General Principles of Law

Introduction

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 What is Law?
• There is no general acceptable definition of word
‘LAW’
• Woodrow Wilson define law as portion of
established thoughts and habit which has gained
distinct and formal recognition of formal laws
backed by authority and power of the
Government.
• Salmond says, law is the body of principles
recognized and applied by the state in the
administration of justice.
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• Holland says, law is a general rule of external
human action enforced by a sovereign political
authority.
• Gray says, law is the composition of rules
which the court has laid down for the
determination of legal rights and duties.
• Idealist, state law as the command given by
God, to be followed by people.

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• Materialist, state law as the set of rules made
by the state against the ruled.
• Working Definition: law is the set of rules and
principles which regulates human behaviour.
• Note: set of rules originate from customs, Acts
of parliament, court cases or some other
acceptable sources.

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 Nature of Law
• The term law is used in a variety of senses.
• There are laws of physical sciences.
• Laws of social sciences
• Moral laws
• State laws

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 Characteristics of Laws
• Law is General: that is to say it does not
specifically deal with a single person but a group
of human being.
• Law is normative (bindingness): that is to say
members of a society are bound to behave in
accordance with the law, and it imposes
sanctions to those who go contrary to it.
• Law is permissive: b’se it allows individuals to
establish their own legal relations with rights and
duties.
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 Changing connotation of Law
• ‘a law’ refers to each individual rule
• ‘the law’ refers to the entire body of rules

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 Importance of Law
• Helps in resolution of legal disputes/conflicts
• Helps in regulating Human behaviours
• Helps in distribution of power(both public and
private power)
• Helps in distribution of wealth
• Helps in reconciliation and maintaining
stability

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 Cont’…
• Helps in maintaining peace and tranquility in
society.
• It protects public morals, see DPP V. Shaw
• Helps in checking Government power and
promoting personal freedom.
• Helps in protecting environment.
• It protects the interests of individuals & state.
• Punish law breakers.
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 Sources of Law
• Refers to various factors that contribute,
determine the content of the law and the
organs which laws are created.
• It may mean factors that give law force and
validity.
• Source of law may be written or unwritten,
hence lead to written and unwritten laws.
• Source of law may determine whether the law
is local or of foreign origin.
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 Cont’…
• Sources of law may either emanate from,
principle or subsidiary sources of law.
• It may mean the means or processes by which
new principles become part of body of law(s)
e.g legislations and judicial adjudication which
give rise to precedents and case laws.
• It also mean, where the rules of law are to be
found. E.g in law reports, statutes and in any
other legal materials.

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 Cont’…
• The causes which induce the creation of law,
although the causes do not create the law
thereof. E.g historical sources, religious bases
and moral standards

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Primary and secondary sources of law
• Primary sources includes, the Constitution,
Statutes, case laws(precedents).

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 The Constitution
• It is the supreme law of the Land that
establishes the country’s Government,
defining the powers and limits of the three
arms of the state (parliament, the Judiciary
and the Executive branch).
• It also provides law making process, lays down
the necessary checks and balances in a
manner the three arms of the state are to
exercise their functions.

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 Cont’…
• It also defines the relationship between the
state and its citizens in term of rights and
obligations so as to prevent the Government
from exceeding its powers.
• Hence, it follows that all other laws whether
written or unwritten should derive their
validity from the constitution, that is to say no
law is valid if it contravenes the provisions of
the Constitution.

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 Constitutions of Tanzania
• The Constitution of the United Republic of
Tanzania of 1977 as amended from time to
time, for the Union as well as for Mainland
Tanzania.
• The Zanzibar Constitution of 1984 for the Isles
of Unguja and Pemba.

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 Statutes
• Refers to those pieces of legislation enacted
by or made under authority of the parliament.
• Those purely made by the parliament are
called Acts of the parliament.
• therefore statutes operate as mini code of law
on a particular subject, which courts use when
deciding cases.

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 Rules made under authority of the
Parliament.
• An act of the parliament may empower a
person(s) or an institution to make rules to
govern particular spheres of conduct, or for
carrying out the purposes and provisions of
such Act.
• These rules made under the authority
conferred by an Act of parliament are called
Delegated Legislation/Subsidiary Legislation.

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 Cont’…
• Under the Interpretation of Laws Act,
subsidiary legislation is defined to mean ‘ any
order, proclamation, rule, rule of court,
regulation, order notice, by-law or instrument
made under any Act or other lawful authority.

