Introduction to law and Law of Persons

Laws are categorized into legal systems. What are the major legal systems? Under this part, we will be discussing the criterion employed to distinguish between the common and civil law legal systems, first. In so doing we will define the concept of legal system itself. Further, we will consider the general characteristics of common law and civil law legal systems respectively.

LEGAL SYSTEM

How could one classify laws? What points should be employed as criteria to categorize laws?

Legal system is defined by Hart, as that it includes a fundamental rule for the identification of the other rules of system [Paton; 1967: 76].

[Rene David and John E. C. Brierley, Major Legal Systems in the World today An Introduction to the Comparative Study of Law, Pp. 19-20]

The grouping of laws into families, thereby establishing a limited number of types, simplifies the presentation and facilitates an understanding of the world’s contemporary laws. There is no, however, agreement as to which element should be considered in setting up these groups and, therefore, what different families should be recognized. Some writers base their classification on the law’s conceptual structure of on the theory of sources of the law; others are of the view that these are technical differences of secondary importance, and emphasize as a more significant criterion other the social objectives to be achieved with the help of the legal system or the place of law itself within the social order.

From the technical standpoint, it is advisable to ask whether someone educated in the study and practice of one law will then be capable, without much difficulty, of handling another. If not, it may be concluded that the two laws do not belong to the same family; this may be so because of differences in the vocabularies of the two laws (they do not express the same concepts), because the hierarchy of sources and the methods of each law differ to a considerable degree. This first criterion, no matter how essential, is nevertheless insufficient, and it should be complemented by the second consideration. Two laws cannot be considered as belonging to the same family, even though they employ the same concepts and techniques, if they are founded on opposed philosophical, political or economic principles, and if they seek to achieve two entirely different types of society. The two criteria must be used cumulatively, not separately.

THE ANGLO-AMERICAN LEGAL SYSTEM (COMMON LAW)

[Rene David and John E. C. Brierley, Major Legal Systems in the World Today An Introduction to the Comparative Study of Law, Pp. 23-4]

A first family of law is that of the Common law, including the law of England and those laws modelled on English law. The Common law, altogether different in its characteristics from the Romano-Germanic family, was formed primarily by judges who has to resolve individual disputes. Today it still bears striking traces of its origins. The common law legal rule is one, which seeks to provide the solution to a trial rather than to formulate a general rule of conduct for the future. It is, then much less abstract than the characteristic legal rule of the Romano-Germanic family. Matters relating to the administration of justice, procedure, evidence and execution of judicial decisions have, for common law lawyers, an importance equal, or even superior, to substantive rules of law because historically their immediate preoccupation has been to re-establish peace rather than articulate a moral basis for the social order. United States of America and Canada belong to this legal system.

THE CIVIL LAW LEGAL SYSTEM [Yannopoulos; 24]

The meaning of the words “civil law” has not been the same in all historical periods in the framework of early and classical Roman law, jus civile was the law governing the relations of Roman citizens. In that regard, it was contrasted the jus gentium and the jus naturale. From a different point of view, the jus civil was contrasted to the jus honorarium and to the jus publicum. In the middle ages and up to the era or “reception” the term civil law referred mostly to the Justinian legislation and the accumulated doctrine of the commentators; it was contrasted to the cannon law.

In modern times the term civil law refers to those legal systems which, especially in their methodology and terminology, were shaped decisively by the Roman law scholars from middle ages to the nineteenth century.  Germany, French, and Italy are the forerunners of civil law legal system.

COMMON LAW AND CIVIL LAW LEGAL SYSTEMS COMPARED

[Taken from Comparative Legal Systems- MSN Encarta, 12/5/2006]The best way to explain the main elements of the civil and the common law families and to compare and contrast the two is to subdivide them further into the following features

1) Beginnings The common law was conceived in 1066 and born of union between older Saxon law and the custom of the Norman conquerors. The civil law was older than the common law is now.

2) Nurture The common law was nurtured in London law courts by judges and barristers. The older Roman Law was developed to an important extent by jurists, who were not practising lawyers but public-minded citizens. It was they who strive to expound, explain, and adapt the ancient and sporadic legislation and the edicts of the officials; the high point of their contribution occurred in the decades around AD 200.

3) Spread The common law spread only by conquest and colonization: no one ever accepted it freely. The Roman part of the civil law, preserved in the collection of Justinian of AD 533, was rediscovered in the 11th century, embraced by the university law schools of northern Italy, and spread from them throughout continental Europe. From there like the common law it went to the New World and the parts of Africa by colonization. In addition, however, especially in the 19th century, the French and then the German versions were freely selected as models by countries in the Middle and Far East.

4) Language Although originally written in Latin and spoken in Norman French, the language of the common law today is virtually exclusively English. In most civil law systems the terminology is likely to be wholly in the local language.

