INTRODUCTION TO LAW

The nature of law

Definition
Function
Categories
Law making
Resolving disputes
 Learning objectives

• After studying this chapter you should understand the

following main points:
• The nature of law, its functions and categories;
• The ways, in which the law may be classified, including
the differences between public and private law, civil and
criminal law and common law and equity;
• The development of English law including the
emergence of the common law and equity;
• The basic principles of legal liability such as the
distinction between civil and criminal liability
 Nature of Law

The law affects every aspect of our lives; it

governs our conduct from the cradle to the
grave and its influence even extends from
before our birth to after our death.
 Nature of Law

We live in a society which has developed a

complex body of rules to control the activities
of its members.

List as many of these activities as you can

 Nature of Law

There are, however, other aspects to law that

are less immediately apparent, but of no less
importance, such as the inescapable political
nature of law.
 Nature of Law
There are laws which govern working conditions
(e.g. by laying down minimum standards of
health and safety),
laws which regulate leisure pursuits (e.g. by
banning alcohol on coaches and trains travelling
to football matches), and
laws which control personal relationships (e.g.
by prohibiting marriage between close
relatives).
 Definition of Law

 So, what is ‘law’ and how is it different from

other kinds of rules?
The law is a set of rules, enforceable by the
courts, which regulate the government of the
state and govern the relationship between the
state and its citizens and between one citizen and
another
 Definition of Law

 Black’s Law Dictionary says that

‘law is “a body of rules of action or conduct
prescribed by controlling authority, and having
binding legal force’. That which must be obeyed
and followed by citizens subject to sanctions or
legal consequence is a law
 Definitions
• Law is a system of rules laid down by a body or
person with the power and authority to make
law
• Law is what Legislators, judges and lawyers do
• Law is a tool of oppression used by the ruling
class to advance its own interests
• Law is a system of rules grounded on
fundamental principles of morality
 Definitions

Law is a formal mechanism of social control

and, as such,

it is essential that the student of law be fully

aware of the nature of that formal structure
 Legal Rules and social rules
• Legal rules guides and directs our activities in
much of day to day life
e.g. the purchases we make in a shop, our
conduct at work and our relationship with the
state
• Social rules are merely social conventions or
perceptions of proper behavior and are also a
means of controlling social behavior. E.g.
littering the floor
 LEGAL POSITIVISM
• John Austin
“Law is the command of a sovereign”
Law is only law if it comes from a recognized
authority and can be enforced by that
authority or sovereign such as a King, or
President or a dictator
 NATURAL LAW
• The Natural Law school of thought emphasizes
that law should be based on a universal moral
order.
• Natural Law was discovered by humans
through the use of reason and by choosing
between that which is good and evil
• It is also called the law of nature
 Functions of Law
In a nation, the law can serve to
(1) keep the peace,
(2) maintain the status quo,
(3) preserve individual rights,
(4) protect minorities against majorities,
(5) promote social justice, and
(6) provide for orderly social change.
 Functions of Law

Try and list as many functions of law as you

can think of
 Business Law
In this book we are concerned with one
specific area of law:

the rules which affect the business world.

 Business Law

Commercial law, more commonly referred to

as Business law is defined as “the body of law
that governs business and commercial
transactions”.
It is often considered to be a branch of civil
law and deals with issues of both a private and
public nature.
 Business Law

Another writer defines Commercial law as

that which is concerned with “the obligations
between parties to a commercial transaction
and the relationship with the rules of personal
property”.
 Business Law

The Body of Law – The body of law refers to

all laws enacted by man within a particular
jurisdiction, including rules, regulations,
orders, and protocols, custom or otherwise
that have the effect of regulating commercial
activity
 Business Law
Sources
Article 11(1) of the 1992 Constitution lists the sources of
Ghana Law as follows:
• The Constitution
• Enactments made by or under the authority of Parliament
established by this Constitution
• Any orders, rules and regulations made by any person or
authority under a power conferred by this Constitution
• The existing law; and
• The common law
 Business Law

