What are the types of law
1.Written or enacted laws
2.Unwritten laws
1 Written or Enacted law
These are laws, passed by the
representative of the people, or the organs of a military government that are empowered to promulgate decrees or edict. Such laws must be passed in the prescribed manner. For example, some laws may require the votes of two-thirds of the total members of the legislature, while others require only a simple majority. In many countries, the legislature is made up of two Houses -the upper and the lower, whilst in some, there is a single legislative House only. A proposed law is usually submitted to the legislature in form of a bill. After the bill has passed through the legislature, it is sent to the Head of State, who may be the President or the Governor as in United States of America, the King or the Queen, as in England, for assent. The bill becomes law, only after the giving of such assent in the proper manner.
2 Unwritten Law
These are set of binding rules of conduct which the society will enforce. There are two types of unwritten laws in Nigeria, namely, customary law and the common law. Customary law, as we have seen, is derived from the immemorial customs of the people.
It is necessary to note that not all customs are laws. Customs are regarded as laws only if they recognized as valid in certain situations and are also enforceable by the local community. For example, one of the essentials of a valid marriage under customary law is the payment of the bride price.
The common law, on the other hand, is a system of elementary principles and elementary judicial truths, resting for authority upon common recognition, consent and use, evidenced by court decisions, continuously expanding with the progress of society and adapting itself to the exigencies and usages of the country and to commerce and mechanical arts. In other words, the common law consists of principles based on immemorial customs and enforced by the courts (in the absence of applicable statute).
Thus, it is a judge-made law, that is, it grows as a result of decisions handed down by the courts, which may be followed by subsequent cases. Here law owes its existence, not to the legislature or custom, but to the decisions of judges. Once such a decision is rendered by the highest court of the land. It will become the law of the land until it is altered by the legislature. Thus, the doctrine of judicial precedent,which introduces some stability and certainty into the law, thereby enabling litigants to forecast the result of a case, is an invention of the common law.
Within this system of common law has grown another doctrine called 'Equity' . This, too, has developed through case laws, that is, through precedents. It was invented by the Lord Chancellor during medieval yes in order to temper the rigidity of the common law. For example, because of the rigid adherence of the common law to the doctrine of privity of contract, it does not recognize the institution of trust. Thus, if X sets up a trust for his children and gives the subject matter of the trust to Y to use for their benefit, the law recognizes only X and Y who have concluded an agreement and so will not help the children to enforce the trust.
But the court of Equity being a court of conscience, will compel Y to fulfil his promise and use the trust property only for the benefit of X's children.
The ordinary common law remedy is money damages; it rarely compels a person to perform literally and exactly what he had agreed or is under other duty to do. He may refrain from doing it, and a court of common law can, and will merely give judgement that he may pay to the other party the estimated money equivalent of the loss sustained by the latter. In some cases, a court of equity may, in the words of Babb and Martin state as follows:
Money equivalent is so
Unequivalent that in equity
and good conscience one
who is under a duty do a
thing should do that thing
and not merely pay
damages for not doing it;
and a decree may be
entered to the effect that
he shall do that thing.
The learned authors went on to mention some of the considerations that will influence the court of equity in deciding whether or not to award damages:
In considering the
adequacy of the legal
remedy of money
damages, regard should be
to the degree of difficulty
in evaluating accurately the subject-
matter, the effect of breach
and the harm to the
complaint, sentimental and
aesthetic values which
cannot be estimated in
money, the difficulty or
impossibility of obtaining
performance by money
damages, the collectibility
of money damages, and
the likelihood that multiple
litigation will be necessary
collect compensation.
Equity has developed a series of maxims, one of which is that 'He who comes to Equity must come with clean hands.'
This means that to get an equitable relief, your conduct must be irreproachable. Another maxim of equity is that 'Delay defeats Equity', that is, that a person aggrieved must take early court action to assert his right, or else he will not get any assistance from the court of equity.
Before the Judicature Acts 1873-1875, in England, both the common law and equity were administered in separate courts. Since that date, however, issues involving both common law and equity are decided by the same court or judge. The position is same in the United States of America. What this means is that there is a fusion of courts, but not a fusion of law and equity. However, where there is any conflict or variance between the rules of equity and the rules of common law, with reference to the same matter, the rules of equity shall prevail.
