INTRODUCTION - TO - LAW - Unit 1

LEGAL METHOD
UNIT 1
INTRODUCTION TO LAW AND THE PRACTICE OF LAW
I. General Overview
This introduction chapter is intended to give students or beginners a general

introduction to law and the techniques of practicing or applying law. The basic
concepts to be examined includes; the Definition of law, sources of law, functions of
law, classification of law, techniques of searching, reading and using/citing the law
and the Tanzania court system. This introduction chapter is important for non law
students in order to be familiar with the basic concepts of practice of law before
studying the substance of business law.
In studying law, students should take a note that they are fighting for two basic
things; understanding the practice of law in order to be able to approach day to day
legal problems arising in course of doing business and on the other side passing
their exam as part of assessment. Both of these should be taken into account but the
former need to be given a greater proportion of time.
II. Definition of Law
There has never been a uniform definition of the term ‘law’ since different experts
have attempted to define it differently according to their standing point of views.
However, the ordinary definition of law defines the term law as ‘the system of
binding rules followed by punishment/ sanction for those who do not obey’. This
definition reveals the basic elements of law as the binding nature and presence of
punishment for the law breakers.
Others define law as a rule of action meaning that they are rules which dictates a
human mind on what to do, how to do, when to do, where to do and who should do
something. For example most of the private laws like the Law of Contract Act and
the Sale of Goods Act contain rules of regulating business conducts.
Law is also defined as the set of rules prepared by the state for administration of
justice. This definition defines law taking into account that the state authority needs
to prepare rules which are used to guide and punish people who goes against the
state orders contained in those rules for the objective of maintaining peace and
harmony in the community. For example the state would prepare laws ( penal
statutes) prohibiting people to engage in those conducts which are likely to affect
public peace and security like killing, stealing, raping , selling dangerous drugs etc
A person can define law in his/her own ways provided that the central meaning of
the concept reflect the basic element of law like set of rules, with binding nature, and
having sanction/punishment.
III. Elements of Law

The elements of law referred in this chapter are basically the salient features which
distinguish law from other rules like morality/rules of behaviour which are not
necessary to be obeyed. These elements attempt the question as to what is and what is
not a law to account for punishment if a person fails to obey. These elements includes
 Binding nature
 Sanction
 General nature
 Living nature
Binding Nature
This is the basic element of law which means that law has an obligation to be
followed .i.e. it is must to obey law. This can be proved by the use of obligatory
verbs in the wording of statutes eg, must..., should..., shall...etc
Sanction
This is another important element which means that law must have punishment to
those who fails to abbey them. In absence of punishment law gives no sense, people
will not feel an obligation to follow them. The punishment may be in form of
imprisonment, fine, corporal punishment, and death penalty for capita offences like
murder. In civil cases the recourse is in form of compensation to the victim of the act
General Nature
This is an element of law which means that law is meant for every member of the
community irrespective of their colour, sex, political status and social status.
Everyone must respect them. This is proved by the use of words like; every person...,
anyone..., every citizen...
Living Nature
This is the element of law which means that law has the tendency of changing from
time to time according to the changes happening in the society. Law normally
adjusts itself according to the social changes. If the fine for stealing was 100000 in the
year 2000 it may be 200000 by the year 2013 depending on the change of value of
money in the community.
IV. Law and Morality

The basic elements of law normally assist in differentiating law from other rules like
morality. It is important to be able to distinguish law from morality in order to know
what rules constitutes law enough to be respected and which one do not constitute
law. The basic differences are reflected below
Law Morality
-Laws are made by the government -Morality have self existence i.e not
made
-Laws are binding .i.e. must be obeyed -Morality are not binding
-Laws have punishment/sanction -Morality do not have punishment
-Laws have special institutions to enforce -Morality are enforced by the whole
community
V. Sources of Law
It has been a saying among lawyers that, a good lawyer is the one who knows where
to find the law but not the one who memorises the content of laws. Likewise to
business students, it is important to know where to get a law or rule to solve your
problem than wasting time to memorize the content of law something which can be
hard and tiresome. The word source of law refers to where a person can get a
principle of law to base in his legal arguments while solving a problem facing him or
her i.e. the origin of rules that laws can cite or refer to solve a problem at hand. In
Tanzania the following are the basic sources of law
 The Constitution of India
 The Acts of Parliament
 Precedents /Case laws
 International Conventions/Treaties
 By -Laws
 Statutes of General Application

