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LEGAL METHODS
Nature, classification and sources of law
It aims at equipping a law student with different skills that will help a law student to be capable to study law.
LAW: there are different definition of the term law meaning that there are many authors
who have different definitions. The encyclopedia says that law comprises of all principals, rules and enactments that are applied in courts and enforced by the the state From oxford English dictionary says that law is the body of rules whether proceeding from formal enactment or from customs which a particular state or community recognizes. Law is a body of principals recognized and applied by the states in the administration of justice. According to Blackstone he says law is a rule of civil conduct prescribed by the supreme power in the state, commanding what is right and prohibiting what is wrong. According to Simonton he says that law is the body of principals and rules recognized and enforced by the courts by which the relations of the members of the community with each other are regulated Generally law is a body of rules and principals recognized by a particular state and enforced by It to administer justice and regulate social behavior. By regulating social behavior the law brings about equilibrium by balancing the conflicting interests in a particular community. For the law to be in a position to achieve this it must set a standard of behavior that ought to be complied by every citizen, this standard is enforced by the state through imposition of penalties for those who go against it, this is known as normativity character of law.
NORMATIVITY CHARACTER OF LAW: this is the character of law that
differentiate law from other things where by it establishes standards where by when someone goes against those standards a punishment is given to him or her. But law is created and regulated by a state while others are just created by customs.
FUNCIONS OF LAW
Law has mainly three basic functions which are as follows
PERMISSIVE FUNCTION
This is the function of law that actually allows or permits the subjects of it to do or engage in a range of transactions for example entering into marriage, entering into contracts, in cooperative companies etc.
DIRECTIVE FUNCTION
This is the function of law where by the law allows a subject to to enter into various transactions or relations but it directs the subjects as to what to do should be done or complied with for the purpose of validating the transaction or relations in question. Example the element of a valid contract, the necessary documents for formulating a company
PROHIBITIVE FUNCTION
This is the function of law where by the law prohibits certain defiant behavior by terming them as crimes and providing sanctions or punishment on contravention example the penal code which provides for various offensives and punishment the economic and organize crimes and contract act
THE NATURE OF LAW
There are basically two thoughts of law
IDEALISM
HISTORICAL MATERIALISM/MARXI’SISM
IDEALISM
This is a school of thought which maintains that law originate from God and it was written no where but imprinted on people’s hearts this was known as natural law. The supporter of this were Plato, Cicero , St. Thomas Aquinas e.t.c they are maintaining that natural law was superior, unchanging, universal and the kings were under this law.
HISTORICAL MATERIALISM/MARXI’SISM
Origin of law nearly came from God but it came from human beings, they are also saying that law is the result of social relations and production relations, they are adding that during primitive communalism there was no law, it started to develop during class societies. When people were in a position to produce in surplus, due to that two classes emerged “the haves” and “the not haves”, “the haves” wanted to dominate “the have not’s” so they introduced leadership in the form of a state and laws enforced by the states so as to continue their dominance over “the have not’s” and that is why state and law are in separate according to Marxist’s law is an oppressing instrument by the ruling class to impose their wishes over the ruled ones.
METHODS OF SOCIAL CONTROL THROUGH LAW
This basically refers to the various systems a legislature can adopt to achieve social earns through law prof Robert S summers an American tourist has identified five basic techniques used in modern law to control social behavior
The constitutive technique
Here the law recognizes a group of people constituting themselves as company with legal capacity to sue and be sued independently of the person s forming it. In Tanzania his is governed by the company Act # 12 of 2002. This means that it focuses on one kind of transaction which a people form a company and once the organization is formulated there are some procedures to be followed so as the company can be ran. Example registration of the company, the company must be registered to the government because it becomes a legal person meaning it can be accused the company itself you don’t write the names of the owner but the name of the company.
The administrative regulatory technique
this technique exists to regulate wholesome activities rather than prohibiting antisocial forms of behavior as is the case with the penal techniques it is designed to operate prevented before grievance has arise, as is distinguished from the grievance remedial. Under these technique officials adopt regulatory standards, communicate there on with those subject to them and take steps to insure compliers. The steps will usually include a system of licensing, inspection, and warning letters, often with some further steps such as revocation of licenses or the brining of administrative proceedings, civil litigation or criminal prosecution. When we talk about this it doesn’t not specifically concerns with criminal matters but it focuses with issues related to administration, meaning the law through officials set a certain standard that should be observe in that specific field.
