CHAPTER TWO

THE NATURE OF PUBLIC LAW

2.1 Understanding of law and its

functions

Dear students what do you think

about law ?
Why people need to have law? Discus
Today there are no universally accepted precise definitions of law. Different
scholars define the term “law” in different ways. The problem of defining the
law may be approached from the point of view the law of nature, the
theologian, the historian, the socialist philosophers, the political
scientists or the lawyer

• According to A Dictionary of Basic Legal Terms, law is “the regime that orders
human activities and relations through systematic application of the force of
politically organized society, or through social pressure, backed by force, in such
a society.“

• Hugo Grotius defines national law as basic criteria for differentiating the
permitted action from the prohibited one.

• For Hans’s keelson, law is a normative order regulating the conduct of man; it
is a system of rules regulating human behavior.

In general the law is a set of rules, enforceable by the courts, which

regulate the government of the state and its citizens and between one
citizen and others.
• Law being rule , it has permissive and prohibitive
normative character
• Law is rule that controls social behavior Law has
binding nature. enforceable by the state bodies, the
judiciary and administrative agencies
• The violation of law has consequences of civil and/
or criminal sanction.
These some of the attributes of law where the
definitions are emanated
 2.1.1 Nature of law
• Generality, normatively, fairness, predictability and
flexibility and sanction are the common features of law .
1.Generality: Law may address the people of the
world, the general society of the state, a group of
person or even a single person but in all these
cases laws or legal rules are always general.
For example; “everyone has the right to freedom against
torture or cruel, inhuman and degrading treatment”
(UDHR, Art9).
generality is important to promote uniformity and
gives relative permanence to the law
2. Normativity: It is created with the intention to create
some norms in the society. Normativity of law is related
to setting of rules and standards regarding the
expected social behavior. It creates norm by allowing
, prohibiting and ordering social behavior .
• Based on this feature law can be classified as
Permissive: They give right or option to persons whether to
act or not to act.
Directive : The person has a legal duty to do a certain act
provided in the law it is not optional.
prohibited. Prohibitive law discourages or prohibits a certain
behavior by stating what a person must not to do. All most
all criminal code provisions are prohibitive laws
3. Predictability and flexibility
Laws are usually designed to apply for an indefinite period
of time in the future. However due to the dynamic nature
of society law is responsive to cultural, technological,
economic and social changes. these are in in response
to need of the society .
4. Fairness and justice: Law must be impartial, practical
and prompt, not be in conflict with the values of the
society, free from prejudice, favoritism and self-
interest.
5.Sanction: Where there is violation of law sanction
would follow. It is penalty or coercive measure that
results from failure to comply a law.
Sanction make the wrong doer to think that he/she made
a fault and s/he should correct it.
Purposes and Functions of law
The end result of law is the adjustment of human
relations in accordance with the ideal of justice. the
function of the law to determine which of these claims
are reasonable and should be protected.
Generally, law serves many purposes and functions in
society.
Establishing standards: guidepost for minimally acceptable
behavior in society.
maintaining order:
 resolving disputes
protecting liberties and rights
are some of the principal purposes and functions law
 CLASSIFICATION OF LAW continued
• Substantive Law and Procedural Law
A. Substantive law; is a law that creates and controls the rights and
duties of parties. include the laws regarding torts, contracts and real
property
• Procedural law; is a law that creates and controls the process of
enforcing the rights and duties under substantive law. include the rules
of evidence, jurisdiction, and pleading and practice.
• Procedure law refers to the method by which claims of persons are
adjudicated and by which rights, privileges and duties are enforced by
appropriate legal tribunals.
Includes Civil, criminal and administrative
B. Civil Law and Criminal Law : Civil law is the law of private rights
and duties . contracts for the sale of real property, family law, wills and trusts
• Civil law is “the body of law having to do with the private rights of
individuals.” it is a law between individuals, not the government.
• civil law provides a remedy for individuals who need to enforce private
rights against other individuals .
• Criminal law: On the other hand, is the law of public rights and duties .

• it is the law that creates and controls wrongs committed against

the whole community.

• defining crimes at large, regulating how suspects are investigated,

charged and tried and establishing punishments for convicted
criminals as well as seeks to prevent and prescribes the appropriate
punishments for them.

• civil and criminal law shares the same courts but differ in concerns,
party bringing the case, burdens of proof, purposes and results
 C. DOMESTIC AND INTERNATIONAL LAW

•A. International law

•Sovereign Immunity; There are some concepts, treaties, and

statutes that fit under the umbrella of international law.
• In the context of international law, sovereign immunity means
that Country A is not subject to lawsuits in Country B’s courts
unless Country A agrees to be sued there.
• Does not include certain types of lawsuits, including torture,
extrajudicial killings, hostage-taking and certain terrorist acts.
•Conflict of Laws; means differences between the laws of two or more
countries that have a legal interest in a case.

•prudent parties will negotiate a “choice of law” provision in their contract

•GATT and WTO; GATT adopted1948 .United Nations agency
created by a multi-national treaty to promote trade by the
reduction of tariffs and import quotas.

•The WTO assists in facilitating agreements between its member

countries 159 of the world trading nations (as of 2013).

•The WTO its main goal is to assist producers of goods and services,
exporters, and importers in conducting business.
 B .DOMESTIC LAW/ NATIONAL LAW

• National law is the law made by a sovereign states where it is

applied within the territory of that states.
• The people of that state are the subjects of the national law i.e.
rights and duties are emanated from
•Domestic law is further classified in to public law(constitutional
law, administrative law), and private law (law of the persons,
family laws…)
•Public Laws which regulate the acts of persons who act in the general interest
in virtue of direct and immediate delegation emanating from the sovereign.