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 Cont’…
• Note: any Act conferring the power to make
delegated Legislation is called Parent Act, and the
particular section that confers the power is
known as the enabling section.
• And so often power to make delegated legislation
are delegated to ministers, Local Government
authorities, HoD’s and public bodies.
• The principle govern it is ‘Delegatus non potest
delegale’.
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 Case Laws (Precedents)
• Are established by judicial decisions in earlier
cases (some times referred to as judge made
law), though in principle the role of the court
is to interpret and apply the laws passed by
the parliament. However in course of their
interpretation, judges enjoy a lot of freedom
to the extent that they may modify and make
laws to suit the local conditions.

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 Cont’…
• They can only do it by using the technique of
statutory interpretation on explaining an
inconvenient decision, or distinguish it or
limiting it to its own facts(legal reasoning).
Since case laws usually provide the details,
which statutes may usually not have.

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• Therefore case law is a legal principle in a
particular decided case by a higher court, which is
based on the rule that lower courts should follow
previous decisions of the higher court, in other
words the concept is called Ratio Decidend (R.D)
• R.D consists of three things, namely
• A statement of the material fact of the case,
which can be used for comparative purposes in
later case.
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 Cont’…
• An account of the way in which the decision
was reached. E.g cases and statutes that were
referred to as authority, their analysis and
application to the relevant facts.
• The decision of the judge to resolve the case.
• Note: case laws are laid down by high court
and court of appeal Judges.

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 Advantage of case laws
• It ensures certanity
• If is flexible, that can be used to change
previous decisions.
• Detailed, since they are discussed at lengthy.
E.g judgement
• Practicability-read factual situation of the case
so that it can be used into practical decision of
other cases.
• Predictability of a decision.
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 Disadvantage of case laws
• Rigidity- where judges are bound to follow
previous binding authorities when adjudging.
• Bulky-it is difficulty to locate unreported
judgement.
• Complex in nature-it causes research
difficulties to get factual meaning.

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 Secondary sources of Law :
(1)Received Laws
• Are laws received from England during
colonial time. They were introduced in
Tanganyika by express enactment of Imperial
Legislation enacted by Crown using Order in
Council.
• The British Crown was acting by virtue of
power conferred by British Settlement
Act,1887, and Foreign Jurisdiction Act, 1890.

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 Cont’…
• In Tanganyika they introduced Tanganyika
Order in Council (T.O.C), 22ND July,1920 in
which Article 17(2), contained the ‘reception
clause’ by introducing the application of
common law, the doctrine of equity, Statutes
of general application of England as well as
procedures and practice of English Courts.

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 Condition for application of received
Laws
• It is only where there is no local statute or
other Laws on a given point that courts in
Tanzania would refer to the substance of
common law, the doctrine of equity and
Statute of general application

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 (2)Pre existing laws
• Laws existing before colonization and which
were retained by the colonizing powers.
• Such retained laws includes,
• Customary laws
• Islamic laws

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 Customary laws
• Interpretation of laws and general clauses Act,
defines customary law to mean ‘any rule or body
of rules where by rights and duties are acquired
or imposed, established by the usage in any
Tanganyika African community in general as
having force of law, including any declaration or
modification of customary laws made or deemed
to have been made under s.9A of JALA, and
reference to ‘native law’ or to native law and
custom, shall be similarly construed.

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 Cont’…
• In Tanzania they are sources of Law with the
same status as any other sources.
• Tanzania recognizes various customs of the
many tribes in the country as customary law.

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 Islamic law
• In Tanzania Islamic personal status law is
applicable in matters relating to marriage and
divorce, succession and waqf.
• There are also certain specific sectarian
legislation which make the application of
islamic law to the part of the population that
professes Islam.
• In case there is a conflict between State law
and Islamic law, state law prevails.

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 Classical sources of Islamic law
• The quaran
• The sunna or Hadit of the prophet
• Qiyas (analogy)
• Ijma (consensus)

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 (3)Public international law
• Comprises of the entire body of obligations
which one state owes to another with respect
to its conduct or the conduct of its citizens
towards other states or their citizens.
• Hence, it follows that Rules of public
international law are rules for regulation of
state intercourse.

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 Cont’…
• Public international law as source of law deals
with.
• Sovereign nations, referred to as subject of
international law
• Courts of one sovereign nation dealing with
rights of its citizens acquired under
international law.

