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Chapter One: Introduction to Law
1.1. INTRODUCTION
There is no universally accepted definition of law. There are different theories as to what law is.
The following discussion considers some of these theories. Having considered the definition of
law from the perspective of these different theories, the Unit provides a working definition of the
terms law and business law for the purpose of this course. In addition, it would identify some of
the essential features and functions of law. The chapter also deals with classification of law.
1.2. THEORIES OF LAW
The term law has different meanings and there is no universally accepted definition of law. There
are different schools of thought as to what law is. The following discussion focuses on the
natural law theory, the positive law theory, the Marxist law theory and the theory of legal
realism.
1.2.1. The Natural Law Theory
Natural law theory is the earliest of all theories. It was developed in Greece by philosophers like
Heraclitus, Socrates, Plato, and Aristotle. It was then followed by other philosophers like Gairus,
Cicero, Aquinas, Gratius, Hobbes, Lock, Rousseau, Kant and Hume.
According to this theory, law is a set of rules, which are in accordance with nature and reason.
This theory further submits that the supernatural being that created man has also created law for
him. The natural law theory defines law as a set of objective moral principles, which emanate
from the very nature of the universe. The naturalists argue ordinary human law is only true law
in so far as it conforms to these objective moral principles. Ordinary human law may be
discovered by reference to legal sources such as constitution, codes, etc. However, natural law
may be discovered through natural reason. Human law that is contrary to natural law is not really
law. It is rather abuse or violation of law. Law should conform to morality and justice. Thus, any
law which does not conform to morality and justice is not law.
The world had experienced the practical application of natural law in the resolution of real cases
in the post-World War II period. The Nuremberg trial of Nazi war criminals for “Crimes against
Humanity” at the end of the WW II was conducted by making appeal to this higher law.
Although these criminals may not have disobeyed any positive law of their country and may
have been merely following their government’s orders, they were deemed to have violated a
natural law that transcends any law imposed by state. The natural law school of thought
encourages individuals to disobey positive, or written, laws if those individuals believe that the
written laws are in conflict with natural law.
1.2.2. The Positivist Theory
Positive law theory is also called, imperative or analytical law theory. It refers to law as the rule
made and enforced by the sovereign body of the state and backed by Sanction. There is no need
to use reason, morality, or justice to determine the validity of law.
According to this theory, rules made by the sovereign are laws irrespective of any other
considerations. These laws, therefore, vary from place to place and from time to time. The
followers of this theory include Austin, Bentham and H.L.A Hart. For these philosophers and
their followers law is a command of the sovereign to his/her subjects and backed by sanction.
There are three elements in it: command; sovereign; and sanction. Command is the rule given by
the sovereign to the subjects or people under the rule of the sovereign. Sovereign refers to a
person or a group of persons demanding obedience in the state. Sanction is the evil that follows
from violations of the rule.
1.2.3. MARXIST LAW THEORY
Marxists believe that private property is the basis for the coming into existence of law and state.
They provide that property was the cause for creation of classes in the society in which those
who have the means of production can exploit those who do not have these means by making
laws to protect the private property. They base their arguments on the fact that there was neither
law nor state in primitive society for there was no private property. The theory has the
assumption that people can attain a perfect equality at the communism stage in which there
would be no private property, no state and no law. But, this was not yet attained and even the
practice of the major countries like the former United Soviet Socialist Republic (U.S.S.R) does
not qualify as such.
1.2.4. LEGAL REALIST THEORY OF LAW
Realist theory of law is interested in the actual working of the law rather than its traditional
definitions. It provides that law is what the judge decides in court. According to this theory, rules
not put to use to solve practical cases are not laws but merely existing as dead words and these
dead words of law get life only when applied in reality. Therefore, it is the decision given by the
judge but not the legislators that is considered as law according to this theory. Hence, this theory
believes that the lawmaker is the judge and not the legislative body.
The lines of legal thought we have just explored above reflect the existence of diversified notions
regarding the definition of law. The variations in ascribing a meaning to law are not matters of
mere semantics; they are critical and rather grounded on deep philosophical foundations.
