Nnamdi Ebo | NewsBlog

In my NewsBlog Nnamdi Ebo, I provide perspectives on news, events and analysis of unique stories, and I also offer original content, articles and photos; with contributions from some of the best minds.

Nnamdi Ebo | NewsBlog

In my NewsBlog Nnamdi Ebo, I provide perspectives on news, events and analysis of unique stories, and I also offer original content, articles and photos; with contributions from some of the best minds.

Nnamdi Ebo | NewsBlog

In my NewsBlog Nnamdi Ebo, I provide perspectives on news, events and analysis of unique stories, and I also offer original content, articles and photos; with contributions from some of the best minds.

Nnamdi Ebo | NewsBlog

In my NewsBlog Nnamdi Ebo, I provide perspectives on news, events and analysis of unique stories, and I also offer original content, articles and photos; with contributions from some of the best minds.

Nnamdi Ebo | NewsBlog

In my NewsBlog Nnamdi Ebo, I provide perspectives on news, events and analysis of unique stories, and I also offer original content, articles and photos; with contributions from some of the best minds.

 

CLASSIFICATION OF LAW | Part 3

Nnamdi Ebo 2 241x300 CLASSIFICATION OF LAW | Part 2.Lawyer Zone  | By Nnamdi Ebo.

Classification of Law into Categories.

Public international law deals extensively and increasingly with criminal conduct that is heinous and ghastly enough to affect entire societies and regions. The formative source of modern international criminal law was the Nuremberg trials following the Second World War in which the leaders of Nazism were prosecuted for their part in genocide and atrocities across Europe. The Nuremberg trials marked the beginning of criminal fault for individuals, where individuals acting on behalf of a government can be tried for violations of international law without the benefit of sovereign immunity. In 1998 an International criminal court was established in the Rome Statute. Public international law is treated in chapter 5, section 9, Page 202.

Civil Law and Criminal Law

Civil Law is one of the two prominent legal systems in the western world. It is primarily concerned with competing private interests and obligations and abounds mostly in unwritten or judge-made laws. It is often invoked by private persons, although the State or its organs may, in appropriate cases, initiate or defend such actions as juristic persons. Civil actions are commenced in accordance with the relevant rules of civil procedure, the object being to obtain relief either by way of damages or injunction. Thus, civil law has several meanings depending on the context in which it is used. In this context, it means the law, which defines the rights and duties of persons to one another and provides a system whereby an individual who is injured by the wrongful act of another can be compensated for the damage, which he has suffered. Examples of civil laws are law of contract, torts, land law, family law. Conversely, Criminal law is the branch of law which seeks to protect the interest of the public at large by punishing certain conducts which are believed to be harmful to the society to permit such conducts to exist or continue. Punishment is imposed generally by means of imprisonment or fine or both. Thus, the main object of criminal law is to punish wrongdoers thereby seeking to protect the collect interests of the citizenry against the detrimental conduct of its constituent members.

Constitutional law deals with the relationship between the state and individual, and the relationships between different branches of the state, such as the executive, the legislative and the judiciary. In most legal systems, these relationships are specified within a written constitutional document. However, in the United Kingdom of Great Britain and Northern Ireland (UK), due to historical and political reasons they don’t have one supreme entrenched written document. The UK has an unwritten constitution—the constitution of this state is usually found in statutes, such as the Magna Carta (see Holt, J.C., Magna Carta, 2nd edition 1992), the Petition of Right, the Bill of Rights, The Act of Settlement 1700 and the Parliament Act 1911 and Parliament Act 1949. The constitution is also found in case-law, such as the historical decision in Entick v. Carrington (1765) 19 St Tr 1030, and the landmark decision of M v. Home Office (1994) 1 AC 377; (1992) QB 270. Due to the lack of a written constitution, the idea of the legislative supremacy of Parliament and the rule of law play an important role in the constitution (see A. V. Dicey, The Law of the Constitution (ed. E. C. S. Wade), 10th edition, 1959). Despite all this, in reality, much of the constitution is a political phenomenon, rather than a legal one.

Administrative law refers to the body of law which regulates bureaucratic managerial procedures and defines the powers of administrative agencies. In Nigeria, these laws are enforced by the executive branch of a government rather than the judicial or legislative branches. This body of law regulates international trade, manufacturing, taxation etc. This is sometimes seen as a subcategory of Civil law and sometimes seen as public law as it deals with regulation and public institutions.