5) Makers The main creators of the common law are the judiciary: that is to say the matrix, the basic operation system, is laid down by case law. While deciding cases, judges lay down the law. In civil-law systems, at least until very recently, judges played the comparatively minor role of settling the dispute in front of them. They did not make the rules of the system, and their decisions are not cited in later cases.

6) Legislation The modern countries of both systems of laws produce large amounts of legislation. However, that of the common-law countries tends to be piecemeal. Save for the constitution, and fiscal matters, basic principles are not enacted (except as codifications of existing case law in such statutes as the partnership Act). The typical statute merely adjusts some detail of the rules laid down by the courts. In complete contrast, modern civil-law systems tend to think of themselves as codified. The word code in this context means that a whole area of law so laid down in one legislative document, with the aim of providing a closed, coherent, and consistent set of propositions that, if used in good faith, can be applied to solve any dispute in that area. The most obvious example is that of a criminal code.

7) Precedent in civil law legal system, decisions in individual cases and the opinions handed down by courts in particular lawsuits never have the force of law; they cannot be extended to other cases or to other people (Article 2). This approach is fortified by the historical fact that civil-law judges did not see their job as creating law, the professional fact that they are career civil servants, and the political fact that it is thought more democratic to entrust lawmaking to the elected representative of the people.

Common-law perceptions are quite different. Historically, judges made the law. Furthermore, to this day the legislator in common-law countries does not lay down the basic rules of the legal system. However, they are needed, and so a notion of precedent comes into being. For instance, the English Parliament has never defined murder, has never laid down that contracts must be kept, or that a person must pay compensation for damage unlawfully caused to others, since such definitions and rules are necessary, courts and lawyers can find them only in earlier case law. As it would be absurd and unfair if judges could remake the basic law of murder or of contract in any case before them, a rule of precedent binds them to the law as declared by higher courts in their jurisdiction. The doctrine of precedent is an operational rule of a common-law system.

8) Fact: The judges who built up the common law system were few in number, and left the hard work of fact-finding to laypeople: that is, the jury. Originally made up of neighbours who might be thought to know the background, and then of disinterested strangers empowered to hear the evidence and decide. Nowadays only the United States makes much use of the jury for non- criminal matters (as required by the seventh Amendment).

The civil-law systems, by contrast, have always left the task of finding the facts to a professional judge. This has a number of consequences. First, there were always far more judges in civil-than in common-law countries. Second, the judge could be given more control from the outset of the dispute in deciding which witnesses to call and which questions to put to them. Third, the procedure could be more sporadic, spread over a number of sessions, and reduced to writing. Fourth, the rules of evidence can be flexible, since a professional judge is presumed capable of accurately assessing testimony. Finally, it is easier for a higher court to correct or reverse a decision.

9) Structure: One result of the above features is that in common-law countries the legal system is not organized in a coherent and clear structure. Its development tends to be incremental and pragmatic, and it is not easy for the civil lawyer to approach. Civil lawyers lay great emphasis on system and structure. Furthermore, they tend to follow similar patterns in their organization of legal topics, and once these are understood it is relatively simple to locate the law on any given topic.

Why we need law? What functions does law have in your localities? As the issue of definition of law, there is no agreement among scholars as to the functions of law. Jurists have expressed different views about the purpose and function of law. It is well known that law is a dynamic concept, which keeps on changing with time and place. It must change with changes in the society. Law, in the modern sense, is considered not as an end in itself, but is a means to an end. The end is securing of social justice. Almost all theorists agree that law is an instrument of securing justice. As Salmond rightly pointed out, “law is a body of principles recognized and applied by the State in the administration of justice.”  Even Hobbes and Locke recognised the positive role of law when they said, “the end of law is not to abolish or restrain but to preserve or enlarge freedom and liberty.” For Kant, the aim of law is the adjustment of one’s freedom to those of other members of the community. Bentham gave a very practical version of the purpose of law, which according to him, is maximization of the happiness of the greatest number of the members of the community.

According to Holland, the function of law is to ensure the well-being of the society. Thus it is something more than an institution for the protection of individuals’ rights.

Roscoe Pound attributed four major functions of law, namely: (1) maintenance of law and order in society; (2) to maintain status quo in society; (3) to ensure maximum freedom of individuals; and (4) to satisfy the basic needs of the people. He treats law as a species of social engineering.

The Realist view about the purpose and function of law is that for the pursuit of highest good of the individuals and the state as such controlling agency.

The object of law is to ensure justice. The justice may be either distributive or corrective. Distributive justice seeks to ensure fair distribution of social benefits and burden among the members of the community. Corrective justice, on the other hand, seeks to remedy the wrong. Thus if a person wrongfully takes possession of another’s property, the court shall direct the former to restore it to the latter. This is corrective justice. Rule of law is sine qua non for even-handed dispensation of justice. It implies that every one is equal before law and law extends equal protection to everyone; judges should impart justice without fear or favour and like cases should be treated alike.

