Understanding What is Law: Common, Civil and Public Law

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Several unsuccessful attempts have been made in producing 'a universally acceptable definition of law'. In 1972, Baron Hampstead recommended that there could be no such universally accepted definition of the word law. McCoubrey and White believed that the question 'what is law?' was so complex that no simple answer to that question could suffice. Glanville Williams said that the meaning of the word 'law' depends on the context in which that word is used. He said that, for example, 'early customary law' and 'municipal law' were contexts where the word 'law' had two very different and often irreconcilable meanings. Thurman Arnold said that it is obvious that it is impossible to define the word 'law'. He was however of the view that, the struggle should continue, and should not be abandoned. Law is generally defined as the system of rules of a particular community or country, which is recognized as regulating the actions and inactions of its members, enforced through the imposition of penalties.

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A common mistake made by non-lawyers is to assume that the law is largely—even exclusively—limited to criminal law. An old adage that a beginner of legal studies is likely to hear recounted concerns the visitor who was being given a glimpse of the Court of Chancery. He peered around and asked where the prisoner was. He like many others, limited the scope of law, and court proceedings, to criminal law. This reinforces the idea that a lot of people generally define law to mean, punishing crime. Law is however far bigger than that.

The history of law links closely to the development of civilization. Ancient Egyptian law, dating as far back as 3000 BC, was based on the concept of Ma'at and characterised by tradition, rhetorical speech, social equality and impartiality The Old Testament dates back to 1280 BC and takes the form of moral imperatives as recommendations for a good society. The small Greek city-state, ancient Athens, from about the 8th century BC was the first society to be based on broad inclusion of its citizenry, excluding women and the slave class. However, Athens had no legal science or single word for 'law',relying instead on the three-way distinction between divine law (thémis), human decree (nomos) and custom (díkē) Roman law was heavily influenced by Greek philosophy, but its detailed rules were developed by professional jurists and were highly sophisticated.

The recognition of the existence of law outside of himself, and yet binding upon him, is inherent in man's nature, and is a necessity of his being. And this is as much as to say that the very existence of human society is dependent upon law imposed by some superior power. While from our present standpoint the ultimate finite existence is that of the individual, and all true philosophy recognizes that society exists for the individual, and not the individual for society, yet it is also true that the individual is intended to exist in society, and that he must in many things subordinate his own will to that of society, and inasmuch as society can not exist without law, it is a necessary deduction of reason that the existence of law is coeval with that of the human race. 

There never has existed, and it is entirely safe to say that there never will exist, on this planet any organization of human society, any tribe or nation however rude, any aggregation of men however savage, that has not been more or less controlled by some recognized form of law. Modern law as we know it developed from two law traditions that evolved as civilisation started to emerge; the common law tradition of the English, and the civil law tradition. The English common law is based on a cultural system of settling disputes through local custom. The early tribes of England each held their own set of customs, but this system became increasingly formalized as those early tribal peoples came together and organized. Under English common law, disputes between two parties were handled on a case-by-case basis. However, the decision-maker did not act without guidance. The decision-maker was required to look to similar, previously decided cases and use those established guidelines and traditions. The customs of England were built upon and expanded for centuries, all through court decisions. By carrying forward and preserving these customs, the courts assured that the law was truly 'common' to all. The growth of the common law was quite rapid in the thirteenth century but by the fourteenth century it ceased to have the momentum of previous years. 

Because of the numerous defects of the common law, people who were unable to obtain justice either because they could not obtain a writ or the writ was defective or there was no appropriate remedy, began to address their complaints to the King in-Council. Initially, the Council considered these petitions but the practice developed whereby these petitions were referred to and dealt with by the principal civil minister, the Lord Chancellor, who was usually a cleric (and referred to as the 'keeper of the King's conscience'). The Chancellor disregarded the formalities and technicalities of the common law and decided each case on its merits in the light of his conscience and fair dealing, and in the process developed principles that became known as equity. the administration of equity and common law was fused together by the Judicature Acts of 1873-1875. The principle that equity prevails where there is a conflict now appears in the Supreme Court Act 1981. After the Judicature Acts, the two systems settled down and carved out separate but complementary roles. The Judicature Acts brought about the amalgamation of the two systems of courts in a way that allows both common law and equitable remedies to be obtained by a litigant in the same action and in the same court. The civil law or Romano-Germanic system is the legal system of countries with a private law predominantly based or influenced by Roman law (the ius civile). The ius civile was developed during the Roman Republic by praetorian edicts, which were magistrates' edicts inventing new causes of action. This was enriched by the written opinions of Roman jurists that were later collected in Justinian's Pandect. The Pandect was part of Justinian's Corpus Juris Civilis, which was essentially a collection of the most recent imperial decrees of Justinian as well as four textbooks which had the force of law. After a lapse during the Dark Ages, Roman law was rediscovered in the medieval universities of Bologna, Cambridge, Cologne, Cracow, Oxford, Padua and Prague, and developed further by the glossators and the post-glossators, who were medieval law teachers.

