JURISPRUDENCE SUMMARY NOTES;

PREPAIRED BY,

JOVIN JOSEPH

TOPIC ONE

INTRODUCTION TO JURISPRUDENCE

Jurisprudence is derived from Latin maxim referred as jurisprudential but it owes

it origin from Rome. Jurisprudence is the combination of two Latin words juris
which mean law and prudence which means knowledge or skill, therefore
jurisprudence is the study, knowledge, skills and theory of law.

Jurisprudence includes principle behind the law that makes the law, modern
jurisprudence began in 18th century and was founded in the first principle of natural
law, civil law and the law of nations. Jurisprudence is the science of abstraction
and investigation on the ultimate principles governing the law. Jurisprudence is
like philosophy which is concerned on discovering the reason of law and therefore
is also asking question like what is law, where does the law comes from, why do
we have law?

But also jurisprudence deals with the legal concept. The main objectives are to put
restrainedly boundaries to the way one should interpret and applying legal terms.
Example of the legal terms is like law, justice, property owernership and freedom
of life.

But in some state laws are said to be impotent that is unable to change the mind of
the rulers, the role of the law should always be the centre of the national debate and
should accept changes. Laws which are contrary to general sentiment of the
community should be amended or repel.

Juris corpus (body of law represented in a whole) a composition of various piece

of law existing in various forms and hierarchies example compose of various piece
of legislation, it is a particular legislation that governs a particular matter.

MEANING AND CONCEPT OF LAW

Law is a batty of rules and principle that governing human behaviors, relationship
of conduct between two people towards each other, order people in their social and
economic settings. Ubi societas ibi jus means where there is society there is law,
ibi jus ubi societas meaning that where there is law there is society. By being the
rule that govern people law does the following;

 Regulate

 Providing sanction

 Prohibit

 Facilitate

 Creates order

 Permit

To facilitate the mad manage private relations, it involve relationship among

people, legal and natural person. To resolve the conflict there must be must be
some instruction to guide the society and this is done through administration of
justice which fall into three categories;
 1. Administrative of criminal justice

2. Administrative of civil justice

3. Administrative of human rights

CHARACTERISTIC OF LAW

1. Law is coercive/ binding in nature

2. Law must operate prospective and not retrospective

3. Law is general

4. Law must be followed by sanction if breached

FUNCTION OF LAW

1. Law defending people from doing evil

2. Promoting the common good, law provide a support to those who organize
themselves into groups to fight for specific rights

3. Resolving dispute

4. To encourage people to do the right thing

SOURCES OF LAW

Before the coming of European, the system of law used was basically customary
law. But after the colonizer came the laws were changed. In Tanzania it was
British shaped our laws, British shaped much our legal system which after that
comes to know as the common law system. The process of receiving laws in
Tanzania main land inherited the legal system from England on 22 nd July 1920.
Made some applicable some English and India laws in Tanzania. Those laws were
to be applied under certain condition

But generally source of laws in Tanzania are;

1. The constitution

2. Written laws

 Statute

 Subsidiary legislation

 Applied laws

3. receive law

 Common law

 Doctrine of equity

 Statute of general application

 Precedent

4. Local laws

5. Customary laws and Islamic laws as stipulated under JALA and MCA

The same order in council allowed the application of customary law in criminal
and civil which natives are parties to it. But the customary law should not be
repugnant to justice and morality or inconsistence with any written laws, JALA
section 2, 5, 9, 11
After 1961 Tanganyika order in council was repealed and been replaced by the
JALO and MCA also amend JALO and add the application of Islamic laws.

LEGAL THEORY

Jurisprudence and legal theory are been used interchangeably they do not
necessary mean the study or investigation of identical nature. Legal theory has
been coined in the 19th century indicating a new field of studying law.
Jurisprudence indicating the certain type of investigation to law to which is
theoretical in nature.

Legal theory makes a philosophical approach to law, when we compare

jurisprudence and philosophy it relies to philosophy is more useful to legal theory
as to compare to jurisprudence. And this is because of the nature of the approach of
the application of the legal theory. a philosophical element is much linked in legal
theory. The nature of the approach is also expressed by FRIED MAN says that
“all systematic thinking about legal theory is linked at one ends with philosophy
and at the other end with the political theory all legal theory must contain
element of philosophy mans reflection on his position of the universe and going
into color and specific from political theory”. The ideas entertained on the best
forms of society

For all thinking about the ends of laws is base on conception of man both as
thinking individual and a political being.

Legal theory links with religion, political, ethics and philosophy and thus it
acquires an independent status in the field of law which have been developed by
jurist, researchers, technician
Legal theory carries the idea of endless search it’s a theory of philosophy of law
its essential task is to examine and analyzing the philosophical content of law.
The search for truth of law, entomology of law(knowledge of law)

Generally legal theory is an attempt to answer the question as to what is law in

order to clarify the most of all legal concepts and that is the concept of law itself.

