6/12/2024

Introduction to Law and

Ethiopian Legal Systems
By Getahun A. Mosissa, PhD
Assistant Professor of Law

Chapter 1 – Nature and Function of Law

• Law, as form of social rules, is one of the distinguishing features of human
societies from other animals (Harris, 2007, p. 1)
• Human beings tend to subject or regulate their conducts and actions and behaviors
are governed by or subjected to certain form of social rules - moral standards,
religious doctrines, social traditions and legal rules
• Question:
• Is there any area of social/ human life not governed by rules of certain form?
• Where does the behavior to be governed by certain form of order or rule come
from? is such characteristics of humanity natural (inborn) instinct or socially
conditioned?
• If it is natural, why is there also the tendency to disobey or act against the order or
rule?
• If it is socially conditioned (through some form of coercion or pressure), what is the
implication of social institutions, social relations, and social regulations?

• “Definition (s)” of Law

• What are the problems you may face in trying to define
law?
• What are the possible starting points and approaches to
defining the law, and why?
• What should the basic working/comprehensive definition
of law should include?
• Can you propose a definition?
• Do you think this definition captures all the basic features and
functions of law?
• How should we overcome definitional limitations?

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• The problem of law and its definition

• The meaning and nature of law have been debated and theorized for many
centuries from various points of views and methods
• Traditional. Moral. Analytical. Teleological. Social. Etc.
• Questions have been asked:
• What is law?
• Is bad law still law?
• Is custom law?
• Is law what it says in the statute books, or what really happens in practice?
• Yet, there is no single commonly accepted definition.

• The dynamic nature of law and legal thinking

• law is never static; it is always changing, being reinterpreted or redefined, as
legislators and judges strive, with varying degrees of success, to ensure that
the law constantly reflects changes in society itself.
• In modern sense, law can be properly understood only by examining the ways
in which it actually operates in society, and by studying the often extremely
complex relationship between a social group and its legal code.
• Thus, definition of law is the function of the non-exhaustive
assumptions and view points about law and society
• Conception (image or imagination) of law
• Background cultural or ideological assumption
• Purported function or purpose of law

Some perspectives on the definition and

nature of law
• Law as power (power relationship)
• the validity of a law does not depend on whether it is socially good or bad.
• Different forms of governments (tyrannies, monarchies, and democracies)
have produced socially beneficial or unjust (wrongful) laws.
• Essential aspect: that each is based on power and that possessing the power
to enforce its laws is central to each government’s existence.
• What is the problem of this view?
• Perhaps, justifies arbitrariness, abuses of power, and tyranny, and for
producing bad law?

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Law as a norm or normative rule with minimal

moral content required by natural law
• law (human law) is that which reflects, or is based on, the built-in sense of
right and wrong that exists within every person at birth
• the sense of right and wrong, natural justice, exists naturally within every rational
human being from birth
• it “operates through the functioning of conscience, gives each person the capacity to
discover moral truth independently. Some believed that this sense was God-given;
others believed it was an intrinsic part of human nature”
• moral goodness is conceptually independent of institutional views of goodness or
evil. Thus, no government can make a morally evil law good or a morally good law
evil. Moral goodness exists prior to institutional lawmaking, and sets a moral
standard against which positive law should be measured.
• Scholars in the Natural law tradition are many…
• Socrates, Plato, Aristotle, Thomas Aquinas, Hugo Grotius, Samuel Pufendorf, Thomas Paine,
John Locke, Ronal Dworkin, etc.
• Law consists of rules in accordance with reason and nature – every human
being naturally possesses the capacity for reasoning

Natural law …
“There exist objective moral principles which depend on the essential
nature of the universe and which can be discovered natural reason, and
that ordinary human law is only truly law in so far as it conforms to
these principles. These principles of justice and morality constitute the
natural law, which is valid of necessity, because the rules for human
conduct are logically connected with truths concerning human nature.
This connection enables is to ascertain the principles of natural law by
reason and common sense, and in this sense the natural law differs
from rules of ordinary human law (positive law) which can be found
only by reference to legal sources such as constitutions, codes, statutes
and so on.”
“Since law can only be true law if it is obligatory, a human law at
variance with natural law is not really law at all, but merely an abuse or
violation of law.” ( see P. J. Fitzgerald, Salmond on Jurisprudence, 12th
ed (2006), p.15ff)

•This view of natural law is essentially an

evaluative view of positive law and systems
• What is the problem of this view of law?
• Is there consensus about the content of what is
right and wrong? If no, how is this view of law
possible?

