INTRODUCTION
We start to look at the various forms of law that exist in the world, which will occupy the bulk of this Course, we will look at the various ways in which laws can be classified (or arranged in groups sharing common characteristics).This will help to give us a bird's-eye view of the whole expanse or scope of the law, before we look more closely at the forms of law.
This is necessarily a brief, and therefore only superficial, look at these topics.This process of classification is a helpful way of obtaining an overview or general view of law for the purposes of teaching or learning, but it is a somewhat artificial exercise and does not produce an absolute and infallible categorisation of the law.Factual situations that arise in real life often do not fit neatly and exactly into only a single one of these categories of law. In fact, they are far more likely to involve two or more different topics of law.
#For_example, a fight between two people over a piece of land may involve questions of criminal law, property law, family law, and contract law. Or laws classified according to one set of criteria may at the same time be classified or subdivided according to another set of criteria
(as when international law can be "#private or #public, or criminal law may be #domestic or #international, etc.). Factual situations do not come neatly packaged and labelled with one particular topic: they often involve several.
However, for the purposes of #teaching and #learning, these classifications are useful in that they break up the whole mass of law into manageable portions, and they provide some framework and structure for helping us to make sense of what is an extremely large, detailed and intricate body of accumulated wisdom, emolument and decision making.
Now let's turn to look at some of the ways in which law can be classified. Remember, though, that these classifications are not absolute: they depend on context and purpose.
There are several different ways in which laws can be classified, depending on the criteria, characteristics, or tests that are applied for setting up the categories.
Thus it is possible to classify laws according to:
1. The extent, or scope of application, of laws;
2. The sources or origins of laws;
3. The subject matter of laws;
4. The extent to which laws relate to the state or to the private individual;
5. The extent to which laws relate to criminal offences, or relate to civil claims; or
6. The extent to which laws provide either for substantive fights and obligations, or
7. for procedures and processes for determining and enforcing substantive fights and obligations.
We will consider each of these sets of criteria in turn, and see how each of them produces a different picture of law, as it were; or gives a different sense of what is the business of law, because it organises the field in a different way.
Extent, or scope of application, of law
This classification divides the laws according to the extent of the geographical or political area to which they apply.
It_divides the total_field of law into the categories of International_Law, Regional_Law, Domestic or Municipal_Law, and Local_Law.
International_laws the law that operates outside a country. It is usually subdivided into:
- #Public_international_law, which is the law regulating relationships between states; and
- #Private_international_law, which is the law regulating relationships between individuals outside a country.
We will say a little more about this distinction at the end of the Unit.
International law is sometimes also subdivided into:
- #Regional_law, i.e. the law operating outside the country to regulate matters within a particular region of the world, e.g. South Pacific region, Asia/Pacific region, Western Europe; and
- #Universal_law, i.e. the law operating outside a country to regulate matters wherever they occur in the world.
Domestic or municipal law is the law that operates within a country. Such law is national (applying throughout the whole country) or regional (applying within a particular section of the country such as a state, province, or district). At the most immediate level of administration, such regional law is often called local law, since it is law that operates only within a certain limited area or locality within a country, such as a sub-district, shire, municipality, city, or town.
You should notice that the term 'municipal' is often used nowadays to describe matters relating to a city or a large town. Accordingly, the term ‘municipal law' may sometimes be used to refer to local laws of a city, but this is not a usual meaning of the term in a legal context
Sources or origins of law
If instead of using the scope of the law, we use the sources of the law as the feature by which we classify laws, this produces a quite different way of organising the law, a way which cuts right across the classifications that were produced when we used scope of application as the classifying principle.
A country's laws don't just spring from nowhere. The legal system at any point in time has grown out of the continuous line of development in that country's legal tradition, and is what remains of, or the embodiment of, that tradition at that point in time.
In this region, one obvious distinction that quickly becomes apparent if we examine the law from this point of view is the division into Introduced Law and Customary (or Indigenous) Law.
Introduced law those systems usually consist of written Constitutions, legislation, subsidiary legislation, and common law and equity. Elements of these legal systems were introduced here both as a means of and as a consequence of the colonisation of the region. In many other parts of the world as well, there are legal systems that still have structural or other evidence of the incorporation of elements from one legal tradition into another, for whatever historical reason.
