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Basic Concepts of law
What is law?
The famous 19th century English Legal Scholar; John Austin, once defined law as; "the general commands of the sovereign supported by the threat of sanction".
Modern scholars have tended to emphasize the importance of the judiciary in determining what is law. Accordingly it is possible to extend Austin's definition so that it now reads" Laws are general commands of sovereign supported by the threats of sanctions, as interpreted and determined by courts". Definitions of this sort fall within the school of jurisprudence known as positivism, which holds that law is simply anything inacted by an established legislature.
Jurisprudence means "legal philosophy".
This position contrasts with that of the natural law, which argues that law in order to qualify, as law in the full sense of the word must contain within itself, a minimum moral content.
Example: The positivist believes that any bill duly passed by parliament is law. There is no need for any further enquiry. The naturalist however will want to know first what the content of the legislation is. If he finds that it violets what he might refer to as the moral law of the universe he will not regard such an enactment as being law in the true sense of the word. On this basis legislation that perhaps discriminates against certain specified groups in ways deemed to be unacceptable would clearly fall within the ambit of enactments lacking the necessary minimum content to qualify as law.
The essential purpose of the law is to regulate human behavior. It involves before hand what the rules of conduct are. It is important to grasp in most cases that the law is only concerned with the external behaviour of members of society.
Thoughts alone are not subject to punishment, however it must be stressed that in many instances a person's legal liability will depend on whether his act was accompanied by the requisite intention.
The word sanctions, which has been referred to; simply means punishments or penalties. A person convicted of a criminal offence will be punished by being sentenced to a term of imprisonment, fined or even executed depending on the nature of the offence.
Sanctions can also be applied in civil matters. Briefly civil litigation embraces all those court cases that are not criminal, e.g. a breach of contract action would be an instance of civil litigation.
Litigation means court action.
A part who fails to perform his obligation in terms of a validly constituted contract would find himself subject to a court order for either specific performance or damages.
A deed of sale of a piece of land must be in writing and signed by both parties in the sale or their authorised agents. If the deed of sale is not formally correct it is said to be null and void- there is no sale and no contract. This is the sanction of nullity.
Another term that frequently crops up is EQUITY; this is the collection of principles based on the conceptions of ideal justice but not supposed to be instinctively known. In this respect it is similar to the idea of natural justice referred to earlier.
ROMAN-DUTCH LAW
In Zimbabwe and South Africa the common law is referred to as Roman-Dutch law.
This system of law originated in Holland and was transplanted into South Africa by the colonial process. In 1891 the then colony of Rhodesia adopted the South African common law as it existed on the 10th of June 1891.Since then our system of law has also been strongly influenced by English law, so that while our system is still referred to as Roman-Dutch law, it is infact kind of hybrid of English and Roman-Dutch Law.
Sources of law
Most continental systems of law are codified, that is , the law of the country is is reduced to writing and is contained in one complete piece of legislation, but in Zimbabwe and South Africa we draw our knowledge of the law from various sources.
It is usual to consider the sources of law in the order in which they normally appear in social development, but as statute law prevails over all it will be dealt with first.
1.Statutes
It is necessary to have some means whereby new laws and amendments to existing laws can be introduced speedly. In a democracy this authority is described by the general term Legislature. The legislature makes laws which are called statutes or Acts and it has the power to amend or repeal statutes already in existence.
Legislation is by far the most important source of law in any advanced legal system, and practically all modern law is created, amended and abolished by legislative process.
In Zimbabwe the legislative power is vested in the legislature, which consist of the president and the parliament.
The kind of laws made in this way are collectively referred to as statute law.
Each separate law is referred to as an Act. In most cases an Act will set out broad principles only, and will authorize some other person or body to issue other enactments to provide for the detailed administration of the Act and the implementation of the principles involved. Enactments made under such delegated power are generally known by the collective term statutory instruments.
Subsidiary law making authorities can only pass legislation to the extent that they are empowered to do so by the enabling act of parliament.
"Subsidiary law must be intra-vires to the enabling act"
In Zimbabwe all legislation must be framed in terms, which do not conflict with the wording of the constitution. The Supreme Court in the event of any litigation concerning the act will strike down Acts passed by parliament, which are contrary to the provisions of the constitution.