THE SCOPE OF JURISPRUDENCE

Jurisprudence involves the study general theoretical question about law and legal
system, also involve the relationship between law to justices, also the relationship
of law to morality. It is also study the nature and origin of law, source of law and
ends of laws. It studies the nature of right, duties and the relationship between law
and state. It is also studies the sociological and historical aspect of law, however of
these normally jurisprudence involve;

 Law

 Order

 Justice

These are the subject matter that jurisprudence concerned with

USEFULNESS/SIGNIFICANT OF JURISPRUDENCE

 It gives understanding on the nature of law

 It helps I making scientific development of law

 It is also develop the critical thinking of law

 It gives proper understanding of the legal terms and law in general

  Its helps judge and lawyers I asserting the true meaning of the word express
in the statute

 It is also supply an epistemology of the general knowledge of jurisprudence

TOPIC TWO

SCHOOLS OF JURISPRUDENCE

The concept of school jurisprudence can be traced back to the trend in

jurisprudence. This theoretical direction has been taken with different philosopher
based on nature, origin at the essence of the source of law

Generally we have two major school of philosopher;

1. Natural law school

2. Positivism law school

The natural law theory is marked as the oldest theory and the positivism is marked
as the a new/ modern theory, there are influence which guarded by scholars this
includes;

 Legal development

 Intellectual development

 Social economic development]

 Political development

 Historical development
These developments has remanded as determinant of the legal theories

NATURAL LAW SCHOOL

Natural law school is divided into three epochs which are;

1. The ancient Greeks and roman natural law school/early epoch

2. The theological law/ medieval natural law school/ middle epoch

3. Modern law thinkers/ scholastic epoch

THE ANCIENT GREEKS AND ROMAN NATURAL LAW

SCHOOL/EARLY EPOCH

The Greek were influence by the nature, source, origin and essence of law, order
found in physical cosmos order, they saw everything to be in order, the order of
nature that is in cormformity with law. The nature is not a substance but in
relation in order with things selfish at

Legal philosophy; by Greeks “law comes from nature to put things in order, to
put things as they ought to be”

Laws come from nature and there is an inseparable idea that there is a connection
between law and moral and that is something which is immutable. The early school
of jurisprudence is normally stressed in Greeks/ ancient philosopher they said
everything comes from nature and nature only. Natural law school is much
believed in;

 Morality

 Divinity
  Immutability of law

 Practical reasoning

The commanding of physic are necessary and inexorable but those in norms (law)
stretch from human arbitrariness and they are nothing but casual, artificial
arrangement, changing with time, men, circumstance but nobody can violate the
law of nature

So nature is not only the order of things but also men reasoning, nature is not only
outside but at the same inside man (so man reason is part of nature)

Socrates argues that man intelligent and inside was the measure of good and it
was this inside which tested the reasons and goodness of law

Aristotle see the world as a partiality comprising of the whole of nature, man is
part of nature in a twofold, on one hand he is part of matter but in a second
hand he is a political animal with active reasoning

Roman natural law

This were the first thinker about a systematic legal frame work, law is the highest
reason planted in nature and that command what is ought to be done and forbid the
opposite according to Cicero says that is not allowable to alter from that law nor
divert nor can it be abrogated nor can be released from this law either by the
cement or by the people

Law is a natural force, mind and reason of intelligent man, standard by which
justice and injustice are measured
The idea of law at this stage is that law owes it nature, origin and source from
nature and reasoning is part and parcel of this nature. Nature has undistinguishable
relationship with the order that found in cosmos. Therefore the legal thinking of
Greeks and Romans were influence by nature and physical thing in their cosmic
nature

THE THEOLOGICAL LAW/ MEDIEVAL NATURAL LAW SCHOOL/

MIDDLE EPOCH

The write of many scholar of this stage were characterized by the enunciation of
theology. The legal speculation is based by the theological principle which are
most reliance to phogmatic believes. Things that are believed to be inconformitting
in the natural being. So just law that which confirm to the natural being, the law
which don’t conform to the natural being is in just law.

St Augustine says that lex unjusta nonest lex meaning that unjust law is no law at
all. Just law are there to conform with the divine being and they have origin from
the divine being and the divine being issue only just laws

According to the medieval natural law the body necessary should conform to moral
principle and standard, law in itself is supreme and part of the divine order, it is
revealing itself in natural reason. They are also say that body of law exist
fundamental objective, moral principle which require universal application

Generally according to the theological origin and source are from the divine being
that believers call God.
At Thomas Aquinas classify law into four groups;

1. The lex aeterna

2. Lex divina

3. Lex naturalis

4. Lex humana

Lex aeterna

This is eternal laws which are purely known by God himself and only to few who
are blessed or blessed individual

Lex divina

This are laws that known by God himself and being reveled t human being through
revelation

Lex naturalis

Is the law of nature which emanating from external but governing the universe

Lex humana

These are the laws that are enacted due to human reason

MODERN EPOCH/ THE SCHOLASTIC EPOCH

This morden law scholar was influence with the evolution of knowledge. They
influenced by renaissance and scholartism. In the renaissance is the period of the
attitude in legal thinking which was influenced by reformation, the period was
search for knowledge but also reasoning. Reasoning became core business at the
time for a thing to it must be proved by reasoning Rene Descarte the philosopher
who say cogito ergo sum which means I think therefore I am but it should be I
think therefore I exist

Thus the classical period were human value come to realize by reasoning, that
reason also became the nature of a human being which differentiate human from
other. The nature of the law is for reason of human himself.

Law also became the product of human being or the production of rational by
practical reasoning, it is impossible to deny the existence of inalienable right
(human right) the naturalist right. It is also impossible to deny the security of
individual rights practically not to decide.

It is also impossible to deny self preservation as well as private right protection. It

is also practical impossible to formulate regulation in the society the period of
change is called Raiso D’état

THE POSITIVISM SCHOOLS

Positron Latin word for positivism, in this school the whole idea is that law is
manmade thing or product, the legal thinker of the new age they were convinced
that the power of reasoning is the universal for all en that complete and satisfactory
system of law can erected on the foundation of rational analysis of common society

The natural law by process of gradual development of shifted the emphasis the law
of reasoning which is objective ground in social nature of human beings to a
doctrine In which the natural rights played a dominant role.

Positivism according to August Conte said positivism was the test stage of the
human thinking, it was proceeded by the theological stage, metaphical stage
Positivism stage though has recourse to empirical observation in connection of fact
in the guidance of methods used in natural science

The word positivism comes from Latin word positare positism meaning to put the
idea now is the law had putted in to existence by the man.