Customary or indigenous law, on the other hand, is what remains operative from whatever law was in operation before the introduction of English, European-style, or whatever other style law was introduced. Such customary law consists mainly of unwritten customs enforced by traditional leaders.
Subject matter of law
A very common way of classifying laws, especially in the context of teaching and learning law, is to set up the categories on the basis of the subject matter that the laws deal with. It is usual to recognise that the subject matter of laws can be classified into the following main categories:
• Contracts Law;
• Torts Law;
• Property Law;
• Family Law;
• Business or Commercial Law;
• Criminal Law;
• Constitutional Law;
• Administrative Law;
• Revenue Law;
• Planning Law;
• Law of Procedure; And
• Law of Evidence.
We'll look quickly at each of these categories now, remembering that we are of this stage being very superficial. In later stages of law study, some of these categories will require much more attention.
Contracts law
Contracts are agreements made between people or bodies who have legal capacity to do so. Such contracts or agreements are enforced by the courts if they are satisfied that the agreements:
• Are intended to be binding;
• Are not illegal or contrary to public policy; and
• Are not based upon some fundamental mistake made by both parties or caused by one of the parties.
Torts law
Torts are civil wrongs that are committed when one person causes injury, damage or loss to another person in circumstances that the courts consider should render him liable to pay damages to compensate for the harm he has caused. It is hard to express any general statement as to when the courts will consider a person liable to pay damages, but some of the main instances are where a person:
• Has acted without reasonable care (negligence);
• Has caused an unreasonable interference with the rights of neighbours or the rights of the public (nuisance);
• Has failed to keep control of dangerousthings, or animals known to be dangerous, that he has on hisproperty; or
• Has lowered the reputation of anotherperson by making untruthful statements about him (defamation).
Some torts are also criminal offences and are punishable by the State, as well as giving rise to liability to pay damages to the individual suffering injury.
Property law
Property is usually divided into two kinds:
• Real property, which is immovable property such as land and buildings erected on land; and
• Personal property, which is movable property such as animals, vehicles, money, and also, for historical reasons, leasehold interests in land.
The rules about ownership, use and transfer of property differ according to the particular type of property. In most countries, rights to real property are determined by custom, whereas rights to other kinds of property are usually determined by common law and equity, and enacted law. (Enacted law is law that has been put into place by the required law-making procedure, which in this region means by the passing of bills, and the formal approval of the resultant Acts, by the nation's designated legislators; and the formulation of rules, regulations, etc. by people and bodies who have been given the legal authority to do so.)
Family law
Family law is concerned with the law relating to births, deaths and burials, marriages, nullity of marriage, divorce or dissolution of marriage, the custody of children of a marriage, and the rights to property of a marriage.
In some countries marriages are permitted to be undertaken in accordance with custom, but most other aspects of family law are regulated by principles of the common law and enacted law.
Business or commercial law
This law is concerned with those matters of particular importance to business or commerce, especially such matters as companies, partnerships, agencies, less bills of exchange, and sale of goods. Most of this law is enacted law.
Criminal law
This is the law that determines what conduct is punishable by the State. In most countries this is stated in the enacted law. Although there is variation between countries in what conduct is regarded as criminal, in most countries the following kinds of conduct are regarded as the most serious criminal offences:
• Making war against the country (treason); ( )
• Working for the downfall of the government (sedition); ( )
• Intentional killing of a person (murder); ( )
• Unintentional killing (manslaughter); ( )
• Deliberate burning of property (arson); ( )
• Stealing of property (theft or robbery); ( )
• Forced sexual intercourse with a woman (rape); ( )
• Sexual assault. ( )
Constitutional law
Constitutional law is made up of the rules that regulate the powers and relationships of the main organs of the State: Head of State, Government Ministers, Ministries and Departments, Public Service and Courts.
Most of these rules are contained in the Constitution, but some are also provided in statutes enacted by the Parliament.
Administrative law
Administrative law is concerned mainly with the rules regulating the relationship between the agencies of the State and private individuals. In particular, such rules define the limits of the powers of the State agencies, and control the way those powers should be exercised within those limits.