It must, however, be stated that justice alone is not the only goal of law. The notion of law represents a basic conflict between two different needs, namely, the need for uniformity and the need for flexibility. Uniformity is needed to provide certainty and predictability. That is, where laws are fixed and generalized, the citizen can plan his/her activities with a measure of certainty and predict the legal consequence of his/her conducts. This is even more necessary in case of certain laws, notably, the law of contract or property. Uniformity and certainty of rules of law also bring stability and security in the social order.

Today the following are taken as important functions of law.

A)    Social control – members of the society may have different social values, various behaviours and interests. It is important to control those behaviours and to inculcate socially acceptable social norms among the members of the society. There are informal and formal social controls. Law is one of the forms of formal social controls. As to Roscoe Pound, law is a highly specialized form of social control in developed politically organized society. Lawrence M. Freedman explains the following two ways in which law plays important role in social control:
first, law clearly specifies rules and norms that are essential for the society and punishes deviant behaviour. “Secondly, the legal system carries out many rules of social control. Police arrest burglars, prosecutors prosecute them, courts sentence them, prison guards watch them, and parole broads release them [Steven; 2003: 19]

B) Dispute settlement

Disputes are un avoidable in the life of society and it is the role of the law to settle disputes. Thus, disagreements that are justiceable will be resolved by law in court or out of court using alternative dispute settlement mechanisms [Steven; 2003: 20].

C) Social change

A number of scholars agree about the role of law in modern society as instrument to social change. Law enables us to have purposive, planned, and directed social change [Steven; 2003: 20-21]. Flexibility of law provides some measure of discretion in law to make it adaptable to social conditions. If law is rigid and unalterable, it may not respond to changes spontaneously which may lead to resentment and dissatisfaction among the subjects and may even result into violence or revolution. Therefore, some amount of flexibility is inevitable in law [Biset; 2006].

RELATIONSHIP BETWEEN LAW AND STATE

What relationship do you envisage between law and state? [A note taken from Paton; 1967: 301-311]

There are three main legal theories with regard to the relationship between law and state. They are: the state is superior to and creates law; law precedes the state and binds it when it comes into existence; law and the state are the same thing looked at from different points of view.

Austin explains that state is superior to and creates law when he defines law as the command of the sovereign. According to Austin, there must be a political society of ‘considerable’ numbers, and a superior in that society who is habitually obeyed by the bulk of the members of that community. Within this community, the superior has a sovereign power to lay down the law. Collectively considered, the sovereign is above the law, but a member of the legislature is individually bound by the law.  Do you agree with this proposition? Reason out

The theory of sovereignty has been of service as a formal theory, but some writers go farther and seek to justify sovereignty as a moral necessity instead of as a convenient hypothesis. For example, Hegelianism treats the state as a supreme moral end being a value in itself; it is not bound by the rules of ethics that apply to individual person. This theory ‘grants to state absolutism the virtue of moral truth’. ‘The state is the divine idea as it exists on earth’. Do you share this idea?

This theory has been carried farther by the Naizi and Fascist conceptions, which regard law as but the will of the Leader. These doctrines treat law as an instrument of executive action, not as a check upon it: law is a weapon to achieve the ends of state policy, not a chain to hamper the executive.

According to the second theory, law may bind the State. The sovereign has absolute power over positive law, but is bound by ius naturale. Ihering considered that law in the full sense was achieved only when it bound both ruler and ruled. Ihering regards state as the maker of law and he argues that law is the intelligent policy of power, and it is easier to govern if the state voluntarily submits to the law it has created. Then, Jellinek develops this doctrine into a theory of auto limitation-the State is the creator of law, but voluntarily submits to it.

However, Krabbe and Duguit deny that the State creates law. Once we postulate that law is created by a source other than the State, it is easy to see how the State can be bound. According to Krabbe, the source of law is the subjective sense of right in the community. He asserts that any statute, which is opposed to the majority sense of right, is not law. The legislature, executive, and the judiciary are subordinate instruments through which the community expresses its sense of values.

How can a sense of right be effective unless persons are willing to put their wills at the service of the ends they desire?

What is the gist of the third theory on the relationships between law and state?

Kelsen illustrates the third type of theory that law and the state are really the same. The state is only the legal order looked at from another point of view. When we think of the abstract rules, we speak of the law: when we consider the institutions, which create those rules, we speak of the State. However, the practical importance of Kelesen’s approach is that he emphasizes that law is a more fundamental notion than that of the State. While it is true that law cannot exist without a legal order that order may take forms other than that of the state. Hence, the theory is wider, and therefore more acceptable, than that of Austin. A legal order may be created in the international sphere even though no super state is set up.

What is state? The normal marks of a state are a fixed territory, population, and competence to rule which is not derived from another state. Kantorowicz, defines the state as a juristic person endowed with the right to impose its will on the inhabitants of a given territory, of which right it cannot by law be deprived without its own consent.

