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UNIVERSITY OF PAPUA NEW GUINEA

SCHOOL OF LAW

INTRODUCTION TO LAW – [5.10701]

LECTURE NOTES
[FOR STUDENTS USE ONLY]

COURSE MATERIAL PREPARED BY:

DR. JOHN LULUAKI

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Understanding the Subject:

When you say, you are studying law, what do you mean? It is important that you
understand what you are saying because there are three different ways or senses in which
the term “law” can be understood.
(a) Law can be understood in a conceptual sense
(b) In an institutional sense
(c) In a linguistic sense
These different senses of understanding can be identified by using the word “LAW” in
three distinct ways to mark out the boundaries or differences amongst these categories.
Thus, “LAW” would represent the conceptual sense by which “law” would denote a
linguistic understanding of the word.
(a) A conceptual understanding of “Law” would involve a study of social phenomena of
law in the abstract sense. This would require answering the question; what is law? This
would in turn involve identifying and discussing issues relating to the nature and
properties of law in the society. No reference to legal systems or actual law is necessary,
only that “law” has certain qualities and that a legal system or laws may or may not
posses any of these qualities.

(b) An institutional understanding of the word “Law” on the other hand, would involve a
study of the nature and functions of actual legal systems such exist in state legal systems.
This understanding would involve a discussion not only of the sources of law in a given
state or community but also the entire legal structure or frame work as exists in society
for the making, operation
and enforcing of laws.

(c) A linguistic understanding of the term “law” denotes particular laws within a system
of state laws, such as statue or legislation. In these sense, when one talks about “law”
they would be referring to a particular law, in the singular, or a set of laws dealing with a
particular subject matter.

The three different senses or the word LAW can be used:

(1) Upper case senses- conceptual understanding
(2) Half case senses- institutional understanding
(3) Lower case sense- criminal code

The upper case law- law in the abstract sense.

The concept of law belongs to the non-materialist, can only understood in an abstract
sense. The Nature or functions of law. Law abstract idea denoted from reality.
- Law can not easily be defined
- Law in the abstract sense does not represent reality
- Law emerges with the beginning of social existences
- Law exist every where

NATURE AND FUNCTIONS OF LAW

The law in the first sense can only be understood through the ‘eyes of the mind’.

The three proposition of Laws

A. Law is the will of God expressed in his commandments which reveals to all of us

B. Law in two great parts} (a) the divine law- is therefore consists of rules made for
Humans
(b) Human Law: - law made by humans beings – based on
laws those are just only when they serve common rules.

(A) Divine Law consists of rules for Humans that are laid down by God. Divine law is
supreme, obligation imposed on humans.

(B) Human Law by contrast is law made by humans, which are based on reasons; within
which are meant to serve the common will of human. Human laws are just, when
they do not serve the interest; they show no respect for God. Morally human beings

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are not obliged to follow unjust law. Only obliged to follow just laws, human laws do
not justify one’s obedience. Human Law- Law and morality are connected. When
both laws fail, they are not laws, unjust law- laws made by man must serve the
interest of the people.

(C) Two great parts- (i) Natural Law (ii) Positive Law

Natural Law and Humane Law is same- three reasons why they are same;-
(1) Both are product of humane reason
(2) Both are involved in discriminating just and unjust laws
(3) Both are connected to consideration of morality
Pervesing the law – not serving the common good or interest of the people

Positive Law- created by political superiors such as sovereign, such as Queen or King.
(They also apply sanction). Law is a command that emanates from political superiors. It
is imposes on obligation on its members to obey the law; failure or breach of law result in
sanctions. Law is represented by entire legal systems. Positive law is everywhere; and
can exist without moral consideration.

Most important of proposition of legal or positive law

(a) No element of moral value enters into definition of law
(b) Legal rules or laws are identified by imperative proven theory; - according to
this theory there is only one law. That law is positive law. Natural or Divine
or humane laws are not laws.
Positive Law has nothing to do with morality or justices. What Law is one thing-its
goodness? Law is what it is, not what it ought to be.