Nevertheless, the various schools of jurisprudential thought have had drawbacks that have
subjected them to critics. The major problem with these schools of thought generally is that no
comprehensive approach to define law is made. None of the perspectives would attempt to look
into law in its entirety; they are rather concerned with specific aspects of law. Naturalists, for
instance, limit themselves to the consideration of content of the law. Positivists, on the other
hand, prefer to treat law from formal point of view that law assumes validity if it comes about by
a legitimate process.
Another problem coming up with an all convincing definition of law pertains to its very nature.
Law is a dynamic social norm. The society as a whole (whether ideologically, philosophically,
culturally, socially, economically, or politically) keeps changing and law, as a norm of social
regulation, accordingly would be subjected to a constant state of flux. The law cannot refuse to
change while the matters it governs change. If it does refuse, it would no more be legitimate and
would be thrown to disuse. Changing societal circumstances demand the continued modification
of law in terms of its content, form, scope and nature. Therefore, providing a consensual
definition of law in terms of these latter factors is virtually impossible because these yardsticks
would considerably differ from time to time, and it is partly no surprise that the various jurists
have not concurred on what law is.
All the above failures do not mean, however, that law is without any generally accepted
characteristics. The problems reveal the apparent difficulty in telling what law directly is, but law
can be regarded as possessing certain universally recognized features. These features or
attributes are very important in that they provide indirect descriptions of law. Below are the basic
characteristics of law along with their brief explanation.
1.3. BASIC FEATURES OF LAW
Analyzing the features and nature common to all laws would help us to understand the concept
of law. Among these features and natures, the ones considered as essential include generality,
normativity and sanction.
1.3.1. GENERALITY
Law is a general rule of human conduct. It does not specify the names of specific persons or
behaviors. Hence, its generality is both in terms of the individuals governed and in terms of the
social behavior controlled.
The extent of its generality depends on-on whom the law is made to be applicable. Consider the
following illustrations.
1. “Every one has the right to life, liberty and the security of a person.” [Art 3, UDHR; 1948].
- This law is made to be applicable to every person on this world. Therefore, it is universal.
2. “Every person has the inviolable and inalienable right to life, the security of person and
liberty.” [Article 14 of the 1995 Constitution of the Federal Democratic Republic of Ethiopia].
- This constitutional provision is made to be applicable to every person in Ethiopia. So, the
extent of its generality is national. This is less general than the first illustration.
3. “Every Ethiopian national, without any discrimination based on color, race, nation, nationality,
sex, status, has the following rights…
(b) On attainment of 18 years of age, to vote in accordance with the law.” [Article 38(1) (b) of
the 1995 Constitution of the Federal Democratic Republic of Ethiopia.].
- This law is made to be applicable only to Ethiopian nationals who attain 18 years of age.
Therefore, it is even less general than the second illustration.
4. “Whoever intentionally spreads or transmits a communicable human disease is punishable
with rigorous imprisonment not exceeding ten years.” [Article 514 (1) of the 2004 Criminal
Code of the Federal Democratic Republic of Ethiopia].
- This law is made to be applicable only on a person who commits the crime.
Therefore, it is even less general than the third illustration.
Under all these illustrations, the subjects of laws are given in general terms. However, the extents
of the generalities decrease from universality to an individual person. Generality of the subject of
the law may serve two purposes. Firstly, it promotes uniformity and equality before the law
because any person falling under the group governed by the law will be equally treated under the
same law. Secondly, it gives relative permanence to the law. Since it does not specify the names
of the persons governed, the same law governs any person that falls in the subject on whom the
law is made to be applicable. There is no need to change the law when individuals leave the
group.
The permanence of law is indicated as relative for there is no law made by person, which can be
expected to be applicable eternally.
Generality of law, as indicated above, does not only refer to the subjects governed but also the
human conduct, which is controlled. The human conduct in any law is given as a general
statement on possible social behavior. It does not refer to any named specific act like stealing,
killing by shooting and killing by spearing. Just a law can govern millions of similar acts and that
saves the legislator from making millions of laws for similar acts, which may make the law
unnecessarily bulky.
