LECTURE 3

NATURE, CLASSIFICATION AND

SOURCES OF LAW
 WHAT IS LAW?
• A system of rules of social behavior;
– Rules are general statements on human behavior (abstract
statements to be used to distinguish groups of human behaviour
eg. Distinguishing rule non-compliant persons from compliant);
• The rules deal with social behaviour of human beings, not
technical rules on non-human beings (e.g machines, etc. for
example, rule on how to operate the machines are not law);
– Law may be concerned with social rules related to those machines,
e.g rights/duty of humand to own or use those machines;
• These rules are normative in character;
– People are obliged to obey them because of their “bindingness”
otherwise disobedience will attract sanction from the society
( such as penalties, loss of rights, various kinds of remedies, etc.)
 WHAT IS LAW?
• Example
– Rule: stealing is forbidden or “you shall not steal”
– Sanction: whoever steals shall, upon conviction, be imprisoned for a
certain period of time;
• The Penal Code of Tanzania usually contains only a sanction and a
description of a prohibited behaviour from which a rule is implied;
– Rule: If you enter into an agreement for buying an article you must pay
the agreed price before taking it;
– Sanction: a loss suffered because of shall be compensated in damages by
the one who caused it;
• The law of Contracts Act provides for entering into a contract and
for remedies in case of breach or non-performance.
 WHAT IS LAW?
• Laws as instruments of control or regulator of social human
behaviour utilizes several techniques or characters embedded
in the rules:
– Penal: for prohibition of deviant behaviour – hence, rules containing
penalties led by the Penal Code;
– Remedial (remedy of grievance): rules containing rights and duties
arising from human behaviours, consequent damages which may be
suffered in case of infringement and possible remedial awards to the
affected;
– Facilitative: rules create conducive environment for private human
arrangements inter-se, to be respected by those concerned and
consequent remedies for the defectors, for examples, marriage,
establishment of associations, companies, etc
 WHAT IS LAW?
– Administrative/ regulatory: rules directing on administration of
other rules or procedures for human behaviour that would lead
to compliance to other rules;
– Conferral: rules that give (confer) certain rights, benefits or
rewards to certain human behaviour (outstanding performance);
• Conclusion: rules as a system of social norms regulating
human behaviour society have been from time
immemorial (for a long times even before emergence of
states) that is why societies have enjoyed more orderly
living and less anarchy. But what distinguishes law from
other rules of social behaviour?
 WHAT IS LAW?
OTHER RULES OF SOCIAL BEHAVIOUR
• Law is not the only systems of rules of social
behaviour in society. Other systems are:
• Rules of Morality
– These are statements about how people should behave
or must behave, stating what is good or bad and are to
some extent normative;
– Meaning that they are binding to that society and if
broken sanctions may be imposed upon the person
concern, depending on the society values.
 WHAT IS LAW?
• Customs
– Customs are rules of social behaviour based on
long term experience or agreement of the society
on what is right or useful in certain aspects of
human behaviours;
– They are thus, justified by usage and traditions;
– Customs of particular societies attain the status of
being “law” when they are recognized by the
State.
 WHAT IS LAW?
• One important feature which distinguishes law from other
systems of rules of human behaviour is that as opposed to
others law is a creature of the state, whereas others are just
creatures of the society;
• Law is either enacted or otherwise formulated by competent
organs of the state (legislature and courts) and is as well
enforced by other competent organs of the state (courts and
government);
• There is therefore a necessary link between state and law and
vice-versa. Historically, no state has ever been without law
and no system of law has ever been without state power.
 WHAT IS LAW?
• In conclusion we can observe that not all social norms existing
in the society are transformed by the state into law;
• The state only transforms those social rules which are
necessary for safeguarding and developing the society at a
given time or period;
• However, in real life of humans in a society legal rules cannot
be separated entirely from other social norms. In certain
societies people may enforce moral rules which may be
contrary to law;
• The challenge is how to balance law and morality in a society.
 SUMMARY
• Law as a system of rules of social behavior has a formal
nature which it derives from its GENERAL as well as
BINDING character:
• Its general character obtains from the way it is crafted
in an abstract form in order to include all relevant social
relations in the society;
• Its binding character comes from its “normativity”
which is expressed by presence of formal authoritative
and coercive instruments for its enactment and
implementation or emforcement, namely, STATE organs.
 CLASSIFICATION OF LAW
• Law can be classified in two main ways:
1. General classification
2. Subject Classification

1. It can be Generally classified under:

(i) Common Law and Equity;
(ii) Civil and Criminal Law;
(iii) Public and Private Law.