Constitutional and Administrative law

Constitutional and administrative laws govern the affairs of the state. Constitutional law concerns both the relationships between the executive, legislature and judiciary and the human rights or civil liberties of individuals against the state. Most jurisdictions, like Nigeria, the U.S. and France have a single codified constitution, with a Bill of Rights (Cap IV of the Nigerian 1999 constitution). A few, like the United Kingdom, have no such document. A “constitution” is simply those laws which constitute the body politic, from statute, case law and convention. The fundamental constitutional principle, inspired by John Locke, holds that the individual can do anything but that which is forbidden by law, and the state may do nothing but that which is authorized by law. Administrative law is the chief method for people to hold state bodies to account. People can apply for judicial review of actions or decisions by local councils, public services or government ministries, to ensure that they comply with the law. The first specialist administrative court was the Conseil d’Éta set up in 1799, as Napoleon assumed power in France. The line demarcating constitutional and administrative law is very thin and this thin line cannot be precisely demarcated. Like constitutional law, it deals with the exercise and control of governmental power. An artificial distinction may be made by suggesting that constitutional law is mainly concerned with the structure of the primary organs of government, whereas administrative law is concerned with the work of official agencies in providing services and in regulating the activities of citizens. Administrative law is directly affected by constitutional structure of government.

Administrative law in Nigeria often involves the regulatory activities of so-called “independent agencies” such as NAFDAC and NCC with head offices in Abuja. Administrative law is the body of law that governs the activities of administrative agencies of government. Government agency action can include rulemaking, adjudication, or the enforcement of a specific regulatory agenda. Administrative law is considered a branch of public law. As a body of law, administrative law deals with the decision-making of administrative units of government (e.g., tribunals, boards or commissions e.g. INEC) that are part of a national regulatory scheme in such areas as electoral law, food and drugs, manufacturing, the environment, taxation, broadcasting, and air transport. Administrative law has expanded greatly during the twentieth century, as legislative bodies create more government agencies to regulate the increasingly complex social, economic and political spheres of human interaction.

Administrative law and Judicial review

Generally speaking, most countries that follow the principles of common law have developed procedures for judicial review (see chapter 9, section 3, Page 372) that limit the reviewability of decisions made by administrative law bodies. Often these procedures are coupled with legislation or other common law doctrines that establish standards for proper rulemaking. Administrative law may also apply to review of decisions of so-called semi-public bodies, such as NGOs, disciplinary boards, and other decision-making bodies that affect the legal rights of members of a particular group or entity. While administrative decision-making bodies are often controlled by larger governmental units, their decisions could be reviewed by a court of general jurisdiction under some principle of judicial review based upon due process or fundamental justice. Judicial review of administrative decisions, it must be noted, is different from an administrative appeal. When sitting in review of a decision, the Court will only look at the method in which the decision was arrived at, whereas in an administrative appeal the correctness of the decision itself will be examined, usually by a higher body in the agency. This difference is vital in appreciating administrative law in common law countries. In Nigeria, many government agencies are organized under the executive branch of government, although a few are part of the judicial or legislative branches. In the federal government, the executive branch, led by the president, controls the federal executive departments, which are led by ministers who are members of the President’s Cabinet. The many important independent agencies of the government created by statutes enacted by the National Assembly exist outside of the federal executive departments but are still part of the executive branch. The National Assembly has also created some special judicial bodies to handle some areas of administrative law such as the JSC etc.

Substantive law and Procedural Law

Substantive law (18c) is the statutory or written law that governs rights and obligations of those who are subject to it. Substantive law defines the legal relationship of people with other people or between them and the state. Substantive law stands in contrast to procedural law, which comprises the rules by which a court hears and determines what happens in civil or criminal proceedings. Procedural law deals with the method and means by which substantive law is made and administered. The time for one party to sue another and the rules of law governing the process of the lawsuit are examples of procedural laws. Substantive law defines crimes and punishments (in the criminal law) as well as civil rights and responsibilities in civil law. It is codified in legislated statutes or can be enacted through the initiative process. Substantive law is also the part of the law that creates, defines and regulates the rights, duties and powers of parties. It also comprises the rules of law and those legal principles thatdefine the existence and extent of a right or liability in a particular branchof law. It is concerned with the creation, definition and limitation ofobligations.However, in relation to legal proceedings law can be broadly divided intosubstantive law and adjectival law. Substantive law embraces suchsubjects like Law of Contract, Torts, Criminal Law, Constitutional Law,etc. which are concerned with statement of rights, duties and liabilities ofindividuals.