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• Thomas Aquinas: four kinds of Law

• Eternal Law
• Natural Law
• Human Law
• Divine Law
• Aquinas: ‘the essence of law’ is ‘nothing else than an
ordinance of reason for the common good, made by Him
who has care of the community and promulgated’. […]
The law may be comprehensible as rational, and
promulgated in the cause of the ‘common good’, but
metaphysical authority is divine...

• Eternal law … provides the gear for the entire system. [It] represents
an appreciation that the [other] three kinds of law are all part of a
whole designed by God. All law is derived from eternal law.
• Natural law … is ‘participation in the eternal law by rational creatures’.
• [It] is the order by which we lead our lives if we are rational, and do so
rationally.
• [It is] ‘a norm of right conduct and equally well known to all’.
• It ‘is promulgated by the very fact that God instilled it into man’s mind so as to
be known by him naturally’.
• Individuals are gifted natural law by God.

• Human law (positive law) …. rational comprehension of

eternal law.
• it is that law established by civil magistrates, organs, authority, etc.
as their best approximation of natural law.
• The presence of human laws reflects the pervasive need for order
in a community
• NB:
• Both natural and human law constitute those laws cognisable by
reason
• Both are laws which the common horde can appreciate, or at least
their sovereigns can. They are laws geared to virtue and to
assisting our natural aspiration to live virtuously.

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• Divine law
• related with religious laws like the Mosaic commandment)
• Is a revealed law (law of revelation
• It is not thought about, and it is not for us to understand.
• Divine law, like God, is just.
• “Just as human law aids man’s aspiration to live the good
life, it is the presence of divine law which saves man’s
spiritual soul and ensures that he is ‘destined to an end of
eternal blessedness’”.

Law as a command of a sovereign – legal positivism

• Opposite view to natural law theory (Jeremy Bentham, J.S. Mill, John
Austin, Hans Kelsen, H. L. A. Hart, Joseph Raz, etc.)
• law was a self-sufficient system of legal rules that the sovereign issues in
the form of commands to the governed.
• However, the sovereign’s will was law only if it was developed according to
duly established procedures, such as the enactments of a national
legislature
• what counts as law in any particular society is fundamentally a matter of
social fact or convention
• There is no necessary connection between law and morality
• Hart: legal rules consist of primary and secondary rules
• No further evaluation can be used to test its legality or normative quality
• The commands did not depend for legitimacy on extraneous considerations such as
reason, ethics, morals, or even social consequences
• But note that there are variations among legal positivist’s conception of
law

 Note that positivism distinguishes the question whether a rule is a legal

from the question whether it is a just rule, and seeks to define law, not
by reference to its content but according to the formal criteria which
differentiates legal rules from other rules such as those pf morals,
etiquette (equity) and so on.
 Austin – three characteristics of positive law
 It is a type of command (not mere wishes, requests, desires, etc.)
 It is laid down by a political sovereign (any person, political superior, body
of persons whom the bulk of society habitually obeys, and who does not
himself habitually obey some other person or persons)
 It is enforceable by a sanction (attaches coercion, punishment for
disobedience)

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E.g. Austin v. Hart

Austin H.L. Hart
1. Law is the legislation
1. Law is a will/command/ order of the 2. Sovereign is not a person but an office
sovereign (legitimate institution) created by legal
2. Sovereign is a person …with habit of rules
obedience, but obeys no one; 3. Rules remain valid even without sovereign
3. Condition for legality is its source not 4. Not all rules are backed by sanctions …
substantive merits/ contents of law… some are enabling/ empowering/
the fact of being sovereign’s order, not authorising/ permissive/ power conferring/
a value of whatever sort liberty expanding rules; others are
4. Source of law’s authority/ normativity: prescriptive rules
sanction … provides reason for action 5. Sanction is not the source of law’s
for an agent normativity/ authority … law’s inability to
5. Law is prescriptive in nature … motivate voluntary compliance/ action
prescribes action or prohibition
6. Reason for action is threat of sanction