1. ANALYTICAL SCHOOL OF JURISPRUDENCE

These are the famous philosophers which are JOHN LOCK AND JULIUS
STONES, they say that law is only law when it is analyzed by terms and when the
law is enquired into the logical interpretation of legal preposition

Analytical school of jurisprudence it is concerned with the analysis by the rule

produce by the state. The school is also concerned with the analysis of concept of
law as legal or illegal. It is expositional of general notion and principle abstracted
from the positive system of law. This task would involve an exposition of the
leading term of law such as rights, obligation, injury, redress, punishment. It also
intell other thing aiming at other rights. The classification of obligation and
elaboration of various distraction of the legal system.

2. PURE THEORY OF LAW

The essence of this school is that law should not be influence by external factors.
Law should be eliminated from political and ideological value judgment

A science of law is mixed by element of philosophy and ethic of political theory,

so under this theory law is eliminated from such impurities. The objects of the
science of law are those norms which have the character of law which certain
marks of a source of law
 3. UTILITARIANISM

JEREMY BENTHAM and JOHN STUART MILL, nature according to

Bentham has place a man under the governance of two sovereign of two masters.
One is pleasure and other is pain. The good or evil of an action according to
Bentham should be measured by the quantity of the pleasure or pain, resulting for
need designed the principle of utility is to promote happiness of an individual as a
person or political being. The purpose of law is to promote the happiness of the
society by furthering enjoyment of pleasure in affording the security against pain.
So always law need the greatest happiness of the greatest of people that is the
measure of right and wrong

4. SOCIOLOGICAL SCHOOL

The philosopher in this school is EUGINE EHRLICH AND J KOHLER, these

guys said a positive laws cannot be understood a part from norms of the living laws

The living law is the inner order of association example law practiced by society
oppose the law in force by the state

The living law is being identified as the laws which dominate society live even
though not posited in the legal premises. At the present as well as at any other time
centre of the gravity of legal development not in legislation nor in justice but in the
society itself. The laws must originate from the society and be determined by the
actual behavior with the average of man

Therefore the sociological school sate that law emanate from the society itself to
regulate social relationship. laws plays an important in the evolution with the
culture life, mankind by taking care of the existing value and protecting them also
protecting the new one. According to Kholer each from the civilization must find
the law which suits its purpose and aims

There existence no eternal law the law that adequate for one period is not far
another, thus the dynamic law must adopt changing constant condition to the
civilization and its duty of the society from time to time to shape the law into
conformity with the new condition.

5. HISTORICAL SCHOOL OF JURISPRUDENCE

They say that say that the law should not be something made arbitrary and
deliberately by a law maker, law is the product of the internal silently operating
force it is deeply rooted in the past of the nation and it is true sources are popular
faith, customs and the common consciousness of the people. Laws should be
determined above all by the character of the nation by its national spirit. Law is a
product of slow, gradually and origin growth of a nation

It is the product of the gradual development of the tradition and customs of certain
nation, let say a careful of traditions and customs can be true content of law

6. THE MARXIST SCHOOL OF JURISPRUDENCE

Under Karl Max, according to Marxist law is a symbol of classes in a society, there
are three factors in this school;

 Law is a product of evolving economic forces

 Law is a tool used by a ruling classes to maintain its power other that the
lower classes
  In the communist society of the future law as an instrument of social
control will wither away and finally disappear

Legal relation as well as forms of state are rooted in the material condition of life
with the change of economic foundation of the entire immense super structure is
more or less, rapidly transforms according to Fredric Engels the various
component of the super structure includes norms and institution of the law,
excessive the reciprocal effect upon the economic bases and may within certain
limit

Law is characterized as a formal class rule” (the rule dividing people) in his speech
Marx to the bourgeoisie class. Jurisprudence is but the will of the classmate into
law for all who essential character and direction are determined by economic
condition of the existence of your class

According to P. I Stuchka law is a system of social relations which correspond to

the interest of the dominant class and is safeguard by the organized force of that
class.

7. REALISM SCHOOL OF JURISPRUDENCE

JEROME FRANK, KARL LAWELLYN and JOHN CHIPMAN GRAY

Generally speaking this is not the school but a movement because it is not
composed with a group of men with and identical in greed and unified
programmed. Is a peculiar method of a approach and specific thinking way about
law. It is a typical wrong to those writers who describe themselves as legal realists.
According to this approach of law. It is the judge who make the law through their
own decision, followers of the approach say the rule of substantive law are of far
less important in the actual practice of law than that hither to be assumed. They are
saying that what law official particularly judges do or practice in resolving dispute
is law itself. No one knows the law about any case or with the respect of any given
situation, transaction or invent until there has been any decision (judgment), order,
and decree with regard to therein

8. PRAGMATISM SCHOOL

Law should be guided by practical need of the society, it must meet the demand of
the people, this is to mean that only the positive law which means the social and
legal need of the people in general accepted and acted upon. Law is law if it can
meet the demand of the people in the society. Synthetic school says it is synthesis
of legal principle, the law made by the state also by customs and the tradition

TOPIC THREE

JUDICIAL/ LEGAL CONCEPTS

Basically legal terms are concept, so in this perspective the topic discus the limit in
the interpretation, understanding and application of legal terms, sometimes are
called judicial concept.
What is legal wrong?

Legal wrong is a wrong act as defined by salmon as an act contrary to the

established rule of right and justice. A synonym of it is injury in its true in primary
sense is injuria (against the law/juris).it is a harm or damage. A wrong is a breach
or violation of a legal or moral duty, it may be describe in a large sense as anything
done or omitted contrary to legal or moral duty, consider in so far is given right to
liability. So it cannot be wrong without a duty whether legal or moral duty.