On the other hand, Procedural Law (1896) is the rule that prescribes the steps for having a right or duty judicially enforced, as opposed to the law that defines the specific rights or duties themselves – also termed adjective law. It involves the rules by which an action may be brought and disposed of. It prescribes the method for enforcing the rights and duties and obtaining redress for wrongful invasion of those rights as well as the enforcement of obligations or duties. Thus, as the name implies, it deals with the methods of initiating proceedings to enforce a certain right or duty and how the litigation or prosecution is conducted. Procedural law also comprises the rules by which a court hears and determines what happens in civil lawsuit, criminal or administrative proceedings. The rules are designed to ensure a fair and consistent application of due process (in the U.S.) or fundamental justice (in other common law countries) to all cases that come before a court. The substantive law, which refers to the actual claims and defenses whose validity is tested through the procedures of procedural law, is different than procedural law. In context of procedural law; procedural rights may also refer not exhaustively to rights to information, rights to justice, rights to participation which those rights encompassing, general Civil and Political rights. In environmental law, these procedural Rights have been reflected within the United Nations Economic Commission for Europe (UNECE Convention) on “Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters” known as the Aarhus Convention (1998). Another way of summarizing the difference between substantive and procedural is as follows: Substantive rules of law define rights and duties, while procedural rules of law provide the machinery for enforcing those rights and duties. However, the way to this clear differentiation between substantive law and, serving the substantive law, procedural law has been long, since in the Roman civil procedure the actio included both substantive and procedural elements (see procedural law).

  1. National Law and International Law

National law, Municipal law or Domestic law is the ordinances and other laws applicable within a city, town or other local governmental entity. It also means the internal law of a nation as opposed to international law. The classification of laws into Municipal and International underscores the territorial limitation of laws. Usually, the laws of a sovereign State do not operate outside its boundaries. So, municipal laws are such laws emanating from a particular country and having the force of law within its territory. International law, on the other hand, is the law that binds respective States and regulates their mutual co-existence and relationship. The sources of international law include international customary practices, Treaties, Bilateral agreements and Conventions. While individuals or juristic persons are the main subjects of municipal laws, international law deals primarily with States. International law is also known as Public International law.

  1. National Law and International Law

Monism (Greek: monos ”single”), in philosophy means the doctrine that ultimate reality is composed entirely of one substance. Monists assume that the national and international legal systems form a unity. Both national legal rules and international rules that a state has accepted, for example by way of a treaty, determine whether actions are legal or illegal. International law or Public International law does not need to be translated into national law. The act of ratifying the international law immediately incorporates the law into national law. International law can be directly applied by a national judge, and can be directly invoked by citizens, just as if it were national law.

“So when someone in Holland feels his human rights are being violated he can go to a Dutch judge and the judge must apply the law of the Convention. He must apply international law even if it is not in conformity with Dutch law”.117

Dualism, in philosophy is the theory that the universe is composed of two distinct and mutually irreducible elements. It is a legal concept which contends that national law and international law are two separate and distinct areas of law. Dualists emphasize the difference between national and international law, and require the translation of the latter into the former. Without this translation, international law does not exist as law. International law has to be national law as well, or it is no law at all. If a state accepts a treaty but does not adapt its national law in order to conform to the treaty or does not create a national law explicitly incorporating the treaty, then it violates international law. But one cannot claim that the treaty has become part of national law. Citizens cannot rely on it and judges cannot apply it. National laws that contradict it remain in force. According to dualists, national judges never apply international law, only international law that has been translated into national law.

In the UK and Nigeria, the dualist view is predominant. International law is only part of British and Nigerian national laws once it is accepted in national law. A treaty has no effect in municipal law until an Act of Parliament or National Assembly is passed to give effect to it. Both a monist state and a dualist state can comply with international law. All one can say is that a monist state is less at risk of violating international rules, because its judges can apply international law directly. Negligence or unwillingness to translate international law, or delays of translation, or misinterpretation of international law in national law can only pose a problem in dualist states. States are free to choose the way in which they want to respect international law, but they are always accountable if they fail to adapt their national legal system in a way that they can respect international law. Either they adopt a constitution that implements a monist system so that international law can be applied directly and without transformation, or they do not. But then they have to translate all international law in national law. In a monist state litigants can rely only on the judges and not on the legislators, but judges can also be negligent and they can also make mistakes. If a judge in a monist state makes mistakes when applying international law, then the country violates international law just as much as a dualist country that, for one reason or another, does not allow its judges to apply international law directly and fails to translate or fails to translate correctly and effectively. One reason for preferring dualism is precisely the fear that national judges are not familiar with international law – a highly complex field of law – and hence are liable to make mistakes.

No footnotes in this online publication. Checkout footnotes in the book.
To be continued next week.

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Legal Method . Book Cover 202x300 CLASSIFICATION OF LAW | Part 2.Culled from: Legal Method  | Author: Nnamdi Ebo  |  Published by LawLords Publications  |  ISBN: 978-978-49827-9-6  | 1st Edition 2012
Buy the book, Legal Method  |  Click  Bookshop
Nnamdi Ebo | [email protected]  |  © 2015 Nnamdi Ebo . All Rights Reserved

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