Fiscal technique
This is a technique that covers legislation through the government raise his money to finance its expenditure by imposing certain taxes some of which are direct and follow natural and legal persons and property while some are indirect and are based on consumption of goods example income tax, VAT etc. this means that the government uses law of purposes of raising money for its expenditure. That is why we have tax laws which its aims is to collect tax while some taxes are direct paid by natural persons, but indirect tax you pay taxes without feeling that your paying taxes
Conferral of social benefits technique
in this technique when the government has money they pay people back in terms of providing social services such building hospitals and schools and as other infrastructures. This technique used by the government to spend money raised by application of the fiscal technique on a wide range of benefits and services which in earlier times were left to the individual, to the local community or in some cases to the church example is our education, roads , national health service and social security. N.B usually these benefits are regulated by statutes so there is a basic legal task of interpreting the statues to know who are the benefiters, who administers the scheme, how is the scheme administered etc.
OTHER RULES OF CONTROLLING SOCIAL BEHAVIOR
Law is the not the only means of regulating social behavior there are other rules which include.
Rules of morality : these are statements about how people should behave or
must behave in society as a whole or in certain group within the society saying what is good or what is bad.
Customs: these are rules of social behavior based on long experience of what is right
or useful in a certain situation. There are there for justifying by usage and tradition. By following customs people behave in this or that way( read case Gwao bin kilimo v. Isunda bin ifuti) 1948 TLR 403
Organizational rules: these are rules that are governed by certain
organizations. These rules of social, political or cultural organizations and institutions example the constitutions of political parties contain rules of behavior governing party members by pronouncing fundamental principals of the party policy, regulating organization of the party and establishing rights and duties of the parties.
Rules of politeness;These are rules that show how a person should behave
according to the society he is in meaning that he or she should be polite towards his elders and respect them as well example in a bus giving a seat to elders Distinction btn law and other means of social control:
CLASSIFIACTION OF LAW
Law can be classified in in various parts, this means that by making reference to subject compartments or to classify it generally General categorization
common law and civil law
it means that we are not dealing with specifics law but we are dealing wit specific legal systems that are found in different countries.
- common law: this is a legal system that originated from England which was a result of judges decisions basing on customs, once upon time in England various customs were used in various places to decide cases on various matters example family matters etc, for purposes of standardization and unification the King formed a panel a of judges to travel all
INTRODUCTION: a lawyer is constantly engaging in researching so as to give
authoritative materials for what he is saying or writing; the aim being to discover principals to be used in supporting arguments for solving cases, the same may be done by judges or magistrates for purposes of baking up their judgments or rulings as the case may be
TYPES OF AUTHORITATIVE MATERIALS
There are 3 types
- LEGISLATION
- PRECEDENT / CASE LAW
- OTHER SECONDARY SOURCES NB ; in terms of usage the materials can be categorized into 2 major categories
(1) BINDING OR MANDATORY AUTHORITY ; is an authority which you are
required or obliged to use in solving a problem or advancing a legal argument. This means that you are obliged it is not a request but a requirement, in any case you should do citations which will support you in your case and probably persuade the judge.
LEGISLATION OR LAW ENFORCE: we call it law enforce because we are
talking about laws present at the moment and not replaced laws or dead laws.
- These are laws enacted or made by the authorities having power to make such laws in that particular country, they may be principal or subsidiary NB; these laws should not have been repealed or replaced. Repealed laws means they are no longer in existence if you say repealed and replaced meaning that it means they took it away then made another one to cover it. However, there are other circumstances where the laws of other countries may be used and this may be the case where there is a lacuna or a gap in the laws of that other country. In Tanzania this is a result of the reception laws of the TOC which was repealed and replaced by JALA cap 358 section 2(3)
PRECEDENT
Precedent are also used as authorities to back up an argument the same way legislation does however for a decision to be applied it has to be a decision of a court of records which may either be the High court or the Court of Appeal NB ; the judgment should be relevant and direct to the issue in question hence it should not have been REVERSED OR OVER RULLED. REVERSED: means if the court of appeal delivers a judgment that differs the high courts means that the judgment of high court ceases and automatically dies, OVER RULLED there is implied over ruling It means that the the decision of court applied impliedly it has been over ruled, Express over ruling meaning that the judge says directly that the decision made in high court has ceased.
(2) PERSUASIVE AUTHORITY ; this the authority which does not have any
forced law but can only be used to persuade the court for example persuading the court to allow a principal in a particular case made by the high court or supreme court of England or that of the East African court of Appel. You may do this as well by citing written materials written by a prominent author such as IAN BROWN in International law or MULLER in civil procedures NB : persuasive materials cover all the remaining sources such as books dictionaries bible, Quran , journals and articles etc.
