Introduction To Law

Introduction to Law
PART1: THE THEORY OF LAW
• Chapter1: the concept of law

• Chapter2: distinction between legal rules and
other social rules governing the society
• Chapter3: branches of law
• Chapter4: Mandatory and supplementory rules
• Chapter5: sources of law
• Chapter6: the legal systems
PART2: THE THEORY OF RIGHTS
Chapter 1: kinds of rights

Chapter 2: copyright and neighboring rights
Chapter 3: the persons
Chapter 4: the things
Chapter 5: an overview of the contracts
CHAPTER1: THE CONCEPT OF LAW
• Definition of law:
• “ A set of rules, general and abstract,
which govern the behaivior and the
relationships of the individuals in the
society, and which are imposed by
sanctions enforced by the competent
public authorities.”
B. The Aims of Law

• Law have several aims. They are all
concerned with making society
more stable and enabling people
to flourish by regulating social life
and safeguarding persons and
properties. These aims are:
1. To set up an official framework of

compulsion.
• The law forbids certain ways of
behaving, like murder, libel, and
requires other, like paying
income tax.
2. To provide facilities for people to

make their own arrangements.
• The law provide guarantees to
people who buy and sell goods,
make wills, form companies, that
the state, will if necessary enforce
these arrangements.
3. To settle disputes about what the

law is and whether it has been
broken.
4. To maintain justice among the
society by making persons
enjoying their rights and liberties.
C. Characteristics of the legal rule:

I. The legal rule is both general and abstract
II. The legal rule governs the behavior and
relationships of the individuals in the society.
III. The legal is accompanied by sanctions
enforced by public authorities.
I. The legal rule is both general and abstract

• Generality of the rule means that the rule is
appllicaple to all people.
• Being abstract means that it is not addressed
to any one particular person.
• Both qualities ensure uniformity and
consistency of application.
• The generality of the legal rule does not

mean that it must apply to every individual.
• There are many legal rules wich cannot be
applied except to a small limited number of
persons (such as the law of lawyers).
• And sometimes even to one person only
(such as the rules which determine the
powers of the head of state).
In these examples, the legal rule only conerns a

certain position, however, it is still a general rule, as it
states provisions concerning everyone who plays the
role of the head of the state.
As for being abstract, the legal rule sets the conditions
of its application regardless who will be subject to that
application.
The abstraction of the legal rule eliminates any
differentiation between people and leads to justice and
equality.
II. The legal rule governs the behavior and

relationships of the individuals in the society.
• The legal rule regulates people’s actions and
controls their conduct.
• The legal rule determines what is allowed
and what is prohibted.
• And what actions are considered criminal
because they affect the society as whole.
• It is important to mention that the legal

rule is concerned only with the
external conduct or behavior of
individuals,
individuals and has nothing to do with
internal thoughts and beliefs.
• It is only when a person comes to act
upon such beliefs that law can interfere.
III. The legal rule is accompanied by

sanctions enforced by public authorities.
• This characteristic is the most important
factor in distinguishing the legal rule from
other rules governing the society, such as
religion and moral values.
• In principle, people are expected to obey the
legal rules voluntarily.
• However, if they do not do as expected,

they are compelled to do so by means of
sanctions imposed by the law and
enforced by the state.
• Sanctions are always considered material
and not merely a reprehension. However,
they differ in character and nature.
• The most glaring and reprehensible is the

criminal punishment.
• Such punishment may vary from hanging,
imprisonment to a mere monetary fine.
• There is also civil sanction, such as nullity
of a contract and the payment of
damages.
Chapter2: distinction between legal rules

and other social rules governing the
society
A. Law and moral rules:
• These rules are often referred to as the
“Moral Code”. A violation of these rules will
therefore incur the strong disapprobation of
the society in general.
• It is evident that both law and morality serve

to channel our behavior. Law accomplishes
this primarily through the threat of sanction if
we disobey legal rules.
• Morality too involves incentives: bad acts
may result in guilt and disapprobation, and
good acts may result in virtuous feelings
and paraise.
• Some portions of the moral rules coincide or

les precisely with parts of the legal rules.
• For example, stealing and killing are
regarded as morally reprehensible, and it is
equally certain that all societies have legal
prohibitions against stealing or killing, in
such spheres, the legal and the moral rules
reinforce one another.
• Law, however, is not necessarily the same

as morality, there are many moral rules that
are not regulated by human legal
authorities.
• As an example, it may be regarded as one’s
moral duty to try to rescue a person seen to
be drowning in the sea, though in legal
systems there is no legal duty in such case.
• In conclusion, we can deduce

that although legal rules and
moral values correspond in
important respects, it must not
be thought that this
correspondence is universal.
B. Law and religion:

• Religion can be defined as a set of
provisions contain rules to govern the
relation of everybody towards God.
• It is important to mention that most religions
are concerned in different degrees with the
relationship between the individual and the
other members of the society.
• There is common interest of law and religion in

some matters such as prohibiting libel, theft,
treason and assassination, as these acts are
contrary to the law and to the religion at the
same time.
• Religion rules have their sanction in the other
world, but legal rules have a material sanctions
imposed in our life, such as hanging,
imprisonment or a monetary fine.
Hierarchy of the legal rules:-

1. Sharea
2. Constitutional rules.
3. Legislative rules.
4. Executive rules and decrees.
• Types and degrees of sanctions:-

• The first one is criminal sanction :-
1) The most severe one is to deprive( to take)
someone’ life.
2) Less severe one is the imprisonment (to put
someone in jail) as it deprives the liberty of the
individuals.
3) Even less severe is the monetary fine.
 The second one is a civil sanction, such as

payment of damages(remedy) for breach of
contract.
• The third one is administrative sanction. For
example, if a public servant breaches his duties,
he may be blamed, deprived of his salary or
promotion during certain time, or fired.
• Note: Sanctions should be enforced through
authority of the government.
CHAPTER2: BRANCHES OF LAW
There are two main branches of law: the public

law and private law.
Public law is the law governing relationships
between countries, international public
institutions, the public authorities in a given
country, or governing relationships with
individuals where the authorities appear as
sovereign persons.
Private law is the law governig

relationships between individuals or
individuals and public bodies where such
bodies appear as ordinary persons or
entities and not as sovereing persons,
such as acting and dealing in the same
manner used by individuals. (sale, lease,
insurance).
A. The public law:

• Public law may be defined as a set of legal rules which
regulate relationships in which the state is a public
authority party.
• The public law contains many branches such as:
1. Constitutional law
2. Administrative law
3. Financial law
4. Criminal law
5. Public international law
1. Constitutional law: is a group of legal

rules which determine the structure of
the state, the system of government,
and also the rights and freedoms of
individuals.
• Constitutional law deals essentially with
the following subjects:
a) The form of the country, i.e. kingdom or a

republican state.
b) The kind and form of the governmental
system, i.s. presidential or a parliamentary
government.
c) The boundaries of the territory of the country,
which is usually defined through treaties and
agreements with other countries.
d) The public authorities and relationships

between them.
• There are three public authorities: the
executive, legislative and judicial authority.
e) The public liberties, such as the liberty of
opinion, the liberty of press, the right of
election, the right to form political parties,
and the right to have a private safe life.
f) Rights of individuals, such as the right of

protection of the place of residence, the right
of the confidentiality of correspondences, the
right to freely move from a place to another,
the right to get a suitable job.
g) Duties of nationals which include performing
the military service, the duty of solidarity in
facing public disasters, payment of taxes,
etc.
• All other laws in the state are bound to

conform to the constitution of the state in
their form as well as in their substance.
• This principle is known as the the
constitutionality of laws and regulations.
• The constitution may have rigid or flexible
existence.
• If the constitution cannot be amended like

ordinary laws, it is rigid.
• But if it can be amended by ordinary
procedure of amending laws then it is
considered flexible.
• The constitution may be granted as a gift
from a king to his people, or may be
achieved by resistance against authorities.
• The constitution may be drafted by the

parliament, by a nominated committee or
by members of a committee elected in
public elections.
• Once the constitution is drafted, it may be
offered in a public referendum for the
approval of the people.
• The same procedure may be

followed in any amendment to
the constitution, if it provides
for the possibility of being
amended.
2. Administrative Law:
• is a group of legal rules that organizes the
working of public utilities. It also governs the
relationships among the public employees and
the state, and determines the procedures of the
administrative disputes settlement.
• The administrative law deals in detail with the
Executive Authority, it describes its form as well
as its activities.
• It's worthy to note that administrative law is a relatively recent

law, at the same time rapidly growing due to the active role of
the executive in control and regulations of the society life, like:
Maintaining public order:
• 1. Public security
• 2. Public health
• 3 - Public tranquility
• Also, it should be noted that administrative law is not a codified
branch of law.
• Its general principles and rules are