But wrong also create a new duty and liability, these natural ends of the positive
duty is performance, wrongs are of two kinds;

1. Legal wrong

2. Moral wrong

LEGAL WRONG

The essence of legal wrong is that it the violation of justices according to the law,
not in the manner in which the guilty are treated. It is the legal wrong if you don’t
pay for instant a debt, if the debt doesn’t been paid in the limited time it became a
legal wrong.

MORAL WRONG

Is an act which is morally or naturally wrong, it is contrary to rule of natural

justices, it is moral wrong to disobey ones parent.

What is duty?

It is an obligatory act, an act opposite of which it will be wrong. The commission

of wrong is the breach of duty and the performance of duty is the avoidance of
committing a wrong. There are two kinds of duty;
 1. Legal duty

2. Moral duty

LEGAL DUTY

Is an act opposite of which is a legal wrong, it is an act recognized as a duty by the

law and treated as such for the administration of for justice

MORAL DUTY

Is an act opposite of which is a moral or natural wrong, a duty may be moral but
not legal or it may legal but not moral or both at once. There is both a legal and
moral duty not to steal, the law prohibit to still and also moral

Duty may be positive thus if the law obliges some people to do some act the duty
is called positive but when the law forbid from doing some act then such duty is
negative

Example; law allows free movement (positive)

Law prohibits stealing (negative)

Salmon says “there is no duty without a right”. That there can be husband
without wife, a parent without a child. The result is that the right and duty are
always core related because where there is right there is duty and vice versa

LEGAL RIGHT

According to Herbert Spencer A right is one capacity of obliging other to do or

forbid by means not of his own strength but by the strength of the third party
and such third party is God, the right is divine if that third party is the public
generally acting through opinion the right is moral, if the third party is the
state acting director individual the right is legal

but according to Gray legal right is the power that a man has to make a person
or persons do or refrain from doing a certain act, so far the power arise from
the society imposing a legal duty.

and salmon A right is an interest recognize and protected by the rules. Right it
is any interest respected for which is a duty and is the law disregard of which
is wrong. So legal right must obtain not merely legal protection but legal
recognition.

THE TWO THEORIES HAVE BEEN DEVELOPED REGARDING THE

LEGAL RIGHT

1. Will right / will theory

2. Interest theory

WILL RIGHT / THEORY

According to this a right is an inherent attribute of man, a subject matter of a right

is deriving from the exercise of human will. The will theory was impaired and
extended by the doctrine of natural right. A legal right is confided by law in its
function of the law to confer certain powers and freedom to an individual

INTEREST RIGHT/ THEORY

A legal right is a legally protected interest, this theory doesn’t put strengths in
element of will in legal right it put emphasis to the material element of interest, the
basis of right is not will but interest
ESSENTIAL OF ELEMENT OF A LEGAL RIGHT

1. There must be a person who is the owner of the right, this person is the
subject of the legal right. A person may be a natural or legal person

2. A legal right accrues (obligation) again another person who is under the
duty to corresponding duty to respect/ abide that right.

Example

If A has the particular right against B, A is the person of inherent and B

is the person of incident

3. It is content or subject, it may be an act which the subject of incident is

bound to do or it may be forbearance of his part.

4. The object of the right that the thing over which the right is exercised this
is sometimes called the subject matter of the right

5. The title of the right of fact must show how the right vested in the owner
of the right. Man may have the title of right by purchase, inherent,
prescription or by assignment

KINDS OF THE LEGAL RIGHTS

I. Perfect and imperfect rights

According to salmon a perfect right is the rights that respond to the perfect duty, a
perfect duty is one not merely recognized by law but enforced by law. These rights
are recognized by law but are not of perfect in nature they are called imperfect
rights. Example claim barred by lapse of time, they are recognize by the law but
are not perfect, example land issue 12 years, labor issue 14 days
 II. Positive and negative rights

Salmon said a positive right correspond to the positive duty and entitle its owner to
have something done to him with the performance of which his enjoyment of the
right is imperfections and incomplete but a negative right has a negative duty
corresponding to it and enjoyment is complete unless interference takes place

III. Real and personal right

A real right correspond to the duty imposed upon person in general, a person right
correspond to the duty imposed upon determine individuals. A real right is
available against the whole world while the person right is available only to a
particular person

IV. Right in ream and right in persona

These emanate from Latin maxim actio in rem and that means “the action of
recovery of dominium (property/thing) and actio in personum is the one of the
performance of an obligation. In such a case a plain liff claim the payment of
money, performance of the contract or the protection of some other person right
are vested in him as against the defendant. The right protected by an action in rem
comes to be called jus in rem and right protected by action in person is come to
called jus in personum

Jus in rem is the right against or in respect of the thing and jus in personum is the
right of the person, a right in rem is available against the whole world but the right
in persona is upon a particular person or individual
 V. Principle and accessory right

Principle rights exist independently of the other rights while accessory rights they
are paten to other right and they have the beneficial right on the principle rights.

VI. Legal right equitable right

Legal right was recognizing by the common law court and equitable right were
recognized by the court of chancery. Current we have no any distinction between
these two rights. The judicature act of 1873 put an end to the distinction between
legal and equitable right, however when there is conflict between these two rights
legal right prevail this is because legal right is the principle law

VII. Public and private rights

VIII. Ownership and possession

The concept of ownership Is one of the fundamental juristic concept, as a concept

has been discussed by the most of the legal writer before even that of the
possession. But the idea of ownership followed the idea of possession meaning
dominium and possession, so the idea of possession existed before the ownership.

