Sources of law

Sources of law means the origin from which rules of human conduct come into existence and
derive legal force or binding characters. It also refers to the sovereign or the state from which the
law derives its force or validity.
There are many factors of law that have contributed to the development of law. These factors are
regarded as the sources of law. Legal customs, Divine right, Natural and legal rights, human
rights, civil rights, and common law are often implied and unwritten sources of law that have
been established over decades or centuries. Canon law and other forms of religious law form the
basis for law derived from religious practices and doctrines or from sacred texts; this source of
law is important where there is a state religion. Historical or judicial precedent and case law can
modify or even create a source of law. The ultimate in written laws are the charter, the
constitution, and the treaty, much of which form the foundation of modern legal systems.
Legislation, rules, and regulations are often the source of laws which are codified and enforced
by the legal system.

Precedent
Precedent is one of the sources of law. The judgments passed by some of the learned jurists
became another significant source of law. When there is no legislature on a particular point
which arises in changing conditions, the judges depend on their own sense of right and wrong
and decide the disputes. Such decisions become authority or guide for subsequent cases of a
similar nature and they are called precedents. The dictionary of English law defines a judicial
precedent as a judgment or decision of a court of law cited as an authority for deciding a similar
state of fact in the same manner or on the same principle or by analogy. Precedent is more
flexible than legislation and custom. It is always ready to be used by people in the court.
Customs
A custom is a rule which in a particular family or in a particular district or in a particular section,
classes or tribes, has from long usage obtained the force of law. The dictionary of English
defines custom as a law not written, which being established by long use and consent of our
ancestors has been and daily is put into practice. Custom as a source of law got recognition since
the emergence of sovereignty on the horizon of jurisprudence. It is an exemption to the ordinary
law of the land, and every custom is limited in its application. They are practices that have to be
repeated for a period of time.

Legislation
Legislation is that source of law which consists in the declaration of legal rules by a competent
authority. Legislature is the direct source of law. Legislature frames new laws, amends the old
laws and cancels existing laws in all countries. In modern times this is the most important source
of law making. The term legislature means any form of law making. Its scope has now been
restricted to a particular form of law making. It not only creates new rules of law it also sweeps
away existing inconvenient rules.
From the definition of politician Mohamed Abdullahi Farmajo, defines legislation as Legislation
(or "statutory law") is law which has been promulgated (or "enacted") by a legislature or other
governing body, or the process of making it. (Another source of law is judge-made law or case
law.) Before an item of legislation becomes law it may be known as a bill, and may be broadly
referred to as "legislation" while it remains under consideration to distinguish it from other
business. Legislation can have many purposes: to regulate, to authorize, to proscribe, to provide
(funds), to sanction, to grant, to declare or to restrict.

Statutory interpretation
Interpretation is a very important function of the court. The process of ascertaining the meaning
of letters and expressions by the court is either interpretation or construction. Interpretation is the
process by which the court seeks to ascertain the meaning of a particular legislature. It is through
interpretation, the judiciary evolves the law and brings the changes in it and thus keeps the law
abreast of law. Statutory laws are generally derived from direct laws passed by the legislative
arm of government.
Preparatory works
In some legal cultures, some of the documents produced in the process leading up to legislation
are subsequently used as guidelines on how to interpret and understand an act of legislation and
determine legislative intent.

Sources of law
The laws in force in the ACT derive from 2 main sources: laws made by the Legislative
Assembly (legislation and instruments made under legislation) and the decisions of the courts
(the common law). A third source is the Ordinances made from time to time by the Governor-
General under the Seat of Government (Administration) Act 1910 (Cwlth). Finally, the ACT
inherited a body of legislation (mainly NSW and the Commonwealth). (The Commonwealth
Constitution and various Commonwealth Acts, regulations and instruments also apply in the
ACT, but this site is concerned only with laws made under authority given by the Legislative
Assembly under the Australian Capital Territory (Self-Government) Act 1988 (Cwlth) (the Self-
Government Act)).

Laws made by the Legislative Assembly—‘Acts’

On 11 May 1989, the ACT became a self-governing Territory under the Self-Government Act
which is an Act of the Commonwealth Parliament. At the same time, the Legislative Assembly
came into existence. The Self-Government Act, section 23 gives the Legislative Assembly power
to make laws ‘for the peace, order and good government of the Territory’. Although some
subjects are excluded from the legislative powers of the Legislative Assembly (including such
things as companies and the classification of materials for censorship), the phrase ‘peace, order
and good government’ indicates that the Assembly has a general law-making power similar to
the powers of the State Parliaments. Like the Commonwealth Parliament, the Legislative
Assembly may not make laws which would involve the acquisition of property without proper
compensation.
In common with other parliaments in Australia, the laws made by the Legislative Assembly are
known as Acts. An Act is the primary form of law in the ACT. Subject to the limitations laid
down in the Self-Government Act, Acts may create rights and obligations (including taxes) and
create offences for noncompliance with a provision of an Act. An Act may restrict property
rights in various ways (for example, requiring a person to obtain a permit before building on
land) or regulate various occupations and businesses (for example, requiring a person to have a
particular kind of qualification or lodge various kinds or returns). While the Self-Government
Act, gives broad law-making powers, the precise topics dealt with in an Act, and the way in
which the Act is to operate all the subject of intense debate and lobbying in the Legislative
Assembly and the community as a whole.

