WHAT IS LAW?

Webster's New World law Dictionary (2006)

Define the term 'law' as:

(i) The complete body of statutes, rules, enforced customs and norms, and court decisions
governing the relations of individuals and corporate entities to one another and to the
state;
(ii) The subset of such statutes and other rules and materials dealing with a particular subject
matter;
(iii) The system by which such statutes and rules are administered;
(iv) The profession of interpreting such statutes and rules

The following are some attempts to define the term 'law':-

(a) Oxford Dictionary of law, 7th Ed., 2009 (p. 316).

Define the term 'law' as the enforceable body of rules that govern the society.

(b) Shivji, 2004, et. al., p. 3.

Is an obligatory rules of conduct imposed or recognized and enforced by the state

Summary:

Means a set of rules and norms or a standard of pattern of behavior to which every individual in
the society has to conform to. Rules ought to be obeyed, otherwise, the violator of such rules or
standards behavior can be taken to court, tribunal or other formal/informal institution or person
and get punished/sanctioned.

Example:
Rules against genital mutilation, rape, fraud, forgery, theft, corruption, homicide, and etc

Basic elements or features to be considered in defining the term 'law':

The law must be a body or system of obligatory rules/norms (not optional) obeyed or adhered to
by every member of the society (i.e. normative nature of the law: – law is obligatory on human
conduct/s).

QUESTION: What about the concept of 'a King/Queen can do no wrong' (i.e. rex/regina non
potest peccare).

(i) The law must be imposed or recognised and enforced by the sovereign or state (i.e. state
centred or backed law: – institutional nature of law).
(ii) The impact or consequences of violating (breach) of the law must result into
sanction/punishment/threat (i.e. coercive nature of law).

(iii) The law must apply to a whole community or to a cross-section of a society (i.e. general
application)

1.2. ROLE AND FUNCTIONS OF LAW

There are conflicting views as to what actually is the role or aim of the law in the society. On one
hand, Marxist scholars see it as a tool of a ruling class (haves) to protect their interest and status
quo in the society (i.e. law as an instrument of oppression and domination, e.g. Apartheid laws,
Nazi laws, Negro laws, colonial laws, e.g. property law, treason and anti-revolution laws, and
etc). On the other hand, Bourgeois scholars conceptualise law as a tool of development, justice
and peaceful working and co-existence of individuals in the society or between societies (i.e. law
as social engineering, e.g. property ownership laws, city or town planning laws, electoral laws,
succession laws, and etc). Specifically, law has the following functions in the society;

General functions of law:

(a) To structure and distribute public powers to both individual personnel and organs/institutions
of the state (e.g. Judiciary, Legislature and Executive; or powers of the president as opposed to
powers of the DPP or Attorney General and etc.

(b) To regulate private relations or dealings (e.g. land law, contract law, marriage) and etc.

(c) To provide a way of resolving or avoiding conflicts/disputes in the society.

Specific functions of law:

(i) To maintain public order, e.g. criminal law

(ii) To regulate human and state dealings and cooperation/interaction, e.g. law of contract,
international laws, and etc.

(iii) To act as a medium of dispute resolution, e.g. law of tort, procedural laws and etc

(iv) To protect public morality, e.g. criminalizing homosexuality, prostitution, pornography, and
etc.

(v) To regulate governmental powers, e.g. constitutional law, administrative law

(vi) To protect individual rights and freedom, e.g. bill of rights, anti-discrimination legislation.

SOURCES OF LAW IN TANZANIA

There are two sources of laws in Tanzania, namely formal/primary and non-formal/secondary.

(a) Formal/Primary sources of law:

These include;

(i) The Constitution (as the basic law);

(ii) Statutory laws,

i.e. principal legislations (Ordinances or Acts of Parliament);

(iii) Subsidiary legislations, i.e. by-laws, regulations, rules, directives, orders and etc.

(iv) Court Decisions in Tanzania: (especially, Court of records, i.e. The High court and Court of
Appeal).

Note: refer the concept/s of 'stare decisis', 'standard of justice' and 'precedent'.

(v) Received laws: i.e. the common law, Doctrine of Equity, and Statutes of General
Applications.

(vi) International and Regional law: i.e. Treaties, Conventions, bi-lateral or multi-lateral
agreements, declarations and etc, e.g. refer laws of the EAC, SADC, AU and other laws made
under the auspices of the UN.

