LEGUSC LAWS

Empower your legal journey with our comprehensive legal resocurces

INTERNATIONAL LAW OF THE SEA - OVERVIEW IN TANZANIAN LAWS

international law , law

Law of the Sea is a body of international law that concerns the principles and rules of which public entities, especially states, interact in maritime matters, including navigational rights, sea mineral rights, and coastal waters jurisdiction.
The Law of the Sea sets down a series of rules that regulate the entitlement of coastal states to maritime zones, their rights and duties within these zones and how the boundaries of each zone should be established. 

Law of the Sea, as abranch of international law concerned with public order at sea. Much of this law is codified in the United Nations Convention on the Law of the Sea, signed Dec. 10, 1982. The convention, described as a “constitution for the oceans,” represents an attempt to codify international law regarding territorial waters, sea-lanes, and ocean resources.


       GENERAL OVERVIEW ON THE IMPORTANCE OF SEA

We can make a long list of how the sea (ocean) and marine lifeare important to us. Did you know the Oceans cover greater than 70% of the earth’s surface? They contain 99% of theliving space on earth! Without this space for organisms to survive, there would be five fewer phyla of animals on the earth. Perhaps this is the most important reason to protect the sea. 

 Read more in pdf 







Read more »
Tags: , ,

Public International law- summary notes

international law , jurisprudence
Tags: , ,

PUBLIC INTERNATIONAL LAW BY MWAKISIKI E. MWAKISIKI

international law , jurisprudence
Tags: , ,

The jurisprudence - Questions and answers by mwakisiki E. Mwakisiki

jurisprudence , law
Tags: , , ,

Sample Questions on jurisprudence

jurisprudence , law

1.                  Enumerate and discuss the three developmental stages that a society is destined to experience.

2.                   Maine’s categorization of societies into static and progressive societies is more apparent than real.

Discuss

3.                  Law is a Development of the Popular Consciousness of a People. Discuss

4.                  What is the relevance of Historical school of jurisprudence to legal studies in Tanzania?.



The historical school of jurisprudence manifests the belief that history is the foundation of the knowledge of contemporary era. Two jurists who researched extensively in this area – Friedrich Carl Von Savigny (1799-1861) and Sir Henry Maine (1822-1888) will be the subject of examination in this section.

History is a record of past events. As man has a past so does law. The importance of historical school of jurisprudence cannot be overemphasized. Apart from standing in opposition to the natural law school, the historical school is unique for its emphasis of the relevance of generations past to the present and the future.

The Two Prime Reasons for the Evolution of Historical School:

1.  It came as a reaction against natural law, which relied on reason as the basis of law and believed that certain principles of universal application can be rationally derived without taking into consideration social, historical and other factors.

2.  It also came as a reaction against analytical positivism which constructed a soul-less barren sovereign-made-coercive law devoid of moral and cultural values described by Prof. Hart as “gun-men-situation”.

The Basic Tenets of Historical School can be Summarized as follows:

1. Historical jurisprudence is marked by judges who consider history, tradition, and custom when deciding a legal dispute.

2.  It views law as a legacy of the past and product of customs, traditions and beliefs prevalent in different communities.

3.It views law as a biological growth, an evolutionary phenomena and not an arbitrary, fanciful and artificial creation.

4. Law is not an abstract set of rules imposed on society but has deep root in social and economic factors and the attitudes of its past and present members of the society.

5. The essence of law is the acceptance, regulation and observance by the members of the society.

6. Law derives its legitimacy and authority from standards that have withstood the test of time.

7.The law is grounded in a form of popular consciousness called the Volksgeist.

8.  Law develops with society and dies with society.

9. Custom is the most important source of law.

History can play dual roles in law practice and judicial decision-making

First Role: One role emerges through the legal doctrine of stare decisis, a key component in a common law system. It requires a court to consider and follow previous decided cases (precedents) that sufficiently resemble an instant or current case. As it is sometimes phrased, courts should treat like cases alike. Stare decisis therefore requires a court to consider history: the history or tradition of analogous cases. The problem that arises, however, is that the similarity and dissimilarity between a prior case (or precedent) and a current case is almost always disputable.

Second Role: History also sometimes plays a second role in law practice and judicial decision-making. Namely, lawyers and judges sometimes invoke historical arguments to support a particular legal or judicial conclusion. As a general matter, lawyers and judges typically accept certain types or modes of argument as being legitimate within the legal system.

History often plays a prominent role in constitutional law. Attorneys and judges will assert that historical evidence reveals that the framers of a constitutional provision intended to achieve some desire goal.