It may be argued that the law being an instrument of the state is created and established along with it. No state has ever been without system of law, however crude it may have been. In like manner, system of law has been without a state defining either directly (i.e., through enactments) or indirectly (through recognition) the law is and assuring its validity and guarantying its endowment through the special machinery at the disposal of the state only. That is why law is generally defined as a set of general statements aimed at regulating choices in possible human behaviour that is defined or recognized, published and sanctioned warded by the state.

The definition of law in terms of the State possesses some advantages. It gives a clear-cut and simple test. It supplies an easy manner to show a conflict between various juridical orders for example between Church and State. If only the State can provide positive law, then the Church can have only such legal rules the state grants it. It gives an easy answer to the problem of validity of law, since law is valid for the simple reason that it has been laid down by the sovereign. It is easy to mark the moment when primitive rules become law, for we have only to ask whether there is a determinate sovereign body that has issued a command.

DIFFERENCE BETWEEN LEGAL NORMS AND NON-LEGAL NORMS

According to Black’s Law Dictionary [2004: 1086], norm is “a model or standard accepted (voluntarily or involuntarily) by society or other large group, against which society judges someone or something”. Thus, norm connotes a standard that is accepted by society voluntarily or in voluntarily. The society can judge someone or something against the norm. For example, the standard to determine a given behaviour as right or wrong is norm.

We have seen that one of the natures of law is that it is a norm. The general statement of a legal norm is not a mere rendition. In fact, all social norms differ from the mere resumption of a philosopher or a doctor, etc. True such propositions made by philosophers and medical doctors may be useful addresses; but nobody is bound to follow them. In contrary, legal norms are binding. In fact, the essence of the legal norms is that members of the society are bound to behave in accordance with the law. That is why we usually refer to statements about what will happen to an addressee who behave in accordance with the law attached to the general statements. These are what we call sanctions. Sanctions answer the question: How does the community or group in case the norms are not obeyed? What are the guarantees to ensure that the norm will be adhered to?  Sanctions are various types but their common objective is to form norm and to follow the prescribed norms. Even permissive norms are protected by sanctions; though in their case the sanction is addressed to the person permitted to do the thing but to the rest of the world commanding everybody else not to interfere with the rights of the person so entitled.

To summarize, normativity means the choice, which the rule presents with respect to the described human behaviour; the mandatory character of the norm as well as the possibility of enforcing the norm where it is ignored. Of course, law is not only social norm that has this character of normativity. Essentially, all kinds of social norms have it because it is only this character of normativity that converts any general statement into a norm. Hence, in as far as this character of normativity is concerned, legal norms differ from the other social norms mainly by the number of persons they address themselves to and by the nature of the sanctions they apply. Every legal norm is formally structured; and the three formal elements of a norm’s structure are the premise (hypothesis), the disposition and the sanction. The premise describes the social circumstances or the situations or events, which are the background for the social behaviour that the norm has in mind, and this includes a description of the addressees themselves. The dispositive element describes the kind of human behaviour envisaged and preferred by the norm as well as the choice that norm makes in this respect. It is said that it is this element that contains the essence of the norm. The sanction is that part of the norm that describes what will happen if the norm is disobeyed.

However, note should be made of the fact that we do not find all the three formal structural elements in one formulation of a single legal norm (i.e., one paragraph, one article, etc.). Often also we see that provisions of criminal code only embody half of the dispositive element and the sanction alone, leaving the rest for inference. It therefore means that complete comprehension of a single norm implies the linking together of various provisions of the law that often belong to different branches of the legal system. That is why it is said that it is always necessary to have a comprehensive understanding of the whole legal system in order to correctly apply even one norm.

We can observe that law is a set of norms regulating, in a general and binding manner, the general behaviour of person, there by organizing, protecting and develop certain social relations. Do you agree with this? Why or why not?

Both legal and non-legal norms are normatives, that means both need to create and develop human behaviours.

Non-legal norms have been inexistent before state is created while legal norms have come into existence with the coming into being of state. Thus, societies have been used to be regulated by non-legal norms fo0r example, at the time of communal society. But legal norms were gradually emerged.

What are the relations between legal and non-legal norms?

What is the distinction between law and ethics? Law tends to prescribe what is considered necessary for the given time and place. Ethics concentrates on the individual rather than upon society; law is concerned with the social relationships of the society rather than the individual excellence of their characters and conduct. Ethics must consider the motive for action as all-important; whereas law is concerned mainly with requiring conduct to comply with certain standards, and it is not usually concerned with the motives of persons. It is too narrow, however, to say that ethics deals only with the individual, or that ethics treats only of the ‘interior’ and law only of the ‘exterior’, for ethics in judging acts must consider the consequences that flow from them and it is not possible to analyse the ethical duties of person without considering his/her obligations to his/her fellows or his/her place in society. It is  equally misleading to concentrate upon those aspects of the law which are concerned directly with conduct and with ‘exterior’ factors in person’s social relations, to the exclusion of those which, explicitly or implicitly, are aimed at intention, motive and the ends which persons seek[What is Law: 33-7].