2. Custom
Natural law is defined as the behavior patterns man developed to accord with his instincts, and the rules of conduct he adopted to meet environmental challenges. The members of the community automatically practiced and maintained the customs they regarded as necessary or desirable and these became entrenched as part and parcel of their way of life. Where an act has for some considerable time been performed in a particular way, a custom exists that the act shall be so performed. Where the state requires obedienc e to the custom, it is law.
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3. Legal Writings
This has been and remains an important source. Where parliament has not legislated concerning a particular matter and where no appropriate case law precedent exists the courts will look to the writings of the old jurists for guidance. Indeed as we should see, much of our case law derives its authority from the writings of ancient jurists. In Roman-Dutch tradition the most important writers were Grotious, Van Leeuwen and Voet, all seventeenth century jurists. Sometimes the ancient jurists of Roman law are also referred to.
4. Case Law
This is also known as Adjudication.
Judicial decisions interpret and determine the meaning of statutes and also use common law principles where appropriate in dealing with criminal and civil matters.
By judiciary decisions, are meant court judgements.
Once the court has ruled on a matter before it, the judgement serves as a binding precedent in future cases. In other words judgements establish points of law.
Does this mean that courts create new law?
The answer is both yes and no.
YES in the sense that where there are gaps in the common law, the courts will use a process of inferential reasoning to develop and expand law.
NO in the sense that strictly speaking all the courts do is apply the law as enunciated by parliament, the jurists or case precedents.
The principle by which courts are bound by precedence is known as stare decisis.
All important judgements are published in the law reports, which are then used for reference purposes.
The division of law
The most fundamental division of the law is into public law and private law.
The value of this division is recognised by most jurists, and it is the classical division.
Public law may be defined as part of the legal system in which legal rights and duties are exercised by or enforced against the state; in other words, it is concerned with that section of the law in which the state is, directly or indirectly, one of the parties, or that part of the law concerning public affairs.
Private law, on the other hand, deals with that part of the law relating to actions between private individuals.
Public Law
Public law is generally limited to:
- Criminal law,
- Constitutional law and
- Administrative law.
Criminal Law
It is difficult to define criminal law. However it must suffice here to emphasize that if a wrongful act is one for which the wrongdoer can be prosecuted and punished usually by means of a fine or imprisonment, then it is a crime. It is a fundamental principle in criminal law that the burden is on the prosecution to prove the accused's guilt. The onus of proving beyond reasonable doubt that the accused not only committed the act, but also did so with the guilty mind requisite to constitute the crime charged, rests upon the prosecution throughout a criminal charge and never shifts to the defence.
Constitutional Law
Is that body of rules which determines the constitution of the sovereign government, its structure, powers, and functions.
Administrative Law
Is concerned with the exercise of the sovereign powers, by the officers who are entrusted with the administration of departments and to whom portions of the sovereign power are delegated.
In short it is concerned with the organisation, powers and duties of administrative authorities, which have powers delegated to them by a legislative and a judiciary nature.
For example the Council of Land Surveyors, the governing body of the land surveyors profession is given powers by the Land Surveyors Act, Chapter 27:06, to make regulations as regards the conduct of Land Surveyors and their assistants.
The chief form of delegated legislation, however is that exercised by Government departments. Regulations appear under various names, such as, rules, orders, and by-laws. The largest and most important part of subordinate legislation is comprised in what are known as "Statutory Instruments."
Private Law
This is also known as Civil law. The commonest division of civil law is that which distinguishes between the law relating to obligations, property and status.
- Law of Obligations
This basically covers the law of contracts, which determines the circumstances in which a promise shall be legally binding on the person making it.
Concerned with rights in personam, i.e. personal rights.
- Property Law
Is concerned with rights in rem, i.e. rights, which avail against persons generally.
Security of property is a right and a duty, which one claims from and owes to the world at large. This right can be infringed by anybody, and it therefore avails against everybody.
- The law of status
This relates to persons, and their capacity or disability at law. Whilst it is true that "the law is no respector of persons" or, in other words, that law assumes that all persons are equal at law, it will be readily appreciated that the law must treat certain classes of individuals as suffering from certain "disabilities." A person under the age of 18 is legally an infant, and as such he is in some respects, particularly in the law of property and contract, under a legal disability.
The term "person" has a wider meaning at law than in everyday usage, for it includes what are termed "legal persons" or some times "artificial persons."