Dominium means own and possession-means possess, dominium is the absolute

right to the thing while possession is the physical control of the thing. The English
notion of ownership is similar to the conception of dominium in Roman law

According to Austin ownership means a right which available and exclude

against everyone who is subject to the law confining the rights

But hevel say ownership involves four right which are;

 The right of using a thing

  The right of exclusion from other to using it

 The right of deposition of thing/disposing of a thing

 Right to destroy a thing

KINDS OF OWNERSHIP

I. Sole and co ownership

Sole means a right is being vested in a single person but two or person may have
the same right vested in them that may be in many forms such may be referred as
co ownership. This co ownership can be inform of either joint ownership or
ownership in common.

The difference between these two is found in the death, in ownership in common if
one dies then his right descend to his successor like another hares but in the death
of joint ownership the right of the deceased die with him and mostly principle of
the virtual of the survivor ship applies

THE CONCEPT OF POSSESSION

The concept of possession has given gradually from many countries, people started
taking possession of certain object and thus are where the idea of ownership
started. Now there are some terms which are used when discussing the issue of
possession and such terms are like;

 Jus possessionis which means the right of possession

 Jus possidend the right to posses

 Jus possionis this is the right to the possessor to continue to possess, it is

right to remain in possession except against a person who has the better title.
 This means a person will remain in a possession until when a person of
better title comes

Example if I give something to my servant to be held in custody in my behalf he

has the physical possession of the property but he hasn’t have the legal right to it.
He can’t sell it just because he is entitle to keep that, he has the jus possessionis
and not juspossedend

POSSESSION CAN BE DIVIDED INTO TWO

1. Possession in fact

2. Possession in law

Possession in fact; is actual physical possession whereas possession in law means

possession in the eyes of law, meaning possession recognized and protected by the
law. Possession may exist in both fact and law within the same person

ELEMENT OF POSSESSION

Basically there are two element of possession

1. Corpus

2. The animus

CORPUS POSSESSION

Is meant that there is existence of such physical power or physical contact of the
possessor and in relation to the thing possessed, so as to give the right to the
reasonable assumption that other people will not interfere with it. The corpose of
the possession can be considered under two head, the relation of the possessor to
other person and to the relation possessor to the possessed
ANIMUS POSIDENT

This is the intent to appropriate to oneself the exclusive use of the thing possessed.
The animus posedend is the conscious intentions of the individual exclude others
from the control of an object

TOPIC FOUR

THE CONCEPT OF EXPROPRIATION

Means a huge taking of properties by the state sometimes the concept is referred as
taking or nationalization. Nationalization refers the massive taking of private
property in all economic sectors or an industry or in sectoring specific bases

Outright nationalization in all economic sector are generally motivated by the

policy consideration, the measures are intended to archive completely state control
of the economy, it involves to take over private production

So expropriation is unlike to nationalization generally referring property specific,

taking where the property right remains to a state.

Expropriation involves large scale taking of the land by the state for the purpose of
redistributing it. It may be specific taking were a target is a specific foreign terms
dominating market

Nationalization and expropriation must consider the following when being applied
  It should be legal

 There must be proper procedure

 It should not base on discrimination

 Must be accompany by fair compensation

 The property must be taken by the proper corpus

Decree

Means a formal expression of an adjudication which suffer as regards the court

expressing it, conclusively determine the right of the parties with the regard to all
or any of the matter in controversial in the suit and It may be ether in preliminary
or in final. It shall be deeming to include reject of the plaint and the determination
of any question within section 38 or section 89 but it shall not include;

 An adjudication fro which the appeal lies as an appeal from an order

 Any order of dismissal for default

Decree is preliminary when further proceedings have to be taken before the suit
can be completely disposed, it is final when such adjudication completely dispose
of the suit, it may be partly preliminary and partly final
JUDGMENT

Means the statement given by a judge or magistrate of the ground of decree or

order

DISTINCTION BETWEEN JUDGMENT AND DECREE

As stated earlier judgment means the statement given by the judge or the
magistrate on the ground of the decree or order, it is not necessary for a judge to
give a statement in a decree through has judgment. Likewise It is not necessary that
there should be formal expression of the order in the judgment, though it is
desirable to do so. Order 20 rule 6 A as inserted by the amendments act of 1976,
however , enact that the last paragraph of the judgment should state precisely the
relief granted, thus a judgment contemplate a stage prior to the passing of a decree
or an order, and after the pronouncement of the judgment, a decree shall follow

Declaration

Means a written statement submitted In court in which the writer swear that the
content are true. It may be inform of formal statement, proclamation or
announcement, especially one embodied in an instrument or affidavit

In order of the decree take an effect the following element must manifest and this
element are;

 There must be adjudication

 Such adjudication must have been done in a sui

  It must determine the right of the parties with regard to all or ant of the
matter in controversial in the suit

 Such determination must be of a conclusive nature

 There must be a formal expression of such adjudication

Ruling

Means any decision made by the judge during the course of litigation or is the an
authorative decision as one by judge on a debated point of law
SECOND SEMESTER

JURISPRUDENCE II

TOPICS

i. LAW, ORDER AND JUSTICE

ii. LAW AND VALUE

iii. LAW AND ADMINISTRATION OF JUSTICES

iv. LAW AND THE STATE

FIRST TOPIC

LAW, ORDER AND JUSTICE

What is law?

Refer to the principle or rule initiated by a government to be used by the court and
similar authorities to govern human conduct and behavior.

Generally there is no common definition of the term law, different school have
develop different definition of the term law, but in their definition there are some
characteristic that are similar when defining law and these characteristic like
principle, rule, regulation, standard or norms.
What is order?