to be found in the judgments
rendered by the courts.
• Administrative law can therefore
be qualified as a judicial law.
3- Financial law:
Is a group of rules regulating public resources
and expenditures which constitute the state
budget. Its main subdivision is Tax Law.
• Financial Law should logically be a
subdivision of Administrative Law. However,
it acquired a special status as an
independent branch of Public Law.
• Financial Law is concerned with three

aspects of state activities: public
resources, public expenditure, and public
budget.
• The budget must be approved by the
legislature. Once it is approved it
becomes binding.
• Public resources are revenue derived

from tax payments, customs duties,
tourism, exterior trade, etc, and such
resource are generally used by the
government to finance its activities,
payments of debts, financing all public
services, such as education, health,
roads.
• Tax Law is dominated by the

principle that a tax can be
imposed only by the legislature, or
within the clear-cut limits fixed by
the legislature.
4. Criminal Law is a set of rules which

defines the crimes and determine the
punishments of the offenders who were
found guilty in these crimes.
• Crime is an offense to the whole
community as well as individuals whom
the crime is committed.
• Criminal law is dominated by the principle of

legality. “No act can be considered a crime
unless it is prohibited by the law of the
country.”
• Criminal Law comprises:
A.Penal Law (whether public or private)

B.Law of criminal proceedings
• Criminal Law is the law which describes acts

considered as crimes.
• There are three kinds of crimes based on the
gravity and dangerousness of the committed acts:
felonies, misdemeanors and contraventions.
• Criminal Law defines the elements of each crime
and the punishment to be inflicted in case it is
committed.
• As for the law of criminal procedures,

it prescribes the necessary rules for
investigation and procedures before
criminal courts as well as the manner
and place of implementing the
punishment inflicted.
• The civil sanction aims the enforcement of a

right or at the specific performance by the
compulsory fulfillment of the corresponging
duty or its replacement by damages, while
the criminal or penal sanction seeks to
secure future obedience to the rule of law
by punisthment for wrong already
commintted.
5. Public International Law:

• is a group of legal rules regulates the
relationships among the states
whether in peace or war, and the
relationships among the state and
the international organizations.
• The Public international law is intrested in

several matters. For example: sovereignty,
independence, international jurisdictions, law of
the sea (internal waters, territory waters,
islands, exclusive economic zones, high sees …
etc).
• acquisition, transfer and loss of territory, state
responsibility, diplomatic and consular relations,
diplomatic protection, etc.
• Public international law deals with the following

matters:
1. Relationship between countries in time of peace:
such as diplomatic relations, international treaties,
trade, tourism.
2. Relationship between countries in time of war: such
as the declaration of war, weapons permitted or
prohibited specially those of mass destruction, and
the treatment of warriors of enemies, etc.
3. Kinds of state and territories.

4. The territory of each state in land, soil and sea
and their extension
5. International organizations: such as the United
Nations Organization New York.
6. International jurisdiction: such as the
international Court of justice in the Hague, and
the permanent court of arbitration.
B. The private law:

• Is a set of rules which regulate the
relationships among individuals or
relationships in which the state is not a
public authority party.
• The private law constitutes numerous
branches such as the following:
1. Civil Law
2. Commercial Law
3. Maritime law
4. Labor law
5. Law of civil and commercial procedures.
6. Aviation Law
7. Agricalture law
8. Private international Law
1. Civil Law
• Civil Law is the origin of the private law. It
comprises the objective rules which govern the
private relationships among people except
those related to another branch of the private
law.
• The private relationships which are governed by
civil law are two kinds: family relationships and
financial relationships.
• As for family relationships, the civil law deals with

various aspects of family status such as marriage,
divorce, separation, obligation of support,
inheritance, wills, decedents, estates… etc.
• As for financial relationships, the civil law regulates
all persons activities linked with money, such as
property dispositions wich includes and regulates
matters as real and personal properties, enjoyment
of the right of property and the right derived
therefrom and personal real securties.
• The civil code deals with the following matters:

1. Rules relating to the conflict of laws as to the
place and as to time.
2. Rules relating to the legal capacity of persons.
3. Nominated Contracts, such as the sale, the
lease, the mandate, the insurance,
employment, enterprise.
4. Principal Rights in rem, such as

ownership, the usufruct, the Hekr
right.
5. Accessory Rights in rem, such as
mortgages, pawn, right of lien and
rights of privilege.
2. Commercial Law:
• Is a set of rules which regulates the
acts of commerce as well as
merchants.
• It is to be observed that the acts of
commerce are divided into two
groups:
• The first group comprises the

transaction which are considered acts
of commerce even if they are carried
outh a single and isolated transaction
such as buying or hiring movables to
resell them or to rent them in order to
gain profit.
• The second comprises those transactions

which must be carried out as a steady and
continuous profession, i.e. through an
economic enterprise, such as enterprise of
industry, supply of goods or services,
brokerage, commercial agency,
establishments of sales at auction, carriage by
land and ineternal waters, and all banking
operations.
• The commercial Law deals with the following

matters:
1. Commercial actions: such as purchasing with
the intention of resale or lease, brokerage
operations, the enterprises of industry, auctions,
commercial agency, supply, entertainmnet, etc.
2. Commercial companies: such as the joint stock
company, the limited liability company, etc.
3. Commercial contracts: such as commercial sale

of goods, commercial agencies, Fonds de
commerce mortgages (Business mortgages).
4. Commercial instruments: which are the bills of
exchange, promissory notes and checks.
5. Banking operations: such as current accounts,
credit facilities, documentary credits,
guarantees, etc.
6. Bankruptcy.
3. Maritime Law:
• Is a group of legal rules which govern the
relationship arising from and connected with
the commercial exploitation of ships.
Therefore, the most important subject matter
in the maritime law is the ship or the
maritime navigation in general.
• The rules of maritime law govern all

private maritime relationships, such as
carriage of goods or passengers by
sea, charter parties, towage, ships sale
and mortgage, marine insurance,
maritime liens or privileges, master and
crew’s relationships with ship owners
and collision at sea and salvage.
4. Labor Law: is a set of legal rules that

regulate the relationships among
employees and their employers.
• Also regulates, the employment
contract, safety and hygiene condition
in work place, and settlement of labor
dispute.
• A worker is any natural person working in

return for a wage with and the management
or supervision of the employer.
• Employer is any natural person employing
one or more workers in terurn for a wage.
• Wage is all that the worker obtains in return
for his work, whether fixed or variable, in
each or in kind.
• Labor law comprises some subjects

like:
• Employment terms
• Minimum wage
• Hours
• Holidays
5. Law of civil and commercial

procedures:
• The law of civil and commercial procedure
is branch of private law interested in
prescribing the rules of procedure, which
have to be followed before courts, and
those governing the enforcement of
executive instruments.
• This law includes rules for initiating a lawsuit

before the competent courts, rules for the
conduction of hearings and of procedure,
rules for pleading and submitting evidentiary
documents and their assessment by the
court, rules for rendering judgments, and
rules for the appeal to supreme courts to
annul or amend such judgments.
• The law of civil and commercial procedures

shows us the different kinds and degrees of
courts: there are courts of first instance and
summary tribunals, there are courts of
appeal and the supreme court, and
constitutional court.
• In every court there is a number of circuits
specialized in different kinds of lawsuits.
• For instance, there are circuits for civil matters, for

leasing, for commercial matters, for personal
status, for damages, etc.
• The law of civil and commercial procedure
prescribes also arbitration and the ways of
enforcement of judgments and awards.
• The law of civil and commercial procedure is also
interested in the description of the judicial authority,
its members and their degrees. (law of judicial
system)
• This branch of law is a group of legal rules that

govern the activities of the judicial authority. It
comprises two kinds of rules:
• The first consists of those rules which define the
different types and degrees of courts, their
formation, appointment of judges and their
assistants, and their legal status, while the second
kind of rules organizes the procedures to be
followed before judicial bodies when resorting to
the to obtain judicial protection to violated rights.
6. Aviation Law:
• Avaition Law is relatively one of the most
moderen branchs of the private law. It
comprises two sets of legal rules:
• The first one is concerned with matters
pertaining to public international and national
law, and the other governs the relationships
involved with the commercial exploitation of
aircraft.
• The first set of rules govern the aircraft’s

nationality and registration, the ruels of air
navigation, and prevention of aircraft crimes,
especially terrorism or hijacking acts.
• The other set of rules deals with different
matters such as carriage of passengers and
goods, aircraft hire contracts, aircraft sale and
mortgage, and also the insurance of airplanes.
7. Agriculture Law:
• This branch lays down the rules which regulate
the relationships among the owners of the
agricultural lands and the landholders or the land
workers.
A. What do we mean by the agriculture ownership?
• The ownership of movable or immovable things
in general denotes the relation between a person
and any right that is vested in him.
• As for the ownership of an agriculture land, it

means that the person who owns it has three
main rights as follows:
i. The right of enjoyment of the agriculture
land;
ii. The right of destroy of it;
iii. The right of disposing of it by sale, will, or
gift.
• The ownership of the agriculture

land in this sense may be acquired
either by a legal act (such as: sale,
will, gift, mortgage, etc..) or by
succession on the death of the
previous owner.
8. Private international law:

• is a group of legal rules that derermine the
system of law applicable to relationships
containing a foreign element.
• It also determine if the national courts
have the ability to settle disputes arising
from this kind of relationships.
• The private International Law deals

with the following matters:
a. The rules of nationality.
b. The rules relating to the legal status of
foreigners.
c. The rules of conflict of jurisdiction.
d. The rules of conflict of laws.
CHAPTER4: MANDATORY AND SUPPLEMENTARY
A. Mandatory rules:
• Mandatory legal rules are those rules which are related
directly to public order, any agreement contrary to these
rules is absolutely void.
• Examples of mandatory rules:
1. Rules of Criminal Law
2. Some of the Civil Law ruels that are compulsory to the
fullest sense.
3. Rules creating social duties such as military service and
payment of taxes.
B. Supplementary rules:
• Are those which people are not forced to
follow and may agree on something contrary
to their provisions.
• Examples of supplementary rules are:
• Article 457/1 of the Egyptian Civil Code
related to rules governing the delivery of a
sold thing which states that:
• “The price of a sold thing should be paid in

the same time in which the delivery of the
sold thing is made, unless otherwise is
agreed or as may be required by custom”.
• “If there is no agreement upon the rent or
how it can be evaluated, or it became
impossible to prove it, the rent of similar
places is considered ”.
• According to the above articals, as long as the

parties have regulated their own relations by
agreement, courts must abide by these
arangments withing the legal limits.
C. Criteria of differntiating between mandatory
rules and supplementary rules:
• There are two different criteria for differentiating
between those kinds of ruls:
1. The verbal criterion:

• Differentiation between the mandatory and
supplementary rules could be simply made from the
wording and phrasing of the provisions, as it may be
expressly or tacitly indicated.
• The legal rule may provide that its provisions may not
be violated and that any breach of its provisions will be
null and void, it further may contain words of a
commanding or a prohibiting purport, accordingly we
can understand that this rule is mandatory.
• Examples of a mandatory rules:

• “Any agreement made with regard to the
succession of a living person is void even if the
living person consents to such agreement”.
• “ The interest rate should not exceed seven percent
(7%). If the parties agree to a rate exceeding seven
percent, the rate shall be reduced to seven percent
and any surplus that has been paid shall be
refunded”.
• As for the supplementary rule, we usually find in its

provision “unless otherwise is agreed”. Examples
of this wording are the following:
• “ The price of a sold thing should be baid at the same
place where the delivery of the sold thing is made,
unless otherwise is agreed or as may be required by
custom”.
• “If there is no agreement upon the rent or how it can be
evaluated, or it became impossible to prove it, the rent
of similar places is considered ”.
2. The objective criterion:

• If the nature of the rule is not clear from its
wording and phrases, the content of the text
should be examined in order to know whether
it is related to the public order and public
morality or not.
• Article 44/2: “ the majority age is twenty-one,
calendar year”.
It is understood that the rule aims the rugulation

of an issue related to the validity of transactions
in the society. Accordingly, this rule organizing
the majority age is a mandatory rule.
It should be noted that the public order and
public morality are relative and progressive, they
differ from one community to another and they
change in the same society from time to time.
Also we should observe that the idea of public

policy is not identical in Egypt as well as in other
countries.
Thus in European countries a testor is bound to
leave a share of his property to certain members
of his family, while under Islamic principles only
one-third of the total property can be disposed of
the owner by way of a will.
CHAPTER5: SOURCES OF LAW
• The jurists divide the source of law into formal

sources and informal sources, or, in other
words into principal sources, subsidiary
sources and constructive sources.
• Source of law, according to the second article
of Somali Civil Law are: Legislation, Principles
of Islamic Jurisprudence, and The principles of
social justice.
• From the above stated article we can deduce that

the legislation is the principal source of law in
Somalia, while Principles of Islamic Jurisprudence
and The principles of social justice are the
subsidiary source.
• Thus the legislation is a formal source to which the
judge must resort firstly. If he finds a legislative rule
applicable to the case, he must apply it without looking
to the other sources.
• Also jurisprudence and doctrine

are considered the constructive
sources of the law. This means
that courts have the faculty to
return to both of them in order to
confirm its judgments.
• Section (1): LEGISLATION