(b) Non-formal/Secondary sources of law:

These are:

(i) Customary laws (customs and norms of each tribes), e.g. Haya customary on succession law.

(ii) Religious laws, e.g. Islamic law.

(iii) Trade usage, customs and lawful agreements or contracts or arrangements between private
individuals.

Note: for non-formal sources of law to be enforced [they] must be constitutional and consistent
with primary sources of law.

Question: Where do we get law in Tanzania?

REFER:

Section/s 2(3), 3, 9 and 11 (schedules thereto) of JALA, Cap. 358.

Article 63(3) of the Constitution of the United Republic of Tanzania, 1977 (RE: 2008).
1.4. CLASSIFICATION OF LAW

By classification of law we mean, branches or types or divisions of laws. Laws may be classified
into two (2) major categories;

(1) Municipal laws:

These are national or local laws enacted by legislative bodies in Tanzania. Municipal laws are
also divided into two (2) groups;

(a) Public law and Private law

Public law is the law which deals with the relationship between the state and individuals, the
distribution and exercise of public powers. Braches of public law are Constitution law,
Administrative law, Regulatory law (e.g. EWURA & TCRA laws), and Criminal law (e.g. Penal
Code). While, Private law is the law which governs relationships between private individuals,
for example, law of contract, tort law, property law, succession (and trust) law, and etc. Private
laws usually do not involve the government, and are laws that allow one private entity to sue
another private entity in a civil lawsuit.

(b) Substantive law and Procedural law

Substantive law is laws which governs or give rise to rights and obligations, e.g. the Penal
Code, Cap. 16 (RE: 2002). While, Procedural laws are just legal steps to be followed in filing a
lawsuit against another party, or before arresting or searching another party.

(2) International laws:

These are laws which govern intercourse or relations between sovereign states, or individuals
and sovereign states at international level, e.g. law of high seas, diplomacy, and international
crimes (e.g. genocide, crimes against humanity, and etc).

International law may be divided into two classes;

(i) Public international law: law governing relations between states, or a state and private
individuals.

(ii) Private international law: law governing relations between people across nations, e.g.
marriage and divorce between a Tanzanian man and Canadian woman.

Home work

What is a difference between Criminal law and Civil law?

What is Public law? List sources of public law.

Mention and discuss main functions of public law.

Why do you study public law?

1.5 REFERENCES:

Statutes:

Constitution of the United Republic of Tanzania of 1977

Constitution of Zanzibar of 1984

Interpretation of laws Act, Cap 1, R.E., 2002

Judicature and Application of Laws Act, Cap 358, R.E., 2002

Books

Farrar and Dugdale (1990) Introduction to Legal Method. 3rd. London: Sweet & Maxwell.
(ref. Chapter1).

Shivji, I.G., et al (eds), Constitutional and Legal System of Tanzania: a Civics Sourcebook, Dar
es Salaam: Mkuki na Nyota Publishers, 2004
DEFINITION OF CONSTITUTION

In lay terms, a constitution is a set of rules which governs an organization or country. However,
to a Constitutional lawyer, the term constitution in reference to a sovereign means as follows;

(a) Narrower Sense:

• Thomas Paine and Dc Tocqueville: according to them Constitution means the aggregate of
only those written principles which regulate the administration of the state. In the sense that, if
the Constitution cannot be produced in a visible document, it cannot be said to be a Constitution
at all.
• A written document which defines the basic rights of the Governed and the limitation of the
government.
• A document which contains (those) rules which provide the framework for government.

Criticism

Sir Ivor Jennings, author of The Law and the Constitution, offers a balanced evaluation of this
apparent paradox by saying:

If a constitution means a written document, then obviously Great Britain has no constitution. In
countries where such a document exists, the word has that meaning. But the document itself
merely sets out rules determining the creation and operation of governmental institutions, and
obviously Great Britain has such institutions and such rules. The phrase ‘British constitution’ is
used to describe those rules.

• According to Lord Bryce –“Constitution is the aggregate of laws and customs under which the
life of the state goes on “.

Criticism

This definition by Bryce is a narrower one as he was highly influenced by the constitutional
system of Great Britain. Since, with exception of Britain and New Zealand, nowhere in the world
a Constitution can be said to be an aggregate of laws and customs.