Commercial Transactions – A ‘commercial

transaction’.
The word commercial derives from commerce
which denotes an activity of buying and selling
for valuable consideration
Thus, neither a voluntary act nor the receipt
of a gift will class as a commercial transaction
 Business Law

The nature of a commercial transaction can be

found in Rule 2 of Order 58 of the High Court
Civil Procedure rules 2004 (C.I.47) which
describes the nature of a commercial claim as
follows:
 Business Law
• “A Commercial claim is any claim arising out of trade and
commerce and includes any claim relating to:
• The formation or governance of a business or commercial
organization
• The winding up or bankruptcy of a Commercial or business
or commercial organization or corporate persons.
• The restructuring or payment of commercial debts by or to
business or commercial organization or person.
• A business document or contract
• The export or import or contract
 Business Law
• The export or import of goods
• The carriage of goods by sea, air, land or
pipeline
• The exploration of oil and gas reserves
• Insurance and re-insurance
• Banking and financial services
• Business agency
 Business Law
• Disputes involving Commercial Arbitration and
other settlements awards
• Intellectual property rights, including patents,
copyrights, and trademarks.
• Tax matters
• Commercial fraud
• Application under the Companies Code, 1963 (Act
179
• Other claims of commercial nature
 Business Law

The history of Business Law or Commercial

law can be traced back to its roots in the
development of mercantile law in England
back in the thirteenth and fourteenth
centuries
 Business Law

 Its early development was closely

connected with the growth and expansion of
the jurisdiction of the common law courts
over the many local courts that evolved after
the Norman Conquest in 1066
 Business Law

Modern day Commercial law has no defined

boundaries and has a wide compass covering
such areas as tort law, contract law, company
law, insurance law, tax law, agency law,
partnership law, transport law, sale of goods,
hire purchase law and much more to mention
but a few
 Business Law
We shall consider such matters as:

• the requirements that must be observed to

start a business venture,
• the rights and duties which arise from
business transactions and
• the consequences of business failure
 Business Law

In order to understand the legal implications

of business activities, it is first necessary to
examine some basic features of our legal
system
 Features of the Ghana Legal System

It is important to remember that our legal

system is inherited from English law and refers
to the law as it applies to England and Wales
and in most of the Commonwealth nations.
Scotland and Northern Ireland have their own
distinct legal systems.
 Classification of law
There are various ways in which the law may
be classified; the most important are as
follows:
o Common law and Civil Law
o Common Law and Equity
o Public Law and Private Law
o Civil Law and Criminal Law
o Municipal Law and International Law
o Substantive Law and Procedural Law
 Classification
Common Law and Civil Law

o these terms are used to distinguish two

distinct legal systems and approaches to law
 Common Law and Civil Law
The use of the term 'common law' in this
context refers to those legal systems which
have adopted the historic English legal system.
Foremost amongst these is, of course, the
United States, but Ghana, Nigeria, Canada,
Australia many other Commonwealth and
former Commonwealth countries retain a
common law system
 Common Law and Civil Law

The term 'civil law' refers to those other

jurisdictions which have adopted the
European continental system of law derived
essentially from ancient Roman law, but owing
much to Germanic tradition.
Foremost amongst these are Germany,
France, Italy and most of Europe
 Common Law and Civil Law

Some countries like China practice a blend of

both systems
 Common Law and Civil Law
The Common Law is known to be case-
centered and hence judge-centered, allowing
scope for a discretionary, ad hoc, pragmatic
approach to the particular problems that
appear before the courts,
whereas the civil law system tends to be a
codified body of general abstract principles
which control the exercise of judicial discretion
 Common law and equity
the terms refer to a particular division within
the English legal system.
The common law has been romantically and
inaccurately described as the law of the
common people of England.
In fact, the common law emerged as the
product of a particular struggle for political
power
 Common Law and Equity

