings. This leads us to the finalities of the rule of
law.
SECTION II: THE FINALITIES OF THE RULE OF LAW
There is no society that is in disorder just in same way as there is no social order that is spontaneous. The law has the general function to ensure
social order but even though order is very vital, it does not mean that it is the ultimate goal in every society because there is also wellbeing,

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riches and power and all of these points only indicate to us the plurality in the finality of the rule of law.

These finalities of the rule of law can be grouped in two: on the one hand we have the moral finalities of the rule of law (paragraph 1)
while on the other hand, we have the material finality (paragraph 2).

Paragraph 1: The Moral Finalities of the Rule of Law

Talking about the moral finality of the law brings us to the issue on the relationship between the law and morality. The law is more
interested with issues as charity, justice, generosity and virtues but the law is concerned more with commandments, prescriptions and
prohibitions.

The above consideration only reveals the natural difference between the law and rules of morality. It is sometimes said that many laws
spoil the law. In order words, when we push the law to its limits, it may instead lead to injustice according to the Latin maxim: summa jus,
summa injuria. According to this maxim, it appears that the rule of law needs morality for its development; the legal rules feed on morality in
order to attain justice. So it means that there is some consecration of morality by the law (A) and a moral admission of the rule of law (B).

A – Consecration of Morality by the Law

It is the transformation by joining the moral rule with the rule of law. This transformation consists in integrating the morale rule with the
rule of law so as to arrive at a conclusion between the rule of law and the moral rule. The moral rule is overridden by the rule of law. Two
technics of observation can be noticed: the direct and indirect consecration (1) and the explicit or implicit consecration (2).

1. The Direct or Indirect Consecration

This consecration can take many forms and it can either be direct or indirect; for instance article 275 of the Penal code when the law punishes
voluntary and involuntary homicide article 289 of Penal Code, it is only confirming the moral prohibition of killing. When the law imposes the
duty for drivers to respect the highway code, it means it is only confirming the moral requirement of prevention of motor accidents.

When the moral rule becomes more demanding that the legal rule, the consecration of morality by the law may become incomplete; for

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instance, Christian morality advocates for charity, thus making generosity an obligation. It is true that the law also places duty of charity such as
the obligation to come assist someone in danger, it should be said that there is no total charity nor any obligation of forgiveness.

2. Explicit and implicit Consecration

The consecration may be implicit or explicit (it is explicit when the law punishes murder, rape and false pretence). It is in this same line of
thinking (of implicit consecration) that the law punishes indecency. In a general manner, the rules of law seek to consecrate the rules of morality
without altogether losing their specificity, that is to say their three characteristics. E.g. article 6 of the Civil Code prohibits contracts with any
clause contrary to public order and morality by article 133. Again agreements must conducted in good faith as per article 134 of Civil code. The
penal code on its part contract against public morals, corruption of the youth

B – The Moral Value of the Law

The rule of law has a moral value once it directly or indirectly seeks to ensure the respect of morality even the driving code in that the
driving code seeks to protect human life. This therefore means that the rule of law is a moral obligation in as much as the law does not transgress
morality. Can we say that it is immoral to violate the rule of law? This will be so if it is only through morality that the rule of law can be
expressed in which case we talk of resistance.

Paragraph 2: The Material Finalities of the Rule of Law

The material finality of the law first of all seeks protect general interest (A) and the security of properties (B)

A – Common Good of the Rule of Law

It is the law that organises the administration of courts; it regulates the public service as well as economic activities in the interest of all
the members of the society. So the law in this way seeks to satisfy the wellbeing of all according to Saint Thomas of Aquinas. In such societies,
the rules of law that satisfy material interest develop more and outplay the rules of law that are concerned with morality. Common good requires
that the rules of law should have some constraint but it should be said that the constraint varies according to each political, economic and socio-

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cultural system.

B – Legal Security as the Material Penalty of the Rule of Law

Legal security which is different from material security can be understood as the legitimate confidence that the citizen finds in the rule of
law or in legal transactions. So if we want to analyse legal security as the material finality of the rule of law, we will have to proceed by looking
at the conditions (1) and the aims (2).

1)- Conditions of the Rule of Law

The conditions to obtain legal security can be traced from the internal characteristics of the rule of law. These rules have to be drafted
with a lot of clarity; that is to say beyond every doubts in theoretical interpretation as well as in a way as to render it accessible to all.

2)- The Goal of Legal Security: Legal Stability

The modifications of law, even if that law is not retroactive, have the effect to distort the existing order. Those that enjoy certain
advantages seek to conserve it. Others may advocate for modification of the law in order to benefit from one situation or the other. The problem
in any case is the legal stability of these situations as the material finality of the rule of law. This stability consecrates the notion of acquired
rights and it signifies that the aim of the rule of law is to preserve these rights acquired by citizens within a society. In addition to the study of the
characteristics and the finalities of the rule of law, there is a third element to be considered; and it is that of the typology of the rule of law. This
third element permits us understand the variants in the rule of law and it makes a distinction between autonomous rules of law, the rules of law
meant for the application of the law, rules of law that determine legal consequences, the general principles of law and the principles of the law of
empowerment. In this last case, we can mention article 28 of the Constitution which authorises the head of state to interfere in the domain of the
legislator.

Our study of the composition of the law has permitted us to see the particularity of the rule of law and at this point, it will be food for us
to look at the origin of the rules of law: that is to say the sources of objective law.

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