- Information
- AI Chat
Classification OF LAW
Ghana Legal System (FLAW 103)
University of Ghana
Preview text
CLASSIFICATION OF LAW.
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 following are the main classes into which law may be put.
National and International Law
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." In this sense, all the classifications to be discussed below will be deemed national law. A sub-branch of national law is private international law (conflicts of laws), which sets out which national law governs a case with a foreign element. Thus, if Kwabena, a Ghanaian, enters into a contract with Agovi, a Togolese, in Lome to supply eggs to a company in Abidjan and Agovi failed to supply the eggs the question may arise which law will govern the contract. If Kwabena were to sue Agovi in Ghana, the court in this country will have to determine by the rules of private international law which law Ghana, Togo or Cote de voir is to be applied. Infrequently, more detailed laws giving practical effect to international treaties and protocols are enacted into national laws. The provisions of the Convention on the Rights of the Child have been largely incorporated in the Children's Act of 1998 and the Juvenile Justice Act of 2003. The Refugee Law of 1993 enacts the provisions of the African and UN Refugee Conventions and the Human Trafficking Act of 2005 conforms to the UN Protocol to prevent, suppress and punish trafficking in persons.
Public 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 organisations of which they are members. The practice of international law is intrinsically bound up with diplomacy, politics and the conduct of foreign affairs. Thus, for example, there are rules governing diplomatic immunity, trade, and carriage of goods and passengers by air. Because of the weakness of the enforcement mechanism of international law when compared to that of national law, it is sometimes argued that it is not "true" law. However, recent trends in international law seem to be addressing this perceived weakness by the establishment of enforcing mechanisms.
It must be pointed out that in the relationship between public international law and national law, Ghana subscribes to the dualist approach as opposed to the monist approach. In terms of the dualist approach, international conventions and treaties do not assume automatic operation in Ghana. They must first be incorporated into national legislation by Parliament before they can have force and effect in Ghana; examples of such incorporation have been given above. The monist approach involves automatic incorporation of international legal instruments into national law.
Civil and Criminal Law
Civil law governs the relationship between private persons or bodies and defines their rights inter se. Thus, if Kofi commits a tort against Ama by negligently backing up his car against her, the State, as such,
has no interest in taking Kofi to court to sue for damages on behalf of Ama. Ama may sue Kofi for damages but may choose not to do so. It is her prerogative. 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. The same wrongdoing may constitute a crime as well as a civil wrong (tort). For example, the crime of assault may also constitute a tort necessitating the bringing of both criminal and civil actions against the perpetrator. This may give rise to the question of which of the two wrongs should be first brought before the court. Generally speaking, criminal prosecution will be brought before civil proceedings can be undertaken.
The main distinction between civil and criminal law is that the object of criminal proceedings is generally to punish the offender whilst that of civil proceedings is to compensate the person whose right has been infringed. 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 and Private Law
This class overlaps with the above class because civil law is sometimes referred to as private law as distinct from public law of which criminal law forms a part. Public law deals with the relationship between the State and the individual and also between the various State organs. Private law concerns itself with regulating the relationship between individuals.
The main branches of public law are constitutional law, administrative law, criminal law and adjectival Law. Constitutional law regulates the structure, functions and relationship of the principal organs of government, such as the Executive, Judiciary and the Legislature. In most countries with a constitution embodied in a written document, the constitution stands legally above all other types of law, public or otherwise. Administrative law regulates the functions of governmental and administrative agencies. Adjectival law prescribes rules by which litigation is conducted and allegations proved in a court of law.
The main branches of private law are family law, the law of succession, the law of contract, the law of property and the law of torts. Family law regulates family relationships, such as marriage and divorce. The law of succession deals with the manner of disposition of a deceased's estate. Law of contract deals with situations where one person has a right to a performance and another person has a duty to render that performance in terms of a legally enforceable agreement. It also determines whether a promise is legally enforceable and what are its legal consequences. The law of property determines the nature and extent of rights, which a person may enjoy over things such as land. Thus, ownership, pledges and mortgages form part of this law. The law of tort represents the means whereby individuals may protect their private interests and obtain compensation from those who violate them. It includes such wrongs as negligence, nuisance and defamation (libel and slander).
Substantive and Adjectival
Substantive law deals with the determination of the rights and duties of persons. This branch of law will include most of the contents of the above classifications. For example, criminal law is part of substantive law because it defines criminal conduct and the various punishments for the infringement of such conduct. Adjectival or procedural law determines the ways and means by which the rights determined by substantive law are enforced. This consists of civil and criminal procedure and the law of evidence. This
READING LIST.
1. GLANVILLE WILLIAM, LEARNING THE LAW. READ CHAPTER ON ‘DIVISIONS OF
THE LAW.’
2. ROSCOE POUND, CLASSIFICATION OF LAW, HARVARD LAW REVIEW. VOL,
NO, JUNE 1924, pp. 933-969.
3. JOHN FARRAR, INTRODUCTION TO LEGAL METHOD, Chp 2 on THE
TRADITIONAL GENERAL CLASSIFICATION OF LAW and Chp 3 on THE
CLASSIFICATIONS OF LAW.
4. FISHER V. BELL [1960] 3 A.E. 731; [1960] 3 W.L. 919; [1961] 1 Q. 394
5. HEMANS V. COFFIE [1996-97] SCGLR. 596
6. TUFFUOR V. ATTORNEY GENERAL [1980] G.L. 637
7. GABA V. THE REPUBLIC [1984-86] 1 GLR 694
8. PARTRIDGE V. CRITTENDEN [1968] 2 All E. 421
9. KESSIE V. CHARMANT [1973] 2 GLR 194
10. PERBI V. ATTORNEY GENERAL [1974] 2 GLR 167
11. DONOGHUE V. STEVENSON [1932] AC 562
Classification OF LAW
Course: Ghana Legal System (FLAW 103)
University: University of Ghana