 CLASSIFICATION OF LAW
(i) Common Law and Equity
(a) Common Law
– This a body of laws which was developed through
judgments of the English courts which made
reference to the customs and usage of the English
people and then interpreted them in courts;
– By preservation of courts, they remain applicable
(when there is no local law or rule) and some times
as persuasive laws in Tanzania through the doctrine
of precedent.
 CLASSIFICATION OF LAW
(b) Doctrine of Equity
– This is a body of laws developed in England through decision of King’s Courts,
commonly referred to as the Lord Chancellor Courts, which were developed
by judges appointed by the King to sit in King’s court to make decisions on
appeals by people aggrieved by decisions of England common law courts;
– Later, the King appointed judges who were referred to as Lord Chancellors to
adjudicate on his behalf and hence developed what is called today, as ‘the
doctrine of equity’;
– The Common Law courts and courts of Chancery were finally merged into a
single High Court and Court of Appeal by the Judicature Acts of 1873 -1875;
– This system was bequeathed on the Tanganyika Territory through the
Tanganyika Order in Council of 1920;
– Just as the principle of common law, the doctrine of equity remain
persuasive and precedent when local circumstances do not provide for an
answer.
 CLASSIFICATION OF LAW
• The Tanganyika Order in Council of 1920, provides
that the High Court of Tanganyika shall apply
common law, doctrines of equity and statutes of
general application and the practice and
procedures obtaining in the courts in England, at
the reception date, that is, 22nd July, 1920.
• Tanzania courts apply common law principles and
doctrines of equity as a single system of law, and in
case of conflict equity prevails.
 CLASSIFICATION OF LAW
(ii) Civil and Criminal Law
(a) Civil Law
– Civil law refers to the law which defines the rights
and duties of persons (civilians) in relation to one
another and provides a system of remedies;
– The law of contract, tort, family law and property
law are examples of civil or substantive law;
– They form part of civilian relations management
and facilitating their arrangements.
 CLASSIFICATION OF LAW
(b) Criminal Law
– This refers to the law which prohibits acts or omissions
which are contrary to public order and the society as
whole through its representative, namely the STATE, the
society wishes them to be checked or curtailed through
penal sanctions;
– Their commission causes an injury or an offence to the
public, and renders the guilty person liable to
punishment (fine or imprisonment or both;
– In Tanzania some offences such as murder or treason
attract a capital punishment.
 CLASSIFICATION OF LAW
• Civil and Criminal Law form part of substantive law;
• The procedure for enforcing the remedies under civil law and the
machinery for trying and punishing criminals forms part of
procedural or adjectival law;
• In criminal proceedings a person who takes or files a complaint
before a court of law against a person alleged to have committed
an offence is known as “the prosecutor”, may be private or public,
hence private or public prosecutor;
• A person complained against or being prosecuted is known as “the
accused”;
• A person affected by the accused act apart from the State is known
as “the complainant” and is normally PW1 during prosecution.
 CLASSIFICATION OF LAW
• In Civil proceedings, the party who initiates a law suit is known as
“the plaintiff” or “claimant”;
• The person against whom a civil action is brought is known as
“the defendant”;
(iii) Public and Private Law
• This kind of classification originated from the Roman Legal
System, it drew a distinction between these two braches of law;
– Private law governed the relationship between citizens;
– Public law governed the relationship between the citizens and the state;
• In our legal system courts enforce both, it is the procedure which
differs.
 CLASSIFICATION OF LAW
2 Classification of Law by Subject
• This entails classification according to the
subject under which the relevant law is about;
• For example, criminal law, contract law,
administrative law, family law, business law, etc.
• Within each subject of law there is a body of
rules and principles which fit together give a
coherent structure of that law.
 RELEVANT REFERENCE
1. John H. Farrar & Anthony M. Dudgale,
Introduction to Legal Method, 2nd Edn. Sweet
and Maxwell, London (1984), pp. 31 – 42;
2. Granville Williams, Learning the Law, 11th
Edn., Stevens, London, (1982), Chapters 1
and 2
 SOURCES OF LAW
• The Major Sources of Law in Tanzania are:
– The CONSTITUTION;
– Case Law (Precedents);
– Legislation (statutes);
• Principal;
• Subsidiary (delegated);
– Received law.
 SOURCES OF LAW
• Received Law
– Common Law
– Equity
– Statutes of General Application
• Pre-existing systems of law
– Customary law
– Islamic law
• Quran
• Sunna or Hadith of the Prophet
• Ijma (consensus)
 SOURCES OF LAW
• Public International Law
– Customary International Law
– Treaties/Conventions
– General Principles
– Writings of publicists
 SOURCES OF LAW
THE CONSTITUTION
• The Constitution is a fundamental source of law;
• It is the Basic law of the land and other laws have
to conform to it;
• The constitution defines the powers and
functions of the three organs of the Sate, namely,
the Parliament, the Judiciary and the Executive;
• It also establishes certain offices in these organs.