ORDER OF AUTHORITIES
i. THE CONSTITUTION ii. STATUTES iii. PRECEDENTS iv. OTHER SECONDARY SOURCES v. THE CONSTITUTION
LEGISLATION; it begins with a bill, a bill is a draft version of an act of parliament
which is laid before the parliament for approval
TYPES OF BILLS
Government bill; this is a bill that is initiated by the cabinet. The respective ministry drafts a paper including what it wants the respective la to cover, then it presents it before the cabinet for approval, should the cabinet approve it, it becomes a cabinet paper. Then the paper is submitted before the Chief Parliamentary drafts man (CPD) to be drafted in the form of a statute then it is presented before the National assembly for discussion. Private bill or private member’s bill: it is a type of a bill that originates from a member of pa rliament. When the parliament is satisfied b that bill then the same is sent to the CPD then to the President for his assent.
A STRUCTURE OF AN ACT OF PARLIAMENT
- It must have a court of arm
- There must be the Act number and the year of Enactment Example Act 4 2012
- Presidential assent, it has the name, date, month and year I JK (PRESDIDENT)
- Long title, it is written in black ink or it is in bold it explains the purpose of that law. Sometimes instead of having a long tittle a law may have a preamble
- An enacting formula, it tells you who has passed it.
- Short tittle and citation, tells you how will you cite a law
- Interpretation Provisions, these act as internal dictionary of a statute, they state various meanings of the words contained in
CRITERIA OR HINTS FOR CITING A CASE IN
A LAW REPORT
It should be a decision that introduces a new principal example BiHawa Mohammed V. Seif +Ally If a case modifies an existing principal If a case comes to solve a conflict between judgment or decisions that were existing etc.
(A) LAW REPORT FROM ENGLAND
why law reports from England? The major reason is because of
- the reception clause article 17(2) then was replaced by JALA ……
- so as to get principal from common law
- just to get persuasive authorities made by courts in England
HITORY OF LAW REPORTS IN ENGLAND
- A nominate law report is a report where by there is an initial letter of the reporter. I=this history may be divided into two periods Pre 1865 Post 1865 Pre 1865: before 1865 law reports in England were not centralized, they were chiefly bu=y private reporters under their own names ( nominate reports) example Ramsey V. Webb 1842 c.m. there were some hundreds of diffenert series though many of them run only for a short time most of them were reprinted in a series known as the English reports ( ER ) Post 1865, in this time there was established an official body know as The Incorporated Council for Law Reporting. At present they are published in 3 series The Queens bench division cited as 1975 [ 2QB 100] Chancel division cited as 1975 [ 1Ch. 100] The family division cited as 1975 [Fam. 100] N.B previously there were 11 series but in 1873 things changed after the introduction of the judicature Act 1873 which unified the common law courts and the Chancery to form the High court.
(B) LAW REPORTS FROM EAST AFRICA
it began in 1897 in Kenya in a series known as East African Protectorate Law reports. It began in Kenya because there was a privy council. This was a committee in Britain which played the role of courts and used to hear appeals all over the world in British colonies. The 1922 - 1956 period saw the emergence of some 21 Volumes of the Kenya law reports (KLR) this included the decision of the high court only and were collected, compiled and edited by different judges and magistrates
- In Tanganyika we had the Tanganyika law reports that began in 1921
- in 1934 started the court of Appeal for East Africa law reports (E.A.C.A) it stopped in 1956 because a new series of reports known as East African Law reports was introduced (EA). it reported the decisions of the court of appeal for East Africa and the Superior courts of the Constituent territories namely Kenya, Uganda, Tanzania, Aden, Seashells and Somali land.
- the EA stopped in 1967 from this period we (Tanzania) started to have the High Court Digest (H.C.E) which ended in 1973 from 1973 we started to have the Law reports of Tanzania (L.R.T) which stopped in 1979 and from 1980 we started to have the Tanzania Law Report (T.L.R). why do other cases have squared brackets and other normal brackets? Round brackets are used when after there is a volume number which means that to get the report the year in the round bracket is not important meaning you can ignore it because you can use the volume number that is just after the brackets. And it is the year in which that particular judgment was made. Square brackets are used to show the year in which the case was reported. BRIEFING A CASE / CASE NOTES While reading a case not everything is important. This is all about short summary of the judgment, by putting the important issues only. We need to know that the part of the case that carries authorities Ratio decidendi (RD). In reading a case or judgments you have to read the entire judgments so that you may be in a position to identify the relevant or material facts, issues to be determined, reasoning of the court, the principal of a case etc. this in aw is called writing case notes.