Instruments made under Acts

Apart from their direct operation as sources of rights and obligations, Acts also authorise the
making of other laws (mainly regulations) and instruments of various kinds (for example,
providing for appointment of people to positions or determining fees and charges). Because the
Legislative Assembly does not necessarily have time to attend to these matters, under our
constitutional system the government of the day, acting through its departments and other
agencies deals with them. For this reason, laws made the Legislative Assembly generally give
powers to make regulations and other instruments. In this way the law on a subject may be
divided between the Act (laying down the main features of the proposal), regulations (dealing
with more detailed rules which may need to change quickly) and other instruments to operate in
particular situations. Because the power to make regulations is given or delegated by the
Legislative Assembly, they are sometimes referred to a delegated legislation or ‘subordinate
laws’. Although regulations are the most common type of subordinate laws, other kinds are rules
of court and by-laws.

Laws made by the Governor-General—‘Ordinances’

Before the Self-Government Act created a democratically elected Legislative Assembly, laws
were sometimes made for the ACT by the Commonwealth Parliament but more often were made
by the Governor-General exercising powers delegated to the Governor-General under the Seat of
Government (Administration) Act 1910 (Cwlth), s 12. The laws made by the Governor-General
were known as ordinances and corresponded in subject matter and effect to the Acts now made
by the Legislative Assembly. At the time of self-government, the Seat of Government
(Administration) Act 1910 (Cwlth) was amended to narrow the scope of s 12. After self-
government ordinances may only be made on a fairly narrow range of topics including:
 the classification of materials for censorship
 land used or intended to be used for Commonwealth purposes (National land)
 companies
Since self-government very few ordinances have been made and they continue to be
administered by the Commonwealth. Ordinances are no longer a major source of law in the
ACT. During a staged period after self-government, most ordinances that had applied in the ACT
before self-government were converted into Acts.

The common law

In the ACT legal system the common law continues to be a major source of law. The common
law derives from the decisions of judges (originally in England) over the last 800 years. At the
time of the emergence of the common law as a source of law, Acts of Parliament were
uncommon. Under the system of writs developed by the Crown and its officials, disputes could
be brought before the judges for resolution. Out of these decisions a vast system of law evolved.
A rule or principle of precedent also developed. This required that if a ruling was made on the
basis of certain facts, and those facts happened again, the same ruling should apply. Precedent
then operated to shape the common law into a coherent, more or less predictable, body of rules
on the basis of which commercial transactions could be safely entered into. In time, however, the
common law was regarded as too rigid and sometimes operating in a way that was not always
fair. A parallel body of law eventually grew up which became basis for the rules now known as
the rules or principles of equity. These supplemented and corrected the operation of the common
law. The common law operates subject to legislation. In other words, if a decision of a court
establishes a new rule of common law or varies an old rule in a way that is seen to be
undesirable, an Act may change or abolish the common law rule.
Despite the enormous volume of legislation over the last 200 or so years, some significant areas
of law are still largely based on the common law. For example, contract law and the law of torts
(civil wrongs). And even now, the operation of an Act or regulation will ultimately depend on
how a court interprets the legislation. A person researching the law therefore needs to be aware
not only of the terms of the relevant Act and regulations, but also of any decisions of the courts
that have considered the legislation in question.

The inherited law

The area that now forms the ACT once formed part of New South Wales. The laws of that State
therefore applied in the area before it was surrendered to the Commonwealth. The Seat of
Government Acts passed by the Commonwealth Parliament in 1909 and 1910 provide, broadly
speaking, that the laws in force in that area should continue in operation. The ACT therefore
inherited from NSW a body of legislation and common law (much of which NSW had, in turn,
inherited from England). In 1999 an Act of the Legislative Assembly provided that certain Acts
of the United Kingdom and NSW Parliaments applying in the ACT were to be treated as if they
had been enacted by the Assembly. For convenience, these are now listed in the Legislation Act
2001, schedule 1.
As we saw in Chapter 63: Introduction to the law, there are several different types of legal
systems operating in countries around the world. The one used by most Commonwealth
countries and the United States is based on common law.
The other main legal systems will be discussed later. These are civil law - which we will refer to
as the civil code system to avoid confusion with the civil/criminal legal distinction under
common law - religious law and totalitarian law. Many countries also have some elements of
customary law existing alongside their main legal system.
Although there are differences in the history, development, principles and applications of these
different systems, when applied within a nation they may share common features.

Common law
This system developed from a set of traditional laws first brought together in England around the
12th Century. The name derives from the fact that it was one set of laws "common" to the whole
kingdom, rather than different sets of laws used by individual communities or tribes.
One of the distinguishing features of common law is that it developed through usage rather than
being imposed by codified legislation as with the civil code system. (Legislation means laws -
sometimes also called statutes - that are made by a representative body such as a parliament.
Codification is when individual laws of a similar nature are bundled together under one new,
overarching law.)
Common law developed based on the outcomes of individual court cases. Each court case
provided a basis for judging the next case of a similar nature. Over the centuries and many
thousands of court cases, this process led to a body of laws covering most aspects of society and
based on principles shared by the society in general.
There are several core principles which guide common law, though they are not necessarily
unique to it. These include:
1. The rights of the individual exist alongside those of the state;
2. It is adversarial;
3. It has a presumption of innocence;
4. It develops case law through judgments and precedents;
5. Case law co-exists with statute law and - in most cases - a constitution;
6. Crimes are punished and civil wrongs are rectified by compensation.