The Seven (7) attributes or qualities of Law:

* There must be authority or sovereign
* It must be recognized by the community
* Law must have the quality of universal application or law must apply to every
one equally.
* Its obligations – everyone has the right to expect something or action from
another – Civil Law
* Sanctions- involves the principle that some punishment will follow or apply to
anyone who breaks the law. - Criminal Law
In Summary the four (4) qualities of Law:-
- Person or a group of person who have power to make laws or rules for everyone
- Have the quality to be able to apply to everyone – without bias- universalism
- The attributes of obligation- these simply requires a simple rules that create an
obligation- everyone have the right to expect something from other person
- Sanction or punishment- some punishment would follow to anyone who does
not the law or breaches the law
(It is not always necessary that all these attributes to be present; before a rule or
command is a law)
Law as an Imperative- is a kind of command. In this country most laws are not in the
form of command. They do not tell people what to do or impose obligations on people to
behave in a particular manner. Law in PNG is not in imperative law- impose obligation
on people. For example, Criminal code – does not command, People must not kill, what
type of conduct is not acceptable. Consequences of rape- imprisonment for 15 years and
life.
Law as Coercive- not all norms is legal, some norms are moral like shaking hands, legal
norms create obligations, but moral norms does not create obligation. Legal norms create
obligations, which are backed up sanctions for non- compliance.
Power Sharing- (Power Conferring) conferring power individually
Law must produce mischief; law has to produce evil so that in the long run it produces
well. Law has to do evil- to do good in the near future. Not all laws are backed by
sanctions for non compliance. E.g. of areas law does not command- marriage, family,
barging, property etc…those are facilities choices to be made. The power to choice
making.

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LAW AS COERCIVE

Not all laws are coercive or power conferring. The Principle purpose is to distribute
purposes and services within the community. E.g. Education, water, electricity etc…

Law can be fitted into any four characteristics:-

* Law can be coercive
* Law can be fitted, those power conferring
* law which dilatory in Nature
* Law which is welfare oriented

Two major paradigms law can be characterized:

(a) Law is not nothing accept it involves rules (as rule centered)
(b) Why law is important? The process can not be done in isolation. (As processual)

Cohesive law can characterize positive law. Laws or Rules shape normal behaviors are
the bio-product of law.l

- Rule centered Approach

PARADIGMS OF LAW} - Processual approach- instead of looking for Rules, study
the processual.

A. Legal Rules
B. What type of Rules are actually used

Identify legal rules- three advantages, the approaches to study of law.

(1) This approach does not involve social norms along jurally approach to law.
Does not discriminate the study of law. Processual process to study of law bring
more people within the room of law.

(2) It explain better change in society than the rule centered the study of law
(3) It enables ideal perception of law to be integrated with practical experiences of law.
Or the decisions that made to in settling disputes become a type of model in the
future- they have limitations.

Law demands and commands obedience- If rule is obeyed because the sanction is feared;
or because it considered fair to all of us. Law set the boundaries within which parties’
regulations; for disputes must act within it. Without rules-the qualities of certainty and
production will be absent, and the risk of disputes increases.
(1) The rule centered approach: - (there is a difference notion of law between legal
and non-legal – case serious in society)
(2) It is possible to embrace both of the approach to reaching a solution. Rules are
important in the 1st approach- because the influence the parties to the disputes
perceive and use these rules.

I. Advantage-It does not involve discussing separation. It has the advantage of including
many more societies
II. Theories of law made one common assumption and that is; law is necessary in society-
because relevant societies or because it deals with something wrong within the societies.

THE FUNCTIONS OF LAW

All theories of law assumption- one common thing that law performs certain functions in
society; law is seen, as a kind of necessary thing to deal with a pathological society – a
diseases society- needs law to fix it. Law is needed to deal with – violence, social control,
present of sanctions, and application of cohesive force. Without law there will be
darkness in society.

Primary functions of law in society are to “prevent disputes” from happening and resolve
disputes and punish those persons who disobey law. Law then is to deal with deviant
society. But the functions of law involve much more than dealing with different

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behaviours, settling disputes, and punishing offenders. In social science law as instrument
of social control also helps to foster social order. These functions belong to one of the
four different categories:-
* Law can be used to maintain public orders
* Law can be used to foster social order by fertilization cooperative order .People
have obligation to respect those rights.
* Law constitutes and regulates the principle arms of power
* Law communicates and re-enforces social values

(1) Law can be used to maintain public order- Law is seen and referred to the alternatives
when there is a dispute. For example, eye for eye, tooth for tooth etc… Law helps to
avoid eye for eye or tooth for tooth. Law helps to settle disputes in much more
acceptable way, Law helps to prevent disputes, and it also helps people if those rules
are breached or broken.

(2) Function of law in society. It fosters social order by fertilizations cooperative order. It
also provide systems law can also be used in an indirect way to prevent disputes from
happening. It makes rules to prevent disputes from happening.

(3) It constitutes and regulates the principle arms of power: - It tells us who has the right
to exercise what kinds of power in the society. In most cases this is done through
court. (England has no constitution in the common world countries).

(4) It communicates and enforces social values.