Law as the will of sovereign reflecting the

spirit of the people
• This is the view advanced by historical school of thought founded by
Friedrich Karl von Savigny
• law is the will of the sovereign with the idea of the “spirit of the people,”
(Volksgeist, genius peculiar to a nation or folk)
• This is rooted in the customary law – true living law; task of jurisprudence
is to identify (discover) and describe in historical context its providence
• That is, law is only valid to the extent that the will of the sovereign is
compatible with long-standing social practices, customs, and values.
• It could not be arbitrarily imposed by legislators whose legal source was “right”
reasoning.
• Law originates from longstanding customs of a society
• only practices that have withstood the test of time could be thought of as law.
• Law also changes slowly and invisibly as human conduct changes.

Law as the practice of courts – legal realism

• Realism shares the view of positivism but they regard law as being
manifested through the practice of courts (judicial pronouncement in a
judgement – judge made law)
• Two forms of Realism Schools – American and Scandinavian
• John Chipman Gray, Jerome N. Frank, Carl N. Llewellyn, Oliver Wendell
Holmes, etc.
• Sovereign is the court, not parliament
• It is through the act of the court that we ascertain the true nature of law
• Law: the body of principles recognized and applied by the state in the administration
of justice, as the rules recognized and acted on by courts of justice (Salmond’s view
in Fitzgerald, p. 36)
• Holmes: law as prophesies of what the court will do, in fact, and nothing more
pretentious; the life of law has not been logic, it has been experience
• Gray: courts put life into the dead words of statute

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Centrality of rules (or legal principles)

• Whether natural law or positivism – rules are central in the analysis of
the nature of law
• Rules- concerned with what ought to be, not what happens (is) – they
have imperative or prescriptive character, as opposed to indicative or
descriptive character
• Hart’s view of Rules – primary, secondary, rules of recognition
• Dworkin: rules and principles

Basic elements in the concept of law

• At least the following five basic elements define the idea of law
1. Normativity – law consists of set of norms defining what is required,
commanded, prohibited or permitted in terms of vertical and horizontal
relations or transactions;
2. Binding force (coercive, imperative, obligatory) – legal imperatives or
permissions are legitimate, authoritative and enforceable against all
concerned
3. Consequence – law sanctions or threatens to sanction behaviors which
violates the imperatives or requirements of law
4. Institutional or social dimension - legal imperatives or permissions are
enforceable through available institutional-social mechanisms or
procedures)
5. System (systemic) – law essentially operates as a system for it consists of
norms or rules, institutions and actors
• Are these sufficient enough to distinguish law from other non-legal
forms of social control (morals, custom, religion)?

“Basic Features” or Characteristics of Law

• Does law has any feature/ nature/ characteristics?
• What are the basic features of law?
• What is / are the decisive factors in explaining the nature of law?
• Do you think these features are universally valid (holds true in any
legal system)?

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Basic features of law …

• Consider the following:
Generality – legal rules are abstract norms which “apply to all
relevant individuals equally” (Mansell et al (eds)(2004), p. 5)
Neutrality – objectivity – impartiality
Normativity – law as consisting set of binding rules
Law as consisting of system of commands, prohibitions and
permissions (imperatives and permissions)
Law as defining what ought to be or ought not be
Law as prescriptive of rights (freedoms, entitlements) and obligations
(duties, responsibilities)
Proactive (governing future behaviors and transactions)
Stability – no sudden change
Transparency/ publicly promulgated
Coherence – non-contradiction of what it commands, prohibits
and permits
• Do you think all legal rules adhere to these features? What if
one or more of these are missing?

Functions of law – what and how?