Following the Norman Conquest of England in

1066 there was no unitary, national legal
system.
The emergence of the common law represents
the imposition of such a unitary system under
the auspices and control of a centralized power
in the form of a sovereign king
 Common Law and Equity
the circuit of judges travelling round the
country establishing the 'King's peace' and,
in so doing, selecting the best local customs and
making them the basis of the law of England in
a piecemeal but totally altruistic procedure.
Thus, the common law was common to all in
application, but certainly was not common from
all.
 Common Law and Equity
gradually the common law courts began to
take on a distinct institutional existence in the
form of Court of Exchequer, Common Pleas
and King’s Bench.
With this institutional autonomy, however,
there developed an institutional sclerosis,
typified by a reluctance to deal with matters
that were not or could not be processed in the
proper form of action.
 Common Law and Equity

The response was the development of equity

to remedy the perceived weaknesses in the
common law system
 On an appeal to the sovereign, such pleas
would be passed for consideration and
decision to the Lord Chancellor, who acted as
the king's conscience
 Common Law and Equity
As the common law courts became more
formalistic and more inaccessible, pleas to the
Chancellor correspondingly increased
and eventually this resulted in the emergence
of a specific court constituted to deliver
‘equitable’ or ‘fair’ decisions
The courts of Equity
 Common Law and Equity

The division between the common law courts

and the Courts of Equity continued until they
were eventually combined by the Judicature
Acts of 1873-75
 Common law and Statute law

the common law here refers to the

substantive law and procedural rules that have
been created by the judiciary through the
decisions in the cases they have heard
 Common law and Statute law

Statute law, on the other hand refers to law

that has been created by Parliament in the
form of legislation
 Private law and Public law
There are two different ways of understanding
the division between private and public law.
At one level, the division relates specifically to
actions of the State and its functionaries vis a
vis the individual citizen and
the legal manner in which, and form of law
through which, such relationships are
regulated: public law
 Private law and Public law
There is, however, a second aspect to the division
between private and public law.
matters located within the private sphere are seen as
purely matters for individual themselves to regulate,
without the interference of the State (e.g. Contract
law) and
Matters within the public sphere, however, are seen as
issues relating to the interest of the State and general
public, and as such are to be protected and
prosecuted by the State.(e.g. criminal law)
 Civil law and Criminal law
Civil law is a form of private law and involves
the relationships between individual citizens.
It is the legal mechanism through which
individuals can assert claims against others and
have those rights adjudicated and enforced
The purpose of civil law is to settle disputes
between individuals and to provide remedies;
it is not concerned with punishment as such.
 Civil law and Criminal law
public law relates to conduct which the State
considers with disapproval and which it seeks
to control and eradicate.
Criminal law involves the enforcement of
particular forms of behavior, and the State, as
the representative of society, acts positively to
ensure compliance.
 Civil law and Criminal law
Thus, criminal cases are brought by the State in the
name of the Republic and cases are reported in the
form of The Republic v ….
whereas civil cases are referred to by the names of
the parties involved in the dispute, for example,
Ampofo v Lartey.
In criminal law, a prosecutor prosecutes an accused.
In civil law, a plaintiff sues a defendant or a claimant
brings a claim against a defendant.
 Civil law and Criminal law
In distinguishing between criminal and civil
actions, it has to be remembered that the
same event may give rise to both
A crucial distinction between criminal and civil
law is the level of proof required in the
different types of cases.
 Municipal Law and International Law

Municipal Law is made up of local laws or

subsidiary legislation passed by Government
organisations and agencies who have power
under the law to pass laws that regulate the
lives of the people within a Municipality
 Municipal Law and International Law

International Law on the other hand are the

Laws that govern the relationship between
Sovereign countries
Examples are the UN directives, orders and
conventions
Laws controlling the use of certain global
resources like the sea
 Substantive Law and Procedural Law

• Substantive Law is the type of law or body of

rules governing a particular issue. E.g. The
Criminal code
• Procedural Law is the type of law or rules that
prescribe the mode and how things are done
e.g. The Criminal Procedure code
 The Formal structure
• Parliament
– Originator of statute law
– Delegated legislation
– Informal rules

• The Courts
• The Police

THE END