Not all moral values find expression to transform into legal rules, which aspect moral
or social values should law enforce.

A moral value should also be re-enforced into law. E.g. of situation where ‘morality’ and
‘law’, killing- both agree that killing another person is wrong.
Morality different from law- do not conspire other person’s life. Law has always enforced
some degree of rules.
These four functions of law can be distinguished from different ways law has been in
society to achieve certain purposes or obligations. Functions of law are related to Nature
law. (Functions of law is different to the purposes of law)
**Re-enforce- enforced again**

CUSTOMARY LAW

To what extend does customary law satisfy positive law characteristics?

In what way Customary not satisfy this positive law?
What are the main functions of the customary law?
Different people argue differently as to what customary law is. Customary law is real law

Three main argument or views of customary law:

(a) Customary law is not so much set of laws as a legal condition. It is not a set of law. It
is a kind of legal condition, - Customary law is not a law proper. It is a law type of
situation- because it falls to satisfy the characteristics of the western legal systems are
defined. Customary law is not law because its fails.

(b) Customary law is law- this argued to the extend that custom satisfy the positive law
character. Character of positive in this law.
These two views of customary law are based on assumption that law must have one
meaning only.
(c) View of customary law insists that best way to understand and study approaches and
concentrates on disputes settlement. Customary law are applied in the way that are
different from three way that they have been stated to be; look for law in the dispute
process.

The main features of customary law are that:-

* It is unwritten
* It is not the result or subject of degrees of pronouncement

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* It is true or changeable or flexible

* It is passed down orally from generation to generation.
Customary law is part of our underlying law. Power to apply customary law is restricted.
It must not conflict with the constitution law.

THE RULE OF LAW

Does not refer to a law such as statues, or a set of laws, or a legal system or a legal
process- The concept does not deal with the content or aspects of law such as
constitutional law, human rights law, criminal law, rights and freedom.
On the contrary it embraces all of them; it does not deal with breaches of law. It deals
with all of them- it is a concept within which seeks to establish a set of ideas towards
which all laws and legal process which in a given situation. It seeks to put together all
legal principle must seek to deals or object, it seek or stripe to achieve. If these ideas
come within the primary of rule of law, In Democracy, the concept does not seek to
address the issues of what law is, rather it seeks to operate what principles of law.
Basically, the concept of Rule of law stimulates the ideas that people should be ruled by
law and not by other people, and that the law should guarantee to all people certain
fundamental freedoms at least. All people should at least have freedoms.

The concept is intended to establish the principle that:-

(i) The power exercised by politicians through the legislature and other officials must
have a foundation based on law.

(ii) Law must conform to certain, minimum standard of justices, both in its substances
process and application.

The concept in Rule of law- the ideal or objects of individual of rights; sites must be
treated alike. Law must be certain and universal applicable. Any breach of those laws
must be accomplished by certain consequences. Many of those ideals have been
constitutionally guaranteed by the constitution in this country.
The basic paradigms of the concept of law therefore, are that; it is a good thing because it
involves good ideas like justice and courage. It is also a dynamic concept that should be
used not only to safe guard, but it can also be used to establish social economic, cultural
conditions under which a citizen’s legitimate aspirations and dignity. It is a dynamic
concept, this concept emphasis that one to regard the Rule of law having a specific
concept. It is an idea that influences man.
In developing societies such as ours it is important to bear in mind the existence of the
tension there is between the ideals of law and progress. Two great emphases on progress
at the expenses of freedom could well begat the material benefits and rebound progress
itself. This is because if political and civil liberties are an illusion to a starving and
illiterate man is true. Man will not have achieved dignity or enjoyment of life, if though
well feed and educated his body or soul if controlled by the state. The government is
expected to act so as to raise the material economic, cultural and moral standards of
people while at the same time observing the fundamental freedoms. Sometimes these
aims are ritually exclusively, at other times in compatible.
Which of these will be dominate depends on many factors include the attitude of the
leaders, not only the politicians to the basic freedom and rights to peacefully
congregation. (Read Law & Society).

LAW AND SOCIETY

Main functions of law conceptional sense, the making of rule for the conduct of human
being. Enforcing of rules in the managements of disputes, but law as also had been used
for other purposes in the society. The following are example of ways in which, law has
been practiced in society to achieve certain objectives:-
- to translate existing morals and behaviour into legal rule. Law is the mirror of
society or only reflecting.
- More than nearly reflective or moral values or customs
- It is also potentially independence social force, which can influence behaviour and
believes or it can be instrument for social changes

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- Law can be used to push actively particular economic, political and social priorities
in the name of development.
- Law can also be used (in the active way) to protect or otherwise disadvantage group,
such as dignity groups, young persons, females, disable persons.
- Law can be used to stay in power and get rich
- Law can be used in society to suppress particular habits
- Law can be used to suppress groups of people and dominate them or others
- Law can be sued to impose one legal culture over others
- Law can be used to legalize what right otherwise wrong conduct to be proper or
proper conduct to wrong.