Basic Concept of Savigny’s Volksgeist

Von Savigny, a prominent German jurist through his concept of Volksgeist introduced a new dimension in the legal arena. In fact, his historical school was anchored on the Volksgeist, or ‘the spirit of the people’. Savigny, also known as the pioneer of his Historical School of Law through concept of Volksgeist explains the need to understand the interrelationship between law and people. For him, law and people cannot be isolated from each other and this is well explained by Savigny’s concept of Neither is capable of application to other people and countries. The volksgeist manifests itself in the law of people: it is therefore essential to follow up the evolution of the volksgeist by legal research. The view of Savigny was that codification should be preceded by “an organic, progressive, scientific study of the law” by which he meant a historical study of law and reform was to wait for the results of the historians. Savigny felt that “a proper code [of law could only] be an organic system based on the true fundamental principles of the law as they had developed over time”.



Savigny’s method stated that law is the product of the volksgeist, embodying the whole history of a nation’s culture and reflecting inner convictions that are rooted in the society’s common experience. The volksgeist drives the law to slowly develop over the course of history. Thus, according to Savigny, a thorough understanding of the history of people is necessary for studying the law accurately.

Criticism:

As already stated, a precise and flawless definition of law is far from reality, and Savigny‟s Volksgeist is no exception. The following are the criticisms of Savigny‟s Volksgeist:

1.Dias maintains that many institutions like slavery have originated not in Volksgeist but in the convenience of a ruling oligarchy.

2.  It is not clear who the volk are and whose geist determines the law nor it is clear whether the Volksgeist may have shaped by the law rather than vice-versa.

3. In pluralist societies such as exist in most parts of the world it really seems somewhat irrelevant to use the concept of Volksgeist as the test of validity.

4.  Important rules of law sometimes develop as a result of conscious and violent struggle between conflicting interests within the nation and not as a result of imperceptible growth. That applies to the law relating to trade unions and industry.

5.Lord Lloyd also points out that Savigny underrated the significance of legislation for modern society. Sir Henry Maine rightly pointed out that a progressive society has to keep adapting the law to fresh social and economic conditions and legislation has proved in modern times the essential means of attaining that end.

6.  Paton states that the creative work of the judge and jurist was treated rather too lightly by Savigny.

7.A survey of the contemporary scene shows that the German Civil Code has been adopted in Japan, the Swiss Code in Turkey and the French Code in Egypt without violence to popular propensity.

8.  It was unfortunate that the doctrine of Volksgeist was used by the National Socialist in Germany for an entirely different purpose which led to the passing of brutal laws against the Jews during the regime of Hitler in Germany.

Sir Henry Maine’s School of Law (1822-1888)

Maine’s deep knowledge of early society resulted in his emphasis on man’s deep instincts, emotions and habits in historical development. According to Maine, law can be understood as a late stage in a slow-evolving pattern of growth. He believes that there are three stages in legal development in early societies

– law as the personal commands and judgments of patriarchal ruler; law as custom upheld by judgements; and law as code.

“Law” in Tribal Societies

Primitive, tribal societies appear to lack “law” in the form that exists in so-called advanced societies. The absence of the institutions that we normally associate with legal system – courts, law enforcement authorities, prisons, and legal codes led to the conclusion that these communities were governed by custom rather than law.

Three Stages in Legal Development

In the first stage, absolute rulers dominated. It was the age of the divine rights of Kings, where the king could do no wrong. System of ruler ship was absolute and draconian. There were no principles governing governance; only the whim and caprice of the king reigned. Recall Austin’s commander, who was above the law, and whose commands must be obeyed by inferiors.

The second stage is heralded by the decline of the power and might of patriarchal rulers (i.e. a small group of people having control of a country or organization). In their place, the oligarchies of political and military rulers emerged. The oligarchies claimed monopoly of control over the institutions of law.

Maine maintains that the judgments of the oligarchies evolved or solidified into the basis of customs. But the customs are largely unwritten, giving interpreters the opportunity to enjoy a monopoly of explanation.

In the third stage, which represents the breaking of the monopoly of explanation, codification characterizes the legal system.

Static and Progressive Societies

Maine further propounded that for the purpose of the development of law, society can be categorized into two: static and progressive society.

Static or stationary societies did not move beyond the concept of code-based law. In this society, reference to the code answered all legal questions. According to Maine, members of the society were lulled into the belief in the certitude of code and were, therefore, unwilling to reform the law.

On the other hand, progressive societies were to be found in Western Europe. These societies were dynamic and amenable to legal reform. They brought about the development and expression of legal institutions.