 SOURCES OF LAW
CASE LAW
• Law sometimes is made through the Doctrine of
Precedent , which basically means a process of making
law by courts in recognizing and applying new rules
while administering justice;
• In a judgment, the court declares the rule of law,
which is normally considered as an authority or basis
for future judgments by inferior courts when
determining what law should apply to other similar
fact situations in a future case;
 SOURCES OF LAW
STATUTES
• Statutes are enacted by the legislative and
interpreted by the judiciary;
• The legislature in Tanzania is the National
Assembly (Parliament), which passes pieces of
legislation;
• They are then assented to by the President
before they become law;
 SOURCES OF LAW
RECEIVED LAW
• Received Law is that law which was “received” in the
territory of Tanganyika by virtue of the “reception
clause” in the Tanganyika Order in Council of 1920;
• This Order was a legal instrument for general
reception into Tanganyika, of the common law,
doctrine of equity and statutes of general
application, which were in force in England on the
22nd July, 1920;
• Common Law: this term could mean the law that:
– was common to the whole of England and not local law;
– is not the result of legislation but created by custom of
the people and decisions of the judges in England;
– Is not equity which means the law developed by the old
courts of common law as distinct from the system old
court of the Chancery,
– Is not foreign, that is, is the law of England as opposed
to the law of Continental Europe.
• Equity
– Refer to rules developed by the Court of Chancery in
England to cure the mischief of the common law;
• Statutes of General Application
– These are sets of legislation passed by the parliament of
England to apply in England but were of general nature that
they would apply in other territories;
– However, only part of the legislation which were in force in
England on the 22nd July 1920 (commonly referred to as the
“reception date”) was received to apply in Tanzania as per
section 2(3) and 9 of JALA Cap. 358 (RE 2002)
• Pre-existing Laws
– These are systems of laws which were existing in pre-colonial
Tanganyika before colonization and which were retained through sect.
9 of the JALA after independence these include:
(i) Customary Law
– These are sets of rules developed through customs, practices and/or
usages of Tanzanian ethnic tribes and they are accepted by
Tanzanian as binding rules.
– The customs were accepted by the colonial regime thus accepted to
be applicable in ‘native courts’ to native parties.
– At independence these rules continued to be binding and were
made part of the laws of Tanzania in all courts having exclusive
application at the primary courts;
 Customary Law…
• The application of customary laws is only limited
to:
i) civil cases particularly on issues of marriage,
succession, inheritance, land and family relations
ii) Customary law applies only to members of the
community concerned;
iii) Customary law applies only when there is no
written law, does not conflict with statutory law and
as of today’s conception, to circumstances which
are not repugnant to principles of human rights.
Islamic Law
– Islamic law application also fall under section 9 of
the JALA;
– It empowers courts to apply Islamic law to matters of
succession in communities and parties that generally
follow Islamic law in matters of personal status and
inheritance;
– They drive their sources from the Qua’ran, the Sunna
of the Prophet, Ijma (the consensus of the orthodox
community) and the qiyas (the method of analogy),
Public International Law
– Public international law comprises the entire body of obligations one state owes to
another with respect to own conduct or conducts of its citizens towards other states or
their citizens, they deal with:
• Sovereign nations, who are referred to as “subjects of international law”, with each other;
• Courts of one sovereign nation dealing with rights of its citizens acquired under international law,
e.g. human rights;
• Their sources are mainly custom and treaties or conventions;
– However, they must be enshrines in the nation’s law through a local or municipal
legislation in order to become enforceable. . It is application falls under the Judicature
and Applications of Laws Act, Chapter 358 of the Laws of Tanzania [R.E. 2002] (JALA). As
such, it empowers courts to apply Islamic law to matters of succession in communities
and parties that generally follow Islamic law in matters of personal status and
inheritance. Driving their sources from the Qua’ran, the Sunna of the Prophet, Ijma (the
consensus of the orthodox community) and the qiyas (the method of analogy), the
decisions of courts impose lenience application as compared to strict Islamic rules
 READ
1. Glanville Williams, LEARNING THE LAW, 1982,
Chapter 2;
2. G. F Akilagpa Sawyer and Jack A. Hiller, THE
DOCTRINE OF PRECEDENT IN THE COURT OF
APPEAL FOR EAST AFRICA, Tanzania Publishing
House, Dar es Salaam, 1971, Chapter 3;
3. John H, Farrar & Anthony M. D. INTRODUCTION
TO LEGAL METHOD, (1984) p. 70
 SEMINAR QUESTIONS
1. (a) What is law and how is it classified?
(b) Mention five sources of law applicable in
Tanzania and how they developed;
2. “Public international law does not apply in a case
brought to a primary court”. Discuss