Is an arrangement that found in the legal system, legal system refers to the
arrangement of institution of law and these institutions are such courts,
administration bodies, tribunals, so the term order will be used in describing the
formal structure of the legal system. The appropriate order to employ the standard
and principle, it implies the existence of some measures of uniformity, continuity,
and consistence in the operation of the natural and social process

Order deals with the study of the arrangements that are found in the legal
system, that brings uniformity, continuity, and consistence that are found in the
rules, norms, courts and administration system. It explain how laws are applied,
how the court system operate, how the structure of the court are arranged and
how does the people in the court operate

What is justice?

Refer to the fairness and reasonableness of law, rules, and institution in the
administration of legal system. If the institution of law operate in fairness and in
reasonable manner then justice is said to be done

While order focuses on the formal, social and structure of legal system justices
looks at the content of legal norm and institutional arrangements in terms of their
effect upon human being and worthiness in terms of their contribution to human
happiness
DESCRIPTION OF JUSTICES IN REGARDING TO DIFFERENT
PHILOSOPHER

According to Plato

According to Plato in his book of the republic police, the doctrine of just common
wealth depends on the collection of ideas, just consist of harmonious relation
between the various parties in the society. Plato discus justices in relation to
somebody doing his duty in the place where he or she belongs, and doing things
that nature can adopt

So Plato dived state into the said three classes in which are rulers, soldier and
producer each of them must act on their position which he/she belongs, and should
not interfere between them self. So if you’re a farmer you should be a farmer
forever and by acting that way such shall be called justice not only for you but also
to those people who you will not interfere

According to Aristotle

Aristotle idea about justice consist of sort of equality, justice demand that things
should be equal allotted to the members of the community. This is due to the
principle of proportionate equality “equal things should be given to equal person”.

Also he uses the standard of merit and civic excellent if It is twice as deserving
then his share should be twice as large. The emphasis of equality as to Aristotle
became yardstick he was none the less willing to tolerate wide I equality to the
social structure.
According to Herbert Spencer

According to him justice is not equality but freedom, one is free to do anything
provided that he/she is not infringing the other peoples freedom. But the freedom
of people are limited, Spencer is explaining about the responsible freedom, one is
free but with the limitation of freedom.

According to him, in enjoying human freedom one is limited to respect or consider

other people freedom

HOW LAW, ORDER AND JUSTICE CAN BE LINKED

In linking up these problems of jurisprudence one must be able to understand how

these problems operates and at the end be able to interlink them. As said earlier in
this discussion especially when talking about law, law as the institutions meaning
rules and order. Now how are these institution are being arranged in the legal
systems (order) means how they operate, how are being applied in the system of
law. The system which it is the order, is linked with the law at the point where this
system or arrangement (order) explain how the institution (law) are been applied in
the system, are been interpreted and even the mechanisms of enforcement of such
institutions, and talking about the justices it is linked with law and order in terms
of the content found in the system and those institution. The three problems of
jurisprudence make the law as the body
TOPIC TWO

LAW AND VALUE

 The concept of value

 The types of value

 The value theory

 The problem of subjective and objective of value

 The link between law and value

We speak about value simple because jurist says that law must be accompanied by
value, and this was explained in the natural law schools thus there should be
objective moral principle that the law should be abide

In the positivism school they that there is link between law and value, also they say
that law should be separated from value at the same time

What is value?

These are ideals, standard, guidelines which stipulated what is wrong and what is
right, what is good and what is bad. This might not be in written form but the
society believes upon the certain thing that is good or bad.

Law deals with lawfulness or unlawfulness, legality or illegality, value deals with
rightness or wrongness, these one can help us to distinguish between law and value
Types of value

 Moral value

 Ethical value

 Social value

MORAL VALUE

These are the value that comes from the morality, morality is an English word but
it originated from the Latin word called Moralitos which means proper, good or
right manners, character or behavior

So moral value is the standard principle which make possible to determine the
rightness or wrongness of something or even the goodness of something. This
theory emanate from the religious believe and tradition that why most of religion
have this called “moral codes”. Moral codes are set of teaching stipulating what is
good or bad, most of the moral codes they prohibit homicide, theft, fraud and etc

ETHICAL VALUE

This deals with analyses of our act or omission whether are right or wrong, good or
bad but with the certain context or a certain field of standard. Ethical value deals
with the context of a certain society whereas moral value studies the absolute
application of our act or omission in general way.

The contexture application of ethical value could be talk about the various level of
the certain society, the can vary from one place to another like in families, villages,
streets, region, nation and world at large.
These application can be in terms of a certain discipline that why we have various
contexture regarding to the application of ethical value

We can talk of ethical value in the field of medicine as (medical ethic) in law as
(legal ethic)

SOCIAL VALUE

Quality of our act or omission which are shared and cherished in the society, are
like ethical and moral value which goes to the extend to determine the good or bad,
right or wrong.

Social values are usually examined in terms of the level of achievement which
range from the highest to the lowest level of achievement. The key concept under
social value is the level of achievements. Therefore it is very difficult to speak in
the aspect of breach of value instead we talk about the low or high value that you
have archive

Social value may depend things that are classified by the community and such
things also vary from one society to another. And these social values are like
responsibility, creativity, knowledge, faith and etc. sometimes social value are
known as national ethos

THE PROBLEM OF OBJECTIVITY AND SUBJECTIVITY OF VALUE

THEORY

Philosopher argues that some values are objective and others are subjective. What
is objective theory? This can be portray certain value are acceptable by all, the
theory of subjective can be portrayed that certain value may not be acceptable by
all. Even though within the theory of objectivity of values some philosopher differs
to certain extend especially on what considered being objective. Florescence there
are some philosophers promotion of sanctity is an objective value, there are others

Theory of value which are said to be objective are based on intrinsic nature and not
extrinsic, and the theory based on subjective is based on extrinsic in nature