In the development of law in progressive societies, Maine identified the characteristic use of three agencies – legal fictions, equity and legislation. Legal fictions are mere suppositions aimed at achieving justice by overcoming the rigidities of the formal law. According to Maine, legal fictions help to ameliorate the harshness of the law. A classic example he gave was the institution of the Roman fiction of adoption. He called equity a secondary system of law. It claimed a superior sanctity inherent in its principles which exist side by side with the law. In many cases, it could displace the law. Legislation represents the final development of the law. It is an institution through which various laws in the society are reduced into writing or codes.

Miscellany

Maine is known to have commented on “status” and “contract”. He said that “the movement of progressive societies has hitherto been a movement from status to contract”. In explaining this statement, Maine said that in early times an individual’s position in his social group remained fixed; it was imposed, conferred or acquired.

He just stepped into it. He accepted such fate as he found it. He could do nothing about it. Later on, however, there came a time when it was possible for an individual to determine his own destiny through the instrumentality of contract. No longer was anything imposed on him from external forces; he was now in charge: from slavery to serfdom, from status determined at birth, from master-servant relationship to employer – employee contract.

Maine Criticisms

Maine is criticized for oversimplifying the nature and structure of early society for the following reasons:

Early society does not show an invariable pattern of movement from the three-stage development of law – from personal commands and judgments of patriarchal rulers through law as custom upheld by judgments to law as code.

The so-called rigidity of the law has repeatedly be challenged by contemporary anthropologists who are of the opinion that primitive peoples were adaptable and their laws flexible.

Also, there were matriarchal societies just as there were patriarchal societies.

Furthermore, it has been observed that status does not necessarily gravitate to contract. Rather, the opposite development has been possible. For example, social welfare legislation in advanced countries is status-based. In the U.S., “affirmative action”, a policy that is predicated on Afro-Americanism, is status-based. Also, in Canada and UK, the status of a single mother is recognized in law.

Conclusion: Although Maine lived up to his historical commitment, he overlooked the dynamics that have characterized societies across ages.

jurisprudence
The answer to these questions was submitted by student!  Legal experts of legusc.com haven't yet verified



BIBLIOGRAPHY

Austin, John. The Province of Jurisprudence Determined and The Uses if the Study of Jurisprudence. London: Weidenfeld and Nicolson, 1954.

Cohen, Marshall. "Herbert Lionel Adolphus Hart," in the Encyclopedia of Philosophy. New York: Crowell, Collier and MacMillan (1967).

Dworkin, Ronald. Law’s Empire. Cambridge: Harvard University Press, 1986.

Hart, H.L.A. The Concept of Law. Oxford: Clarendon Press, 1994.

Hans Kelsen: Pure Theoryof Law. Translated by Max Knight. New Jersey: The Law Book Exchange Ltd, 2002.

Hobbes, Thomas. "Levinthian." The Great Legal Philosophers. Ed. Clarance Morris. Philadelphia, Pennsylvania: University of Pennsylvania Press, 1971. 109-133. Print.

Aquinas,  Thomas,  St..  "Summa  Theologica." The  Great  Legal  Philosophers.  Ed.  Clarance  Morris.

Philadelphia, Pennsylvania: University of Pennsylvania Press, 1971. 57-79. Print.

Austin,  John.  "Lectures  on  Jurisprudence." The Great  Legal  Philosophers.  Ed.  Clarance  Morris.

Philadelphia, Pennsylvania: University of Pennsylvania Press, 1971. 335-363. Print.

Hart, H.L.A. Concept of Law. Oxford, London: Oxford University Press, 1961. 76-107. Print.

Aristotle, . "Nicomachean Ethics- The politics." The Great Legal Philosophers. Ed. Clarance Morris.

Philadelphia, Pennsylvania: University of Pennsylvania Press, 1971. 26-40. Print.



Read more »
Tags: , ,

Views of Salmond in Legal Realism as expounded by Holmes

jurisprudence , law

Introduction:

One version of legal realism was the one propounded by Samlond, who pointed out that all law, is not made by the legislature. In fact he argued that in England much of it was made by law courts. Nevertheless, all laws, however made, are recognized and administered by the courts. Therefore, if a rule is not recognized by a Court, it is not a rule of law. Thus, according to Salmond, it is the courts and not the legislature that we must turn to if we wish to ascertain the true nature of law. Accordingly, he defined law as the body of principles recognized and applied by the State in the administration of justice, as the rules recognized and acted upon by the Courts.

However, there has been another version of legal realism, particularly in the United States of America. According to this theory propounded by American jurists, law is in reality judge-made. The origin of this theory is traced to Justice Holmes, and the theory has a substantial following in the United States.