1. Based on the rights of the individual

Common law derived originally as a way of determining individual rights - especially property
rights - and balancing them against the best interests of society. In medieval England where
common law first developed, kings could decide what they wanted and order people to obey. For
centuries to come they continued to do this, albeit with diminishing authority. The common laws
which were developed and applied by succeeding judgments were meant to regulate the lives of
individuals living in society rather than impose laws from above. Commentators contrast this to
civil code systems in which the best interests of society itself - made up of individual citizens - is
of paramount importance in deciding laws and imposing rules of good behaviour on individuals.
Proponents of common law say it also builds laws from the ground upwards - from the
"grassroots" - case-by-case, rather than imposing them from the top, even by parliaments which
are meant to represent the people. Common law is therefore said to be more responsive to
individual needs and circumstances.
It is interesting to note that the founding fathers of the United States of America continued the
colonial common law tradition when they gained independence from the British. They then
underpinned it with a Constitution which emphasised the rights of individual citizens. By
contrast, a few years later Napoleon imposed a codified system of laws to bring order out of the
chaos of post-revolutionary France. Both systems work in their own environments and now are
thought to reflect something of the national character of each country.

2. Adversarial
Common law systems rely on adversarial justice. This means the two sides in a case have the
chance to present their arguments equally before a neutral umpire for a decision. Depending on
the court, these neutral umpires can be judges, juries, magistrates or chairs of tribunals - some
cases combinations of these. The judge - or jury - is expected to hear all the evidence presented
by each side, together with legal arguments, and make a decision on who has the strongest case.
In most criminal cases, sentence is passed by a judge, whether or not there is a jury. In civil cases
juries can sometimes determine the extent of compensation.
In criminal cases the two adversaries are the prosecution representing the state and the defence
representing the accused person. In civil trials, the plaintiff makes a complaint against another
person or company called the defendant (or in some cases the respondent). In many common law
countries it is considered so important that the adversarial system operates fairly that the judge
may appoint a lawyer paid for by the taxpayer to defend someone who cannot afford their own
lawyer. This is often called legal aid.
Under the adversarial system, each side is usually allowed to bring witnesses to testify in the
court. These witnesses are usually questioned by the lawyer who called them and are then cross-
examined by the opposing lawyers. The magistrate or judge makes sure both sides get the chance
to present their case fairly.
At the end of the trial or hearing, both sides then summarise their case to the judge or jury. If
there is a jury, the judge will then normally present his or her own summary of the case to them
before sending them into a private room to discuss the case and reach a verdict. If the jury
returns a guilty verdict (or a finding for one side in civil cases), they are usually allowed to leave
and the judge will then consider the punishment or the size of the compensation, usually called
damages. In some countries juries can decide the amount of compensation.
If one side does not like the outcome, they may ask the court for "leave to appeal" to a higher
court, where the main points of the case are argued again in front of a new judge or a group of
judges sitting as a bench. This adversarial system can go all the way to the highest court in the
land if the matter is important enough or involves significant constitutional matters. The highest
court's decision is usually final, unless new evidence comes to light in later years which
convinces them to re-open the case.

3. Presumption of innocence
The presumption of innocence means that an accused person is innocent of the accusations until
a judge or jury of their equals has determined they are not. The accused does not have to prove
innocence - that is presumed. The accuser, acting through a prosecutor, must convince a court of
their guilt "beyond reasonable doubt". Under common law in modern democracies, if a judge or
jury has any doubt that the accused is guilty, they must return a verdict of not guilty.
This has important implications for journalists in many areas of the law. For example, when
reporting a trial you must not say the accused is guilty before a judge or jury returns a verdict,
otherwise you can be found guilty of contempt. Neither should you report any information
obtained outside the trial itself which might influence a jury to suppose the accused is guilty,
such as mentioning previous convictions.
In writing or broadcasting about people you must take care that accusations are supported by
evidence or are at least reasonable, otherwise you can be sued for defamation on the grounds that
the accused person is presumed to be innocent of the bad things you said about them. To use the
defence of truth in a defamation case against you, it is your responsibility as a journalist to prove
what you wrote was true; the defendant does not have to prove their innocence even though they
are the plaintiff in the case.