Law, in elaborating its standards, must not try to enforce the good life as such; it must always balance the benefits to be secured by obedience with the harm that the crude instrument of compulsion may do. There are many ethical rules the value of the observance of which lies in the voluntary choice of those who attempt to follow them. Nevertheless, there are other rules, which it is essential for law to enforce for the well-being of the community. Ethics thus perfects the law. In marriage, so long as love persists, there is little need of law to rule the relations of husband and wife-but the solicitor comes in through the door, as love flies out the window. Law thus lays down only those standards, which are considered essential, whatever be the motive of compliance. In one sense law may be a ‘minimum ethic’, but frequently law has to solve disputes  on which the rules of ethics throw very little light-where two persons, neither guilty of negligence, have suffered by the fraud of a third, who is to bear the loss? Ethics may suggest that the loss should be equally divided, but this is not a very practical rule for the law that requires definite rules for the passing of title and the performance of contracts.

Law and ethics are also interconnected. What are today regarded as purely religious were once enforced by law; conversely, modern law will enforce many rules designed to save the individual from him/herself in a way that would have seemed absurd to a disciple of LAISSEZ-FAIRE. There is no immutable boundary to the area of the operation of law.

Another important difference between law and ethics is that a person is free to accept or reject the obligations of ethics, but legal duties are heteronymous, i.e., imposed on the individual without his/her consent. If a rule of ethics, which is in accord with positive morality, is broken, there may be the effective sanction of the pressure of public opinion, but ethical rules are in advance of the views of a particular community are imposed by no earthly force.

What is more, it has been suggested that law creates both duties and rights whereas ethics can create only duties. This, however, may easily become a mere matter of terminology. If Ayalew is under a duty to support his father, why cannot we say that the others have ethical right to be supported? This right will not, of course, be enforced merely because it is decreed by ethics, and nether will breach of the duty to be punished, but logically even in case of ethics it is hard to conceive of a duty unless there is a corresponding right.

Furthermore, ethics deals with the absolute ideal, but positive morality is made up of the actual standards, which are adopted in the life of any particular community. Positive morality therefore (like law), emphasizes on conduct rather than the state of mind; it is also similar to law in that it is imposed on the individual from without, for it has behind it the effective, if unorganized, sanction of public opinion. How many persons would rather break the law than wear the wrong tie with a dinner jacket? Here we see the sanction behind a mere rule of etiquette, and the fear of ridicule or social ostracism protects strongly the more important rules of positive morality.

In general, there are similarities and differences between law and morality. Their similarities, according to Hart [1986: 168], are:

1)      they are alike binding regardless of the consent of individual bound and supported by serious social pressure for conformity;

2)      compliance with both legal and moral obligation is considered as a minimum contribution to social life. This is because as we have already discussed compliance with legal norms enable the members of the sociality to live together. The same holds tree with respect to moral obligations.

3)      Both law and morals include rules that are essential for life in general even though they also include special rules applicable to special activities. Thus, the members of the society are required to comply with those rules to live to gather. Thus, prohibition to violence to person and property are found in both law and morals.

What are the differences between law and positive morality?

Various tests have been suggested to distinguish a rule of law from a mere dictate of positive morality. Firstly, a rule of law is imposed by the State; secondly, while there may be a sanction behind the rules of positive morality, it is not applied by organized machinery, nor is it determined in advance… Third, some argue that the content of law is different from that of social morality: but, while it is true that law, having a different object, covers a different scope, there is no immutable boundary to its operation. Law, positive morality, and ethics are overlapping circles, which can never entirely coincide, but the hand of person can move them and determine the content that is concerned to all or two or confined to one. Ethics condemns murder, because it is once accepted by both positive morality and law.

We do find a close relationship between the rules of law and rules of positive morality, for the latter determine the upper and lower limits of the effective operation of law. If the law lags behind popular standards it falls into disrepute; if the legal standards are too high, there are great difficulties of enforcement… The close relationship between law and the life of the community is shown by the historical school, and if we admit that positive morality influences law, it must be recognized that law in its turn plays a part in fixing the moral standards of the average person. Fourthly, it has been suggested that the method of expression should be used as a test-rules of positive morality lack precision, whereas rules of law are expressed in technical and precise language. There is much truth in this, but the distinction is only relative; for early law is fluid and vague, and some social usages may be expressed very precisely, for example, the modes of address of those bearing titles.

Theoretically, there may be some difficulty in determining the exact distinction between positive morality and law. In practice, however, the legal order provides machinery for the determination of difficult cases. If a sick relative, dependent on Ayalew for the needs of life, is so neglected by Ayalew that death results, is this a breach of a legal duty or merely an infringement of positive morality?