•Private law is thus, regulates the act which individuals do in their own names
for their own individual interest
 ADMINISTRATIVE LAW
• What is Administrative Law?
• Administrative law is the rules, orders and decisions of the
federal, state and local governments established to perform a
specific function.
• Administrative law is primary concerned with the rules and
restrictions binding on the various organs of the executive and
extent to the citizens obtain to redress from the courts.
• Administrative law in short is relating to the control of the
governmental power.
• The executive today includes all officials, public authorities
and other agencies, civil servants, the armed force, the police
by which functions of the government are performed.
 • Administrative Law is a branch of law that is concerned with
the composition of power, duties, rights and liabilities of the
various organs of the Government that are engaged in public
administration.
• There are different opinions with regard the definition of
administrative law. Primarily concerned
1. exercise of governmental power
2. purpose/function/ are element should
underline to understand administrative law.
Austin has defined administrative law, as the law which
determines the ends and modes to which the sovereign power
shall be exercised.
Schwartz has defined as the law applicable to those
administrative agencies, which possess delegated legislation and
adjudicative authority.
 PURPOSE OF ADMINISTRATIVE LAW
• The need for a coherent and effective body of rules to govern
relations between individuals and the state became essential.
• controlling the manner of exercise of public power so as to
ensure rule of law and respect for the right and liberty of
individuals may be taken as the key purpose of administrative law.
embodies general principles applicable to the exercise of the powers and
duties of authorities .
 control function, acting in a negative sense as a check in respect
the unlawful exercise or abuse of governmental
 command function by making public bodies perform their
statutory duties
 facilitate good administrative practice; for example, in ensuring that the rules
of natural justice or fairness are adhered to.
 It operates to provide accountability and transparency. Participating
interested groups
 It may provide a remedy for grievances at the hands of public authorities
identified by Peer Leyland and Tery Woods
 SOURCES OF ADMINISTRATION LAW
• Administration includes both the law that controls the
administration as well as the law made by the administrative
authorities. The following are sources of administrative law
Constitution :the fundamental law of the country; the Constitution
(and federal statutes and other federal laws made in furtherance of the
Constitution) is “the supreme Law of the Land.”
constitution contains some provisions dealing with
the principles of government administration and
accountability of public bodies and officials.
 It also embodies the principle of separation of
powers.
•Legislation : Laws adopted by parliament, which may have the
effect of creating an administrative agency, or specify specific
procedure to be complied by the specific authority in exercising its
• Delegated Legislation: Rules, directives and regulations issued by
Council of Ministers and each administrative agency are also the
main focus of administrative law.
• Administrative law is concerned with delegated legislation to
determine its constitutionality and legality or validity
Judicial Opinion:

Administrative Agencies
Administrative agencies defines agency as a governmental body
with the authority to implement and administer particular
legislation.
“An agency is any department, board, bureau, commission,
division, office, council, committee or officer of the state or a
public benefit corporation or public authority at least one of whose
members is appointed by the governor, authorized by law to make
rules or to make final decisions in adjudicatory proceedings
Following are some of the important elements distinguishing whether
a certain government entity is an administrative agency or not.
 The nomenclature used to describe the entity is ministry, authority,
agency, bureau, office, commission, board, department, etc. or any
other similar terms.
 That it has legislative and/or adjudicative power granted by the
legislature or has authority to take a binding action.
 That the head of the agency is appointed by the executive or by
the house of people‘s representatives.
 CLASSIFICATION OF ADMINISTRATIVE
AGENCIES
• Agencies are created with varying size, structure, functions and powers. Some of

them may be established with broader powers and others are comparatively

small in structure and are charged with a very specific task of implementing a

certain portion of government policy or program.

Agencies are classified based on the mode of accountability as

Executive agencies accountable to the executive

Independent agencies accountable to the parliament

 The Federal Ombudsman
 The Human Right Commission
 The National Election Board
 The Auditor General
 The Population and Census Commission

With respect to these agencies parliament has the right to appoint heads and remove them
if there are valid reasons
 • Federal Administrative Agencies
• Administrative agencies that are part of the
executive, legislative, or judicial branches of
government.
• The majority of federal administrative agencies are
part of the executive branch of government.
• Administrative agencies created by Congress are
independent of the executive branch.
– They have broad regulatory powers over key areas of the
national economy.
State Administrative Agencies
• Administrative agencies that states create to
enforce and interpret state law.
– Have a significant effect on business.
– Corporations department, fish and wildlife, licensing boards
• Local governments and municipalities create
administrative agencies to administer local law.
– Zoning commissions
 FORMATION OF ADMINISTRATIVE AGENCIES

• Agencies are created in two ways: one is through the constitution, and the
second is through act of parliament.
• The difference between the two modes of creating an agency is that when the
constitution requires the establishment of some agencies the House of people‘s
representatives has a duty to promulgate the enabling act for that specific
agency.
Reasons for the Creation of Agencies
• Agencies are created and assigned specific tasks by the legislature.
• Almost every governmental agency has been created because of a recognized
problem in society, and from the belief that an agency may be able to help in
solving the problems.
•A. Providing Specificity: The legislative branch of government
cannot legislate in sufficient detail to cover all aspects of
many problems.

•The creation agencies is necessary, because of the fact that they have, specialized
knowledge and expertise to deal effectively with the detailed, specific and technical
B. Providing Protection
• Many government agencies exist to protect the public,
especially from the business community. For instance,
• the Environmental Protection Agency is created to regulate
environmental pollution. Quality of private higher education and
unjustified and unreasonable increase in the price of essential
goods.
• Most of the time, an agency protects the public from the
negative impacts of business through regulation.
C. Providing Services; Many agencies are created simply out of necessity. If
we are to have roads, the Ethiopian Roads Authority is necessary.