4. Case law
Judges play an active part in deciding law. Their judgments are binding on lower courts unless
overridden by specific legislation. This is not true in civil code systems where the interpretations
of judges is either given less weight or banned altogether, as in the Napoleonic Code - one of the
earliest and most common of the modern civil code systems.
One of the features of common law systems is that courts not only have to determine the facts in
a case but they also have to argue all the relevant legal precedents set by previous courts making
decisions on similar matters. Both the prosecution and the defence lawyers present not only
evidence of events but also evidence about how these previous cases were resolved. Judges and
juries too are expected to consider not only the facts of the current case but also the arguments
about previous cases.
For this reason, judgments in common law cases are often long and involved. This is so that
future lawyers, juries and judges can see how a verdict was reached when considering their own
cases. Traditionally these lengthy and intricate judgments were printed annually in a court's law
reports, but increasingly they are being made available on the Internet, for example through the
World Legal Information Institute.
Because judges at all levels in a country's legal system are making decisions about laws every
day, the common law system is very adaptable to change. It can be quickly updated to meet new
circumstances, often before politicians get round to formulating and passing new statutes.
For example, in Australia for more than 200 years the law acted as if the original Aboriginal
inhabitants had no prior legal claim to land. This was the concept of terra nullius ("land
belonging to no-one"), that there were no legal titles to land in Australia before white settlement.
In its celebrated Mabo judgment of 1992, the High Court of Australia overturned the concept of
terra nullius and said that Aboriginal people did have a common law legal title to land they had a
long, strong and continuous connection to under customary law. Later High Court judgments
such as Wik further clarified the position by deciding that pastoral rights of settler-farmers could
co-exist with native title and in some cases supercede them. Sadly, Eddie Mabo, one of three
Meriam men who originally took the case to court, died of cancer five months before the
judgment was made. You can read the whole Mabo judgment of the High Court here or a
summary of the case and its consequences by Chief Justice Sir Gerard Brennan here.

5. Co-exists with other laws

Following on from 4. above, judges interpret the constitution and statutes (i.e. parliament-made
laws) where they are unclear. Of course, the constitution of a country is the paramount law and
judges are not able to change its basic provisions. But even with the constitution they can
interpret how it is applied in real life. In strong democracies, judges have a role in interpreting
laws as they interact with each other. For example, a court may decide that legislation passed by
a parliament is unlawful because it clashes with more important constitutional rights. Such cases
are usually eventually determined by the highest court in the nation or state, such as a high court
or supreme court. If these courts decide a statute is unconstitutional, parliament will normally
amend it, otherwise it cannot be successfully applied.
The ability for judges to interpret statute law against a background of common law means
legislation does not have to state every possible circumstance. It can state the general principles
and set limits (for example on the maximum amount an offender can be fined) and leave the rest
for the courts to determine in line with other statute laws and common law precedents.
Opponents of common law say this gives too much power to judges, whereas its supporters see
this ability to interpret legal statutes in real life situations as a strength. As in many things to do
with common law - or any law for that matter - the quality of judges and others people in the
legal system such as lawyers and the police determine how successfully the system will work.

6. Punishment and compensation

Punishment and compensation as remedies to wrongdoing are not unique to common law, though
it is useful to understand the principles behind both.
In common law, the concept or compensation is normally applied in the civil rather than the
criminal sector, where the state prosecutes and the courts impose punishments for an offence
against the state itself.
In civil courts, the principle is that a victim of a wrong by another person (or group such as a
company) should be compensated for that wrong, usually with money, known as damages, but
also by a court order to do something to put matters right, such as rehabilitate land which has
been damaged. Common law says that compensation should be sufficient to return the victim to
the state they were in before the wrongdoing took place. Of course, in a civil action where
someone has lost a limb, no amount of damages will ever replace a real limb. But the courts will
set an amount so the victim should have no further ill effects from the harm they were done by
the perpetrator - the one who is ordered to pay.
Sometimes, the concepts or punishment and compensation can be applied in the same case. For
example, when awarding damages for defamation a judge may award compensatory damages to
restore the victim to their former state (or as near to their former activity as they can get), but
they may also award punitive damages against the defendant. This is meant to both punish the
wrongdoer but also send a signal to deter other people from doing similar wrongs. These are also
called exemplary damages, to set an example.
In common law, judges decide the extent of punishment and compensation by considering
numerous factors including the circumstances of the wrongdoing, the extent of the harm and the
condition of the victim - sometimes even the remorse or otherwise of the wrongdoer. They also
look at what other judges have awarded for similar cases in the past. Increasingly the levels of
punishment and limits of compensation are set down in legislation. Politicians like to be seen to
be sending a message to the public about how they view crimes and some civil harms, so passing
laws with stiffer or more lenient consequences achieves this. Thus the maximum jail for armed
robbery may be 20 years, but within this judges have the discretion to sentence people to less if
the circumstances warrant it.
The only way a judge can send a person to prison for longer than the statutory maximum is if the
person is found guilty of more than one offence, in which case a judge may order the sentences
be served consecutively, i.e. one to begin after the other is finished. Normally, however, judges
sentence people for multiple offences to be served concurrently, that is all starting at the same
time. This means the convicted person goes to prison for the duration of the longest sentence.