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 Sources of international law
• Customs
• Treaties/conventions
• The two form source of law of any sovereign
state whether it is or it is not a member of the
United Nations.(though many need
ratification before its application in a
sovereign state)

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 Cont’…
• However, there must be in existence a
municipal (local) statute specifically making
principles of public international law
enshrined in binding international treaties
applicable in such state.
• Note: rights and duties accrued from
international treaties cannot be enforced in
national courts without specific incorporation
by a national statute.

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 Cont’…
• Such incorporation means a citizen of a
sovereign state can enforce rights arising from
international treaty.
• And by incorporation, through a specific
statute enacted by the parliament, reiterating
the right, this empowers national courts to
deal with cases concerning implementation of
such a right.

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 Cont’…
• (4)The other source is, Books written by
eminent legal scholars.

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 kinds of law/ Classification of law
• Law may be classified in different ways. The
main kinds of law are as follows.
• Public law and private law
• Civil law and criminal law
• Procedural law and substantive law
• International law

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 Public and private law
• Public law in any state governs the relationship
between state and its citizens
• It is this part of the law in which state has interest
• It consists of constitutional law, Administrative
law and criminal law.
• Administrative law relates to the actual
functioning of the executive instruments of the
Government. While criminal law consists of
wrongs committed against the state.
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 Private law
• Are laws governing the relations of the citizens
amongst themselves.
• Therefore, private law is part of law that is
concerned with rights and duties of persons
towards persons.
• Note: private law is also called civil law
• Also both private and public law originate
from Roman system of law.

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 Differences between the two in
Tanzania Legal system
• The distinction between public and private
law no longer exist in Tanzania legal system.
• The distinction is therefore based on the
different procedures to be used where the
purpose of the case is to enforce public duties
of a state agency rather than to enforce the
private rights of the citizens.

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 Civil law and criminal law
• Civil law governs the relation between
individuals, it defines the rights and duties of
persons to one another and provide a system
of remedies and it part of private law.
• It includes, the law of contract, family law,
property law, the law of torts and much more.

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 Criminal law
• Is concerned with acts or omissions which are
contrary to public order and society as a whole
and which render the guilty person liable to
punishment in the form of a fine or imprisonment
or both.
• It falls within the purview of public law, as the
state has the duty to protect its citizens and it is
the state that must seek redress for any public
wrong (crime) committed against any citizens.

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 Cont’…
• The state prosecutes the criminal on the
behalf of the citizenry as a whole, the victim
of a criminal conduct himself has no direct
interest in the case.

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Differences between criminal and civil
wrongs
• Crime is a public wrong against the state, while
civil wrong is a private wrong against an
individual.
• In criminal wrong, parties are the prosecution
and the Accused, where as the prosecution
represents the state, and the accused is the
offender who is being prosecuted. While in civil
wrong, the parties are the plaintiff and the
defendant. The plaintiff is the aggrieved party
who is suing, while the defendant is the
wrongdoer who is being sued.

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 Cont’…
• In criminal wrong the action can’t be
compromised by parties, it is only in
exceptional cases the public prosecutor may
withdraw a prosecution against a particular
accused. While in civil wrong, parties are free
to compromise any action brought by one of
them.

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 Cont’…
• The prosecution must prove its case against
the accused beyond reasonable doubt, any
reasonable doubt must be resolved in favour
of the accused.(any person is presumed to be
innocent until proved guilty). While in civil
wrong the plaintiff needs only to prove his
case on a balance of probabilities, and not
beyond reasonable doubt

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 Cont’…
• In criminal wrongs, punishment is usually by
imprisonment or fine or death penalty in the
case of capital offences. While a defendant
found to have committed civil wrong is usually
ordered to pay to the plaintiff damages, for
instance monetary compensation or some
other civil remedies may be granted to
him/her

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 Procedural and Substantive law
• Procedural law consists of the rules which
determine the manner in which the court
proceedings are required to be conducted in
civil and criminal cases.
• It deals with how to establish a right, and
guides how a right is enforced under civil law
or how a crime is prosecuted under criminal
cases.

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 Substantive law
• Consists of actual rules regarding the civil,
criminal and other fields of law.
• This law defines civil and criminal wrongs and
provides remedies for each type of offence or
civil wrong for injuries or damage so caused or
suffered.