[Biset Beyene, Introductory Note on Law in General, 2006: 5-10]

Different legal theories developed throughout societies. Though there are a number of theories, only four of them are dealt with here under. They are Natural, Positive, Marxist, and Realist Law theories. You may deal other theories in detail in your course on jurisprudence.

NATURAL LAW THEORY

Natural law theory is the earliest of all theories. It was developed in Greece by philosophers like Heraclitus, Socrates, Plato, and Aristotle. It was then followed by other philosophers like Gairus, Cicero, Aquinas, Gratius, Hobbes, Lock, Rousseau, Kant and Hume. In their studies of the relation between nature and society, these philosophers have arrived at the conclusion that there are two types of law that govern social relations. One of them is made by person to control the relations within a society and so it may vary from society to society and also from time to tome within a society. The other one is that not made by person but controls all human beings of the world. Such laws do not vary from place to place and from time to time and even used to control or weigh the laws made by human beings. These philosophers named the laws made by human beings as positive laws and the laws do not made by human being as natural laws.

Natural law is given different names based on its characteristics. Some of them are law of reason, eternal law, rational law, and principles of natural justice.

Natural law is defined by Salmond as “the principles of natural justice if we use the term justice in its widest sense to include all forms of rightful actions.” Natural law theory has served different societies in many ways. The Romans used it to develop their laws as jus civile, laws governing roman citizens, and jus gentium, laws governing all their colonies and foreigners.

The Catholic Pope in Europe during the middle age become dictator due to the teachings of Thomas Aquinas that natural law is the law of God to the people and that the pope was the representative of God on earth to equally enforce them on the subjects and the kings. At the late of the Feudalism stage, Locke, Montesque and others taught that person is created free, equal and independent by taking the concept of Natural law as the individual right to life, liberty, and security. Similarly, Rousseau’s teachings of individual’s right to equality, life, liberty, and security were based on natural law. The English Revolution of 1888, the American Declaration of Independence and the French Revolution of 1789 were also results of the Natural law theory.

Despite its contribution, however, no scholar could provide the precise contents of the natural law. As a result, it was subjected to criticisms of scholars like John Austin who rejected this theory and latter developed the imperative called positive law theory.

POSITIVE LAW THEORY

Positive law theory is also called, imperative or analysts law theory. It refers to the law that is actually laid down by separating “is” from the law, which is “ought” to be. It has the belief that law is the rule made and enforced by the sovereign body of the state and there is no need to use reason, morality, or justice to determine the validity of law.

According to this theory, rules made by the sovereign are laws irrespective of any other considerations. These laws, therefore, vary from place to place and from time to time. The followers of this theory include Austin, Bentham and H.L.A Hart. For these philosophers and their followers law is a command of the sovereign to his/her subjects and there are three elements in it: command; sovereign; and sanction. Command is the rule given by the sovereign to the subjects or people under the rule of the sovereign. Sovereign refers to a person or a group of persons demanding obedience in the state. Sanction is the evil that follows violations of the rule.

This theory has criticized by scholars for defining law in relation to sovereignty or state because law is older than the state historically and this shows that law exists in the absence of state. Thus, primitive law (a law at the time of primitive society) serves the same function as does mature law [Paton; 1967: 72-3].

With regard to sanction as a condition of law in positive law, it is criticized that the observance of many rules is secured by the promise of reward (for example, the fulfilment of expectations) rather than imposing a sanction. Even though sanction plays a role in minority who is reluctant, the law is obeyed because of its acceptance by the community “habit, respect for the law as such, and a desire to reap the rewards which legal  protection of acts will bring” are important factors the law to be obeyed [Paton; 1967:74]

The third main criticism of definition of law by Austin (positive law theory) is that it is superficial to regard the command of the sovereign as the real source of the validity of law. It is argued that many regard law as valid because it is the expression of natural justice or the embodiment of the sprit of people [Paton; 1967: 77].

MARXIST LAW THEORY

Marxists believe that private property is the basis for the coming into existence of law and state. They provide that property was the cause for creation of classes in the society in which those who have the means of production can exploit those who do not have these means by making laws to protect the private property. They base their arguments on the fact that there was neither law nor state in primitive society for there was no private property. The theory has the assumption that people can attain a perfect equality at the communism stage in which there would be no private property, no state and no law. But, this was not yet attained and even the practice of the major countries like the former United Soviet Socialist Russia (U.S.S.R.) has proved that the theory is too good to be turn[Beset; 2006 ]. Nevertheless, this theory is challenged and the theory of private property triumphs.