LINKING LAW AND VALUE

There are two major ways that law can link with value and this ways are

1. Legislation

2. Adjudication

LEGISLATION

When some value theory enter into legislation (law making process) they can
include some value or prohibit some value in a legislation, example in the issue of
takrima provision and also read section 9 to 11 of JALA, show how values have
been incorporated in the law and also article 9 of the constitution

ADJUDICATION

Is the process of making decision so the value included in a precedent, especially

in the case of independent candidate further reference to;

 LHRC and another Vs A.G (2006)

 Julious Ndyanabo Vs A.G

TOPIC THREE

LAW AND ADMINISTRATION OF JUSTICES

Law is the body of regulation or rule that governs human conduct for the purpose
of bringing justice and order in the society, the concept of law cannot be provided
indispensable of the two basic institutions in the legal system, these institutions are
order and justices

Order deals with the structure of the legal system (the way it is arranged) and
justices deals with the test of how fair the content of legal frame work is. But what
is legal frame work? This are the way laws, policies and institution are applied in a
certain society

The origin of justice

It originates from people by the principle of ubi societas, according to Plato

justice come where there is fulfillment of responsibility that everyone has
demanded by the law. Man is a political animal by Socrates, we have some
obligation in the society he/she is suppose to do what law is said in the society.
There is no better test of excellence government than the judicial system that
means for the government to do effectively work there must be an effective judicial

THE NECESSITY OF ADMINISTRATION OF JUSTICES

1. It helps the society to pursue the common value in an ordinary manner,

common value are thing that human being are supposed enjoy for their
status as a human being

2. It brings uniformity in the society

3. It enable the fair regulation of human conduct

4. When justice is done according the principle it ensure equality among

individual
 5. It brings uniformity and consistency in law

6. It brings systematic development of law

Disadvantage of administration of justices

1. It makes the law to become rigid especially when we apply the law in all
cases of similar nature this will not allow changes

2. Law also became more common leading to hindrance

3. Lead to legal technicality which is not required in the administration of

justices

Generally the administration of law and justice involve the application of laws in
various administration bodies

THE THEORIES OF LEGISLATION

The theory brings us to the idea of making laws through legislation; legislation is
that source of law which consists in the declaration of legal rules by a competent
legal rule. Legislative processes include all methods of law making but when used
in strict sense legislation is the lying down of the legal rules by the Supreme Court.

Two type of legislation

1. Supreme legislation

2. Subordinate legislation

SUPREME LEGISLATION

It proceeded from the supreme sovereign and it is incapable of being repealed by

other authority than it self
SUBORDINATE LEGISLATION

It proceeded from any other authority than the supreme legislation, its validity
depends on the supreme power

LEGISLATION MECHANISM

1. Legislation by Rex/ Regina

2. Legislation by codification

3. Legislation by parliament

4. Legislation by judiciary

5. Legislation by customs

Legislation by Rex/ Regina

Is the kind of legislation or law process making by the executive body, it is kind of
law making where the institution owes it power from the executive body. What is
Rex/ Regina? This means king or queen

LEGISLATION BY PARLIAMENT

This is kind of law process vested it power from the parliament, under this we have
two other kinds which are

1. Subsidiary legislation

2. principle legislation
LEGISLATION BY JUDICIAL

This brings the idea that sometimes judiciary also makes law, this is through its
practices in the day to day function of judiciary. This power vested in the judiciary
purpose to fill the lacuna (gap) in the whole process of administration of justice.
Jurists have been debated on whether judges make laws. Some say that the make
law while others says their task s to interpret the law

Legislation by codification

Codification is used much in civil law system. Codification is the process of

collecting systematizing and complying the law in a coherent way and forming one
authority. It does not mean that other laws are not written but the logic is that this
process correct different statute for existing law into the single document. It is a
systematic collection of statute by arranging that statute to avoid inconsistence and
overlapping

KINDS OF CODES

There are two kind of code

1. creative code

2. consolidated code

Under creative code is the kind of code that makes law at the first instant without
making any reference to the existed law, also are the laws that made for the first
time
Consolidated code are the laws which consulate all laws that existed before into
one single document example company law, contract law, customary law. One of
the merits of consolation is certain, it makes the law simple, logically arranged and
make the law became stable

SUBSIDIARY LEGISLATION

`Is the product of the principle legislation, this is due to the fact that these
legislation have to be enable by the principle legislation. This subsidiary legislation
is sometimes known as delegated legislation

WHY SUBSIDIARY LEGISLATION

 technicality, this is due to some of the laws are too much technical, that is
why they delegate powers to some of the organs to perform such
technicality

 the subject matter might be noble as it requires time to be used which may
involve experimentation to determine how legislation is operating in order to
meet certain requirement

The principle of deligatus non potes deligale it is the principle that explain once the
power is delegated to some of the bodies of the executive such power cannot be
further delegated. In that case if such power is further delegated then such action
may be called ultra vires. Now the bodies of executive which such power have
been delegate to, they have to follow certain procedure such as

 procedure requirement
  parliamentary control

 judicial control

 prior consultation of the interested parties

 prior publication of the passed/ before its operation

THREE THEORIES OF LEGISLATION

1. normative theory

2. prescriptive theory

3. descriptive theory

NORMATIVE THEORY

Law is consisting of norm, norms cannot be derived from the fact neither from the
natural law. The argument of the normative theory relies on certain school of
jurisprudence. The school of jurisprudence is pure natural theory, they say that
human laws are not statement of facts but rules or norms. They are rules and norms
which are prescribe because of conduct and indicate what should happen in case of
fault

THE DESCRIPTIVE THEORY

Under this theory the court normally use excessive logic to distinguish the normal
procedure involved in a certain legislation to arrive to a reason decision from that
the court establish principles

PRESCRIPTIVE THEORY
State that the laws should have not mixed with morals, this theory of prescriptive
rely on pure theory of jurisprudence

VALIDATING THE LAW

This means the process through which principles, laws, rules, regulations,
standards acquires the force of law, that means is the process through which
principle or regulation have forces. There are three things to consider in validating
the laws

1. institution

2. guiding principle

3. procedure aspect through which the laws are enacted

Institutions for the law to have force it has to pass through the parliament,
judiciary, tribunals, and executive bodies. Article 64 explain

Procedures to follow this require that the institutions should follow a certain ways
established for the purpose of testing the legality of the law, so the laws become
valid if and only if it has followed proper procedure. It must pass through a certain
test, and that test must be part and parcel of the law making process

What are the proper processes?

