Strand-specific recommendations

There are a number of ways of classifying law. The following is commonly preferred:

(1) Public and Private Law (2) Civil and Criminal Law

(3) Substantive and Procedural Law (4) Common and Statutory Law.

This will be explained below.

3.3.1 Public and Private Law

Public law is an aspect of law that is primarily and directly concerned with government. It regulates the relationship between the organs of government, between one state and another, and governs the relations of citizens with the state. Public law embodies criminal law, constitutional law and administrative law. Constitutional law refers to the body of fundamental rules and regulations which prescribed the structure and functions of the organs of the federal, state and local governments.

Where such rules and regulations are embodied in a single document, as in Nigeria or America, we refer to the document as a written constitution; but where the rules are contained in “scattered” documents, constitutional conventions and acts of parliaments, as in Great Britain, we refer to it as unwritten constitution. Administrative law is a branch of constitutional law primarily concerned with the reconciliation of efficient administration with individual freedom, rights and interests. It determines the organisation, powers and duties of administrative agencies and the limits of delegated legislations. Thus, administrative law involves principles that govern the procedures and activities of government boards and commissions.

Private law is that which deals primarily with the relationships between private persons, organisations or legal entities. It includes the law of property, the law of contract, the law of torts (civil wrongs) and family law, etc.

3.3.2 Civil and Criminal Law

Civil law is that law which spells out the rights and duties that exist between individuals, the violation of which constitutes a wrong against the injured person. For example, if a person, say, a Schools Board, refuses to live up to the terms of a binding agreement, the other party, say, a teacher under the law of contracts has the right to recover damages. Damages refer to the sum of money equivalent to the loss

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sustained as a result of the breach of contract (Peretomode, 1992). The vast majority of education/school law cases fall within the “civil law”

category. In contrast to civil law, criminal law is that body of state or federal laws that defines offences against the public and provides punishments for their commission. Civil is part of private law, while criminal law is part of public law (Smith and others, 1984).

Crime is an act of omission prescribed by the state and bears punishment for its occurrence in the interest and protection of the public.

In a civil action, the aggrieved or injured person (the plaintiff) commences the action to recover compensation for the damage and injury that he has sustained as a result of the wrongdoer’s (defendant’s) conduct. The plaintiff, as Smith and his colleagues rightly point out, has the burden of proof which he must sustain by a preponderance (greater weight) of evidence. The aim of civil law is to compensate the injured party, and the principal forms of relief afforded are a judgement of money compensation or restitution or a decree ordering the defendant to specifically perform a certain act or to desist from a specified conduct.

Most education law cases are civil in nature, a typical one being a suit by an individual against another person or the Schools Board or the Ministry of Education.

Anyone who commits an offence defined as a crime is subject to criminal proceedings – legal proceedings of a special kind. The judicial proceeding in a criminal case is prosecuted by the government. In other words, the prosecution of the offence is usually taken up at public expense, although, occasionally, private prosecution may be allowed.

According to Smith and his colleagues, to convict a criminal, the government must prove criminal guilt beyond a reasonable doubt which is a significantly higher burden of proof than that required in a civil action. The principal sanctions in criminal cases take the form of capital punishment, imprisonment or fines.

3.3.3 Substantive and Procedural Law

Substantive Law means the real law or law in the strict sense. It is concerned with the recognition of the substance – rights, duties, privileges and immunities – under the various types of law. Procedural law, also referred to as “adjectival law” (i.e., subsidiary law), is law supporting the “substantive” law by specifying the formal steps or machinery to be followed in enforcing rights, duties or immunities in the settlement of disputes in such a way as to do justice to both parties.

Procedural law is divided into criminal procedure and civil procedure, corresponding to the existence of the two types of wrongs, namely: civil wrongs (torts) and criminal wrongs. It is to procedural law that one

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Redmond and others (1979, p. 3) provide a concise illustration of the difference between substantive law and procedural law in the following example:

If a man kills another man, it is a question of substantive law as to whether the appropriate charge is murder (killing with malice afore-thought) or manslaughter (unintentional or mitigated killing). Once he has been charged with either crime, the rules of procedure will then govern:

(1) the method by which his guilt should be proved

(2) the evidence which should be admissible at his trial and

(3) the manner in which such evidence should be presented in court.

3.3.4 Common and Statutory Law

Common Law is law developed by judges through decisions of courts and similar tribunals (also called case law), rather than through legislative statutes or executive branch action. The body of precedent is called “common law” and it binds future decisions. In future cases, when parties disagree on what the law is, an idealised common law court looks to past precedential decisions of relevant courts. If a similar dispute has been resolved in the past, the court is bound to follow the reasoning used in the prior decision (this principle is known as stare decisis). If, however, the court finds that the current dispute is fundamentally distinct from all previous cases (called a “matter of first impression”), Judges have the authority and duty to arrive at a new decision and this new decision becomes a precedent. Such a precedent becomes persuasive to courts of concurrent or coordinate jurisdiction and binding to lower courts.

Interactions between common law, constitutional law, statutory law and regulatory law also give rise to considerable complexity. However, in respect of stare decisis , the principle that similar cases should be decided according to consistent principle rules so that they will reach similar results. This is the heart of all common law systems.

Common law legal systems are in widespread use, particularly in England where it originated in the Middle Ages, and in nations that trace their legal heritage to England as former colonies of the British Empire, including the United States, Singapore, Pakistan, India, Nigeria Ghana, Cameroon, Canada, Ireland, New Zealand, South Africa, Hong Kong and Australia.

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Statutory Law or Statute Law is written law (as opposed to oral or customary law) set down by a legislature (as opposed to regulatory law promulgated by the executive branch or common law of the judiciary).

Statutes may originate with national, state legislatures or local municipalities or local government councils.

The term codified law refers to statutes that have been organised (“codified”) by subject matter; in this narrower sense, some but not all statutes are considered “codified.” The entire body of codified statute is referred to as a “code,” such as the Criminal Code or Penal Code.

Another example of statutes that are not typically codified is a "private law" that may originate as a private bill, a law affecting only one person or a small group of persons.

The common law is more malleable than statutory law. First, common law courts are not absolutely bound by precedent, but can (when extraordinarily good reason is shown) reinterpret and revise the law, without legislative intervention, to adapt to new trends in political, legal and social philosophy. Second, the common law evolves through a series of gradual steps, that gradually works out all the details, so that over a decade or more, the law can change substantially but without a sharp break, thereby reducing disruptive effects.

SELF-ASSESSMENT EXERCISE 3

i. Write short notes on the under listed classification of law:

a. Public and private law b. Civil and criminal law

c. Substantive and procedural law and d. Common and Statutory law