Other legal systems

As mentioned at the beginning of this chapter, there are other legal systems apart from common
law. While common law is most usual in English-speaking countries and members of the
Commonwealth, these other systems might also apply in certain areas. Some countries have legal
systems which are mixtures of common law and other forms of law.
Civil code systems
This is the most common type of legal system in the world, either in its pure form or as a basis
upon which other elements such as religious law are added.
The civil code or civil law system is also called by other names such as Roman law, Continental
law or Napoleonic law. All are systems where laws are legislated by parliament or some other
form of representative government and codified (i.e. brought together). They are distinguished
from common law mainly because they come from parliaments, not from court cases. Indeed, in
civil code systems the courts do not usually have as much freedom to interpret laws. In the
original Napoleonic courts judges were specifically banned from interpreting statute laws.
The underlying principle of civil code systems is that the laws applied to citizens are made by
citizens through their political representatives. Judges are there to administer laws, not make
them.
Laws are codified, which means laws of a similar nature are bundled together to create a rational
system across the whole area. Advanced societies try to ensure that all laws have consistent
principles and interact with each other in a logical way without conflict between laws. In
complex societies codified laws are vast and detailed. Critics say this means they are hard to
change but proponents argue they give certainty and predictability.
Civil code systems are mainly inquisitorial rather than adversarial. That means courts are there
to track down the truth, not to be a forum where two sides battle to demonstrate to a judge or jury
who is right and who is wrong. Judges in civil code trials are usually more active in questioning
witnesses, challenging evidence and even - in some cases - directing investigations. This is quite
different to common law trials where the judge is supposed to be impartial.
Although the presumption of innocence is not usually stated explicitly in civil code laws, many
countries have subsequently built it into their systems by adopting external or international
obligations. For example, most European countries have ratified the European Convention on
Human Rights which guarantees the right to a fair trial and the presumption of innocence. Thus
these principles have become part of their national laws.
Trial by jury is less common in inquisitorial systems, especially when judges have a strong role
in hunting down the "truth' in a case rather than arbitrating between two adversarial parties. The
common law developed to give accused people the option of trial by their "peers", meaning
people from society in general rather than from the country's rulers. Juries are, however, used in
some civil code countries such as France, Norway, Spain and Brazil, albeit usually for a limited
range of offences, mainly criminal.
However, even in some common law countries trial by jury is either unusual or unused,
especially in societies where tribal or clan loyalties might make it difficult to find people
unaligned to either party (i.e. the accused or their alleged victim) to make the objective judgment
so important to the jury system. Papua New Guinea's Constitution provides for trial by jury but
they are not used. They were abolished in India in 1959 after a particularly contentious case.
Religious law
Here we are not talking of laws governing the religious practices of believers but of a country's
legal system being based on religious laws which apply to people as citizens in both their private
and public lives.
Although throughout history many countries have had legal systems based wholly or partly on
religious laws and teachings, today by far the most common are those aligned to Islam.
The University of Ottawa's Faculty of Law website lists 36 countries with legal systems based
wholly or partly on religious law. These range from countries such as The Maldives where the
legal system is almost exclusively Islamic to Singapore and India where religious law plays only
a small part in the overall legal system.
Islamic law (Sharia) is based on the Koran and Sunnah holy books, supplemented by
interpretations over the centuries by Muslim scholars and jurists. It provides rules on how
practising Muslim should live their lives. Like common law and civil code law, Islamic law is
still evolving and there are still disagreements about exactly what makes up Sharia and its
scholarly interpretations (Fiqh).
Islamic law shares some similarities with common law, principally the fact that it has evolved
through application, with current judgments based on precedents and the analysis of previous
cases of a similar nature. There are, however, some fundamental differences in areas such as
individual rights and equality before the law, especially in the treatment of women.
Although some Islamic scholars disagree, judges in Islamic law are given freedom within Sharia
and Fiqh to analyse precedents (case law) and contemporary circumstances to provide judgments
suitable to the present day. In some countries, however, judges are encouraged or even required
to make very literal applications of the laws, with little room for contemporary interpretation. For
example, there is still ongoing debate between fundamentalists and modernists in Islam about the
correctness of severing limbs for crimes.
Many countries where Islamic law forms part of their legal system also utilise elements of civil
code law. This is especially true of countries which have gained independence from colonial
powers which themselves relied on civil code law. This cross-influencing shows itself in either
the adaptation of one system by the other or more commonly by the way in which new laws are
devised specifying how the two systems can work together. Indonesia is a good example of how
the latter can be applied. In many countries, civil code laws apply to certain aspects of public life
while Islamic law applies to other aspects, usually more personal matters such as family law. In
many countries two separate court systems are maintained to deal with these differences

Law can be categorised in  number of ways although the various categories are not
mutually exclusive

Common Law – Civil Law Systems

Common Law And  Common Law and Civil Law; distinct legal systems.
Civil Law  The English legal system is a Common Law one as opposed
to Continental systems that are based on Civil Law.
 Because the Roman codes were almost entirely limited to
the private area, public law is usually not codified.

Courts In Civil Law  In civil-law countries, separate administrative courts

Jurisdictions adjudicate claims and disputes between the various branches
of government and citizens, and many lawyers specialise in
public law.
 In France, Germany, and Italy, still other courts handle
constitutional issues.

The English Legal System

Civil Law – Criminal Law

Comparison  The English legal system is characterised by two major

categories of law, those of CIVIL (not the same as the
Civil Law referred to above) and CRIMINAL law. Each
has its own specific aims and outcomes.
 The first major comparison is in the DESCRIPTION of civil
and criminal law.

Civil  For example civil actions known as TORT and also

CONTRACT.
 Broadly speaking one individual against another (Smith v
 Jones).

Crime  Essentially an anti – social act against the state.

  (R v Jones) R= Regina (Queen) Rex (King). The state
against Jones.
 As a broad principle, Civil Law seeks to compensate;
criminal to punish.
 Both attempt to regulate behaviour.

Civil Law Professor Winfield's definition.