(b) Wider Sense:

• According to K.C. Wheare, Hood Phillips and Gilchrist, the term “Constitution” is used to
denote all written and unwritten principles regulating the administration of the State.

• Professor KC Wheare defines the constitution of a state as:

“... the whole system of government of a country, the collection of rules which establish and
regulate or govern the government.” [1966, p.1]

• Basic rules, written and unwritten, which create and control government.
Other Definitions

• Aristotle defines a Constitution as “the way of life the state has chosen for itself “. Such a
definition is very ancient and no clear characteristics of a Constitution can be found in it.
• According to C.F Strongs, “A Constitution may be said to be a collection of principles
according to which the powers of the government, the rights of the governed and relation
between the two are adjusted“.
• Constitution is refers as a body of agreed rules and principles starting how the power of
governing a country are given and how these powers are to be exercised.

SUMMARY: “Constitution”

(a) The fundamental and organic laws and principles of a country or state that create a system of
government and provide a basis against which the validity of all other laws is determined.
[Webster’s New World Law Dictionary (2006:92]

(b) The fundamental and organic law of a nation or state that establishes the institutions and
apparatus of government, defines the scope of governmental sovereign powers, and guarantees
individual civil rights and civil liberties. [Black’s Law Dictionary (2009:353) 9th Ed.]

KEY ITEMS IN DEFINING THE TERM, “CONSTITUTION”

(a) With regard to Unwritten/Flexible Constitution

• It is not in any way superior to any other law

• There cannot be any distinction between fundamental law and ordinary law
• Parliament can amend any constitutional law by ordinary law making procedure and hence
constitutional law exists on the same footing with other laws of an ordinary nature.

(b) With regard to Written/Rigid Constitution

• A grund norm (Hans Kelsen’s “grund norm” theory);

• Mother law;
• The governing wheel of the state;
• The constitution is considered as the supreme or fundamental law of the land i.e. on point of
status it is placed above all other laws of the country;
• No law is above the constitution and all ordinary laws get their validity and force from the
constitution i.e. no law can be inconsistent with the constitutional law;
• No other law or government action can supersede the provisions of the Constitution;
• Constitutional law is considered the corner stone or touch-stone or yard-stick to test the validity
of all other laws, be it public or private, substantive or procedural.
• Parliament cannot amend any constitutional law by ordinary law making procedure.
SOURCES OF THE CONSTITUTION/CONSTITUTIONAL NORMS

(a) The People

The constitution is the embodiment of the will of the people on how they want to live and to
govern themselves, i.e. People’s will/people’s power/sovereignty.

This argument is exemplified by the preamble to the Constitution of the USA which states that;

“We the People of the United States, in Order to form a more perfect Union, establish Justice,
insure domestic Tranquility, provide for the common defense, promote the general Welfare, and
secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this
Constitution for the United States of America.”

NB: See also the Preamble to the Constitution of Tanzania, 1977

Note: Key Historical events in the Development of Modern Constitutional Law

Magna Carta (1215), Petition of Rights (1648), Glorious Revolution (1688), American
Revolution (1775–83), French Revolution (1789), Bolshevik/October Revolution (1917), and
Perestroika and Glasnost which sparked the 2nd Bourgeois revolution in 1989.

(b) Statutory Instruments/Acts of Parliament

Normally, laws made by the parliament derive their legitimacy from the Constitution. However,
there are moments where the parliament makes law that have constitutional significance, e.g. the
Treaty of Union between Tanganyika and Zanzibar (1964), Acts of Union (1964), the Bill of
Rights (Act No. 15 of 1984) and etc.

(c) Judicial precedents/Interpretations (Court Decisions)

E.g. refer various judgments by Hon. Judge Mwalusanya and Lugakingira on Constitutional,
Human and people’s rights.

(d) Conventions and Customs

These are normally made up of unwritten practices of the parliament, the judiciary and the
executive that are of constitutional nature. (e.g. UK Constitution).

(e) International Conventions/Treaties

Agreements between states within the international community usually form party and parcel of
superior laws of the land, in respective states. (Article 63(3)(e) of the Tanzania Constitution,
1977).

• Refer monism and dualism practices in relation to international laws.

• Part 3 (Article 12-24 of the Tanzania Constitution is a product of UDHR, ICCPR, ACHPR and
other international and regional instruments on Human rights).

