INTRODUCTION TO LAW
• Nature of law
• Definition
• Function
• Source of Law
• Classification
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
Source of Law
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
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 countries; United
States, 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 countries are Germany,
France, Italy and most of Europe
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
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
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 functionary's 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
Criminal law is a form of public law that
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 behaviour, 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 organizations and
agencies who have power under the law to pass laws
that regulate the lives of the people within a
Municipality while
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 END