International Law
There is no general agreement amongst jurists as to either the nature or the correct definition of International Law. One definition is- "the rules which determine the conduct of the general body of civilized states in their mutual dealings.
Structure of the Courts
The highest court in the country is the Supreme Court.
This is followed by the High Court and below the High Court are Magistrate Courts, which are divided into regional and provincial courts.
The judgements given by magistrate courts are not recorded in law reports.
Both the magistrate and high courts are trial courts; i.e. they are courts of first instance. The Supreme Court is usually confined to hearing appeals and is not thus generally a court of first instance except with regard to certain constitutional questions.
Legal Practitioners
Ever since 1981 when the bar was fused all legal practitioners had been entitled to appear in all courts. Previously only Advocates were allowed to appear in the higher courts.
In practice however a de facto bar still exist and those legal practitioners before fusion practiced as Advocates still specialise in court work because of their experience in that field. Advocates are also referred to as Barristers.
Attorneys are legal practitioners specialized in non-court work such as drawing up wills, contracts and giving general advice.
Conveyancers are attorneys who are qualified to prepare deeds for registration in a Deeds Registry Office.
Notary Public is an attorney authorised to execute certain types of deeds, relating to the acquisition or disposal of real rights in immovable property. Such documents are usually referred to as notarial deeds.
Land Law
Deals with the kinds of rights one can enjoy in land.
What is land law about?
It is about four things:
- Ownership- Ownership has various sides to it. Important among these is:
(a)Title- a term regarded as indicating the legal right to land
(b)Another aspect of ownership is concerned with the question- "what physically does the land consist of?
(c)Another aspect of ownership is concerned with the periods of time for which land may be granted, by one person to another.
- The interests in land held by persons other than the Owner
- Restrictions and
- The machinery of land law
CONVEYANCING
Deals with the transfer of these rights in land to others.
The rights in land with which land law is concerned are of two types:
- rights which enable one to enjoy the land itself, e.g. absolute ownership
- rights which place restrictions on someone else's land in your favour, eg. Servitudes.
What is land?
Land includes land of any tenure and mines and minerals, whether or not held apart from the surface, buildings or parts of buildings (whether the division is horizontal, vertical or made in any other way).
Land therefore consists of the following:
- Incorporeal hereditaments- e.g. servitudes, which are not things at all, but rights (not tangible)
- Corporeal hereditaments-, which is the earth itself to an infinite depth and also the air, space to an infinite height. It includes the entire natural and permanent features, which are, part of or affixed to land (i.e. the physical matter over which ownership is exercised).
The general maxim of the law: "What is annexed to the land becomes part of the land."
Aside: Hereditament is an archaic word for "land", in short the soil and its accoutrements are land.
Legal Rights
A legal right is an interest conferred by and protected by law, entitling one person to claim that another person or persons either give him something or do an act for him or refrain from doing an act.
From this definition follows the concept of "rights in things", i.e. jura in re.
These are negative rights. By way of explanation if you have a right to the use and enjoyment of an object, this is the same as having a right to insist that all persons; that is every one in the world other than yourself, refrain from using and enjoying that object and refrain also from preventing and impairing your use and enjoyment of it.
In other words you can, but all others cannot and hence this is regarded as a negative right.
This class of rights is known as real rights and must be distinguished from personal rights.
A real right establishes a direct legal connection between a person and the thing; the holder of the right being entitled to control that thing within the limits of his right, without any necessary relationship with another person. In terms of personal rights on the other hand, a person becomes bound to the person who holds the right to render a particular performance i.e. to do or not do something, the performance itself being the object of the right. It never establishes a direct legal connection between its holder and the thing in any respect of which performance can be rendered.
Silber.& Shoem. note that " the power of direct control which is conferred on the holder of a real right is as a general rule protected against interference by any other legal subject while emphasizing that a real right to a thing, conferring power of direct control over such thing. We should accordingly bear in mind that it also constitutes legal relationships between legal subjects; mutually, the holder of a real right having a right to a thing which as a general rule is enforceable against all others i.e. against any person who seeks to deal with the thing to which a legal right relates in any manner which is inconsistent with the holder's power to control it (and in so far as a person may have a real right to another person's thing), a real right is also enforceable against the owner of that thing.