2.Unwritten laws
1 Written or Enacted law
These are laws, passed by the
representative of the people, or the organs of a military government that are empowered to promulgate decrees or edict. Such laws must be passed in the prescribed manner. For example, some laws may require the votes of two-thirds of the total members of the legislature, while others require only a simple majority. In many countries, the legislature is made up of two Houses -the upper and the lower, whilst in some, there is a single legislative House only. A proposed law is usually submitted to the legislature in form of a bill. After the bill has passed through the legislature, it is sent to the Head of State, who may be the President or the Governor as in United States of America, the King or the Queen, as in England, for assent. The bill becomes law, only after the giving of such assent in the proper manner.
2 Unwritten Law
These are set of binding rules of conduct which the society will enforce. There are two types of unwritten laws in Nigeria, namely, customary law and the common law. Customary law, as we have seen, is derived from the immemorial customs of the people.
It is necessary to note that not all customs are laws. Customs are regarded as laws only if they recognized as valid in certain situations and are also enforceable by the local community. For example, one of the essentials of a valid marriage under customary law is the payment of the bride price.
The common law, on the other hand, is a system of elementary principles and elementary judicial truths, resting for authority upon common recognition, consent and use, evidenced by court decisions, continuously expanding with the progress of society and adapting itself to the exigencies and usages of the country and to commerce and mechanical arts. In other words, the common law consists of principles based on immemorial customs and enforced by the courts (in the absence of applicable statute).
Thus, it is a judge-made law, that is, it grows as a result of decisions handed down by the courts, which may be followed by subsequent cases. Here law owes its existence, not to the legislature or custom, but to the decisions of judges. Once such a decision is rendered by the highest court of the land. It will become the law of the land until it is altered by the legislature. Thus, the doctrine of judicial precedent,which introduces some stability and certainty into the law, thereby enabling litigants to forecast the result of a case, is an invention of the common law.
Within this system of common law has grown another doctrine called 'Equity' . This, too, has developed through case laws, that is, through precedents. It was invented by the Lord Chancellor during medieval yes in order to temper the rigidity of the common law. For example, because of the rigid adherence of the common law to the doctrine of privity of contract, it does not recognize the institution of trust. Thus, if X sets up a trust for his children and gives the subject matter of the trust to Y to use for their benefit, the law recognizes only X and Y who have concluded an agreement and so will not help the children to enforce the trust.
But the court of Equity being a court of conscience, will compel Y to fulfil his promise and use the trust property only for the benefit of X's children.
The ordinary common law remedy is money damages; it rarely compels a person to perform literally and exactly what he had agreed or is under other duty to do. He may refrain from doing it, and a court of common law can, and will merely give judgement that he may pay to the other party the estimated money equivalent of the loss sustained by the latter. In some cases, a court of equity may, in the words of Babb and Martin state as follows:
Money equivalent is so
Unequivalent that in equity
and good conscience one
who is under a duty do a
thing should do that thing
and not merely pay
damages for not doing it;
and a decree may be
entered to the effect that
he shall do that thing.
The learned authors went on to mention some of the considerations that will influence the court of equity in deciding whether or not to award damages:
In considering the
adequacy of the legal
remedy of money
damages, regard should be
to the degree of difficulty
in evaluating accurately the subject-
matter, the effect of breach
and the harm to the
complaint, sentimental and
aesthetic values which
cannot be estimated in
money, the difficulty or
impossibility of obtaining
performance by money
damages, the collectibility
of money damages, and
the likelihood that multiple
litigation will be necessary
collect compensation.
Equity has developed a series of maxims, one of which is that 'He who comes to Equity must come with clean hands.'
This means that to get an equitable relief, your conduct must be irreproachable. Another maxim of equity is that 'Delay defeats Equity', that is, that a person aggrieved must take early court action to assert his right, or else he will not get any assistance from the court of equity.
Before the Judicature Acts 1873-1875, in England, both the common law and equity were administered in separate courts. Since that date, however, issues involving both common law and equity are decided by the same court or judge. The position is same in the United States of America. What this means is that there is a fusion of courts, but not a fusion of law and equity. However, where there is any conflict or variance between the rules of equity and the rules of common law, with reference to the same matter, the rules of equity shall prevail.
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