REALIST THEORY OF LAW [Biset; 2006]

Realist theory of law is interested in the actual working of the law rather than its traditional definitions. It provides that law is what the judge decides in court. According to this theory, rules not put to use to solve practical cases are not laws but merely existing as dead words and these dead words of law get life only when applied in reality. Therefore, it is the decision given by the judge but not the legislators that is considered as law according to this theory. Hence, this theory believes that the lawmaker is the judge and not the legislative body.

This theory has its basis in the common law legal system in which the decision previously given by a court is considered as a precedent to be used as a law to decide future similar case. This is not applicable in civil law legal system, which is the other major legal system of the world, and as a result this theory has been criticized by scholars and countries following this legal system for the only laws of their legal system are legislation but not precedents. This implies that the lawmaker in civil law legal system is the legislative body but not the judge. The followers of this theory include Justice Homes, Lawrence Friedman, John Chpman Gray, Jerom Frank, Karl N. Lewelln and Yntema.

DEFINITION OF LAW

Jurists have defined law differently from different point of views. It has been called Dhama in Hindu jurisprudence and “Hukum” in Islamic system. Romans called it jus and in Germany and France, it is called as Recht and Droit respectively [N.V. PARANJAPE; 2001: 133].

Defining the term ‘law’ is not an easy task because the term changes from time to time and different scholars define the term variously. Definition of the term may vary due to the different types of purposes sought to be achieved. Definitions given to the term law are as many as legal theories.

According to Black’s Law Dictionary [Garner; 2004: 900] law consists of rules of action or conduct. These rules are issued by an authority. In addition, these rules have binding force and are obeyed and followed by citizens. Sanction or other legal consequence may help the law to be abided by citizens.

From the pragmatic point of view, American jurist, Benjanin Nation Cordazo defines law as “a principle or rule of conduct so established as to justify a production with reasonable certainty that it will be enforced by the courts if its authority is challenged.” [Steven; 2003: 8].  According to Holmes “the prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law”. It is observable from these definitions that courts play great role in applying as well as creating the law.

From the sociological perspective, Max Weber suggests that an order will be called law if it is externally guaranteed by the probability that coercion (physical or psychological), to bring about conformity or avenge violation will be applied by a staff of people holding themselves especially ready for that purpose [Steven; 2003: 8].

He argues that law has three features that distinguish it from other normative orders such as custom or convention [[Steven; 2003: 9]:

a) There must be a pressure that comes from external in the form of actions or threats of action by others regardless of the person wants to obey the law or not;

b) These external actions or threats of action always involve coercion or force;

c) Individuals whose official role is to enforce the law must enforce the coercive action.

He refers to state particularly when he talks about officials who enforce the law because they are state officials who are empowered to do that.

In general, law may be described in terms of legal order tacitly or formally accepted by the society and enforced. A body of binding rules sufficient compliance of them is ensured by some mechanism accepted by community is called law [Paton; 1967].

BASIC FEATURES OF LAW

[Biset Beyene, Introductory Note on Law in general, 2006, Unpublished, Alpha University College, Pp. 1ff]

Analysing the features and nature common to all laws would help us to understand the concept of law. Among these features and natures, the ones considered as essential include generality, normativity and sanction.

I) GENERALITY

Law is a general rule of human conduct. It does not specify the names of specific persons or behaviours. Hence, its generality is both in terms of the individuals governed and in terms of the social behaviour controlled.

The extent of its generality depends on-on whom the law is made to be applicable. Consider the following illustrations.

“Everyone has the right to life, liberty and the security of a person.” [Art 3, UNDHR; 1948].

- This law is made to be applicable to every person on this world. Therefore, it is universal.

“Every person has the inviolable and inalienable right to life, the security of person and liberty.” [Article 14 of the 1995 Constitution of the Federal Democratic Republic of Ethiopia].

- This constitutional provision is made to be applicable to every person in Ethiopia. so, the extent of its generality is national. This is less general than the first illustration.

“Every Ethiopian national, without any discrimination based on colour, race, nation, nationality, sex, status, has the following rights…

(b) On attainment of 18 years of age, to vote in accordance with the law.” [Article    38(1)(b) of the 1995 Constitution of the Federal Democratic Republic of Ethiopia.].
- This law is made to be applicable only to Ethiopian nationals who attain 18 years of age. Therefore, it is even less general than the second illustration.

“Whoever intentionally spreads or transmits a communicable human disease is punishable with rigorous imprisonment not exceeding ten years.” [Article 514 (1) of the 2004 Criminal Code of the Federal Democratic Republic of Ethiopia].

- This law is made to be applicable only on a person who commits the crime.
Therefore, it is even less general than the third illustration.

“The term of office of the presidents shall be six years. No person shall be selected president for more than two terms” [Article 70(4) of the 1995 Constitution of the Federal Democratic Republic of Ethiopia].

- This law is made to be applicable only to a person who becomes a president in Ethiopia. Therefore, it is even less general than the fourth illustration.