 Religious Laws
 General Principles of Laws
The Constitution of India
The constitution is the supreme document which embodies principles that are used
to govern a state. It is considered to the mother law of the land for the reason that all
other laws owe their origin from it and they must be in conformity of it. The logic of
considering the constitution as the mother law extends to the fact that, the
institutions which make other laws are established by the constitution, the
procedures of making those laws are stated in the constitution and the limitations for
making the laws are stated in the constitution. The constitution is therefore
considered as the cardinal test of the validity of all other laws and any law which is
found to be in contradiction with the constitution is at risk of being considered
unconstitutional.
It is also important to know the constitution in order to study some institutions

which are established by the constitution to enforce laws eg the courts, the office of
the Director of Public Prosecution, The office of the Attorney General and the armed
forces.
The Acts of Parliament or Statutes
This is the main source of many laws that are used in business environment. It is the
source which comprised the laws made and passed by the parliament of the India to
regulate various matters. It forms the main source of law because many laws that
forms substantive part of laws comes from Acts of parliament. Examples of the basic
Acts includes ; The Law of Contract Act , The Sale of Goods Act , The Company Act,,
The Copyright Act, The Income Tax Act etc.
Case Laws / Precedents
This is the source of law which comprises of previous decided cases which contains
principles of law that can be used to solve similar cases in future. This source is
applied under the doctrine of precedents which requires similar cases to be decided
by using the same principle in order to have uniformity in administration of justice.
A good example is application of the case of Donoghue vs Stevenson in case that
involves negligence of manufactures causing loss.
By-Laws
These are rules and regulations made by institutions/organizations under the

permission of an Act of parliament to regulate various matters including business,
for example by laws made by municipal councils to regulate business at municipal
level. The by-laws also include regulations made by ministers to govern various
business activities. This source of law has the same legal implications as an Act of
parliament.
International Conventions/ Treaties
These are international agreements concluded between two or more states either at
their own or through an international organization. This source of law is very
significant in international trade transactions. Those who wish to engage in cross
border business must identify the sources of law which governs such business with
the foreigner before embarking into such ventures. Example of the basic
international convention in business includes; The United Nations Convention on
the Use of Electronic Communication in International Contracts , United Nations
Convention on Contracts for the International Sale of Goods , United Nations
Convention on International Bill of Exchange and International Promissory Note.
Religious Laws
These are the principles of law derived from religious books to regulate various
issues and essentially issues touching civil cases like marriage, land, administration
of estates, divorce cases. Currently we have Hindu marriage act, Mohammeden law
etc.
General Principles of law
These are principles of justice which are recognized and applied worldwide in
administration of justice .They may not be written in our laws but yet form part of
our legal system. For example it is a worldwide principle that when a person’s rights
are being decided, he or she should be given a chance to defend his or her case i.e
principle of natural justice.
VI. The Purpose and Functions of Law

The primary objective of law is to ensure peace and order in the community. This is
done by prohibiting some bad conducts (making then offences), regulating human
conducts (stating the order of doing things in the community) and through
punishment which creates fear of breaching laws to the people in the particular
community. In a nutshell, one can conclude that, law performs the following
functions
 Regulating human behaviour in the particular community through those laws

which provides the procedures of doing some conducts like forming
contracts, selling goods , forming and managing companies
 Maintains peace and security in the community by prohibiting all conducts

which are likely to affect peace and harmony in a particular community eg
theft, killing, raping.
 Protects fundamental rights and freedom of the people in a particular

community by stating the rights and obligations to every member of a
particular community
 States the procedures and institutions dealing with settlement of disputes in

particular community e.g. Criminal procedure Act and Civil Procedure Code
 Establishes organs of the state dealing with enforcement of laws and

administration of justice in the community e.g. court, prisons, police etc
 Provides for the basic principles governing the state organs in performing
their functions eg the constitution

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LEGAL METHOD

INTRODUCTION TO LAW AND THE PRACTICE OF LAW

This introduction chapter is intended to give students or beginners a general

II. Definition of Law

III. Elements of Law

IV. Law and Morality

-Laws have punishment/sanction -Morality do not have punishment

 The Constitution of India

 The Acts of Parliament

 Precedents /Case laws

 Statutes of General Application

 General Principles of Laws

The Constitution of India

It is also important to know the constitution in order to study some institutions

The Acts of Parliament or Statutes

Case Laws / Precedents

These are rules and regulations made by institutions/organizations under the

International Conventions/ Treaties

General Principles of law

VI. The Purpose and Functions of Law

 Regulating human behaviour in the particular community through those laws

 Maintains peace and security in the community by prohibiting all conducts

 Protects fundamental rights and freedom of the people in a particular

 States the procedures and institutions dealing with settlement of disputes in

 Establishes organs of the state dealing with enforcement of laws and

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