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 International law
• It may be classified into public international law
and Private international law.
• Public international law consists of those rules
which regulates the relations between states.
• This law is based on treaties, conventions,
protocols and rules of war
• The dispute between states can be settled by the
International court of Justice, though the court
has authority to enforce its judgments. it also
suffers from the kind of jurisdiction it has over
states referring a dispute to it.
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 Private international law
• Is mainly concerned with determining which
national law governs a case in which there is a
foreign element.
• In short PIL deals with conflict of laws,
particularly which one to apply when the
parties in a dispute resides either in different
states and with different nationality.

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 Divisions of Civil law
• Law of contract: a contract is an agreement or
promise which is legally binding or enforced
by law.
• The law of contract determines whether a
promise is legally enforceable and what are its
legal consequences.

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 Law of Torts
• It’s a civil wrong for which the remedy is a
common law action for unliquidated
/unspecified or unascertained damages and
which is not exclusively the breach of a
contract or breach of a trust or other merely
equitable obligations-SALMOND
• Examples of torts are negligence ,defamation,
trespass and nuisance.

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 Law of property
• Deals with the nature and extent of the rights
which people may enjoy over land and other
property.

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 Law of succession
• Law of succession deals with the transfer of
property on the death of a person to his heirs.

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 Law of Trusts
• Is a relationship that arises whenever one
person called the ‘settlor’ transfers his
property to another person called the ‘trustee’
on the condition that the trustee holds the
property for the benefit of another person
called the beneficially.
• It imposes strict obligation on the trustee to
administer the trust property in accordance
with the conditions of the trust.

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 Dispute settlement methods: (i)
Traditional dispute settlement method
• Concerned of the rules, procedures and
institutions for settling disputes under customary
law.
• Its object is to reconcile the parties, that is to
produce a result acceptable to both parties to a
dispute.
• A customary rule may be advanced and it is not
the only factor for producing a result, as a
compromise is reached taking into account not
only the rule, but also moral claims of the parties.
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 Dispute settlement in pre-capitalist
Societies.
• Mediation, conciliation, coping with wrong
doing by shaming and sorcery, innovation of
supernatural sources against the deviant
individual.
• It could also be means by ordeals, contest or
retaliation.
• In pre-capitalist mode the society was less
structured and social organization is based on
kinship.

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 Cont’…
• In this society running of public affairs is a
matter of concern of the whole community
which is characterized by equality.
• To this end, the society public power therefore
is not institutionalized but rather a function of
the social organization.
• The main rules in pre-capitalist society are in
the forms of customs expressed in religious
forms of social consciousness and taboos.

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 Cont’…
• Sanctions in this society are not implemented
by the use of coercive power but reaction of
the whole society.
• And disputes are settled amicably and the end
result is compromise rather than
confrontation.
• Also, in this society land is mainly valued for
its use and it is the major means of
production.

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 Cont’…
• Land disputes therefore, in such societies normally
involve the question of who has the legal right to use
the land.
• Such disputes are usually determined by council of
elder, or village committee.
• At this era, ownership of land was not absolute in any
sense. The dominating concept is ‘possession’ since
they believed land is a communal property and anyone
can have access to it provided it has been proved that
he has the family. That is to say land rights to them is
relative.

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Methods and Procedure of Customary
Dispute Resolution:(i) mediation and
Conciliation
• Under this method, parties sit with the third
party known as mediator. The role of this
mediator is to help or to facilitate the
communication between the parties and the
parties discuss their differences with the
assistance of the mediator, and last the parties
reconcile their matter.

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 Cont’…
• The mediator makes all the efforts to ensure
that the matter is ended peacefully and the
disputants eventually become friends. In most
cases mediators were elders, chiefs,
headsman and religious leaders.

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 Contest
• This was another method of dispute
settlement used by the pre-capitalists
societies. Under this method the contestants
composed a song and sung during the night
against each other. This contest continuous
until the elders of that society volunteer to
settled the dispute. The elders call both
parties and discuss and settle the matter.

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 Trial by Ordeal

• This method was associated with some

believes. Where the dispute occurred, the
disputants sat before the elders or religious
leaders (traditional religion) and some reaches
were performed before them in order to know
the wrong doer.

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 Cont’…
• These believe were used to discover the party
who spoke the truth. Some substances were
administered such as swallowing of sharp
objects and poisons, and it was believed that
these objects will not harm a party who spoke
the truth.

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Modern Dispute settlement Methods

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