• Group Activity: Discuss the following in your respective
Group:
• Identify different functions of law in a society and how law
performs those functions
• Function of law – examples from Ethiopian laws
• 1960 Civil Code
• 1957 Penal Code
• 2004 Criminal Code
• 1995 FDRE Constitution
• 1987 Constitution
• Discuss the relationship between law, society and state in
general

•Discuss Points:
•The major functions of Law in a Political
Society
•Ethiopian Laws in Context
•What did you understand: law as an end,
law as a means, law as instrument?
•The relationship between law, society
and state in general

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Law- function proper

• The following can be regarded as generic functions of law in
a society:
• Centralizes civil power- essential for order, security and peace
• Legislative. Executive (Policy). Judicial
• Guides and sanctions official/civil behaviours/ conducts
• Identifies relevant behaviours and conducts; attaches rights and
obligations and consequences
• Protects human rights and freedoms (liberties)
• Enables for realization or dispensation of justice
• Ensures continuity, Stability and adaptability of relations and
transactions and systems

• Consider the following functional characterization of law:

• “One of the foundations of our society is the belief
that ours is a nation committed to the rule of law.
No person is above the law. […] We use law to
regulate people in their relationships with each
other, and in their relationships with government.
Law reflects our societal aspirations, our culture,
and our political and economic beliefs. It provides
mechanisms for resolving disputes and for
controlling government officials.”
(Frank August Schubert, Introduction to Law and Legal Systems, 10th ed., p. 6)

Law-society and state

•Approaches to the authority of state

•There are different approaches to the theory
of society-state-law relationship
•It basically goes to the emergence or origin of
society and government and their respective
role in the process
•Question: where do society and state come
from?

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• Natural Law (theory of creation ….)

• State of Nature
• Aristotle
• Hugo Grotius
• Thomas Hobbes
• John Locke
• Sociological/ evolutionary View
• Democratic theory, etc.

•Various alternatives about society-state-law

relationship.
•But the following three can be regarded as the
major paradigm views:
• State as natural and inevitable phenomena
(Aristotle)
• State as delegate/ representative authority (Hugo
Grotius, Thomas Paine, John Locke)
• State as necessary legal entity (Thomas Hobbes)

• Aristotle: State: a final human association

• completion of human associative process … manifests attainment of self-sufficiency
• Come about to secure life but continues in being to secure the good life
• Every state exists by nature similar to family/household/village
• End of all others (perfection)
• Self-sufficiency is both an end and perfection
 Grotius: the power of a state as derivative power
• Hugo Grotius: state of nature as governed by natural law; conditions for war
and peace present
• Collective agreement from individuals … who agrees to pool together their right to self-
preservation and help fellow citizens which they could not achieve in the STATE OF NATURE
• But no one is able transfer the right or power he never possessed
 So a state is a complete body of free persons who agree to live together to
enjoy peaceably their rights for their common benefit

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• Thomas Hobbes:
• security/ peace (of the self, the social) as source of
society and sovereign authority [state]
• state of nature as purely state of chaos; no law, no
authority
• natural state is a war of all against all and those who
have come together into the same civil state put aside
their hostile stance toward one another which enabled
them continuing to confront the rest of enemies
together
• Law as instrument of sovereign coercive power

“the final cause, end, or design of men, (who naturally love

liberty, and dominion over others,) in the introduction of
restrain about themselves, (in which we see them live in
common-wealths,) is the foresight of their own preservation,
and a more contented life thereby; that is to say, of getting
themselves out from the miserable conditions of war, which is
necessarily consequent … to the natural passions of men,
when there is no visible power to keep them in awe, and tie
them by fear of punishment to the performance of their
covenants, and observation of those laws of nature…”

• Laws of nature cannot be enforced without some terror of power

• Natural human passions or inclinations carry human beings to partiality, pride,
revenge, etc.
• Laws of nature – justice, equity, modesty, mercy, … in sun: “doing to others, as we
would like be done to”
• “Covenants, without the sword, are but words, and of no strength to
secure a man at all”
• “Therefore notwithstanding the laws of nature [which might be kept or
violated at own will] if there be no power erected, or not great enough for
our security; every man will, and may lawfully rely on his own strength and
art, for caution against all other men.”
• No law of nature, personal strength, family strength, association of few
or multitude of men, or (benevolent or moral) judgement of men can
bring security to men

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• Hobbes: why the social or political nature does not subsist in human
being (Aristotelian, Grotius view)
1. Men are in constant and continuous competition for honor and dignity --- leads to
envy and hatred and finally war
2. Men are naturally selfish … relishes nothing but what is eminent (no mutuality)
3. Men possesses and competes for self-perception, pride, etc. in both their private
and public life … competition for power … distraction and civil war
4. men’s communicative power (language and argument) makes it possible for
deception – presenting evil as good and vice versa – leads to discontent among
them and hence spoil peace at their own pleasure
5. Agreement among men is only through covenant, which is artificial (not natural):
“and therefore it is no wonder if there be somewhat else required (besides
covenant) to make their agreement constant and lasting; which is a common
power, to keep them in awe, and to direct their actions to the common benefit”

