SOURCES OF LAW

Posted by Emmanuel Mgina on 10:08 with 6 comments

            Salwan and Narang (2008) refer the term law as: (a) legislative pronouncements of the rules which should guide one's actions in society; (b) the body of principles recognised and applied by the state in the administration of justice; (c) a rule of action to which human being's conduct must conform.
            Labour law (Employment law) is the body of laws, administrative rulings, and precedents which address the legal rights of, and restrictions on, working people and their organizations. As such, it mediates many aspects of the relationship between trade unions, employers and employees. It is the body of law that governs the employer-employee relationship, including individual employment contracts, the application of tort and contract doctrines, and a large group of statutory regulation on issues such as the right to organize and negotiate collective bargaining agreements, protection from discrimination, wages and hours, and health and safety. There are many different sources of law in any society. Some laws will be written in the country's Constitution; others will be passed by the legislature (usually a parliament or congress); others will come from long social tradition. The following are sources of law.
            A constitution is a set of fundamental principles or established precedents according to which a state or other organization is governed.  These rules together make up, i.e. constitute, what the entity is. When these principles are written down into a single document or set of legal documents, those documents may be said to embody a written constitution; if they are written down in a single comprehensive document, it is said to embody a codified constitution. In any country with a written Constitution, the Constitution will take precedence over any other source of law. For example, if the Constitution says there is freedom of speech for all citizens, but the social tradition is for women not to speak in public, a court will protect the right of any woman to speak in public if she chooses to do so; the Constitution takes priority over tradition.
            Acts of Parliament/Local Laws: These are sets of written law or statutory laws passed by the parliament of Tanzania since independence in 1961 and sets of laws passed by the colonial legislative council. All sets laws are subject to the basic law of the land which is the Constitution of the United Republic of Tanzania of 1977 as amended severally. Apart from ‘Acts’ there are other written laws passed through delegated powers and commonly referred to as subsidiary, subordinate or delegated legislation.
            (i) Statutory Law: These are laws passed by local legislature and are called “Acts’ to refer to laws passed by the local legislature as from the period of independence in 1961 and those passed by colonial legislative council are called ‘Ordinances’. However, as of 2002, through an Act of Parliament, The Laws Revisions Act of 1994 Chapter Four of the laws of Tanzania [R.E. 2002,] all legislations previously known as Ordinances, (laws enacted before independence i.e. laws enacted by colonial administration-Orders in Council, commonly referred to as Ordinances) are now legally recognized as Acts. Presently, all Tanzanian laws, including Ordinances are referred to as ‘Acts’ and have been codified together in Chapters making it a common reference of ‘Chapters’ or abbreviated as ‘Cap’. The principal legislations and subsidiary legislations thereto, are published in the Government Gazette and printed by the Tanzania Government Printers. Therefore anyone can order for statutes through the Government Publication Agency. 
(ii) Delegated/Subsidiary Legislation (By law, Rules, Regulations), Orders and        Directives
 Pre-existing Laws-Customary and/or Religious Laws: Customary and/or religious law is another of law that makes another authority to Tanzanian sources of law. Customary law and Islamic law is established under section 9 of the Judicature and Application of Laws Act, Chapter 358 of the Laws of Tanzania [R.E. 2002] (JALA).These are sets of rules developed through customs, practices and/or usages of Tanzanian ethnic tribes and they are accepted by Tanzanian as binding rules. The customs were accepted by the colonial regime thus accepted to be applicable in ‘native courts’ to native parties. At independence these rules continued to be binding and were made part of the laws of Tanzania in all courts having exclusive application at the primary courts. The application of customary laws is only limited to; i) civil cases particularly on issues of marriage, succession, inheritance, land and family relations. ii) Customary law applies only to members of the community concerned. iii) Customary law applies only when there is no written law, does not conflict with statutory law and as of today’s conception, to circumstances which are not repugnant to principles of human rights. To date customary laws include: codified customary laws, Islamic laws and other religious laws.
(i) Codified customary laws or Statutory Laws
            These are sets of rules codified under the procedure set forth in the Judicature and Application of Laws Ordinance. They include a few of rules on the laws of person, rules of inheritance in some tribes, and rules on wills. They are commonly found in the Local Customary Law (Declaration) Order (Numbers one to eight), 1963.
(ii) Islamic Laws
            These are few sets of law which apply to Moslems inhabiting in Tanzania but they are not applied in its whole fashion as it is in Islamic legal system countries. It is application falls under the Judicature and Applications of Laws Act, Chapter 358 of the Laws of Tanzania [R.E. 2002] (JALA). As such, it empowers courts to apply Islamic law to matters of succession in communities and parties that generally follow Islamic law in matters of personal status and inheritance. Driving their sources from the Qua’ran, the Sunna of the Prophet, Ijma (the consensus of the orthodox community) and the qiyas (the method of analogy), the decisions of courts impose lenience application as compared to strict Islamic rules. The local legislature and a mixture of customs have contributed to its modification and application. However, before independence a double tier system of courts allowed its application in Tanganyika where by the liwali courts applied Islamic law and secular courts applied other civil and customary laws. By 1963 one system was adopted to merge the two.  In Zanzibar however, a double tier system still exists where by Islamic courts known as Kadhi co-exists with secular courts. In Mainland Tanzania, the common issues decided under these laws are those under the Law of Marriage Act, Chapter 29 R.E. 2002; THE Administration (Small Estate) Ordinance, Chapter 30 R.L; the Restatement of Islamic Laws Acts, Act No. 57 of 1964; the Magistrates Courts’ Act, Chapter 11 R.E. 2002 and the Waqf Commission Ordinance, Chapter 326 R.L
            (iii) Personal and Other Religious Laws
Much as the application of Islamic law is in place and enjoy application in Tanzania courts through Section 9(1) of the Judicature and Application of Law Ordinance of 1961. The courts, particularly the Primary courts and High Court of Tanzania have been liberal to apply other rules from personal and other religion in dispensing justice where written laws do not provide for solution.
            Received Law: Received law is applicable in Tanzania only when there is no local written law to address the matter at issue and when local circumstances permits. Received Law is established under Section 2.3 of The Judicature and Application Laws Act, Chapter 358 of the Laws of Tanzania [R.E. 2002] (JALA). Judges may make reference to received law with such necessary modifications to suit local circumstances. The sets of received law are common law, doctrine of equity and statutes of general application in force in England on 22nd July, 1920.
(i) Common Law
            These are the body of law developed through judgments of the English courts which made reference to the customs and usage of the English people and then interpreted in courts. By preservation of courts, they remain applicable (when there is no local law or rule) and persuasive laws in Tanzania through the doctrine of precedents.
(ii) Doctrine of Equity
            These are the body of law developed in England through decision of King’s Courts, common referred to as the Lord Chancellor Courts, which were developed by judges appointed by the King to sit in King’s court to make decisions on appeals by people aggrieved by decisions of England courts. Since the King was referred to as ‘the fountain of justice’ he was not bound by common law rules or decision. Thus, he dispensed justice according to conscience and fairness. Later, the King appointed judges who were referred to as Lord Chancellor to adjudicate on his behalf and hence developed what is called today, as ‘the doctrine of equity’. Just as the principle of common law, the doctrine of equity remain persuasive and precedents when local circumstances do not provide for an answer.
(iii) Statutes of General Application
            These are sets of legislation passed by the parliament of England to apply in England but were of general nature that they would apply in other territories. However, only part of the legislations which were in force in England on the 22nd July 1920 (commonly referred to as the reception date) was received to apply in Tanzania. 
            Case Law/Court Decisions: Is the set of existing rulings which have made new interpretations of law and, therefore, can be cited as precedent. It is another important source of law in Tanzania. These are cases arising from the decision of the High Court and Court of Appeal. They are either reported cases or unreported. Therefore they form the basic precedents of Tanzanian laws and bind lower courts thereto. Reported cases in Tanzania can be found in a number of Law Reports.   Between 1957and 1977 cases reported from the High Court of Tanzania and the East African Court of Appeal appeared in East Africa Law Reports. Any case law that is from a court of equal or higher rank to the one where a case is now being heard, will normally take precedence over common law, should they differ. Also, a decision by a higher court (for example a court of appeal or supreme court) is binding upon a lower court. The lower court must follow what the higher court has said, in another case where the circumstances are similar. The main sources of Tanzanian court decisions are found in the following documents.
 -The High Court Digest (HCD)                                                                                                         -The Tanganyika Law Reports (TLR). This is the collection of cases   decided by the        High Courts and Court of Appeal (Supreme Court) of Tanzania                                                                         -Unreported Cases of the High Court and Court of Appeal                                                                 -The East African Court of Appeal (EACA) and others)