CONTENT OF THE CASE NOTES
Title and citation of the case example R V. Juma Shaban 1986 TLR 100 You must select materials facts : materials facts are the ones on which the judgment of the court is going to base. however, it is not easy to identify what facts are materials because, what facts are materials is dependent on a judge or magistrate making that decision but there are some indicators or identifiers of facts that are material for example the nature or the transaction in question, the nature of breach or commission in a civil or criminal case respectively, damage suffered circumstances of the commission or breach etc. when a judgment is read there are material facts which are the most important, these are arts which the judgment of the court is going to base. A principal of the case is the result of the material facts of the case and the reasoning and judgment of the court. Issues: you must identify relevant issues that might require the indulgent of the court and that might be relevant or important in the decision to be made. Issues may be on a point of law, may as well be on the procedure or may as well be on the facts. A simple way of identifying issue in a judgment is to look for questions or the word whether. Almost all judge’s facts appear on the first page and probably on the first line. ISSUES:
Legislation : there is section subsection , roman and paragraph. 42(2) (e) Constitution : there is Article, sub article, roman and paragraph Subsidiary Legislation : Rule or regulation, example Regulation, sub regulation, roman number and paragraph. Rule- Sub rule, roman number and paragraph
CITING BOOKS
- Immediately after the name of the author the year comes, the title, edition, place where it is published and the publisher. ❖ Author’s name ❖ Year of publication ❖ Title of the book ❖ Edition if any ❖ Place of publication ❖ The publisher Example Fintch, J. D, (1974) , Introduction to legal theory, (2nd^ edition) , sweet and Maxwell.
IMPORTANT HINTS IN CITING
When the book is written by more then 1 author you write the name of the 1st^ author then you write “et al” meaning and others. If the book is compiled with an article 1st^ start with the writer of an article and the title of the article, then continue with the editor of the book. Example Engels, A.,” The origin of family, private property and the state, “ in Max, C and F. Engels, selected words, progress publishers, 1968,PP. 20-35. CITING AN ARTICLE IN A JOURNAL : it is a compilation of articles. In citing an article in a journal start with the author of the article, the title of the article, the year and volume number of the journal, and page number. Example : Fridmann,G., “ The intention of Tort and contract” ACTUAL REFERENCING
A (WSD) may contain:
- points of objection example that the court has no jurisdiction, the suit is time barred etc. AFFIDAVITS : these are sworn statements by the deponent stating facts that are within the knowledge of the deponent. However sometimes the deponent may state facts which are not within his own knowledge but he has to show or state the source of that information. Affidavits ae sworn before a commissioner for oaths. The facts to be stated have to be in numbered paragraph. An affidavit has to be signed and verified by the deponent N.B affidavits are of different types Affidavits on verification of names Affidavits declaring nationality of the deponent. Affidavits in support of an application in the court of law etc. CHARGE SHEET : this is a legal document that is formally used to institute criminal proceedings, they are governed by the criminal procedure Act Cap 20 revised edition 2002.
Content of a charge sheet
- Title of the court (name of court)
- Title of the document (Charge)
- Details of the accused (name and other details)
- Counts
- Statement of the offense
- Particulars of the offense
- Details of the state atoner DEEP POLL: this is a legal document that is used to change names where by a person who wants to change names abondons those old names and assumes new ones which he would like to be recognized by. For it to be effective it has to be registered with the registraor of tittles and an announce to that effect has to be published in a government gazette.
NEW TOPIC :
DISPUTE SETTLEMENT METHODS AND PROCEDURES
It is common for disputes to arise in any society because disputes are by social economic factors. Once a dispute arises parties may be affected by it so it is necessary that it to be solved so that parties may live peacefully or to ingress the parties whose rights have been inquiry.
- A dispute may be defined as a special form of interaction. It is a misunderstanding between or more parties in a society or between one society and another or between one country and another.