" A breach of duty fixed by law, towards persons generally. Its
breach redressable by an action for unliquidated damages".
"Unliquidated" – Not a pre-estimated any amount.

Civil Law Duties  Civil law demands that we do not do certain things. E.G.
Trespass or create a Nuisance or Defame someone's
character.
 The result is DAMAGES. Note the recent trend for the
courts to compensate for intangible losses, e.g.
"disappointment" if a holiday were to fail Jarvis v
Swantours.

Interaction –v-  Civil Law and Criminal Law distinguish between law whose
Enforcement purpose it is to facilitate the interaction of individuals and
law that is aimed at enforcing particular standards of
behaviour.
Civil Law Situations Sometimes clear-cut. You’ve been caught on someone’s land to you
must have trespassed. There will be fewer obstacles in the way of
obtaining a remedy. (In crime the mental element vital to guilt –
can be difficult to prove).
 
This is not to say Civil Law is simpler than Criminal Law both has
their complexities.

Common Law – Equity

Common Law and  Common Law and Equity distinguish the two historical
Equity sources and systems of English Law.
 Common Law emerged in the process of establishing a
single legal system throughout the country.
 Equity was developed later to soften the formal rigour of the
Common Law.
 The two systems are now united but in the final analysis
Equity should prevail.

Sources  Common Law and Statute relate to the source of law.

 Common Law is judge made:
 Statute Law is produced by Parliament.

   Private Law and Public Law relate to whom the law is

addressed.
 Private Law relates to the individual citizen whereas
 Public Law relates to institutions of government.

Private Law – Public Law

Private Law

Relationships Private law involves the various relationships that people have with
one another and the rules that determine their legal rights and duties
among themselves. The area is concerned with rules and principles
 pertaining to private ownership and use of property, contracts
between individuals, family relationships, and redress by way of
compensation for harm inflicted on one person by another.

Private arrangements Historically, government involvement was usually minimal.

 
Private law has also operated to provide general guidelines and
security in private arrangements and interactions in ways that are
complementary to morality and custom but that are not necessarily
enforceable in a court of law, such as non-contractual promises and
agreements within an association of private individuals.

Public Law

Includes Is a term used to describe law concerned with the state law
enforcement.
 
It includes criminal law, local government law and town panning
Law. The two latter subjects are specialised aspects of
administrative .law.
Contrast public law with private law, e.g. contract.

Government Public law concerns the relationships within government and those
Individuals between governments and individuals.

Taxation Laws concerning taxation and the regulation of business are in the
public area, as is criminal law.

Criminal Law Criminal law not only promotes security and order but also
reinforces moral norms.
Debate has been continuous regarding the legitimacy of
government intervention in areas where moral attitudes are in
significant conflict, such as in matters of sexual practices,
pornography, birth control, and euthanasia.
No constitution Because the Uk has no written constitution, basic principles
pertaining to government powers and limits and to fundamental
individual rights are found in acts of Parliament, judicial opinions,
and tradition.

Control of resources Public law dominates in government-controlled societies;

democratic societies increasingly have a mix of public and private
law. The private sphere includes individuals and a vast array of
groups, associations, organisations, and special legal entities such
as corporations.
 
They compete with one another and with government for control of
resources, wealth, power, and the communication of ideas and
values. Special fields of law, such as employment law, facilitate
and control this competition.
 
Much of such law is in the commercial and corporate areas. The
formerly purely private law of property and contracts, for example,
is now overlaid with legislation, regulations, and judicial decisions
reflecting the competition.

Administrative Law
Is a comparatively recent occurrence.

Local Government and Numerous local and government administrative agencies now make
Administrative rules that reach into all manner of activities, including
Agencies  Licensing,
 Regulation of trades and professions,
 Protection of health,
 Promotion of welfare.
 Compulsory purchase,
 Planning controls,
  Regulatory controls and determinations like social security
payment
Their powers emanate from legislation, and their rules are
reviewable by the courts.

Judicial Review This deals with the organisation, powers and duties of public
administrative authorities.
 
In the modern state the executive has wide powers of. When the
authorities act outside the law, administrative law (hopefully) has
the remedies.
France and Belgium have a special structure (Droit Administrative).
We do not.

International Law

Background The legal process that concerns relations among nations is called
international law. Belief and experience in some form of
international law dates from at least the days of the Roman Empire.
 
Such law differs greatly from national legal systems. No court has
the authority or power to give judgments backed by coercive
sanctions.

Based on Custom Even in its most modern developments, international law is almost
Treaties and wholly based on custom.
Conventions The precedents on which it rests are the acts of independent
governments in their relations with one another, including treaties
and conventions.
 
Behind many of its rules is only a moral sanction: the public
opinion of the civilised world.
 
 When treaties or conventions are involved, however, machinery to
enforce them exists-either an arbitration or conciliation procedure
or the submission of the dispute to a regional or international court.

Definitions A discernible body of rules and principles is observed or at least

acknowledged in international relations.
 
These rules concern such matters as territorial titles and boundaries,
use of the high seas, limits on war, telecommunication, diplomatic
and consular exchange, and use of air space.

  The major sources of international law on these matters are

multilateral treaties, international custom, and such general
principles as are recognised by civilised nations.

United Nations The United Nations is one of the primary mechanisms that
articulate and create international law.
 