The above are different ways or purposes law can be used.

Law can be used for a good or bad cause; law can be used for the good of majority or
rather than particular thing. Whether law is effective or not depends on such functions-
economic, political context which the law operates; whether law is good or bad should be
argue. Two opposing views- some will say that the law is good, but others will say law is
bad. Law in colonial states- what a good thing, because it civilizes, organizes or
disorganize communities. Colonial law was a thing that ever happen in communities to a
point where an organized society to disorganized communities. Colonial law was really
aimed at suppressing indigenous people. People interpret law differently to benefit them.
For example of suppressive law- Australia kitchen type before cooked food to be sold on
the streets or markets.

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THE WORLD LEGAL SYSTEMS

World different legal systems:-

* the common law legal system
* the civil law legal systems
* Socialist legal systems
*Religious legal systems
* Customary legal systems

Three qualifications when we are considering different world legal systems. Some times
two legal, which belong to the some group, may have differences in certain areas of law.
E.g. both the English and USA legal system belong to law system; which is ‘common
law’ legal systems and yet there are major differences in the constitutional law.
Constitutional Laws are very different to each other; they have certain provisions in
certain areas of law. For example, the USA Constitutional law is similar to Federal
constitution, USA to the common law and Germany to the civil law system.

Not all countries have the legal systems based on a single system thus many countries
have the legal systems derive from more than one system. PNG /Fiji/ Solomon Islands-
law is based also on customary law. Law derives from world legal system and customary
laws. There are also many different legal systems that gave different compositions. The
civil law system of France and England belong to two different legal systems.

France – Civil law

England- Common law

The three different legal systems:

- The common legal systems
- The civil legal systems
- The western legal systems

Western Legal systems- central role the state plays in the making and enforcing of rules.
Civil cases- Refer matters to courts, remedies in form of compensation or go to higher
court. Civil disputes must go to court within three years. Right to go to court lapses after
three years.

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Criminal cases- the rule is six years. The responsibilities of the state to bring any one who
breaches criminal laws are brought to court. Those found guilty will be charged and
imprisonment or fine (sanctions). Western legal system embraces (common or civil legal
systems) the common law theory.
The common law system develops in England from as long ago 11 th century. There are
number of features of common law which distinguishes from civil law system:-
- Law making
- Courts and personal
- The legal process

FEATURES TO LAW MAKING

Common law system:-Judges through cases developed important legal systems of

common law. This is called case law. If judge makes a decision about a matter, and if
different to other judges. They began writing down decisions in law reports so that other
judges can use in future cases. Later judges would refer to them to similar cases, the body
of law that builds upon case law. Lower courts presided by magistrate, but higher court
by judges. Magistrate is constrained in legal matters; they are only trained to work as
magistrates. A magistrate can not be a lawyer. Judges must first be lawyers, magistrate
must come to Law School to obtain a law degree and go to Legal Training Institute (LTI)
and admitted to the bar; and then a magistrate can now be a magistrate or a lawyer.

In a common legal system- a lawyer can either be a solicitor or a barrister, a person who
appears before magistrates by judges. Solicitor does not appear in court, he does other
legal work- such as writing legal document and preparing cases for the Barrister.

A new court- the Court Judiciary – the judges in the court of Judiciary develops. They
develop set of rules called or are called Equity. Rule of common law and equity can be
applied in all the cases.

THE COURT SYSTEM

Under the world legal systems divided into two types. Superior Courts and Imperior
Courts, Imperior or lower courts are the same. District courts in PNG are the only
Imperior or lower courts. National or Supreme courts are superior in PNG.

THE COMMON LAW SYSTEM

The legal system in these systems: - the court involved as been described as accessed
trials or attributes, a person gone to court has been accused of doing something in the
manner not acceptable by the law.
Attributes- it involves two parties, which they don’t agree on a particular legal issue.
Each side argues on his own case, laws if represent, should represent different arguments
for their client.

In the accusatorial system the parties involved in the disputes have a great control that the
court will follow. The judges see that rules of evidence are followed. In reality judges or
magistrates do play a greater role in what they appear in first size.

