© JABA SHADRACK, Department of Public Law, School of Law (Formerly, Faculty of law) at the University of Dar es Salaam. (CTL CLASS – OCTOBER 27, 2011)
1.1 Meaning of law
1.2. Role and functions of law
1.3. Sources of law in Tanzania
1.4. Classification of law
1.1 MEANING OF LAW
To religious people, the term law is closely associated with God's commands or directives or rules contained in Holy Books, thus 'law of nature' (i.e. law proclaimed my a supernatural beings, e.g. ancestors, spirits, goddess and etc). But, to social scientists, lawyers, politicians and economists, the term 'law' relates with the command of the sovereign (state) and its various institutions, thus 'law of science' (i.e. peoples' will or agreed system and standards of conduct). However, the area of concern in this brief outline is the 'law of science'.
The following are some attempts to define the term 'law':-
(a) Oxford Dictionary of law, 7th Ed., 2009 (p. 316).
Define the term 'law' as the enforceable body of rules that govern the society.
(b) Shivji, 2004, et. al., p. 3.
Is an obligatory rules of conduct imposed or recognised and enforced by the state.
(c) Salwan and Narang (2008) Academic's legal dictionary. 18th Ed., p. 201.
Refer the term law as: (a) legislative pronouncements of the rules which should guide one's actions in society; (b) the body of principles recognised and applied by the state in the administration of justice; (c) a rule of action to which human being's conduct must conform.
(d) Webster's New World law Dictionary (2006)
Define the term 'law' as: (i) the complete body of statutes, rules, enforced customs and norms, and court decisions governing the relations of individuals and corporate entities to one another and to the state; (ii) the subset of such statutes and other rules and materials dealing with a particular subject matter; (iii) the system by which such statutes and rules are administered; (iv) the profession of interpreting such statutes and rules.
Means a set of rules and norms or a standard of pattern of behaviour to which every individual in the society has to conform to. Rules ought to be obeyed, otherwise, the violator of such rules or standards behaviour can be taken to court, tribunal or other formal/informal institution or person and get punished/sanctioned.
Rules against genital mutilation, rape, fraud, forgery, theft, corruption, homicide, and etc
Basic elements or features to be considered in defining the term 'law':
The law must be a body or system of obligatory rules/norms (not optional) obeyed or adhered to by every member of the society (i.e. normative nature of the law: – law is obligatory on human conduct/s).
QUESTION: What about the concept of 'a King/Queen can do no wrong' (i.e. rex/regina non potest peccare).
(i) The law must be imposed or recognised and enforced by the sovereign or state (i.e. state centred or backed law: – institutional nature of law).
(ii) The impact or consequences of violating (breach) of the law must result into sanction/punishment/threat (i.e. coercive nature of law).
(iii) The law must apply to a whole community or to a cross-section of a society (i.e. general application).
Section 22 of The Interpretation of Laws Act (Cap. 1) provides that;
Every Act shall be deemed to be a public Act unless the contrary is expressly provided in the Act and shall be judicially noticed as such.
QUESTION: How does law differ from 'religious norms or rules of morality'?
1.2. ROLE AND FUNCTIONS OF LAW
There are conflicting views as to what actually is the role or aim of the law in the society. On one hand, Marxist scholars see it as a tool of a ruling class (haves) to protect their interest and status quo in the society (i.e. law as an instrument of oppression and domination, e.g. Apartheid laws, Nazi laws, Negro laws, colonial laws, e.g. property law, treason and anti-revolution laws, and etc). On the other hand, Bourgeois scholars conceptualise law as a tool of development, justice and peaceful working and co-existence of individuals in the society or between societies (i.e. law as social engineering, e.g. property ownership laws, city or town planning laws, electoral laws, succession laws, and etc). Specifically, law has the following functions in the society;
General functions of law:
(a) To structure and distribute public powers to both individual personnel and organs/institutions of the state (e.g. Judiciary, Legislature and Executive; or powers of the president as opposed to powers of the DPP or Attorney General and etc.
(b) To regulate private relations or dealings (e.g. land law, contract law, marriage) and etc.
(c) To provide a way of resolving or avoiding conflicts/disputes in the society.