The General Assembly and other agencies of the UN bring a
combination of diplomacy, negotiation, and propaganda to bear on
World affairs in ways that produce effective international treaties
and affect world opinion.
 
Certain courts also have indirect impact, including the International
Court of Justice. Domestic courts in various nations at times also
engage in the articulation of international law.
 

Definition of Municipal Law

Municipal Law is the law specific to a particular city or county (known legally as a
"municipality"), and the government bodies within those cities or counties. This can cover a wide
range of issues, including everything from police power, zoning, education policies, and property
taxes.

Terms to Know

 Bylaws: A set of rules by which a municipality conducts its business. Bylaws tend to
govern activities such as meetings, votes, record taking, and budgeting.
 Land Use: Otherwise known as zoning, land use laws govern the purposes for which land
may be used.

 Municipal Charter: A municipality's founding document.

 Municipal Corporation: The legal structure assigned to a municipality which allows it to

buy and sell property, and sue or be sued.

 Police Power: The legal term for the ability to use police to regulate the behavior of a
municipality's residents.

 Ordinance: The technical term for the "law" issued by a municipality.

Practice Area Notes

Most attorneys who handle municipal law cases are hired by the municipalities themselves. The
attorneys may even work as corporate counsel for the cities, which means that the attorney works
for that particular city exclusively.

Local city or town councils are primarily responsible for creating municipal law. Since council
members are elected from the town's residents, local residents have great control over municipal
law, which can vary greatly between municipalities. If you believe you have a municipal law
issue, be sure to consult an attorney familiar with the ordinances in your area.

Related Practice Areas

 Land Use Laws: Municipalities are largely responsible to setting land use policy.
  Real Estate: Property taxes and zoning issues, which affect real estate cases, are set by
municipalities.

 Small Business: Many municipalities require small businesses to file local business
licenses, and zoning laws can affect where and how small businesses operate.

 Taxes: Property taxes are usually set by a municipal taxing authority, and the city council
often decides what the municipality uses those taxes for.

 Education Law: The local board of education is responsible for setting a large portion of
education policy.

 Civil Rights: Local police, who must abide by federal civil rights laws, are employed by
municipalities. The municipalities typically pay any damages resulting from civil rights
abuses at the hands of police.

Public law (lat. ius publicum) is that part of law which governs relationships between
individuals and the government, and those relationships between individuals which are of direct
concern to the society.[1] Public law comprises constitutional law, administrative law, tax law and
criminal law,[1] as well as all procedural law. In public law, mandatory rules prevail. Laws
concerning relationships between individuals belong to private law.

The relationships public law governs are asymmetric and unequal – government bodies (central
or local) can make decisions about the rights of individuals. However, as a consequence of the
rule of law doctrine, authorities may only act within the law (secundum et intra legem). The
government must obey the law. For example, a citizen unhappy with a decision of an
administrative authority can ask a court for judicial review.

Rights, too, can be divided into private rights and public rights. A paragon of a public right is the
right to welfare benefits – only a natural person can claim such payments, and they are awarded
through an administrative decision out of the government budget.
The distinction between public law and private law dates back to Roman law. It has been picked
up in the countries of civil law tradition at the beginning of the nineteenth century, but since then
spread to common law countries, too.

The borderline between public law and private law is not always clear in particular cases, giving
rise to attempts of theoretical understanding of its basis.

Contents

 1 Public law in civil law and common law jurisdictions

 2 Areas of public law

o 2.1 Constitutional law

o 2.2 Administrative law

o 2.3 Criminal law

 3 Theoretical distinction between private and public law

 4 References

Public law in civil law and common law jurisdictions

For a note on England's historical development of this area of law in 1215 see the Magna Carta
link on Wikipedia.

The Rule of Law, the idea that the administration of the state should be controlled by a set of
laws originated in greek Antiquity and was revitalized in by modern Philosophers in France
(Rousseau), Germany (Kant) and Austria in the 18th century. It is related to the strong position
of the central government in the era of enlightened absolutism, and was inspired by the French
Revolution and enlightenment. It developed hand in hand with the creation of civil codes and
criminal codes.

Areas of public law

Constitutional law

In modern states, constitutional law lays out the foundations of the state. Above all, it postulates
the supremacy of law in the functioning of the state – the rule of law.

Secondly, it sets out the form of government – how its different branches work, how they are
elected or appointed, and the division of powers and responsibilities between them.
Traditionally, the basic elements of government are the executive, the legislature and the
judiciary.

And thirdly, in describing what are the basic human rights, which must be protected for every
person, and what further civil and political rights citizens have, it sets the fundamental borders to
what any government must and must not do.

In most jurisdictions, constitutional law is enshrined in a written document, the Constitution,

sometimes together with amendments or other constitutional laws. In some countries, however,
such a supreme entrenched written document does not exist for historical and political reasons –
the Constitution of the United Kingdom is an unwritten one.

Administrative law

Administrative law refers to the body of law which regulates bureaucratic managerial
procedures and defines the powers of administrative agencies. These laws are enforced by the
executive branch of a government rather than the judicial or legislative branches (if they are
different in that particular jurisdiction). This body of law regulates international trade,
manufacturing, pollution, taxation, and the like. This is sometimes seen as a subcategory of civil
law and sometimes seen as public law as it deals with regulation and public institutions.