1.3.2. NORMATIVITY
Law does not simply describe or explain the human conduct it is made to control. It is created
with the intention to create some norms in the society. Law creates norms by allowing, ordering
or prohibiting the social behavior. This shows the normative feature of the law. Based on this
feature, law can be classified as permissive, directive or prohibitive.
A) Permissive Law
Permissive laws allow or permit their subjects to do the act they provide. They give right or
option to their subjects whether to act or not to act. Most of the time such laws use phrases like:
Has/ have the right to
- is/are permitted/allowed to
- shall have the right
- shall be entitled to
- may
- is/are free to
Illustrations:
1. [Article 14 of the 1960 Civil Code of Ethiopia].
Therefore, it is a permissive law.
2. “Accused persons have the right to be informed with sufficient particulars of charge brought
against them and to be given the charge in writing.” [Article 20(2) of the 1995 Constitution of
the Federal Democratic Republic of Ethiopia].
- “have the right to” in this law shows that the subject is given the right or permitted to get the
charge in writing and to be informed its particulars. Therefore, it is permissive law.
B) Directive law
It is not optional. Therefore, the subject has legal duty to do it whether s/he likes it or not,
otherwise, there is an evil consequence that s/he incurs unless s/he does it as directed by the law.
Directive law usually uses phrases like:
- must
- shall
- has/have the obligation
- is/are obliged to
- is/are ordered to
- shall have the obligation/duty
Illustrations:
1. “The debtor shall personally carry out his obligations under the contract where this is essential
to the creditor or has been expressly agreed.” [Civ. C. Art. 1740(1)]. “Shall…. carryout” in this
law shows that the contracting party, the debtor, is directed, ordered or commanded by the law
as it is provided. Therefore, this law is directive law.
2. “Every worker shall have the following obligations to perform in person the work specified
in the contract of employment.” (Emphasis added) [Article 13(1) of the 2003 Labor Code
Proclamation No. 377/2003].
”Shall have the … obligations to” in this law shows that the worker is directed by the law as it is
provided in the law. Therefore, it is directive law.
In general, directive laws are mandatory provisions of laws. They oblige the subject to act, as
they require him/her to act.
C) Prohibitive law
If the subject does the act against the prohibition, an evil follows as the consequence of the
violation. All criminal code provisions are prohibitive laws. Prohibitive laws usually use phrases
like:
- must not;
- shall not;
- should not;
- No one shall/should;
- No person shall/should;
- may not;
- is/are not permitted/allowed;
- is/are prohibited;
- is/are punishable; and
- is a crime.
Illustrations:
1. “Any unmarried person who marries another he knows to be tied by the bond of an existing
marriage is punishable with simple imprisonment.” [Article 650(2) of the 2004 Criminal Code of
Ethiopia]
“is punishable” in this law, indicates that the law discourages such act. Therefore, it is
prohibitive law.
2. “No one may enter the domicile of another against the will of such person; neither may a
search be effected there in, except in the case provided by law.”[Civ. C. Art 13].
“No one may” shows that any one is discouraged from acting as provided by the law and so it
is a prohibitive law.
1.3.3. Sanction
Each and every member of a society is required to follow the law. Where there is violation the
law sanction would follow. Sanction according to Black’s Law Dictionary [Garner; 2004: 1368],
is a penalty or coercive measure that results from failure to comply a law. The main purpose of
sanction is to prompt a party (a wrong doer) to respond. In other words, sanction will make the
wrong doer to think that s/he made a fault and s/he should correct it. Sanction may be criminal.
Criminal sanction is a sanction attached to criminal liability.
1.4. Functions of Law
Dear learner, have you ever doubted the importance of law in a society? Do you think that the
secure condition in which you accomplish your tasks would be there had law not been there and
prevailed? I hope you say no! Yes, laws perform various functions in a society. They are the
powerful weapons to attain diversified societal needs. Laws are not ends in themselves, but
rather they are the most effective and reliable means at the disposal of the society.