(f) Academic works of eminent Jurists and political scientists

The works of eminent constitutional writers of scholarly nature may have persuasive value to a
constitutional court’s decision. Such works may be used in framing new constitutional rules or
provisions or in assisting interpretation of certain provisions of the constitution. E.g. writings by
Prof. Issa Shivji on constitutionalism and Acts of the Union.

CLASSIFICATION OF CONSTITUTION

(a) Classification according to the form by which Constitutions are embodied (how it
appears):

• Written Constitution

A written/codified/documentary constitution is one contained within a single document or a

series of documents, with or without amendments, defining the basic rules of the state. The
origins of written constitutions lie in the American War of Independence (1775–83) and French
Revolution (1789). [E.g. France, USA, Tanzania, and etc.].

• Unwritten Constitution

Unwritten/uncodified/non-documentary is one that is not contained in a single document,

consisting of several different sources, which may be written or unwritten. What Britain has
instead is an accumulation of various statutes, conventions, political customs, judicial decisions
(common laws), treaties, and exists in some scattered documents which collectively can be
referred to as the British Constitution. E.g. UK, Israel, New Zealand and etc. In these countries,
the constitution is a collection of historical documents, statutes, decrees, conventions, traditions,
and royal prerogatives.

Challenges

Classification of Constitution (written and unwritten) is not a scientific one since no Constitution
can, in practice, be fully written or unwritten, an unwritten Constitution must have some written
elements. Likewise, a written constitution cannot be fully written, some elements of it exist in
unwritten form. For example, British Constitution is unwritten but some important elements of it
are contained in written documents like Magna Carta (1215), The Petition of Right 1628, The
Bill of Rights 1689, The Act of Settlement 1700, The Treaty of Union 1706, The European
Communities Act 1972, The royal prerogative/proclamations, Acts establishing devolution, The
Human Rights Act 1998, and etc.

On the other hand, the US constitution is written but some important Constitutional subjects like
political party organization, cabinet, committee of the Congress, working procedure of the
Congress etc. are not written they are largely based on political custom or convention. Therefore,
the distinction between written and unwritten Constitution is one of degree rather than of form.
C.F. Strongs comments that a classification of Constitutions’ on the basis of whether they are
written or unwritten is illusory.

(b) Classification according to the mode of amendment/Method of changing the

constitution:

This classification rests primarily on the question whether or not constitutions can be easily
amended.

• Flexible Constitution

The Flexible or Elastic Constitution is the kind of constitution that can easily be changed
(usually, an Unwritten Constitution, i.e. a constitution that has few or no special amending
procedures. The Parliament can alter constitutional principles and define new baselines for
government action through ordinary legislative processes, e.g. UK and Canada Constitution.

• Rigid Constitution

The Rigid or Inelastic Constitution is the kind of constitution that cannot be easily amended
(usually, a Written Constitution). Moreover, it is a constitution whose terms cannot be altered by
ordinary forms of legislation, only by special amending procedures. That is to say, if the
constitution itself provides that particular amendment, then it could be possible to amend the
Constitution, e.g. Article 98 of the Tanzania Constitution, 1977.

Note:

The framers of a written constitution, endeavouring to provide a comprehensive legal framework

for the state, will naturally seek to protect its constitutional provisions from subsequent repeal or
amendment.

(c) Classification according to the form of the government/classification based on the

nature and form of the state and its governance:

• Federal constitution

Under a federal constitution exists a division of powers between central government and the
individual states or provinces which make up the federation. The powers divided between the
federal government and states or provinces will be clearly set down in the constituent document.
Some powers will be reserved exclusively to the federal government (most notably, such matters
as defence and state security); some powers will be allocated exclusively to the regional
government (such as planning and the raising of local taxation); and others will be held on the
basis of partnership, powers being given to each level of government with overriding power,
perhaps, reserved for central government. The common feature of all federal states is the sharing
of power between centre and region – each having an area of exclusive power, other powers
being shared on some defined basis. E.g. the USA, Canada, Australia, Nigeria, Malaysia,
Germany, Switzerland and etc.

• Unitary Constitution

Constitutions of this nature exist in a state where a government is formed after a union of two or
more sovereign states. A state is governed as a one single unit in which the central government is
supreme and any administrative divisions exercise only powers which their government chooses
to delegate, e.g. Tanzania (Zanzibar and Mainland Tanzania), U.K (Scotland, Wales, N. Ireland
and England) and etc.