WHAT IS A DISPUTE SETTLEMENT:
This is a method of solving or settling misunderstanding that occurs between individuals or society. It is concerned with the rules, procedures and institutions involved in settling disputes. WHAT IS DISPUTE SETTLEMENT PROCEDURE : this refers to all procedures which are used to resolve a dispute, it involves:
- Establishing whether a dispute has occurred or not
- if a dispute has occurred, what are the interests
- what is the applicable law
- what institutions are there to settle such dispute DISPUTE SETTLEMENT METHODS : there are two methods of dispute settlement the traditional or communal dispute settlement methods the modern dispute settlement methods NB: the methods of solving disputes depends on the nature of the societies involved, meaning that the methods used to solve disputes depend or relates to social economic and political development of that society. TRADITIONAL METHODS OF DISPUTE SETTLEMENT These are methods which were used by pre capitalistic societies to settle their disputes, these societies depended much on land that is why many dispute relate to land. BASIC PRINCIPALS INVOLVED
Mediation and conciliation: This is a method of dispute settlement where by a mediator who was an old person comes between the disputants and help them to solve their disputes amicably, at the end of the dispute the parties in dispute became friends. In case KADUME V SOINE. Drumming the scandal : This was a method of dispute settlement where by the disputants were exchanging harsh words in the form of songs and dances. When the dispute became stiff a leader could call the disputants and declare who between the two is right and would make an order in that regard (NB) the governing principal was that if something alleged was possible to be done by a human being then such allegation should be true otherwise a jir (super natural power) could be called to punish that person who raised such allegation. TORGINDI V MTSWEN; Mtsweni was a guardian of daughter who torgindi’s son wanted to marry, Torgindi had paid the bride price for his son but Mtswen prevented the marriage and refused to refund torgindi’s bride wealth, a dispute started where by the parties exchanged harsh words and started to drum the scandals of each other both higher sound makers and many people came to dance and sing together while drinking bear. MTSWENI ACCUSATONS : he accused one of Torgindi’s wife of stealing yams, there was local consensus, so this was probably true, also that Torgind changed himself into a pig at night and eat sow. TORGINDI’S ACCUASTION : Mtwseni was a skunk which is a black and white stripped mammal in America that can produce a full smelly liquid from its anal to its ( NB) the drumming contest continued every night for more then 3 weeks before the village leader One Chake took notice that if the contest was to continue it would end up in fights for which he would himself be answerable to the dispute officer, Change sent notice to both Mtswedi and Torgindis and their people to come to his compound the following afternoon and both would sing and drank and they would decide the case DECISION: 1 : torgindi won the case and Mtsweni had better songs 2: he then orders both song makers to go home immediately and not to return to that village for a couple of months until the feelings which were arose had died down. Trial by Ordeal: this is the type of dispute resolution which involves the use of local liquids or any other substance with super natural powers which will affect the wrong doer and live safe the innocent ones example mwavi if you are a wrong doer PALAMBA FUNDIKILA V REPUBLIC. This was a trial by ordeal to discover who had by witchcraft cause the death of the eleven children of the 1st^ appellant in this case. The two appellant went to a medicine man (Juju man) to get traditional medicine known as mwavi. If you are guilty you will die but if innocent, you will only vomit. Four women from the 1st^ appellant’s house took mwavi 2 died and other 2 vomited, the 2 appellants were charged for murder but their conviction was crushed due to absence of malice aforethought. ADVANTEGES OF THESE METHODS:
- Reconcile parties meaning people become friends (disputes were solved)
- You did not have to pay for anything (cheaper compared to modern methods)
- The wrong doers are known
- Brings peace and solidarity in the society
- The disputes were solved in a short time
- It made all members to participate
- Principals were known to everyone in the society
- Satisfaction of people. DIS ADVANTAGES
- Some methods were Against justice (trial by ordeal)
- Time of production was waist
- Injustice (loosing properties)
- No clear rules and procedures would result to misunderstanding
- Some methods caused chaos MODERN METHODS OF DISPUTE SETTLEMENT These re methods of solving disputes which are used by societies with advancement in social economic developments that is to say under capitalist societies these methods have a common feature that is winner takes all and loser loses all BASIC PRINCIPAL OF THOUGHT land becomes a commodity bought and sole for money one property class acquires the use of land at the expense of another class. The purchaser of land becomes the owner of the land with good title against the whole world LEGAL CONTEXT OF A MODERN SOCIETY: Existence of formal institutes like courts and tribunals etc. Existence of people with specialize knowledge of law example judges, advocates and magistrates etc. Disputes are settled by reference to a rule of law which is established authoritatively then applied to the facts of the case. METHODS DEALS TO SOLVE DISPUTES They can be divided into to two major groups
- ADVERSORIAL SYSTEM:
- INQUSITORIAL SYSTEM:
