SECTION 1. MEANING OF THE LAW AND OTHER KEY CONCEPTS
- DEFINITION OF LAW
For a better understanding of the course, some key words need to be defined, the first of these being ‘Law’ itself. The word ‘Law’ can have several meanings depending on one’s point of view. However, two of them are the most important as far as the definition of Law is concerned. The rest are complementary and they are useful as well because the word ‘Law’ can be viewed in different ways. Also in Law, there is generally a presumption that where a clause or rule refers to he or she (similarly, him or her) either refers to the other inclusively.
Law, in its general sense, is a set of rules of conduct prescribed by a controlling authority and having a binding force. The phrase ‘prescribed by a controlling authority’ means that the controlling authority declares with authority that something should be done or should not be done or that a rule should be followed. Law having a binding force means that the law is that which must be followed by citizens and where the people don’t abide by it, sanctions are attached. Sanctions mean the penalties or punishments for someone who has done wrong or who has not respected the law. Having a character of a rule of conduct implies that it commands what is right and what is wrong.
Law, in its second meaning, is referred to as a scientific subject studying the wide and heterogeneous body of rules regulating human conduct. In this case, it is also called the Science of Law.
In another perspective, law is referred to as objective or subjective. Objective law is a set of rules governing persons’ conduct in a society, enacted and sanctioned by the public authority. It is in this way that we say that Rwandan law, Belgian law etc., or criminal law, Civil law.
Subjective law refers to the prerogatives or rights bestowed (given) to a person by the objective law ( above). These are rights or privileges belonging to a particular person or a group because of their importance or social position. A human being is endowed with a number of rights that he or she enjoys in his relationship with others; for example, a human being has the right to property, the right to privacy, freedom of speech etc. Subjective law is what we would call subjective rights. The reason why we call it a subjective right is because a right cannot exist on its own. It needs somebody that has the right. It is an issue of who owns what. The one who owns is the subject and what is being owned is the right.
In another way, law is said to be positive or natural positive law or legal position meaning a hierarchy of laws made by man, applicable in a given place at a given time. This is manmade law. Rwandan positive law is the whole body of different rules applicable in Rwanda today.
Natural law is a body of ideal rules of human conduct considered as superior to those of positive law and compulsory even to the legislator. Natural laws are usually used to justify the legal rule (positive law) this is because every single law is related to a pure moral law, which is to say that a legal rule is a result of a moral law. An example is that the legal rule (positive law) against murder originated from the natural law of ‘don’t kill’ which has been in existence since time immemorial.
Summarizing this development on the definition of the law, one can say that Law might be understood as a set of rules which are generally obeyed and enforced within a politically organised society. In other words, law is a body of rules for the guidance of human conduct which are imposed upon and enforced among the members of a given state. The law is really necessary in each society.
- PURPOSE OF THE LAW
The establishment of laws in society is necessary to protect the rights of individuals and to ensure the good order, functioning and survival of the society. In effect, what the law is trying to do is to provide answers to the myriad of everyday problems that can arise in society. The solutions to such problems must accord with objectives that are judged by the community to be socially desirable. The problems arise in the first place because of the conflicting interests of individuals and groups within the society and the necessity to ensure the functioning and survival of the society itself. The more civilized a community becomes, and the greater the industrial and scientific progress it makes, the more laws it must have to regulate the new possibilities it is acquiring.
What the law does, in attempting to prevent and resolve conflict in society, is to:
- control social relations and behaviour;
- provide the machinery and procedures for the settlement of disputes;
- preserve the existing legal system;
- protect individuals by maintaining order;
- protect basic freedoms;
- provide for the surveillance and control of official action;
- recognize and protect ownership and enjoyment of the use of property;
- provide for the redress (compensation) of harm;
- reinforce and protect the family; – facilitate social change.
- LAW AND MORALITY
There is a connection between legal laws laid down by a state and certain other norms of behaviour known as laws of morality. From a legal perspective the essential difference between these two sets of rules exists in their respective enforcement. Legal rules are enforced in the courts. Rules of morality depend for their observance upon the good conscience of the individual and the force of public opinion. In any society it is usual to find the rules of morality observed by the majority of its members reflected in the legal laws of that society. The contents of morality, or ethics, and law overlap to a great extent, e g murder, theft and slander; but there are many rules of morality and ethics which the law does not seek to enforce, such as the commandment to honour our parents; and many legal rules which are not intrinsically moral, such as the husband’s general liability to pay tax on his wife’s income.
- LAW AND ETHICS
Ethics (also known as Moral Philosophy) is the science of the rules of moral conduct which should be followed as being good in themselves. There is a close relationship between law and ethics, but there are important differences.
First of all, whereas law is enforced by the organs of the state, ethics are not. While the commands of the law are imposed from without (heteronymous) and enforced by sanctions primarily exterior, the final decision in moral issues is left to each man’s personal conscience, and the sanctions lie in one’s own heart (save that, where a rule of ethics coincides with one of positive morality, public opinion may provide a sanction). Secondly, law concerns itself primarily with the external behaviour of a person, his overt acts, being interested in the state of his mind, his intention or his motive as a rule only where it manifests itself in an act. Ethics on the other hand, concerns itself primarily with the state of a person’s mind, with his thoughts and desires, and is interested in his acts in the main only in so far as they reveal the state of his mind.
Thirdly, whereas law imposes its commands in the interests of the community, the laws of ethics are imposed for their own sake, to achieve virtue. While the Law aims at the doing of justice and the maintenance of peace and order in the community, the aim of ethical theory is the perfection of character; institution of law has to do with the regulation of conduct.
To a large extent law and ethics overlap, but they do not coincide.
SECTION 2. CLASSIFICATION OF LAW
- SUBSTANTIVE AND PROCEDURAL LAW
Substantive law sets out the rights and duties governing people as they act in the society and specifies remedies to back up those rights. Duties tend to take the form of a command. ‘’Do this’’ or ‘Do that’ or ‘Do not do that’. For example, the Rwanda labour code tells employers that they must not discriminate amongst people in hiring and employment on the basis of race, colour, religion, sex, etc. substantive law also establishes rights and privileges, e.g. freedom of speech, the right to self-defence.
Procedural law establishes the rules by which substantive law is enforced. It does not define rights or duties, but merely implements them. Rules as to what cases a court can decide how, a judgment of a court is to be enforced are part of procedural law.
- CRIMINAL AND CIVIL LAW
Criminal law consists of rules prohibiting anti-social conduct as well as certain deviant behaviour. It aims to shape people’s conduct along lines which are beneficial to society, by preventing them from doing what is bad for society. In Rwanda as elsewhere, these prohibitions are listed in the penal code and a number of subsidiary legislation. Also forming part of the criminal justice system are courts, which adjudicate questions of criminal liability, as well as the police force and other enforcement agencies which exist not only to maintain law and order but also to detect and prosecute violations against the criminal law. It is the society through Government employees called public prosecutors that bring court action against violators. If a person is found guilty of the crime such as theft, the person will be punished by imprisonment and or a fine. When a fine is paid, the money goes to the side of the government, not to victim of the crime.
Civil law lays down rules, principles and standards which create rights and duties and specifies remedies to back up those rights. The duties are owed by one person (including corporations) to another. Actions for the breach of civil duty must be brought by the injured party himself or his representative. Generally, the court does not seek to punish the wrongdoer but rather to compensate the injured party for the harm he or she has suffered. For instance, if someone carelessly runs a car into yours that person has committed a civil wrong (tort) of negligence. If you have suffered damages you will be able to recover to the extent of the damages suffered.
Note that although civil law does not aim to punish, there is an exception. If the behaviour of someone who commits a tort is outrageous, that person can be made to pay punitive damages (also called exemplary damages). Unlike a fine paid in a criminal case, punitive damages go to the injured party.
Sometimes, the same behaviour can violate both the civil law and the criminal law. For instance, a person whose careless driving causes the death of another may face both a criminal prosecution by the state and a civil suit for damages by survivors of the deceased. If both suits are successful, the person would pay back society for the harm done through a fine and or a sentence, and compensate the survivors through the payment of the money damages.
- MAIN DIVISIONS OF LAW
Broadly, law can be divided into two broad categories
- International law
This is sometimes called the law of nations, and consists of rules governing the relations between states. The basic principles are recognition of the sovereign state, known as pacta sunt servanda (Latin for “agreements must be kept”). Public international law is the most well-known branch of International law which regulates legal relations between states and the manner in which international organizations operate. International law is the set of rules generally regarded and accepted as binding in relations between states and nations. It serves as the indispensable framework for the practice of stable and organized international relations. International law differs from national legal systems in that it only concerns nations rather than private citizens. National law may become international law when treaties delegate national jurisdiction to supranational tribunals such as the European Court of Human Rights or the International Criminal Court. Treaties such as the Geneva Conventions may require national law to conform.
International law is consent based governance. This means that a state member of the international community is not obliged to abide by international law unless it has expressly consented to a particular course of conduct. This is an issue of state sovereignty.
The term “international law” can refer to three distinct legal disciplines:
- Public international law, which governs the relationship between provinces and international entities. It includes these legal fields: treaty law, law of sea, international criminal law, the laws of war or international humanitarian law and international human rights law.
- Private international law addresses the questions of (1) which jurisdiction may hear a case, and (2) the law concerning which jurisdiction applies to the issues in the case.
- Supranational law or the law of supranational organizations, which concerns regional agreements where the laws of nation states may be held inapplicable when conflicting with a supranational legal system when that nation has a treaty obligation to a supranational collective.
The two traditional branches of the field are:
- jus gentium — law of nations
- jus inter gentes — agreements between nations
- National law
This is the law of a particular country and it is divided into various branches:
- Public law
Public law is that branch of the law concerned with the organization of the state and state agencies and corporations as well as their relations with private individuals. Constitutional law, tax law, public finance, public liberties, administrative law, criminal law is all public law subjects.
- Private law
Private law on the other hand, is that branch of the law which governs the relationship of individuals inter se. There are divisions in this branch of law:
- Law of persons (including family law): This branch of law deals with the legal status of natural persons, such as minors and insane persons, and involves factors influencing capacity, such as age, marriage and nationality. Family law deals with the law of domestic relations and the legal rules for family relationships, such as marriage, divorce, guardians.
- Law of “things”. This branch is divided into categories:
- Law of property: this is a branch of law that is concerned with real rights and deals with ownership and possession, and various real rights in a thing belonging to another, such as servitudes, mortgages, pledges and liens.
- Law of succession: This deals with what happens to a person’s estate upon death. In testamentary succession, the deceased leaves a valid will. In intestate succession, there is no will at all, or part of the estate of the deceased was not disposed of by will.
- Law of obligation: This branch of law deals with personal rights, and is divided into two categories.
- Law of contract: a contract is defined as a binding agreement between two or more persons by which one or more of them agrees to give something, or to do something, or not to do something. It is therefore an agreement intended to create or extinguish personal rights between persons.
- Civil liability. This is a branch of general duty imposed by law which will ground an action for damages by any person to whom the duty was owed who has suffered harm in consequence of the breach. The duty is owed to persons generally and is imposed independently of the will of the parties.
- Business law: There is no simple categorization of laws that fall under business law, since much of this law also falls into other categories. However, business law may include laws relating to insurance, labour law, bankruptcy, and agency, sale of goods, taxation, negotiable instruments, company law, carriage, and law of banking.
- Procedural law: This branch of law deals with the rules that govern how actions may be brought under the law. There are two divisions:
- Civil procedure: This sets out the rules of how persons can bring action against others in a civil court.
- Criminal procedure: This sets out procedure on how a criminal court operates, the powers of judges in criminal matters, and how persons can be brought before a criminal court.
- Law of evidence: This sets out the rules of how evidence may be introduced and proved in a civil or criminal court.
- Conflict of laws: This branch of law prescribes rules for settling an issue before a Rwandan court if the events at issue are so connected to a foreign country that the foreign country’s system of law has to be considered in resolving the matter.
SECTION 3. CHARACTERISTICS OF A LEGAL RULE
A legal rule is binding, meaning that it requires you to do something or not to do something. ‘Binding’ also means that it is supposed to be followed by all citizens.
A legal rule is binding in time and space. On the one hand, a legal rule is said to be binding in space when it is for example applicable to Rwanda and not to Britain. On the other hand, a legal rule is binding in time, when it exists from a certain date to a certain date. It is possible that a public (state) authority can vote for a law and it exists for two years and it is then replaced by a new one.
A legal rule is always general. This means that it applies to persons in general but not to a particular individual. A legal rule cannot regulate one specific person. A law which regulates one person is not a legal rule. That law can’t or doesn’t exist.
However, a legal rule can apply to a certain class of individuals. Some rules are applied to some specific categories of people. This is the diversification of rules. An example is when a law can apply to men and women doing military service, people doing commercial activities or to employers.
A legal rule is permanent. It means that it is applicable or not interrupted between its inception and its end. This characteristic of permanency of a legal rule refers to its applicability during its life (its existence).
A legal rule can be private or public. Private law is a body of legal rules that regulate private individuals and their relations. Public law is that which regulates relations between private persons and the public (state) authority.
