Distinguish the following:
(i) Law and Morality
(ii) Public and Private Law
(iii) Common Law and Equity
(iv) Substantive Law and Procedural Law
(v) Ratio Decidendi and Obiter Dicta
Law and Morality
Morality is the sense of judgement between wrong and right developed by society. It consists of societal prescriptions. The society determines what is wrong or right to shape the behaviour of its members. Morality is not enforceable. Law consist of rules recognized and applied by the state in the administration of justice. It is based on customs and religious practices or emanates from parliament. Law is enforceable and its sactions are visible. Law is superior and certain.
Public law consists of those fields or branches of law in which the state has a direct interest as the sovereign, for example; Constitutional law, Criminal law, Administrative law.
It is concerned with the constitution and functions of the various organs of government, their relations with each other and the citizenry.
It asserts state sovereignty.
Private law: consists of those branches or fields of law in which the state has no direct interest. It is concerned with the legal relations between persons in ordinary transactions.
It deals with the rights and details of parties in ordinary transactions example law of contract, law of property, law of succession, law of marriage, law of trust.
Common law and Equity
Common law may be described as a branch of the law of England which was developed by the ancient common law courts from the customs, usages and usages of the English people.
These courts applied the peoples way of life in the settlement of disputes thereby giving such customs the force of law. The courts standardized and universalized customs. The common law was characterized by the writ system and stare decisis.
The common law system of administration of justice was rigid, slow, had insufficient remedies, did not recognize trust and was highly technical. The courts could only award damages. Common law acts in rem.
Equity ordinarily means fairness or justice. It is that branch of the law of England which was developed by the various Lord Chancellors courts to supplement the common law.
It developed to mitigate the harshness of the common law as well as fill in the gaps in the common law system. It is therefore an addendum to the common law.
Equity was developed by a different system of court and on the basis of different principles namely fairness.
Administration of justice was speedy and the system was very flexible. Equity developed the so-called maxims of equity, additional remedies, recognized trusts and enhanced protection of borrowers. Equity acts in personam.
If common law and equity conflict equity prevails.
Substantive Law
Consists of rules themselves as opposed to the procedure of how to apply them. It defines the rights and duties of parties and prescribes or provides remedies e.g law of contract, law of torts.
It also defines crimes or offences and prescribes punishment. Penal code
Procedural Law: This is adjectival law.
It consists of the steps or guiding principles or rules of practice to be complied with in the application of substantive law or in the administration of justice for example Criminal Procedure Code, Cap, 75 and Civil Procedure Act Cap 21.
Ratio decidendi: literally means reason for decision. It is a principle or proposition of law based on the material facts of the case. It disposes of the case before the court.
It is the binding element in a decision or precedent.
It consists of a group of fact situations with those of the instant case as minimum.
Obiter dicta: literally means “by the way”
These are by the way statements of law or fact made by a judge in the course of judgement.
They do not dispose of the case before the court and have no binding force. These statements strengthen or reinforce the decision of the court and can be relied upon by advocates in subsequent cases as persuasive authority.