In Summary, the rules of common law system developed over a long period of time.
Judges developed these rules, when they were making decisions. These decisions referred
to precedencies become law. They also develop another set of rules- rules of equity –
important because they developed to correct some of the rules of the common law. The
common law court judges are still developing the precedencies.

Main advantages of common law system: - It is more flexible that a system of law that
based on written can’t change it when court makes its decision. The judges can make
decisions on the merit of each case, that decision is more likely to be embraced by
the……

It makes it difficult for some one to find judge made rules, go through all cases to find
what the rules are. The other major criticism is, why are judges making law when they
are not given power to make law? We give power to our elected representatives to make
laws but judges are not elected, they are appointed to the positions. Judges will be

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difficult to be removed from the position, the position can be for life, but the
parliamentary be removed after five years.

Civil Law system- also member of the Western legal system, the civil law has got its
origins, it early developed from Continental European but originated from Rome, but was
developed in countries like Germany. The system of Law has also spread to other parts of
the world- Africa, South America, Pacific and Indonesia. Most of the laws are contained
in forms of CODES- those codes are made by parliament.

For the civil law, judges are the role of law making or proves to make law belong to the
executive and properly to the legislature or parliamentary. Civil law judges do not have
or prevented from performing or making laws. Only parliament makes laws, judges do
not have power to make law, - they are prevented from making law.

There are three levels of courts in civil law legal system:-

* Courts of first instance
* Courts of appeal
* Supreme Court
There is no single law, court restructure, civil law country to civil law country no judges,
no magistrates; - they all are in one group called the Magistratives. All of them have
some formal legal training. In civil law system, the lowest magistrate can be the highest
judge of the highest court if he stays for long periods of time.
In civil law countries or systems- there are three types of legal work. A judge in the civil
system heavily involved in the legal system than a judge or magistrate in the common
law system. The judge finally makes decision; decisions do not have some authority.
In summary- the Western legal system has the major differences. In civil law systems one
must refer to CODE. Where common law one must refer to a lawyer.

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DIVISION AND SOURCE OF LAW

Law falls into divisions: - a subject division, Law or equity, the customary group, the
criminal or civil, the Public or Private Law, Procedural law group and National and
International law group.

Law being arranged into subject groups, Law is taught or studied in the serious of
compartment. For example; Law of Contract, Constitutional Law, Family Law, Torts
Law, - those are example of compartments or individuals compartments taught by
lecturers.

In PNG the legal System- both the Common Law and Equity are made up of underlying
law, the principle of the common law or of principle of equity.

A common law is such more rigid. It aims to do judges according to law. The principle of
equity follows common law. Common law goes ahead because of its flexibility. Common
law provides injury, equity provides 1st aide; where common law can’t do what equity
does. Both work hand in hand.

Two component of the Introduced Law:-

* English Law and Equity
* Legal English Principle

Most of these introduced principle link through Australia and England. Most of the
commercial laws in PNG are foreign Laws. Laws can also be classified into either
criminal or civil.

These divisions represent one of the major divisions; Represent one of the important
divisions of law in Papua New Guinea. No such division is made up under customary
law. Criminal law deals with crimes or offences while all other areas of law, which are
non criminal law falls into civil law. Criminal Law deals with conduct against public
interest; these are contract contributed to public order. A person found guilty pay a fine or

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imprisonment or both. Crimes are further divided into different groups: - more serious
than others, serious crimes like murder, rape, armed robbery, etc….
Offences or misconduct- traffic, minor assaults, physically injury.
Distinction between serious crimes and less serious crimes different procedures followed:
Murder – to magistrate – guilty –imprisonment or fine- prosecution- National Court.
Lower or less cases in District Courts.

Civil law concerned with breach of duties and responsibilities. Civil law primarily
enforcing rights and duties; the guilty party in order to pay fine or imprisonment or both.
E.g. of civil law areas- land law, family law, serious cases to National Court. Less serious
cases to magistrates.
E.g. of civil law and criminal law come together- person insulting, bodily harm. State will
prosecute the person for arms and pay compensation or fine. The out come of criminal
procedures aimed at specially to punish the offenders or person committing a crime.
In criminal proceeding a prosecutor acts on behave of the state and if found guilty- the
guilty party place on probation, caution or place on good behaviour bond. Not found
guilty; the court will set him or her free. Civil cases- deal with rights and duties of
individuals or group of persons. It is up to the individuals to set a remedies or not using
the law.
Plaintiff means – person laying the complaint
Defendant means – person accused for wrong doing & asked by the plaintiff to appear
in court

In civil cases your rights to make claim is with in three years, but in criminal cases is six
years. If three years lapses forfeiting your rights for claiming compensation. Both civil
and criminal case- proves the case to the court .Prosecution must prove the case. Civil
lowest standard of prove is required – called on the balance of Probability.