• Republican Constitution

A republic constitution exists in a state which has its figurehead a (usually) democratically
elected President, answerable to the electorate and to the constitution. Presidential office is both
a symbol of statehood and the repository of many powers. E.g. Tanzania, Kenya, Malawi
Constitutions.

• Presidential Constitution

Under this constitution model, the head of the executive branch is also head of state, and is not a
member of or directly responsible to the legislature, e.g. Tanzania, Kenya, Uganda, and etc.

• Parliamentary Constitution (Westminster model):

Is a form of a Constitution of a state in which the chief executive is a Prime Minister who is a
member of and is responsible to the legislature, e.g. U.K, and Israel.

NB: The Prime Minister or President is a Member of Parliament and so are his Ministers.

• Aristocratic (monarchical) Constitution

Such constitution exists where the government is headed by a monarch and hereditary in nature.
Usually, the office of head of state is held until death or abdication and is often hereditary and
includes a royal house (King or Queen), e.g. U.K. [the Queen or King is the head of the state (not
necessary the government, i.e. he/she plays a ceremonial role in the administration of the
government)].

• Democratic state constitution

It is a Constitution which allows all adult citizens an equal say (whether directly or indirectly) in
the decisions that affect their lives or state governance, e.g. US, UK, Tanzania, and etc.

• Dictatorial (undemocratic/autocratic) constitution

Is a type of a Constitution which vests state powers in one person or group of persons or organs,
with the exclusion of others, e.g. Constitution of Libya during Khadafy regime.

(d) Classification according to the political system of the state:

• Monoparty (Socialistic) Constitution:

A constitution of a state is characterized by single-party rule or dominant-party rule of a

communist party and a professed allegiance to a Leninist or Marxist-Leninist or communist
ideology as the guiding principle of the state. E.g. China, former Soviet Union, Cuba, Tanzania
before 1992 and etc.

• Multiparty (Liberal) Constitution:

Here, the constitution does not restrict freedom of political association, e.g. Russia Constitution,
Tanzania, Kenya, and etc.

OTHER TYPES OF THE CONSTITUTION

• Supreme Constitution

A ‘supreme’ constitution refers to a state in which the legislative powers of the governing body
are unlimited.

• Subordinate/Ordinary Constitution

A subordinate constitution is a state in which the legislative powers are limited by some higher
authority.

• Separated powers’ Constitution

Is the Constitution which vest powers in the principal institutions of the state – legislature,
executive and judiciary (i.e. state powers are not concentrated in a single institution). This
arrangement is most readily achievable under a written constitution. E.g. US Constitution

• Fused powers’ Constitution

These are kind of Constitutions found in totalitarian states or purely monarchical states. Under
such a constitution [you] will find a single figure, or single body, possessed with the sole power
to propose and enact law, to administer the state, and both to apply and to adjudicate upon the
law.

Ref: Professor KC Wheare (1966, Chapter 1):

6. CHARACTERISTICS OF THE TANZANIA CONSTITUTION

In summary, it can be said that it:

(a) Is largely written in character;

(b) Is inflexible/rigid in nature;
(c) Is supreme;
(d) Is unitary in structure,
(e) Exhibits mainly but not completely separated powers; and
(f) Is republican/presidential

REFERENCES:

Alder, J. (2002) General Principles of Constitutional and Administrative Law. 4th Ed. New
York, Palgrave Macmillan (pp.39-59).

Barnett, H. (2002) Constitutional and Administrative. 4th Ed. London, Cavendish Publishing
Limited Law (pp. 3-15, Chapter 1).

Carroll, A. (2007) Constitutional and Administrative Law. 4th Ed. England, Pearson Education
Limited (pp.16-50, Chapter 2).

Mvungi, E.S.A (2007) Constitutional Law in Context: A Book on General Principles of

Constitutional Law. Vol. I, unpublished (pp. 5-9, Chapter 1).

Phillips, O. H., (1787) O. Hood Phillips’ Constitutional and Administrative Law. 7th Ed., Sweet
& Maxwell Ltd.

Wheare, K.C. (1964) Modern Constitutions. Oxford University Press, London, 1964