TOPIC ONE

Introduction to Law
Definition of Law
There are a lot of definitions and ideas about law.
John Salmond defines law as a body of principles recognized
and applied in a state in the administration of justice.
Holland defines law as a general rule of external human
action enforced by a sovereign political authority.
Points to note in the definition:
(a) Set of rules – may originate from customs, parliament etc
(b) Guidance of human conduct
(c) Applied to the community
(d) Enforcement – Must be backed up with sanction i.e state
machinery.
Genesis of Law
 The genesis of today’s law can be traced back from the explanation and
writings of the great philosophers:
 Thomas Hobbes: Argues that during the state of nature (the time where there
was no laws), individual action were bound by their power.
 That time it was described as the time of “war of all against all” – meaning that,
there was no order, anyone can do anything.
 He described life during the state of nature as it was barbaric, short and
unsocial.
 To cure all of these, social contract had to be formed.
 Individuals united into political society as a process of mutual concept agreed
to abide by common rules and accept to correspond duties to respect one
another.
 Hence individuals had to transfer their rights and surrender their freedom to
the rulers in return for peace and protection.
Function of Laws
Basically a law may perform any of the following categories of
functions:
(a) Permissive Rules – Laws allow some behaviours that are
acceptable within the society. This is by giving “rights”. For
example if someone want to marry, there is the Law of
Marriage Act
(b) Prohibitive Rules – Laws may prohibit some acts. For
example, there is the Penal code [Cap 16 R.E 2002] it defines
offences, prohibit them and give the punishment.
(c) Directive Rules – These guide the subject when need to do
something legally. Example if someone want to establish a
company or a business then he has to be directed by laws.
Justification and Purpose of Law
1. Law as a justice standard (a tool to maintain justice
in the s0ciety).
2. Law as a social engineering tool. It smoothern the
working or the functioning of society by regulating
things in a good way as agreed by the people.
3. Law protect fundamental rights and freedom of
individuals
Sources of Law
(a) The Constitution
It is the most important law of the state whereby all other laws derive its power.
Article 64(5) of the CURT of 1977 provides on the supremacy of the constitution,
whereby whenever there is a conflict with the other laws then the constitution must
prevail. All laws must have conformity with the constitution.
The constitution establishes legal and institutional framework, provides human rights,
duties to individuals etc.
(b) Statutory laws (Principle legislation)
 These are the laws that are made by the parliament as the law making body.
Example The Law of Contract Act, Penal code, Law of Marriage Act etc.
 They might be in form of substantive or procedural one
 They must be assented by the president so as to have the legal force.
(c) Precedent
These are the decisions made by the superior court and therefore bind the lower courts.
These decisions form the principle for the subsequent cases having similar facts. That
kind of the principle is what referred as precedents.
Sources of Law (cont.)
 Qn. Why precedents?
(d)Received laws – These are mainly common law.
 They are the laws that were applicable in England and later on received in
Tanganyika during colonial rule.
 They were received on 22nd July, 1920 which is called the reception date
(R.D)
 All laws that were used in England up to that date became applicable in
Tanganyika.
 Later on they had undergone some amendments to suit local content.
(e)Subsidiary legislation/Delegated legislation
The parliament may delegate power of making the laws to another
institution or a person. Those laws are known as subsidiary/ delegated
legislations or simply by laws.
There must be an enabling provision.
Sources of Law (cont.)
 Qn. Why by laws?
(f)International law- Refers to the law which is applicable in more than
one state. These include treaties, conventions, declarations, covenants
etc. For an international law to have a legal force in Tanzania, it has to
be ratified and be domesticated.
(g) Customary and Islamic law – Customary laws are derived from
different customs and become applicable in the Tanzania provided that
they do not conflict with the statutory laws.
Islamic laws on the other hand, are applicable on matters of succession,
marriage to the communities that follow Islamic laws.
Qn. Can F.G.M as a custom of some society in Tanzania be part of
Tanzanian law? Why?
(h) Books of accredited authority – Sometimes they are referred by Judges/
Magistrates as a persuasive source of law.
Nature of Law
Law involves a system of rules that regulates the behaviour of
people and backed up by sanctions.
These rules must be general and not specific: Meaning that, the
rules must be applicable to all people in the society and not an
individual.
Law is dynamic and not static.
It is created and maintained by the state.
Breach or violation of those rules (laws) results in sanction
(punishment) being imposed against the person who breached.
The main feature of the law is its normativity. Law is made up
of norms.
Legal System of Tanzania
The Tanzanian legal system is based on English Common Law
(the system of interpreting and applying rules to resolve a case
before the court by reference of previous decision).
The supreme law of the country is the Constitutional of the
Republic of Tanzania of 1977.
Whereby, the Highest court in Tanzania is the Court of Appeal
of Tanzania (CAT).
The CAT has got the appellant jurisdiction whereby it receives
appeals from the High Court of Tanzania (HCT).
Jurisdiction is the power or limit of the court to entertain the
case.
The Court Hierarchy
ILLUSTRATION