Roman law spread throughout Europe and is categorised as ius civile (Latin), droit civil (French), dirritto civile (Italian) and burgerliches recht or zivilrecht (German). It has spread throughout the world through colonisation or voluntary reception. It is thus not only the basis of the legal systems in European countries, the Nordic countries (Denmark, Finland, Iceland, Norway and Sweden), but also the former colonies of Belgium, France, the Netherlands, Portugal and Spain in Africa, Latin America and Asia. To these must be added Louisiana in the United States and Quebec in Canada. Other legal systems like the socialist, African Tradition and the Religious legal systems are other legal systems of notable mention, that have greatly influenced the development and evolution of law as we have it today.

Law as a system, is made up of many sub branches. Most people usually use the term law as referring to crime and punishment, but the system is far bigger than that. Law extends to deal with the interaction of human beings in all aspects of life, be it the personal or the public. It governs the interaction of human beings with other human beings, human beings with inanimate objects, human beings with animals and the environment. It deals with far more than just crime and punishment. The English jurist John Austin4 considered law as a command backed by threats of sanction to be applied for disobedience.12 Austin regarded any rule which is not a command as not truly law. In his view, 'laws proper or properly so-called are commands; laws which are not commands are laws improper or improperly so-called.'13 Law has also been defined as what officials do about law or what the courts do in fact about law.This definition is based on the premise that what is stated to be the law by Parliament is not law because it is subject to interpretation by the courts and it is the interpretation that really constitutes law. It stresses the empirical and pragmatic aspects of law.14 Karl Marx, the German philosopher, postulated that law is the expression primarily of economic forces in a capitalist society. Law was one of the ways by which the capitalist minority (bourgeoisie) sought to preserve and increase their power and those who have property sought to protect it from those who do not have (proletariat).15

Law may be classified in various ways but it must be borne in mind that these classifications overlap in some cases and should not be treated as being in watertight compartments. The main classifications are, public and private law, civil and criminal law, national and international law, subjective and adjectival or procedural law.

Civil law governs the relationship between private persons or bodies and defines their rights with respect to these relationships. Criminal law is a sub-division of public law and is that part of the law which characterizes certain kinds of conducts as offences punishable by the State. It is concerned essentially with the definition, trial and punishment of those acts and omissions which are known as 'crimes.' Such act or omission need not necessarily violate any private right of an individual. Most people characterize this branch of law as the law itself. In criminal proceedings, the State is primarily concerned and it seeks redress on behalf of society in general. In civil proceedings, the State is not primarily concerned, it is the individual whose right has been violated who seeks redress.

Public law deals with the relationship between the State and the individual and also between the various State organs. It also concerns the conduct of political parties and institutions of government on the one hand and individuals on the other hand. Private law concerns itself with regulating the relationship between individuals. Suffice it to emphasize that private law affects the rights and obligations of individuals and artificial entities, and it exists to assist citizens in disputes that involve private matters.

National (municipal) law is the law operating within the boundaries of a particular State; what Blackstone called 'the rule of civil conduct prescribed by the supreme power in a state commanding what is right and prohibiting what is wrong.' The municipal laws of Ghana are set out under chapter 4 (Article 11) of the 1992 Constitution and include enactments made by or under authority of Parliament established by the Constitution; any Orders, Rules and Regulations made by any person or authority under a power conferred by the Constitution; the existing law; and the common law, including rules of equity and customary law. international law on the other hand, comprises a system of rules and principles that govern the international relationship between sovereign states and other institutional subjects of international law such as the United Nations and the African Union. The norms of international law have their source in either custom (consistent state practice) or conventional agreements, ie treaties.International law is created primarily by States, either for their own purposes or as a means of facilitating the functions of organizations of which they are members.

Substantive law deals with the determination of the rights and duties of persons. Substantive law lays down rights, duties, liberties and powers of persons in society. Substantive fields of law included contract, torts, constitutional law, property and criminal law. Substantive law creates legal rights and obligations and are employed by the courts in deciding cases. A key feature of substantive law is to vest jurisdiction in the courts over matters before judges can adjudicate over the issues concerned. Adjectival or procedural law determines the ways and means by which the rights determined by substantive law are enforced. Procedural or adjectival law deals with the manner or method employed to administer substantive law. It relates to the enforcement of persons’ rights, duties, liberties and powers including procedure and evidence. It borders on those rules which regulate how the case is to be framed, and how it is to be tried. It concerns the machinery of litigation as opposed to the subject matter of litigation itself.

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