Under all these illustrations, the subjects of laws are given in general terms. However, the extents of the generalities decrease from universality to an individual person. Generality of the subject of the law may serve two purposes. Firstly, it promotes uniformity and equality before the law because any person falling under the group governed by the law will be equally treated under the same law. Secondly, it gives relative permanence to the law. Since it does not specify the names of the persons governed, the same law governs any person that falls in the subject on whom the law is made to be applicable. There is no need to change the law when individuals leave the group. This is what can clearly be seen from the fifth illustration. Even if the former president’s term of office has lapsed, the same law governs the present and future presidents without any need to change the law. The permanence of law is indicated as relative for there is no law made by person, which can be expected to be applicable eternally.

Generality of law, as indicated above, does not only refer to the subjects governed but also the human conduct, which is controlled. The human conduct in any law is given as a general statement on possible social behaviour. It does not refer to any named specific act like stealing, killing by shooting and killing by spearing. Just a law can govern millions of similar acts and that saves the legislator from making millions of laws for similar acts, which may make the law unnecessarily bulky.

II) NORMATIVITY

Law does not simply describe or explain the human conduct it is made to control. It is created with the intention to create some norms in the society. Law creates norms by allowing, ordering or prohibiting the social behaviour. This shows the normative feature of the law. Based on this feature, law can be classified as permissive, directive or prohibitive.

A) Permissive Law

Permissive laws allow or permit their subjects to do the act they provide. They give right or option to their subjects whether to act or not to act. Most of the time such laws use phrases like:

-          has/ have the right to

-          is/are permitted/allowed to

-          shall have the right

-          shall be entitled to

-          may

-          is/are free to


Illustrations:

“Every person is free to think and to express his idea.” [Article 14 of The 1960 Civil Code of Ethiopia].

- The human conduct to think and to express ideas is permitted by this law. Therefore, it is a permissive law.

“Accused persons have the right to be informed with sufficient particulars of charge brought against them and to be given the charge in writing.” [Article 20(2) of the 1995 Constitution of the Federal Democratic Republic of Ethiopia].

- “have the right to” in this law shows that the subject is given the right or permitted to get the charge in writing and to be informed its particulars. Therefore, it is permissive law.


B) Directive law

Directive law orders, directs or commands the subject to do the act provided in the law. It is not optional. Therefore, the subject has legal duty to do it whether s/he likes it or not, otherwise, there is an evil consequence that s/he incurs unless s/he does it as directed by the law. Directive law usually uses phrases like:

-          must

-          shall

-          has/have the obligation

-          is/are obliged to

-          is/are ordered to

-          shall have the obligation/duty


Illustrations:

“The debtor shall personally carry out his obligations under the contract where this is essential to the creditor or has been expressly agreed.” [Civ. C. Art. 1740(1)]. “Shall…. carryout” in this law shows that the contracting party, the debtor, is directed, ordered or commanded by the law as it is provided. Therefore, this law is directive law.

“Every worker shall have the following obligations to perform in person the work specified in the contract of employment.” ( emphasis added) [Article 13(1) of the 2003 Labour Code Proclamation No. 377/2003].

”Shall have the … obligations to” in this law shows that the worker is directed by the law as it is provided in the law. Therefore, it is directive law.

In general, directive laws are mandatory provisions of laws. They oblige the subject to act, as they require him/her to act.

C) Prohibitive law

Prohibitive law discourages the subject from doing the act required not to be done. If the subject does the act against the prohibition, an evil follows as the consequence of the violation. All criminal code provisions are prohibitive laws. Prohibitive laws usually use phrases like:

-          must not;

-          shall not;

-          should not;

-          no one shall/should;

-          no person shall/should;

-          may not;

-          is/are not permitted/allowed;

-          is/are prohibited;

-          is/are punishable; and

-          is a crime.

Illustrations:

“Any unmarried person who marries another he knows to be tied by the bond of an existing marriage is punishable with simple imprisonment.” [Article 650(2) of the 2004 Criminal Code of Ethiopia]

”is punishable” in this law, indicates that the law discourages such act. Therefore, it is prohibitive law.

“No one may enter the domicile of another against the will of such person, neither may a search be effected there in, except in the case provided by law.”[Civ. C. Art 13].

“No one may” shows that any one is discouraged from acting as provided by the law and so it is a prohibitive law.


III) Sanction

Each and every member of a society is required to follow the law. Where there is violation the law sanction would follow. Sanction according to Black’s Law Dictionary [Garner; 2004: 1368], is a penalty or coercive measure that results from failure to comply a law. The main purpose of sanction is to prompt a party (a wrong doer) to respond. In other words, sanction will make the wrong doer to think that s/he made a fault and s/he should correct it. Sanction may be criminal. Criminal sanction is a sanction attached to criminal liability [Garner; 2004: 1368]. If the fault committed is defined by criminal law, the person will be liable to a sanction provided under the criminal law.