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PUBLIC AND PRIVATE LAWS

All laws either characterizes as public or private. The distinction between the two- public
law deals with disputes involving the state (one of the parties involving the state).
Whereas, private law involves in individuals or two groups of people-it does not involves
the state. Public law- part of the law that involves activities of the state, example of the
public law areas, criminal law, constitutional law, taxation licenses and other law,
administration and planning law and law dealing with states.

Criminal Law as an area of public law,-it is an area of public law because primarily a
government function. It deals with public orders, it is the state function.
Constitutional law- is also public law area because it governs the relationships with other
arms of the government.

Administration Law- implementing policies by the executive arm of government. All

administrative actions are subject to judiciary review.

Taxation Law- important area of public law, it empowers the state and raises state
revenue. Taxation law empowers the state to impose different kinds of tax; it also has
direct impact on the people.

Planning, Licensing and other laws:- control certain activities and aim priority to serve
certain people. Laws which control certain, Protecting environment, Laws which control
activities for certain rulers- Accountants, Doctors, Lawyers, etc…

Two types of citizens:

(a) Automatic citizens
(b) Naturalized Citizens } not automatic citizens. Residences of this country only can
hold public office and can only own land in the country.

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PUBLIC LAW

Issues of statutes are also area of public law.

* Person who is 18 years of age and above can vote in several elections
* Person who is under the age of 18 years lacks the capacity to enter certain areas
* Mentally capacity is important
* You can not be a Prime Minister or a Minister if you are not a citizen of the country

In Law, a company is a legal person only if they comply with the law that comply
them to form the company.

PRIVATE LAW

Private law deals with rights and the relationships between individuals. It deals with non-
governmental or non-public issues or activities. The pre- occupation of the private law
relates to activities of the public laws. State provides public fertilities such as judges,
lawyers, magistrates, public prosecutors etc--- that all use to private grievances.

The following situations are examples of private law matters:

* Marriage person wishes to devote his or her spouse
* ‘A’ leases his or her money to ‘B’ when he or she dies
* ‘A’ sues ‘B’ for compensation for damages

SUBSTANDARD & PROCEDURAL LAW

Law can also be divided to those two categories: (i) Substantive Law (ii) Procedural Law

(i) Substantive Law- deals with legal rules and principles. It is comprises of the actual
legal principles and rules in reaction to a particular matter. E.g. Law of contract, it
tells us who can and who can not enter into legal systems.

(ii) Procedural Law- Informs us and deals with the Rules and process involved in
applying or enforcing substantive principle rules. It tells us what process need to
apply that principle law.

The Assents of the Procedural Law- It contain the laws of procedural and evidence. The
Rules of evidence ensure that the court has the right facts before it. The court can rely
upon those facts. And facts are defendable; the risk for making a first decision is very
high.

NATIONAL AND INTERNATIONAL LAW

Is another way law can be divided? National law is sometimes called domestic law- law
that applies within political boundaries or particular country. International law governs
relationship between countries. E.g. PNG and Fiji etc…Minimum requirements at least
two countries. These laws can take the form of Treaties or Conventions. This area
Convention called Public International Law or Private International Law.
What private International Law deals with conflicts between different sets of domestic
laws of different countries? For instance, a marriage between a Papua New Guinean and
a Solomon Islander.

National law refers to as Domestic Laws. They have limited application, International
Laws relationship between two countries. It takes the form of Conventions and Treaties.

International law, which not so public domestic law

Private International law deals with different regimes of domestic law. E.g. Marriage
between a Solomon Islander and a Papua New Guinean.

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Rule of International Law- Marriage between PNG and New Zealand, which country law
will be used to contract the marriage? If they are living in Port Moresby- the laws of PNG
will determined by marriage the two people.

The relationship between the two domestic Laws:

* Private International Laws
* Public International Laws

Conflicts of laws also can arise even within the country, E.g. between Federal and state
government of Papua New Guinea. Public International and Private International Laws-
Rules deals with those conflicts that are rules of Private International Law and rules deals
with global issues.

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SOURCES OF LAW

Law can take several forms:

* Written Law e.g. legislation act of parliament
* Unwritten e.g. custom or International Conventions
* Laws can also be primary or secondary

Primary Source is legislation statues or acts of Parliament. Secondary source of Law are
any other written document in which you can be able to find what law is in a particular
matter. E.g. text books on law and cases. They are secondary sources of law.
PNG has one Code- Criminal Code; all these different forms of law exist in PNG; section
9 of the constitution tells us what the sources of law in PNG are:

* The constitution – law comprises of constitution itself and original law, together
they represent supreme law of PNG.