• How commonwealth (civitas) and great Leviathan – Mortal God under

Immortal God – sovereign power with absolute authority emerged:
• “The only way to erect such a common power … is to confer all their
power and strength upon one man, or upon assembly of men, that may
reduce all their wills, by plurality of voices, unto one will: which is as
much as to say, to appoint one man, or assembly of men, to bear their
own person; and every one to own, and acknowledge himself to be
author of whatsoever he that so beareth their person, shall act, or
cause to be acted, in those things which concern the common peace
and safety; and therein to submit their wills, everyone to his will, and
their judgement, to his judgement.”
• Thus, a “commonwealth is said to be instituted, when a multitude of
men do agree, and covenant, every one, with every one, that to
whatsoever man, or assembly of men, shall be given by the major part,
the right to present the person of them all (i.e. their representative)
every one – those who voted for or voted against …”

• For Hobbes, this is more than consent, or accord; it is a real unity of them
all, in one and the same person, made by covenant of every man with
every man …
• Form of covenant: hypothetical … as if every man should say to every man:
• “ I authorize and give up my right of governing myself, to this man, or to assembly of
men, on this condition, that though give up thy right to him, and authorize all his
actions in like manner”
• Essence of Commonwealth – consists in the Leviathan (Mortal God or
Sovereign Authority) – that is, one person, of whose acts a great multitude,
by mutual covenants one with another, have made themselves every one
the author, to the end he may use the strength and means of them all, as
he shall thinks expedient, for their peace and common defence.

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• The Sovereign
• has sovereign power – absolute power and authority and his subjects
(everyone in the commonwealth)
• The rights of the sovereign are indivisible and inalienable (sovereign power
cannot be forfeited)
• The rights and faculties of sovereign – consequences of the covenant
• The subject cannot change the form of commonwealth or government
• Subjects cannot protest against the institution of a sovereign without committing
injustice
• The sovereign's actions cannot be justly accused by subjects
• The actions of sovereign cannot be punished
• The sovereign possesses all legislative, judicial and executive power
• The sovereign as the right of making war and peace
• The sovereign has the prerogative of choosing and appointing his agents
• The sovereign has the right to reward and punish

• J.J. Rousseau
• rejects Grotius’ and (to some extent) Hobbes’ notion of entering into
convention
• analogy of individual alienating (selling) his liberty to become slave … to
gain benefit, save life, obtain necessity of life
• but this analogy does not apply to the whole nation becoming the subjects of king
because
• Grotius’ conventionalism is absurd and inconceivable; supposes nation of
fools and madness
• It is both illegitimate and invalid:
• does not apply to succeeding generations for their liberty belongs to them;
• parents cannot alienate the rights of their children; duty to care and promote their
welfare; includes duty not to surrender their liberty irrevocably and
unconditionally
• contrary to nature
• exceeds parental power

• Rousseau
• argued that renunciation of liberty is renunciation of
one’s equality as man, the rights and duties of humanity
• no compensation could be found!
• incompatible with man’s nature: to take away all freedom is
to take all morality from his actions
• so, for Rousseau,
• a convention which stipulates absolute authority on the one side and
unlimited obedience on the other is void and contradictory
• in order that an arbitrary government may be legitimate, it would be
necessary that succeeding generation should have a say to accept or
reject

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• (state of) war is not about individual men but nations

• men are not naturally enemies
• no mutual relations sufficiently durable to constitute the state of
war/peace
• is about relation of things not of men
• real relations with things, not mere personal relations
• private war cannot exist in the state of nature or in social state
• individuals fight only by mere fact of belonging to different
nations/states
subjection to authority of one man (king) is just continuation of
slavery; is aggression not association

• According to Rousseau, only Social Pact/ Contract is the Real foundation

of (civil) society
• anterior to any other
• plurality of votes
• no convention of this sort, no reason for supposing minority’s agreement with those of
majority!
• Assumptions of (in) Social Contract
• primitive mode of life (in the state of nature) becoming unsustainable
• self-preservation endangered
• destruction unless mode of life changed
• not creation of new forces but union and direction of existing ones
• not real but are everywhere, tacitly admitted and recognised, until social pact being
violated