            International laws: These are laws which govern intercourse or relations between sovereign states, or individuals and sovereign states at international level, e.g. law of high seas, diplomacy, and international crimes (e.g. genocide, crimes against humanity, and etc). International law may be divided into two classes;

            (i) Public international law: law governing relations between states, or a state and            private individuals.
            (ii) Private international law: law governing relations between people across                    nations, e.g. marriage and divorce between a Tanzanian man and Canadian woman.

            General principle of law or general legal principle refers to a principle that is recognized in all kinds of legal relations, regardless of the legal system to which it belongs. It can also be a principle that is widely recognized by people whose legal order has attained a certain level of sophistication. In International law, it refers to a principle that gives rise to international legal obligations. The adjective ‘general’ indicates that they are principles which are applied generally in all cases of the same kind which arise in international law. For example, the principle of nonintervention. Likewise International tribunals rely on these principles.
            Writings of Publishers: These are sources of law regarding to the intellectual property protection, i.e. Copyrights. This requires anyone who wants to use the writings/material of an author to recognize him/her. For example: Misra, S. N (2007), Labour and Industrial Laws, 23rd Edition, Central Law Publications, Allahabad

Conclusively, in any society, everybody is subject to the law. Everybody must do as the law says, or face the punishments which can be handed out to law-breakers. Employers are no different. They, too, must obey the laws of their organisations. Societies have laws in order to protect people from the actions of other people. It is clearly impossible for everybody in any society to have absolute freedom as one person exercised that freedom, it would trample upon somebody else's freedom. Labour law which is the body of law, governs the employer-employee relationship, including individual employment contracts and makes sure that rights of employees are abide to.


           
REFERENCES
Black, H.C (1979), Black Law Dictionary, West Publishing Company, USA Farrar and Dugdale (1990), Introduction to Legal Method. 3rd Edition; Sweet & Maxwell; London     
Mihayo, P.B. (1983), Industrial Conflict and Change in Tanzania; Tanzania Publishing      House, Dar es Salaam
Misra, S. N (2007), Labour and Industrial Laws, 23rd Edition, Central Law Publications,   Allahabad
Salwan and Narang (2008) Academic's legal dictionary. 18th Ed., p. 201
Shivji, I.G., et al (2004), Constitutional and Legal System of Tanzania: a Civics Sourcebook,         Mkuki na Nyota Publishers, Dar es Salaam
United Republic of Tanzania (2005), The Constitution of the United Republic of Tanzania 1977 (G.N No.250 of 2005)
Webber, G.J. (1967), The Law of Master and Servant; 5th Edition, Sir Isaac Pitman and Sons         Ltd. London