Most of these rules have been developed by the courts as part of the principles of common law, and relatively few are contained in enacted law.
Revenuelaw
This is the body of law that determines what revenues or monies the Government can require people to pay to it to finance its operations and other activities it is supporting. Taxation is usually divided into two kinds: direct and indirect taxation.
• Direct taxation, as its name indicates, is imposed directly upon a person, e.g. income tax, death duties, or gift duties.
• Indirect taxation is imposed indirectly, usually as customs duties on imports and exports, and taxes on goods and services.
This category of law is entirely contained in enacted laws.
Planning law
Planning law, as its namesuggests, is the law concerned with planning the use of land. It is applied especially in urbanareas, where many people live and work close together so are more likely to interfere with each other's activities and spoil each other's environment. Planning law is contained in enacted law.
Law of Procedure
The law of procedure regulates the way in which proceedings are brought in the courts. Usually the topic is divided into:
• The law of civil procedure, which regulates the bringing of civil proceedings; and
• The law of criminal procedure, which regulates the bringing of bringing criminal proceedings.
Both kinds of procedural law are contained in enacted law.
Law of Evidence
This is the body of law regulating the evidence that can be produced to a court in the course of civil and criminal proceedings. Basically, it is concerned with such matters as relevance, admissibility and reliability of evidence, and the competence and compellability of witnesses. These laws are found partly in the common law and partly in the enacted law.
The extent to which laws relate to the State or to the private individual
Laws can be classified according to whether they are Public, or Private, Law. Public law refers to law that is mainly concerned with matters relating to the State, whereas private law is mainly concerned with matters relating to private individuals.
Constitutional law, and Administrative law are, of course, regarded as falling within the first category(Public Law). Most other kinds of law, e.g. Contract law, Land law, or Family law, are regarded as falling within the second category (Private Law).
Some topics of law fall partly within the public law category and partly within the private law category. Examples of this include criminal law, planning law, and revenue law.
When we looked at the classification of law into international or domestic law, I mentioned that we would have more to say about the subdivision of international law into public or private international law, so let's do that now.
Private international lawis the law that regulates the relationships between people or bodies of different countries. It is a separate category of law because in effect it modifies the application of the normal law, (e.g. of contracts, torts, or family law), to take account of the fact that one of the parties is from a different legal system. Sometimes this body of law is called Conflict of Laws, which indicates that it is concerned with resolving differences between two or more different legal systems.Most of these laws have been developed under the common law, but some have been enacted.
Public international lawrefers to laws that regulate the relationship between independent countries or States. They are mainly based upon treaties or agreements, and upon practices and usages that have developed. These are enforced, not by the internal courts of a country, but by the International Court of Justice of The Hague, in the Netherlands, or by arbitration.
The extent to which laws relate to criminal offences, or to civil claims
Laws can be classified as Criminal or Civil according to whether they relate to conduct that is regarded as criminal (or punishable by the State); or whether they relate to liability for civil claims by other persons. (This use of the word civil derives from the Latin word civis, pronounced klw1s and meaning 'citizen'. Civil law deals with matters that are not criminal or political, but concern other aspects of relationships between citizens.)
Criminal law, criminal procedure, and some aspects of the law of evidence may be regarded as failing into the first (criminal) category. Other topics of law fall into the second(civil) category.
Provision for, or procedures and processes for determining and enforcing, substantive rights and obligations
Laws can also be classified as being either Substantive, or Procedural (or Adjectival) Law. Where they provide substantive legal rights and/or obligations they fall within substantive law. If they provide procedures by which legal rights and/or obligations can be determined and enforced, they are termed adjectival law, which can also be called procedural law.
The law relating to the procedures of the courts in civil and criminal proceedings, and to the giving of evidence in the courts in both civil and criminal proceedings, is regarded as adjectival or procedural law, whereas the law dealing with other topics, e.g. contracts, criminal law or property law, is regarded as substantive law.
Conclusion
That concludes our survey of some of the common ways of classifying laws. As you have seen, the differences between the classifications arise because of the differing focuses adopted. Another way of saying this is to say that the way you classify laws depends on what you are taking as the significant feature(s) for your purposes at the time.
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