This will depend on the sources of law that one is picking about/ talking about.
Example what are the proper sources of customary law, for the customary law is
found under JALA under section 9 to 11 or what is considered to be the proper
sources of principle legislation that is found under article 97 of the constitution

Now what brings the validity of the laws made by the parliament?
  constitution provisions

 the interest or the purpose emanating from the draft

 the debate on seen purpose

 the draft proposal

 a bill

 the consent from the president

 the publication containing the date of commencement

Guiding principle

Article 9 of the constitution provides for the rules and standards that should be
followed in the law making process. The law should pass the test of the guiding
principle, the law should not stipulate against the required guiding principle. Even
the judiciary should be guide by the this principle when interpreting the law

THE THEORY OF ADJUDICATION

This theory is al bout the law is practiced under judicial system, this explains on
how magistrate and judge in court of law, and thus explain how laws operate in a
certain legal system, this is concern with the uses of precedent and its application

The philosophers that argues on this theory of adjudication are

 Hart – higher authority

 Dworkin- right thesis

 Razz
Hart theory (higher authority)

Hart under theory of adjudication his idea with higher authority while Dworkin
deals with right thesis. Hart under this theory he is insisting that the parliament is
the only body that can make law, according to him there is independent of
parliament as the making the law and judiciary as the body that interpret the law.

Judge should not translate or create their own law neither to translate value nor
standard in their decision making instead value choice made by judiciary must be
based on the determination of the higher authority (parliament). It is the higher
authority which usually available in political basis recognized in legal system as a
law making body.

According to Hart there is no judicial determination that could deem treat except
on the ground which are visibly approved by political process “the rule making
must exercise a discretions and there is no possibility of treating the question raised
by the various case as if there is one unique answer to be found as distinct from an
answer which is reasonable compromised between many conflicting answer”

Razz theory (practical authority)

Another philosopher who is related to hart is Razz, razz theory of adjudication it’s
not different from that of Hart. According to Razz their existing special
relationship between law and authority, the existing authority tests what we ought
to do.

According to him the existing authority is the practical authority, it includes the
law itself and the political power that deals with the law
Law itself is an authority but it must be inconformity with the political authority,
according to razz political authority is the government itself. According to Razz
again the political authority is the practical author which plays the discrete role on
our practical live. Both Hart and Razz ties judicial function with the political
authority where the formal is validated by the political authority

Dworkin theory (right thesis)

According to him judiciary plays an important role in every legal system. Dworkin
raised question in explaining its theory adjudication. One of the question is that
how does the judge decide case? According to him, when the case is brought to the
court the judge cannot refuse to adjudicate it on the ground that there is neither
precedent nor the law.

Dworkin observe that there is always the right answer to every case before the
court (right thesis). Right thesis involves the general claim that within general
practice there are rules and right. The two are different although they are found
within the legal practice

Right are more fundamental than rules, according to him in case of conflict
between right and rule, right must prevail because they are too fundamental in
determination of justice and secondly rule are there and have been there to express
and protect rights. The right approach in adjudication should be there to emphasize
on the right and protection of individual, that means judge must consider the
protection of individual right in respective of either of being expressed or protected
by the rule or not.

According to him if the protection of right is not accorded by the rules ten it should
be accorded by the standard or the guiding principles. In adjudication judge should
always interpret the law however one should not think about the law alone as just
or rule alone, but rule must be accompanied by principle or standard. Meaning that
while dealing with the rule judge should be influence on the thinking of principle
or standard in the determination of justice, Principle and standard normally fill the
gap

NOTE; in case there is no rule that stipulate the protection of the particular right
then the judge must resolve the dispute before him by considering the principle or
standard or guiding principle (value). Principle and standard are more important
than rules because they show the way and the context through which the value van
be applied. Incase are not well clear then must be resolved by the principle and
standard which every judge is obliged to follow

Rules can conflict occasionally among them self but principle and standard cannot.

TOPIC FOUR

LAW AND THE STATE,

The theory of punishment and retribution

The philosophy behind the theory is that whoever commits a wrong should be
punished. The question that the perpetrator of an illegal act the law require that we
should not let him unpunished.

What is punishment?

Why do we punish a person, how one should be punished, what kind of

punishment should one receive

Why do we punish people?

 1. We punish to give a lesson to the person who committee a wrong act

2. We punish to reform a person to make that person to change his/ her

behavior

3. We punish in order to protect a person

4. We punish so as to deterrence people, to make them stopping doing

illegal act

And this punishment can be in form of fine, copal punishment and imprisonment,
the theory of punishment and retribution is the philosophical reflection on and
analysis of the phenomena called punishment

The study of punishment and retribution is sometimes called penology. The

science of behavior change is called limnology. Technically punishment is
understood as authoritative in position something negative or unpleasant on a
person in response to the behavior deemed wrong either by individual or group of
people. The formal punishment can be given under the law or it can be given also
according to agreed norms and customs

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