Holmes highlights the situation not of the judge or the lawyer, but of what he calls ‘the bad man’, i.e. the man who is anxious to secure his own selfish interests. Such a man is not interested in knowing what the statutes or the text books say, but what the Courts are likely to do in fact. This theory makes a distinction between law in books and law in action.

According to this theory, what the courts will actually do cannot necessarily be deduced from the rules of law in text books or even from the words of the statutes themselves, since it is for the Courts to say what the words mean. As Gray observed, “The Courts put life into the dead words of the statute.” This approach is a reaction to the traditional approach that judges do not really create the law, but only declare what the law already is.

This school fortifies sociological jurisprudence, and recognizes law as the result of social influence and conditions and regards it as based on judicial decisions. In the words of Holmes,



“The life of the law has not been logic; it has been experience.” Or as Paton pointed out, “Law is what the Courts do; it is not merely what the Courts say. The emphasis is on action.”

However, the American realists point out that when Courts must choose between alternatives, much will depend on the subjective element of a judge. The judicial process, they argue, is not like that of a slot machine. Much will depend on the temperament, upbringing, social background, realities, learning etc of the judge. Therefore, they contend that law is nothing more than the prediction of what the Courts will decide.

It is also argued that the language of several statutes is uncertain and the Courts are therefore called upon to decide what a particular word or phrase means. Thus, for instance, the English Road Traffic Act makes it an offence to drive a vehicle in a manner dangerous to the public. An interesting question brought before the Court was whether a person who steers a broken down vehicle on tow can be said to be driving it.

Since the Parliament and not defined the word ‘driving’, the word would have to be understood in the ordinary sense. However, the ordinary usage of the word is not wide enough to cope up with such a marginal situation, as it does not draw a very clear or distinct line between what is driving and what is not driving. Faced with this question for the first time in 1946, the Court had to draw such an arbitrary line and further define the term ‘driving’ in Wallace v. Major.

A note can also be made of Scandinavian Realism, the founder whereof was Axel Hagerstrom. Whilst the American realists preferred to revolve around what the Courts did and what the judges said, the Scandinavian School sought to develop a formal philosophy of law, showing how law is not an inextricable part of society as a whole. The Scandinavian Realist does not look at law as a divine command. According to them, law creates morality and not the other way around.

Criticism

The view that a statement of law is nothing more than a prediction of what the Courts will decide is subject to certain criticism.



Legal situations are not predictions

It should be noted that a statement of law is seldom treated as a prediction, which a counsel submits before a Court. He is not forecasting what the judge will decide, but he is asking what the judge should decide. Further, a judicial decision is not a prediction of what the higher Courts would do, but it is a judgment as to what the law now is. Similarly, a legislature is not predicting what will be done, but it lays down what shall be done.

The theory represents a fraction of the situation

Though the realist view may be true to some extent in those situations when a new principle of law is evolved, yet it should be noted that most of our law is settled and stabilized. It should also be noted that several points of law never reach the Court, for the simple reason that the principle of law is so clear that the parties adhere to it.

Thus, it is argued that the creative days of the judge is now a thing of the past. It is argued that today the law is so complete that the task of the judges is the more or less automatic task of applying settled laws to the cases before them.

However, this criticism is not without an answer. Legal rules are still not as certain as was once imagined and the element of choice still faces a Court of law. To quote one example, in England the unlawful and intentional killing of a human being is the common law crime of murder. But what would be the position if X intentionally inflicts a mortal wound on Y, and then, mistakenly thinking him to de dead, throws the body into a lake, with the result that Y dies, not from the wound but from drowning? Would this amount to murder? Until 1954, the English law had no answer to this question, when these facts were before the Court in Thabo Meli v. R, in which case the Court had to further develop the English law of murder.

The theory of uncertainty of language is not always correct

It may be noted that in some border-line cases, the language may be uncertain, as in the example of the word ‘driving’ given earlier. But to generalize that all language is uncertain is to exaggerate the situation without foundation. In marginal cases, the meaning of the word may be uncertain, but this proves that the meaning of the word is certain in other cases. Therefore, the realistic approach of law based on the uncertainty of language is a generalization of an exceptional situation.

Conclusion: 

The origin of the theory of Legal Realism can be traced to Justice Holmes. The theory propounds that it is the courts and not the legislature that we must turn to if we wish to ascertain the true nature of law. The theory works on the belief that “the Courts put life into the dead words of the statute.” However, there has been some criticism of this theory.

jurisprudence


Read more »
Tags: ,

Comparison and contrast between Natural law theory and Positive law theory

jurisprudence , law


 Introduction

What makes the law legitimate? What is a legitimate source of law? What binds people to obey the law? Is there an essential connection between the law and morality? Can the content of a law disqualify it from being considered a legitimate law, which must be obeyed? This debate has been taken up by two major groups of legal theorists:

Natural law

Natural law theory is a philosophical and legal belief that all humans are governed by basic innate laws, or laws of nature, which are separate and distinct from laws which are legislated.