Criminal law

Criminal law involves the state imposing sanctions for defined crimes committed by individuals
or businesses, so that society can achieve its brand of justice and a peaceable social order. This
differs from civil law in that civil actions are disputes between two parties that are not of
significant public concern.
Theoretical distinction between private and public law

In German-language legal literature, there is an extensive discussion on the precise nature of the
distinction between public law and private law. Several theories have evolved, which are neither
exhaustive, nor are they mutually exclusive or separate from each other.

The interest theory has been developed by the Roman jurist Ulpian: "Publicum ius est, quod ad
statum rei Romanae spectat, privatum quod ad singulorum utilitatem. (Public law is that, which
concerns Roman state, private law is concerned with the interests of citizens.) The weak point of
this theory is that many issues of private law also affect the public interest. Also, what exactly is
this public interest?

The subjection theory focuses on explaining the distinction by emphasizing the subordination of
private persons to the state. Public law is supposed to govern this relationship, whereas private
law is considered to govern relationships where the parties involved meet on a level playing
field. This theory fails in areas commonly considered private law which also imply
subordination, such as employment law. Also, the modern state knows relationships in which it
appears as equal to a person.

The subject theory is concerned with the position of the subject of law in the legal relationship
in question. If it finds itself in a particular situation as a public person (due to membership in
some public body, such as a state or a municipality), public law applies, otherwise it is private
law.

A combination of the subjection theory and the subject theory arguably provides a workable
distinction. Under this approach, a field of law is considered public law where one actor is a
public authority endowed with the power to act unilaterally (imperium) and this actor uses that
imperium in the particular relationship. In other words, all depends whether the public authority
is acting as a public or a private entity, say when ordering office supplies. This latest theory
considers public law to be a special instance.
Classifications of Law
Our legal system is made up of both a criminal justice system and a civil justice system. These two
systems exist to deal with two different types of laws (criminal law and civil law) that have very different
consequences if they are broken. As civil and criminal law have different purposes, different systems for
dealing with them have developed.

- CRIMINAL LAW -

1. Creates laws for the protection of the society as a whole and to maintain law and order
2. Provides punishment for those who break the laws

3. Sets out types of behaviour that are forbidden within a society 

4. Criminal cases must be proven beyond reasonable doubt

5. Criminal cases are usually brought on behalf of the State

6. At the end of a case, if the defendant is found guilty, he will be punished by the State
 - CIVIL LAW -
1. Settles disputes between individuals/companies/corporations
2. Civil cases are brought to uphold the rights of individuals and to provide redress

3. A civil case is brought by an individual/company/corporation

4. Civil cases only have to be proven on the balance of probabilities

5. At the end of a case, the party at fault has to pay compensation or comply with another suitable
remedy, such as an injunction
Sometimes law is also classified into private law and public law.

PRIVATE LAW

1. Private law concerns the smooth running of a society and covers areas in everyday life such as
work, business dealings, employment, and education. 
2. Examples: law of tort, contract law, law of succession, employment law, property law, family
law, labour law, commercial law, etc.

PUBLIC LAW

1. Public law involves the State or government.

2. There are 3 main types of law that fall into public law category: constitutional
law, administrative law and criminal law.

3. Constitutional law - controls how the government operates; resolves any disputes over
constitutional matters, for example, who is entitled to vote.
 4. Administrative law - controls how Ministers of State and public bodies should operate and
make decisions.

5. Criminal law - Criminal law is part of public law because a crime is regarded as an action against
society and the state as a whole.

- INTERNATIONAL LAW -

Sources of international law:

 Article 38.1 of the Statute of the International Court of Justice: Treaties

 international customs

 general principles

Public International Law 

 1. Public international law concerns the structure, relationship and conduct of sovereign states,
analogous entities, and intergovernmental organizations. 
2. The sources for public international law development are custom, practice and treaties between
sovereign nations, such as the Geneva Conventions.

3. Governs the relationship between provinces and international entities.

4. Includes these legal fields: treaty law, law of sea, international criminal law, international
environmental law, the laws of war or international humanitarian law and international human
rights law.

5. Public international law has a special status as law because there is no international police force,
and courts (e.g. the International Court of Justice as the primary UN judicial organ) lack the
capacity to penalise disobedience.

Private International Law

1. Also known as "conflict of laws".
2. Concerns which jurisdiction a legal dispute between private parties should be heard in and
which jurisdiction's law should be applied.

International Court of Justice (ICJ)

1. The primary judicial organ of the United Nations.
2. It is based in the Peace Palace in The Hague, the Netherlands.

3. Its main functions are to settle legal disputes submitted to it by states and to provide advisory
opinions on legal questions submitted to it by duly authorized international organs, agencies,
and the UN General Assembly.

International Criminal Court (ICC)

1. A permanent tribunal to prosecute individuals for genocide, crimes against humanity, war
crimes, and the crime of aggression.
2. The Court's official seat is in The Hague, Netherlands, but its proceedings may take place
anywhere.
3. The Court can generally exercise jurisdiction only in three cases, viz. if the accused is a national
of a state party, if the alleged crime took place on the territory of a state party or if a situation is
referred to the Court by the United Nations Security Council, and only when national courts are
unwilling or unable to investigate or prosecute such crimes.