* Organic Law-

* Acts of Parliament – different types of legislation

* Subordinate legislature – laws made by other authority rather than National

Parliament
* Underlying Law

They are all types of legislation – it consists of the source of the bulk of the laws in this
country. The major characteristics of legislation that distinguish from other forms of law:

* They are comprises of fix legal rule

* They are creation or enact of parliament
* They are all in written form

Other aspects of legislation which should also bear in mind;

- Legislation is of different types

- Legislation can be constitution laws including the Organic Law
- Acts of the parliament
- Subordinate act of the parliament

Fix legal rules involves Parliament and all written down. Constitution law comprises of
constitution itself and the Organic Law, together they represent the supreme laws of this
country. This simply means there is no law higher than equal to those laws; they are
superior to act of parliament. Any law that contradicts any constitution law or
inconsistent with it is invalid.
Acts of parliament also different types of legislation, Acts can be two different types in
this country. Acts of parliament can be made by National Parliament or by Provincial
Legislature.

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Provincial Laws that are acts have the power under the organic law to make laws. Matters
under Section 45 of the Organic Provincial Law.

Provincial Legislature- these laws are limited because they only apply in the Province.
National Parliament Act, Provincial Act and other Act- all foreign acts adapted by the
constitution.

SUBORDINATE LEGISLATION

Are laws that made under legislation, laws made by authorities other than the National
Parliament? Authorized specifically by the National Parliament, while parliament can
delegate law making powers to other authorities.

Section 100 of the Constitution gives power to other authorities to make laws such as
provincial government. In this sense, provincial laws are type of delegated subordinate
legislation. Similarly laws made by local level Government also posses powers to make
laws also sub-legislation.
Section 44 of the organic law
Sub-legislation – laws made by a minister, Acts of parliament make provision for a
minister to make regulations. Enabling Act- enabling the minister to make regulation and
other type of sub-ordinate’s legislation. Acts gives minister power to make legislation –
Enabling Acts.
Power also gives Local Government Councilors power to make rules and by laws. The
General Rule concerning sub-ordinates legislation is that a delegated authority does have
power to further delegate that power, only exception. If the authorities that has delegate
that power authorize to be further delegated than it can be further delegated to other
authorities.

In passing legislation, whether constitution, or non-constitution laws, especially

procedures must be followed. Constitutional law much more difficult to change, because
you have to have the absolute majority. Constitution law where it is easier to make or
change an ordinary act of parliament.

Ordinary Act 1st Reading, 2nd Reading and 3rd Reading for passing.

The third Sources of Law is Case Law or Precedent.

Case law- all case law whether in this country or imported from other countries. The
constitution is the supreme law of this country. Any law takes their legal power from the
constitution. Under section 158- the judiciary authority of the people rests with the
national judicial system. It gives the court the power to interpret the legislation or statues.
However, only the Supreme Court has the power to deal with or to interpret the provision
of the constitutional law. When courts interpret a statues or provisions; if a statues, it is a
case law. The reason for this is that; the decision that it makes, has the same effect as law
because it binds everyone, including Judges, Lawyers, Public Solicitors and Magistrates.

Statue or when that decision has been changed or altered by the decision of a higher court
can only change case law. When the higher court changes the decisions of a lower court;
appealing to the higher court if a person concerned did not accept the decisions made
does it.
Case Law is therefore, is made up of legal rules and principles which are not provided for
by the statue. Case law is primary the result of interpretation of legal rules and principles
of the constitution, by the Supreme Court.
Composed primary of the court decision in PNG- It also includes adopted common
principle and rules. That is also case law. To find common principle and principles of
equity, see English and Australian case laws.
Section 2.2 of the constitution, provides that the principles of English Common law and
equity are adapted as part of underlying law in Papua New Guinea.
If the court has adapted a piece of legislation, the meaning that was given in that case can
be applied by the lower courts in any future case. (i.e. Precedents).

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Precedents – all lower court are bound by the decisions of the higher court, on a similar
matter. The only way lower courts to apply such meaning provided by a higher court, if
parliament changes the meaning of the provisions and give a different meaning.
Secondly, if the meaning has been changed by the same court or decision of the higher
court, and thirdly, if the decision can be distinguished on the basis of facts, i.e. if the
matter can be distinguished by its meaning if it is similar to the previous matter.