• Its essence is reducible to the following: the total alienation

to the whole community of each associate with all his
rights:
‘Each of us puts in common his person and his whole power under the
supreme direction of the general will; and in return we receive every
member as an indivisible part of the whole’
• ‘Instead of the individual personalities of the contracting parties,
this act of association produces a moral and collective body,
which is composed of as many members as the assembly has
voices, and which receives from this same act its unity, its
common self, its life, and its will.’

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John Locke
• Purpose of civil society (authority)?
– If man in the state of nature be so free; if he be absolute lord of his own person and
possessions, equal to the greatest, and subject to no body, why part with his freedom?
• To protect lives, liberties and estates which here refers to them under generic name
‘property’ (para 123)
• To this end, they delegate all of their natural powers or all the powers necessary to
the ends for which they unite into society as judged by society
‘men being … by nature, all free, equal and independent, no one can be put out of this estate,
and be subjected to the political power of another, without his own consent. The only way
whereby any one divests himself of his natural liberty and puts on the bonds of civil society, is
by agreeing with other men to join and unite into a community for their comfortable, safe,
and peaceable living one amongst another, in secure enjoyment of their properties, and a
greater security against any, that are not of it ( … they form a body politic, wherein the
majority have a right to act and conclude the rest)’

• Thus, according to Locke, men in the state of nature

– Consented to give up their natural rights and powers to all-powerful civil society
– But not delegated absolute or arbitrary power … retain right to change the frame of
government whenever they so desired
• No government can have an inherent, absolute or arbitrary power over individuals
• (Civil) Society
– Sets up any frame of government it prefers, and changes it whenever it desires
– acts through majority of the representatives
– inconceivable that it ever gives its elected representatives ( or government) an absolute power over its
affairs
• individuals do not have an absolute power over their lives or the lives of others
• Contrary to the very purpose of exiting the state of natural equality and freedom
• Handing over natural rights and power to an absolute and arbitrary power would give them less
protection than the state of nature

Chapter 2 – sources of Law

• Reading Assignment: Module (pp 37 – 69) and Reference Materials
(course outline)
• The question of “source” deals with the problem of the “origin” of
law: wherefrom does law originate?
• The question of source/ origin of law is quite obscure, and
controversial:
• Authority
• Substance
• Theory, etc.
• deontological
• epistemological – Cognitive
• Institutional

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• Holland (pp. 55ff): four different ways the term “source” refers to
1. To denote where we obtain our knowledge of the law (statute-books, law reports,
treaties, etc.)
2. To denote ultimate authority which gives them the force of law (origin of their
binding force, obligatory nature) (e.g. the fact that it is made by the state)
3. To indicate the remote causes (underlying causes) which have brought into
existence rules which have subsequently acquired the force of law (e.g. custom,
religion, scientific or scholarly discourses, etc.)
4. To indicate the (state) organs through which the state either grants legal
recognition to rules previously unauthoritative, or itself creates new law
(legislation, adjudication (case-law), equity, etc.)
• Fitzgerald (on Salmond, p. 110): a source of law is any fact which in
accordance with such basic rules determines the recognition and
acceptance of any new rules as having the forces of law

Various classification
• Different scholars classify the term “sources” of law differently
• Examples
• Formal (institutional) v. Material (substantive)
• Immediate v. Remote Causes (Sir Thomas Eskine Holland, K.C)
• Sense 1, 2, and 4 above are immediate causes or sources
• Sense 3 are regarded as remote or underlying causes
• Legal v. Historical sources (William Guthrie Salmond): “sources of law can be
classified as either legal or historical.
• Legal sources: “those sources which are recognised as such by the law itself”
• Decision of courts, statutes of parliament, etc.
• Historical sources: “those sources lacking formal recognition by the law
• Refers to the origin from where courts or parliaments draw inspiration or evidence for
the principle or rules they apply or rely on for their actions (decisions, legislations)