The simple and common sense response you might make is perhaps that law is an instrumentality
for maintaining order and security. Imagine what would happen if there were no law to curtail
the conduct of gang of robbers breaking into your abode and taking away the property you have
gained over time through exerting your energy and investing your money. Think also of a
reckless conduct that sets fire to a building in which you run your business affairs which results
in a looting of essential documents. I hope you openly unwelcome such a situation. In the
absence of law, persons might excessively and arbitrarily behave and you would also be
discouraged to undertake proper business activities for fear of the risk of losing it someday. So,
laws, especially criminal laws, would become indispensable tools to stop unwelcoming conducts
and to create peace and stability for proper life of the society.
It is important to note that law delves into almost every social interaction. It regulates the way a
particular relationship is to be created, maintained and broken. Law is not limited to mere
maintenance of peace and order; it also steps in to govern detailed individual interactions. Laws
of family for instance are concerned with the regulation of the institution of marriage and
matrimonial affairs. Contract and property laws administer contractual bonds and property
relationships of individuals respectively. Business laws, on the other hand, intend to shape
behavior in commercial transactions and ensure the interaction is conducted in healthy and
effective manner.
Law protects citizens from arbitrary and excessive governmental actions. That body of law
which sets out structure of the state and the relationship the government of that state would have
with citizens is referred to as constitutional law. The powers and functions of the government are
usually defined by a constitution, and this law restrains undue governmental encroachment in the
affairs of subjects. Human rights provisions are typical examples in this regard – that they call
upon the government to either act or refrain from acting in the protection and enforcement of
human rights. Law of constitution can function in such a way that the various organs constituting
the government discharge their tasks in an atmosphere of harmony and transparency. The
principle of checks and balances incorporated into most republican constitutions reveals the
possibility of review of actions or decisions of the legislative, executive or judicial bodies by one
another.
Laws are also instrumental in fighting harmful traditional practices (HTPs). Early marriage has
been the widespread practice in many parts of Ethiopia. Marriage is a big affair upon which
family, the fundamental unit of the society, is found. Yet, such purpose is served only if spouses
are psychologically and biologically matured enough. Ignorant of such fact, most Ethiopian
parents force their teenage children (especially girls) to marry while they are in fragile mental
and physical conditions, exposing them to various economic, social and biological problems. The
same is true of Female Genital Mutilation (FGM). The law is a typical tool in reducing, and
ultimately eradicating, these harmful traditional practices.
Law also plays a prominent role in improving the life of the society through the encouragement
of innovation and creativity. Law encourages individuals to engage in innovative tasks by
granting those rights to exclusive enjoyment of their inventions via issuing patents, copyrights,
trademarks and the like. These mechanisms bestow inventors and authors of new ideas with
economic and moral benefits, thereby helping society to make use of better means of life.
1.5. Classification of Laws
The body of law is huge. To study it one must break it down by means of classification.
Classification of laws is the systematization of the law based on the subject matter for the
purpose of finding the relevant law more easily and determining whether different legal rules
were required depending on their area of application.
Under this sub section, classification of laws into public and private will be dealt. Next, the
classification of law into international and national, substantive and procedural, civil and
criminal will be considered respectively.
1.5.1. PUBLIC AND PRIVATE LAW
Public law regulates the acts of persons who act in the general interest, in virtue of a direct or
mediate delegation emanating from the sovereign. ‘Public law’ is not the whole of the law that is
applicable to the state in its relations with its subjects, but only those parts of it which are
different from the private law concerning the subjects of the state and their relations to each
other. Private law is thus the residue of the law after we subtract public law. Private law
regulates the acts, which individuals do in their own names for their own individual interest.
Public law is sub divided into constitutional law, administrative law and criminal law.
Constitutional law defines the organization of the state, its fundamental rules, mode of
government, and the attributions of its political organs, their limits and their relations.
Constitutional law deals with the ultimate questions of the distribution of legal power and of the
functions of the organs of the State.
Administrative law regulates the operation of the executive power in all its degrees, beginning
with cabinet ministers and descending to its most humble representatives. It also regulates such
local, departmental and communal administrations. Very wide in its application administrative
law comprises many matters, which impinge upon private law. This is because the administration
often takes individuals under its tutelage. It is thus that the operation of mines, of waterfalls, and
of railways is governed by provisions of administrative law. In addition, the creation and
functioning of certain groups of persons, such as labor unions, associations, and mutual aid
societies are governed by administrative law, even though private persons may be acting in their
own private interest.