Specific functions of law:
(i) To maintain public order, e.g. criminal law
(ii) To regulate human and state dealings and cooperation/interaction, e.g. law of contract, international laws, and etc.
(iii) To act as a medium of dispute resolution, e.g. law of tort, procedural laws and etc
(iv) To protect public morality, e.g. criminalizing homosexuality, prostitution, pornography, and etc.
(v) To regulate governmental powers, e.g. constitutional law, administrative law
(vi) To protect individual rights and freedom, e.g. bill of rights, anti-discrimination legislation.
1.3. SOURCES OF LAW IN TANZANIA
There are two sources of laws in Tanzania, namely formal/primary and non-formal/secondary.
(a) Formal/Primary sources of law:
(i) The Constitution (as the basic law);
(ii) Statutory laws,
i.e. principal legislations (Ordinances or Acts of Parliament);
(iii) Subsidiary legislations, i.e. by-laws, regulations, rules, directives, orders and etc.
(iv) Court Decisions in Tanzania: (especially, Court of records, i.e. The High court and Court of Appeal).
Note: refer the concept/s of 'stare decisis', 'standard of justice' and 'precedent'.
(v) Received laws: i.e. the common law, Doctrine of Equity, and Statutes of General Applications.
(vi) International and Regional law: i.e. Treaties, Conventions, bi-lateral or multi-lateral agreements, declarations and etc, e.g. refer laws of the EAC, SADC, AU and other laws made under the auspices of the UN.
(b) Non-formal/Secondary sources of law:
(i) Customary laws (customs and norms of each tribes), e.g. Haya customary on succession law.
(ii) Religious laws, e.g. Islamic law.
(iii) Trade usage, customs and lawful agreements or contracts or arrangements between private individuals.
Note: for non-formal sources of law to be enforced [they] must be constitutional and consistent with primary sources of law.
Question: Where do we get law in Tanzania?
Section/s 2(3), 3, 9 and 11 (schedules thereto) of JALA, Cap. 358.
Article 63(3) of the Constitution of the United Republic of Tanzania, 1977 (RE: 2008).
1.4. CLASSIFICATION OF LAW
By classification of law we mean, branches or types or divisions of laws. Laws may be classified into two (2) major categories;
(1) Municipal laws:
These are national or local laws enacted by legislative bodies in Tanzania. Municipal laws are also divided into two (2) groups;
(a) Public law and Private law
Public law is the law which deals with the relationship between the state and individuals, the distribution and exercise of public powers. Braches of public law are Constitution law, Administrative law, Regulatory law (e.g. EWURA & TCRA laws), and Criminal law (e.g. Penal Code). While, Private law is the law which governs relationships between private individuals, for example, law of contract, tort law, property law, succession (and trust) law, and etc. Private laws usually do not involve the government, and are laws that allow one private entity to sue another private entity in a civil lawsuit.
(b) Substantive law and Procedural law
Substantive law is laws which governs or give rise to rights and obligations, e.g. the Penal Code, Cap. 16 (RE: 2002). While, Procedural laws are just legal steps to be followed in filing a lawsuit against another party, or before arresting or searching another party.
(2) International laws:
These are laws which govern intercourse or relations between sovereign states, or individuals and sovereign states at international level, e.g. law of high seas, diplomacy, and international crimes (e.g. genocide, crimes against humanity, and etc).
International law may be divided into two classes;
(i) Public international law: law governing relations between states, or a state and private individuals.
(ii) Private international law: law governing relations between people across nations, e.g. marriage and divorce between a Tanzanian man and Canadian woman.
What is a difference between Criminal law and Civil law?
What is Public law? List sources of public law.
Mention and discuss main functions of public law.
Why do you study public law?
Constitution of the United Republic of Tanzania of 1977
Constitution of Zanzibar of 1984
Interpretation of laws Act, Cap 1, R.E., 2002
Judicature and Application of Laws Act, Cap 358, R.E., 2002
Farrar and Dugdale (1990) Introduction to Legal Method. 3rd. London: Sweet & Maxwell. (ref. Chapter1).
Shivji, I.G., et al (eds), Constitutional and Legal System of Tanzania: a Civics Sourcebook, Dar es Salaam: Mkuki na Nyota Publishers, 2004.