A legal rule generally regulates human conduct. This is why it is general and abstract (it is concerned with general ideas or principles rather than specific issues)
A legal rule normally means a general and abstract provision stipulating how beings should behave. The generalizing and impersonality of a legal rule are an important guarantee against arbitrariness (unfairness)
A legal rule also distinguishes itself from other rules by the nature of its sanction. The sanction of a legal rule is exercised by the public (state) authority. The phrase ‘sanction’ here should be understood as the official permission, approval or acceptance of a legal rule which is the duty of the state (authority)
On the other hand, an ethical rule (principles about what is right and wrong) bears an internal sanction. This means that it is the internal conscience which leads someone to decide what is right (what to do) and what is wrong (what not to do)
An ethical rule can also bear the social sanction but not the one exercised by a public authority. This means that it is society which accepts and approves the ethical rule. It is clear that the law cannot rely on such a sanction (of the society) because of its inefficiency to impose respect and order in the society.
As to religious rules, they are applicable to believers and are sanctioned by church leaders, which are also different from legal sanctions because they come from a public authority and are vested with coercive force.
However, it is worthy to mention that, if one of the ethical or religious rules is at the same time sanctioned by the public authority, it becomes a legal rule even if it is still and ethical or religious rule. This is why some legal rules are also ethical rules, creating some confusion between law and ethics.
SECTION 4. SANCTIONS OF A LEGAL RULE
There are three main types of sanctions attached to a legal rule:
- Criminal sanctions
- Civil sanction
- Disciplinary sanctions
- CRIMINAL SANCTIONS
Criminal sanctions are applied when the legal rule that was violated is concerned with the public interest (the social order) In this case; the violation is held to be an offence or infraction. Sanctions or punishment in the case of a criminal conduct (offense) do range from some francs of fine to the temporary and life imprisonment and the death penalty.
- CIVIL SANCTIONS
Civil sanctions concern violations of a legal rule protecting private interests. The violation in this case is concerned to be an attack on individual interests protected by the violated rule. Civil sanctions aimed at restoring the situation prevailing before the violation. They are also referred to as damages or reparations.
- DISCIPLINARY SANCTIONS
Disciplinary sanctions are such as those extended to employees of the civil service, judges and other magistrates as well as soldiers who do not conform to the duties of their functions. These sanctions range from the warning, temporary suspension and in extreme cases the exclusion from service.
SECTION 5. MAJOR LEGAL SYSTEMS (FAMILIES) OF THE WORLD
Every country in the world has its own laws and sometimes laws co-exist within the same state. Despite these variations laws can be classed into types under a limited number of general categories. The following legal systems have been identified in the world-: The Common law tradition, the Civil law or Romano- Germanic tradition; the Socialist law tradition and Muslim law tradition.
- Common law system. The common law family embraces the law of England and legal systems of the English type. Its wide expansion throughout the world came as a result of colonization or expansion. Most English-speaking countries in the world are common law jurisdictions. The essential features of the common law system are the following. It is basically judge made law. The common law was formed primarily by judges who had to resolve individual disputes. Secondly, the legal rule in the common law system is one which seeks to provide the solution to the case in hand. It does not seek to formulate a general rule of conduct.
- Civil law system. Originating from continental Europe the civil law system has spread to the countries of Latin America, Francophone and Lusophone African countries, the countries of the near East, Japan and Indonesia. Colonization and voluntary reception contributed for this wide spread. French law stands out as the prototype of the civil law systems of laws. This is so because the Napoleonic codes have served as model codes for other countries. The main features of the civil law system are following. Firstly all civil law jurisdictions adopted the legal technique of condition. Secondly, the legal rule seeks to formulate a general rule of conduct as opposed to address the case in hand (cf Common Law).
- Socialists legal system. Prior to 25th October 1917 (the October Revolution) Russian law could be said to belong to civil law family. Since then, law in Russia has taken a different path based on Marxism-Leninism. So that today, it is current to speak of socialist legal theory; a socialist law with its own distinctive structure and system of administering justice. The primary function of Soviet law is to organize the nation’s economic forces and to transform the behaviour and attitude to an infringement on the interests of private persons or an insult to the code of morality. This position is bound to change when states previously subject to soviet law have adopted European Union market economic policies (capitalism).
- Muslim legal system. Muslim law is not an independent branch of knowledge or leaning. It is only one of the facts of Islamic religion itself; Islam is first of all a religion, then a state, and finally a culture. The Islamic religion includes, firstly, theology which established dogma and states exactly what a Muslim must believe. Secondly It includes the ‘sharia’ (‘the way to follow’) which lays down rules of behaviour for believers. Since Muslim law is an integral part of the Islamic religion no authority in the world is qualified to change it.