Criminal law, the infliction of punishment directly by the organs of the state, is also usually
regarded as falling under the head of public law. Some would say that civil procedure should
also be placed in this section, since these rules regulate the activities of courts, which are mere
agencies of the State; but civil procedure is so linked with the enforcement of private rights that
it is more convenient to regard it as belonging to both public and private law.
1.5.2. INTERNATIONAL AND NATIONAL LAW
International law refers to rules of conduct which states feel themselves bound to observe and
therefore do commonly observe in their relations with each other and which includes also (a) the
rules of law relating to functioning of international institutions and organizations, their relations
with each other and their relations with States and individuals; and (b) certain rules of law
relating to individuals so far as the rights and duties of such individuals are the concern of the
international community.
International law is essentially a species of conventional law and has its source in international
agreements. These international agreements may be of two kinds, namely – (1) express
agreements as contained in treaties and conventions; and (2) implied agreements as found in
customary practices of the States.
As one can observe from the above discussion, international law is classified into public
international law and private international law. Public international law regulates the relation
between states. For example the relations between Ethiopia and Sudan are governed by public
international law. Private international law, on the other hand, governs the relations between
individuals of different nationals. Different nationals involve in commercial and other civil
transactions beyond their countries. Since the laws of different countries are not the same, the
problem arises as to which law should be applied to the relations of different nationals. For
example, let us assume that Ethiopian national and Chinese are married in Addis, and they live in
Beijing. Let us further assume that a dispute arises between them with regard to the
administration of their household. Whose law is to apply to solve their dispute: the Ethiopian or
Chinese law? Private international law solves this problem. Private international law is known
by different names. For instance it is called conflict of laws.
National law, on the other hand, is a law that pertains to a particular nation (as opposed to
international law. It is a law of a nation, for example the law of the United States of America,
France, or Ethiopia. Such law is applicable all over a country in question. It is also known as law
of the land. It is in effect in a country and applicable to its members. The law may be statutory,
i.e. enacted law, administrative or case law.
1.5.3. SUBSTANTIVE AND PROCEDURAL LAW
Substantive law is that which defines a right while procedural law determines the remedies.
Procedural law is also called ‘law in action’ as it governs the process of litigation. Substantive
law is concerned with or seeks to achieve the administration of justice while procedural law
deals with the means by which those ends can be achieved. For example, law of contract, transfer
of property, negotiable instruments, crimes etc are substantive laws whereas the laws of civil
procedure or criminal procedure are procedural laws. The rules that are provided under
procedural law are inseparable from the substantive law. For example, civil procedure law is
inseparable from the civil; code that deals about contract, filiations, adoption, and the like.
1.5.4. CIVIL AND CRIMINAL LAW
Civil law is concerned with the duties that exist between persons or between citizens and their
government (the latter as an ordinary legal person), excluding the duty not to commit crimes.
Contract law, for example, is part of civil law. The whole body of tort law, which has to do with
the infringement, in the absence of contract, by the person of the legally recognized rights of
another is an area of civil law. In Ethiopia, we have a civil law codified in 1960, which is known
as Civil Code.
Criminal law, in contrast to civil law, is concerned with wrongs committed against the public as
a whole. Criminal law is always public where as civil law is sometimes public and sometimes
private. In a criminal case, the government seeks to impose a penalty on an allegedly guilty
person in its name. Today we have a criminal law enacted in 2004 which is a revision of the
1957 Penal; Code of Ethiopia. The designation is changed to criminal law because penal law has
negative connotation which carries penalty only.
1.6. BUSINESS LAW
It has been stated that there is no universally accepted definition of law. This being the case it
becomes necessary to set out a working definition of the term law. For the purpose of this course,
the term law can be understood as a set of rules and regulations issued by the government,
enforceable by penalties, to control the conduct of its people.
Business law does not refer to a single branch of the law; rather, it describes those parts of the
law most closely connected with typical business activities. Largely, business law deals with
branches of private law, which might be considered the foundations of business: contracts, sales,
agency, and business organizations. The general objective of this course is to help students
understand the legal aspects of common business activities.