Formal sources
• The legal/ formal/ immediate sources are authoritative normative sources
of law (they are binding sources)
• they are regarded as sources of law by the operation of the law its self.
• This is, according to H.L. Hart, the function of the rules of recognition or
Hans Kelsen’s Grundorms which in turn prescribes the formal procedure
through or justification for which a certain norm comes to exist or
recognised as the rule of law in the legal system
• Note that every legal system contains certain rules of recognition
determining the emergence or disappearance of rules of law: formal
sources are the only mechanisms which determines the existence or
emergence of new legal rules or principles as well as the disappearance
(through repeal or amendment) of the old laws
• That is, material sources can only have the status of sources only if they are
recognized as such by the formal sources of law.
• Examples: statutes, legislations, acts, proclamations, codes, regulations,
directives, precedents, customary law, treaties, conventions, etc.

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Material sources
• The material/ historical/substantive sources are unauthoritative sources
• they are non-binding up until they are recognised and pronounced as such
through the formal sources
• They are regarded as the sources of law by operation of the rules of (legal)
reasoning which includes legal hermeneutics (theory of legal
interpretation). That is, the legal/ formal sources are the only mechanisms
through which material sources get recognition as the source of law
• They serve as a persuasive sources justifying the formal decisions of
authorities
• Following Hart, we can see this as referring essentially to the primary
sources of law (for Hart, these are social conventions or customs obeyed by
the society or majority of the society as a matter of internal conviction; for
others, it is what can be deduced from natural law principles, customary
rules, religious and moral doctrines and scholarly discourses or teachings,
etc.

• NB: all rules of law have historical/ material sources – as a matter of

fact, history or theory, rules of law originate from somewhere.
• But not all rules of law have legal sources. In all legal systems there
must exist certain ultimate principles or norms from which all others
are derived from but which are themselves self-evident or self-
existent
• E.g. Constitutions give the force of law for acts of parliament, judiciary and
executive
• But where does the force of law of constitution comes from? Where does the
constituent assembly draw their mandates?
• The regression thus proceeds ad infinitum … ultimately resting on ideal or
hypothetical theories of some sort.

• Question: at what point do customary rules and moral doctrines become

(transformed into) legal rules?
• Different theories … positivism, historical school, natural law school, etc.
• Different Options:
• Through express or implied recognition by the laws of the state
• Through decisions of court (in the settlement of disputes)
• Historical School:
• the grow or emergence of law has no dependence upon the arbitrary will or decision
of the state. Law is begotten in the people by the popular intelligence
• Law has its existence in the general will of the people
• Customary observance is not the causes of law but the evidence of its existence – it
does not make its first appearance in the form of logical rules
• Positivism: the source of law is the act of the state (sovereign body) and
what is prescribed as such in the act.
• What is the place of custom in this view?
• What are the criteria for custom to serve as the source of law?
• What is the position of Ethiopian legal system? (Assignment)

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Chapter 3 – Classification of laws

• Meaning of classification of Laws?
• Law is generally a complex system of rules and principles governing various areas of
social relations which in turn gives rise to the existence of different categories,
branches, etc. of laws in a legal system
• Thus classification of laws could mean systematic arrangement or organization of
various branches of laws, principles or rules into different families or categories
• Purposes of classification?
• Classification can serve different purposes
• Facilitate systematic thinking
• Enhance better and comprehensive understanding of the legal system
• Promotes clarity, coherence, consistency
• Facilitates legal research and education – ease of identification and understanding
• Basis or parameters of classification
• There are various ways of classifying branches of laws, legal principles or rules in a
legal system
• The fundamental basis of classification consists in the overarching historical
background (development), common nature (characteristics), purpose (function) and
scope of application of the laws, principles and rules
• Each method of organization provides a way to distinguish one area of law from
another

• Classification on the basis of historical development or legal traditions

• Major Ones:
• Romano-Germanic (Civil law)
• Anglo-Saxon (Common law)
• Socialist Law
• Others
• Islamic law. Christian law. Hindu Law. Confucius law. Jewish Law
• African law
• Chinese law (Confucius law)
• Japanese law
• US Laws
• Indian Law
• etc

Civil Law (Romano-Germanic)