If there is no law constituted to deal with the matter, the court can refer to the underlying
law to create new law to deal with the matter. Section 24 of the constitution adapts
customs as part of the underlying law. Under that provision all courts are directed to
apply and enforce customs as part of the underlying law. There is however some
conditions which restricts its application. Those restrictions are variously contained in
constitution. The customs recognize act and the underlying law. If custom is not excluded
from applying its application takes precedents from the imported law or common law.
Customs may not be applied if it is inconsistent with the constitutional law, statue or if it
is repayment to the general principle of humanity.

LEGAL PLURALISM

Like law is a social phenomenon, three areas in which common agreement:

(1) Generally agreed that 1st Legal Pluralism is the opposite of legal problem. By one
system or group over others within a given or single or social framework. One system
dominates all others.

(2) LP begins with a rejected idea that state has a monopoly over the law in society.
LP begins with the idea that law is necessarily made only by the state. These are
expecuslively (it is uniform) and administrative only by state.

(3) LP involves recognizes of legal co-existences of two or more systems of regulating

norms in a politically autonomous unit, usually a state. Colonial or post-colonial so
long as political autonomous, these largely depend on the legal and politically
history. These can come about following conquest:-
(i) One method is through conquest e.g. South Africa
(ii) It may be through settlement
(iii) When a society re-arranges its internal political situations and adapts a
completely different system of law
(iv) It is through political Revolution such as happened in China. In society
where these events take place such as in European society.

Summary, Legal Pluralism exists at all times and in all places, just like the creator of the
universe. LP involves regulatory norms which give rise to the existence of simultaneous
legal rights and obligations in our cases the written law, but LP does not involve the co-
existence of systems which are in effective sub-ordinate single system of laws. Best
example in PNG- the co-existence of provincial laws, customary law is different to legal
systems.

The norms for legal pluralism is satisfied, once two systems co-exist of two systems of
regulatory norms at least interact each other, but the LP will not be satisfied only two
legal systems.
LP will always look for a third alternative, the minimum requirement is two competing
systems of regulatory, and there is LP. Reasons for looking for third-two are not the same
as many. Three or more duality is not the same as plurality. Many reasons why LP is
useful, LP can be used as a means of de-colonizing law.

LP can be used to extend state control over minority or politically diverse groups in
which that minimize the distributive effective of foreign laws.

LP can be used as means to creating completely new forms of legal political appraisal
and social re-direction. LP is not about widening, increasing between people nor does it
involve the rejection of one form of law. LP job is to make sure all these different legal
systems in state.

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Legal Pluralism is not common with extending legal or use one system of law to
dominate other system of law. It only tries to all system off to should be recognized. It
does not favor one system.

LEGAL PLURALISM AND CUSTOMARY LAW

Under section 21 of the Constitution, customary law is the source of under law. LP in
PNG therefore involves the co-existence of different opposing systems of regulatory
norms as well between customary systems and different state of law.

(1) LP in PNG different systems of laws is consistent interaction

(2) Customary systems are also interaction with non customary of regulatory norms or
systems of law in PNG.
Legal structure in PNG can be best seen or describe as plurality rather than duality. The
co-existence of customary law- source of law in state law system:

(i) Application of customary is limited but political more dominant state law system. It
does these by prescribing through law, constitution law as well as statutory law.

(ii) Any differences in legal requirement or process, which are not excluded by the 1st,
continue unaffected. E.g. the written law does not for bid customary law.

(iii) The implication for custom law in some areas there is a meeting point where custom
state laws converge. They exist parallel to each other, there is no disagreement,
there is no conflict. E.g. area of customary compensation, under custom there is
some form of compensation for wrong. Adultery enticement Act- it deals with
adultery and compensation. It exists as a super act on customary law.

The Introduced Law

Every legal principle or law that is present in this country, which not customary or
organized from custom is either introduced. Most law is based principles; the adapted
laws- are not distinct system of laws. They are all parts of the same family, compared to
customary law, these customary laws are infant. Customary law in PNG exists out side.

Underlying Law

Section 9: one of the sources of law in PNG. It is also constituted in a new system.
Constitution and Statue Law impose restriction on the application of custom and common
law. Section……… of the constitution provides restrictions to application of common
law.
(i) There must be a form part of the law of England immediately before independent

(ii) There are inapplicable or inappropriate to the circumstances of the country from
time to time.
(iii) If in the application there are inconsistent with the customs as adapted in section
2.1
(iv) There must not be inconsistent with the constitution law or statues

Underlying law sources of law- common law, custom law, and new rules set by superior
courts, part of underlying law. It can draw from both custom and common law,
Constitution empowered under the court.

Conflicts of law
System of law in PNG- the issue of conflict law. The four types of conflict of law
situation that we are concerned:

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