Natural law’s content is set by nature it therefore has validity everywhere .i.e. universal. The laws arise through the use of reason to analyze human nature and deducing binding rules of moral behavior. This theory is built on the idea of perfect law based on equity, fairness, and reason, by which all man-made laws are to be measured and to which they must (as closely as possible) conform.

Natural law theory has heavily influenced the laws and governments of many nations, including England (Magna Carta 1215) and the United States (Declaration of Independence 1776). It has also informed the publications of international legal instruments like the Universal Declaration of Human Rights (1948) and African Charter on Human Rights (1981).

Positive law

Positive law is law made by human beings. Specifically, positive law may be characterized as law actually and specifically enacted or adopted by proper authority for the government of an organized society. A body of man-made laws consisting of codes, regulations, and statutes enacted or imposed within a political entity such as a state or nation.

According to the legal positivists, law is only positive law; that is statute law and such customary laws as recognized by the state. positivism characterizes as law to be applied by the judges, and alone to be considered by jurisprudence, those norms only which are enacted as such by the Factual and published will of the legislative organ in due conformity with constitutional law, or which are explicitly or impliedly admitted by it[1].


Positive law sets the standards for acts that are required as well as those that are prohibited and penalties are usually prescribed for violation of positive law. Those who are physically present where the positive laws have governing power are typically required to obey such laws.

The Contrast

Natural Law theorists such as Plato, Aristotle, and St. Thomas Aquinas argue that a law is only just and legitimate if it promotes the common good. For Legal Positivists like John

Austin, H.L.A Hart, and Thomas Hobbes, a law is legitimate if it has been enacted through the proper channels by someone with the power to do so regardless of the content of that law. While each theorist presents his own explanation, each seeks to answer these crucial questions about law and society.

Legitimate laws must come from legitimate sources. Legal Positivists argue that for the source of law to be legitimate, it must come from a source of power. For Austin, the source of law must be the only person who the subjects are in the habit of obeying. They must also be willing to back their sanctions and laws with credible force. Natural Law theorists posit that the source of law is divine or can be discovered and formed according to what is just and will

promote the common good. Aquinas takes the stance that the source of divine law is God.

Human laws are derived from these divine laws and practical reason.

Natural Law theorist St. Thomas Aquinas argues that human law is legitimate only if it is in line with divine law and promotes universal happiness. All law is fashioned to the common welfare of men. He posits that neglecting God’s law or the universal happiness in the formation of a law makes it unjust. Accordingly, Aquinas advances that an unjust law is not a legitimate law at all and does not have to be obeyed. In stark contrast, Legal Positivist John Austin contends that legitimate law is nothing more than commands from a sovereign to the people who must obey him backed by credible threats and sanctions. The law’s legitimacy is completely independent of the morality of its content and must always be obeyed. It draws its validity from the power of the sovereign who is the only ruler that subjects are in the habit of obeying. He argues that the law as it exists is separate from what it ought to be.

Once legitimate sources have created legitimate and just laws, there must be a reason as to

why people are compelled to follow or obey them. Natural Law subscribers believe that the

ultimate end is the greater good and law is ordered to serve the wellbeing of man. Good laws

should be followed because they follow reason and are inherently valuable and are a means to the ultimate human end. Additionally, they argue that man was given reason, which distinguishes him from beasts. It is this reason, which allows him to control his actions and impulses to act justly. Acting justly and virtuously leads to the good life and the ultimate happiness. Opposite these thinkers is Austin. He believes that people are obedient to the

letter of the law because if they do not then they will be punished with force. Fear becomes a motivator for obedience for both Austin and Hobbes.

Summary

Natural law is typically based on moral principles, natural order, and ethical code that people share as human beings. It is inherent and may not require government enforcement. On the other hand positive law is the legal rules that people are typically expected to follow; it is artificial order and consists of rules of conduct that people place upon each other. Legal positivists are of the view that for a law to be valid, it should be codified, or written down, and recognized by some type of government authority. They reject the theory that people will obey inherent law based on moral values. Positivists espouse relativism and subjectivism with respect to what is proper or improper. Natural law opposes the idea that moral law is relative, subjective, and changeable.

jurisprudence


[1] 1Dworkin, Ronald M., “Lord Devlin and the Enforcement of Morals”(1966). Faculty ScholarshipSeries .

Paper 3611’ Yale Law School.





Read more »
Tags: , ,