• Developed on the historical basis of Roman legal tradition: ius civile (civil
rights, civil law, citizen law, etc.)
• Essentially developed through scholarly discourse (in the universities, etc.)
in Latin and German (hence Romano-Germanic) (Europe)
• 12th C onwards … on the basis of Justinian Codification (A.D 483 – 565)
• the rules of law conceived as rules of conduct intimately linked to ideas of
justice and morality
• Concerned with abstract thinking or ideal of law than practical application
or administration of law; less focus on procedural issues
• Essentially evolved as private law, as a means of regulating the private
relationships between individual citizens
• Special focus on written or codified laws – codification as unique feature
• Influenced many countries through ‘reception’ and legal transplantation
• Inquisitorial procedures whereby judges play active role in the investigation
and adjudication process
• There is no precedent system or judge-made laws

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Common Law (Anglo-Saxon)

• Primarily developed by judges in the context of dispute resolution – laws
developed in the courtroom – (hence judge made law)
• Rooted in the Anglo-Saxon (monarchial) tradition (mostly in England,
Wales)
• Developed in the context of public law
• Less concerned with abstract rules of conduct; focuses on practical
resolution of disputes and administration of justice
• For common lawyers matters relating to the administration of justice, procedure,
evidence and execution of judgments have special importance
• Law as instrument of dispute resolution than articulation of a moral basis for the
social order
• Has adversarial systems – where litigants play active role in the discovery of
truth, whereas judges remain passive
• Has jury trial system – private, ordinary citizens participating in the
determination of factual truth in the criminal cases

Civil Law v. Criminal Law

Civil law Criminal law
• civil law governs the private • criminal law is created and enforced
(personal) rights of individuals, by the legislature for the health,
legal entities, and government welfare, safety, and general good of
• governs the issues that arise the public
between parties over private
rights: personal rights, person • Defines conducts constituting crimes
(physical or moral), property on (public wrongs) and imposes
the basis of substantive civil law punishment (penalties) on the basis of
substantive criminal law
• Provides basis for civil suit or
action to obtain relief or remedy: • Crimes are injuries to the public,
compensation, injunction, specific though victims are individuals –
performance, etc. on the basis of redressed through civil remedies
civil procedure • Actors are government: prosecutes on
• Actors are private injured behalf of the people, and penalties
individuals are paid or served to the public on the
basis of procedural criminal law

Substantive Law
• The law that creates and resolves the issue between the parties. Legal
standards that guide conduct and that are applied to determine
whether conduct was legally appropriate.
• creates, defines, and regulates rights as opposed to protective, procedural, or
remedial law, which provides a method of enforcing rights
• the body, essence, and substance that guides the conduct of citizens.
• It encompasses principles of right and wrong as well as the principle that
wrong will result in penalty.
• It includes the rights and duties of citizens, and it provides the basis to resolve
issues involving those rights.
• Substantive law establishes the scope of rights and obligations of
citizens, the general public and institutions

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Procedural Law
• prescribes a method of enforcing rights or of obtaining redress for the
invasion of rights.
• Law used to guide parties fairly and efficiently through the legal system
• For example,
• the basic function of civil procedural law is to facilitate the civil lawsuits for private
injury
• Criminal procedure govern criminal prosecutions process – defines criminal
investigation by police or magistrates, how charges are brought by prosecutor
against the suspect, the rights of the suspect or accused, etc.
• criminal procedure comes into play long before the action is formally commenced
against a defendant. Criminal procedure affects the prosecution from the moment a
crime is suspected.
• But Procedural laws are created to:
• ensure that each party will be afforded fair and impartial treatment.
• Enables orderly and timely submission of evidence and determination of their
relevance and admissibility
• Enables judges and juries make fair and impartial decisions

Procedural laws
• Procedural law also plays a part in the litigation of cases including:
• Defines and determines the jurisdiction of courts or tribunals
• Setting the time limit for bringing a lawsuit,
• Determines the manner in which the lawsuit is begun (e.g., by filing a
complaint or petition),
• Determines the proper way to inform the defendant that a lawsuit has been
filed,
• Defines the types of information that each party must release to the other
party,
• Determines the procedure at trial,
• Determines the evidence that can be introduced at trial, and
• Sets the method for appealing the decision if the losing party feels the
decision was unfair.

Working Group Discussion

• Discuss the difference and similarity between the
following classification of Laws:

• Constitutional Law v. Administrative Law

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