A.Meaning of legislation:
• Legislation is the principal source of
law, which consists in the declaration
of legal rules by the competent
authority.
B. Advantages and disadvantages of legislation

• The first virtue of legislation is that its formal
declaration is a condition precedent to its
application. It satisfies the requirement of national
justice that law shall be known before they are
enforced.
• The second respect in which legislation is superior
to all other sources is that it can - by way of
anticipation – make rules for cases that have not
yet arisen.
• Legislation has many disadvantages,

but its basic one is that it is rigid, it
does not develop automatically, and
at one time it happens that legislation
does not adapt to the national feelings
and to the practical life and needs of
the people.
C. The purpose of legislation:

• In general, the legislation serves
three main purposes:
1. Protective purpose
2. Remedial purpose
3. Procedural purpose
1. The protective purpose:

• Legislation protects people from any
danger: physical, social, financial. It also
protects the rights of citizens, such as:
right to live freely, right to comment and
right to interpose against an unfair
action.
• Legislation serves this protection

purpose by setting the conduct of
people, to protect all the public from
improper conduct by others.
• For example: Traffic law, worker’s
compensation law and criminal law.
2. The Remedial purpose:

• Legislations are designed to cure things that have
gone wrong or caused injuries, by passing new
laws, which will cure these injury or changing
existing laws.
• Example: the 13th amendment of the U.S
constitution prohibited slavery. This has a remedial
purpose, because it corrects situation that the
majority of people believed it wrong.
3. The procedural purpose:

• It is the application of the protective and remedial
purpose of legislation. If there isn’t procedural law,
citizens would have no effective way of enforcing
their rights.
• The procedural law purpose is to ensure that
everyone enjoys the same basic rights in the legal
system, such as: the right to present his case, the
right to apply the law and the right to be heard.
D. Kinds of legislation:
• There are three kinds of legislation.
I. The constitution:
• The first and most supreme source of law all
over the world is the constitution “Principal
Legislation”. It comes before any other
source of law and cannot be violated by any
of them.
• Constitutional law deals with three main

subjects:
1. The relationships among the authorities of
the state.
2. The relationships among the rulers and the
ruled.
3. Public liberties and human rights.
II. The ordinary Legislation:

• We mean those acts issued by the
parliament the original and competent
law-making authority.
• Parliaments may be elected, appointed,
or hereditary in composition or some
mixtures of these.
• Procedures of enactment:
• The process of enacting an ordinary
legislation passes through four stages
namely:
1. Proposal or presentation of a bill
2. Approval (passing)
3. Promulgation
4. Publication
1. The Bill is proposed:

• according to article (80) in the federal constitution:
• (1) Draft legislation at the National Level may be
initiated by;
• (a) The Council of Ministers;; or
• (b) At least ten (10) members of the House of the
People of the Federal Parliament, except draft
legislation that concerns the annual budget which
shall be initiated only by the Council of Ministers.
• (2) Draft legislation may be proposed to

the Upper House of the Federal
Parliament by;;
• (a) At least one representative of a
Federal Member State;; or
• (b) Any committee of the Upper House of
the Federal Parliament.
2. The Bill is debated and passed:

• The bill is debated in the House of the
People or in the upper house and
approved by an absolute majority vote
(fifty percent plus one) of the members
of each house.
3. The Bill is promulgated:

• Having been passed by the parliament,
the bill is referred to the president who
has the right to object to it within (30)
days of its submission. If the president
does not object to the bill the parliament
approval will be a final endorsement.
• Therefore, there are two kinds of promulgation:

 Express promulgation, where the president
signs his approval of the parliament’s decision
 Implied promulgation; where the president
does not reject it within thirty days of its being
sent to him, in which case presidential silence
is assumed to signify approval.
4. The law is published:

• Finally, the law should be published in
the official gazette” within two weeks
from the promulgation, except if the
authority which enacted the legislation
has fixed another date for its
enforcement.
III. The subordinate Legislation:

• Enactments of legislative bodies inferior to
the sovereign constitute subordinate
legislation (by-laws). Such legislation is
subordinate in that it can be repealed by,
and must give way to sovereign or
ordinary legislation enacted by the
parliament.
• Subordinate legislation refers to those laws

made by persons or bodies to whom
parliament has delegated law-making
authority.
• Where acts are made by parliament, each
principal act makes provision for subsidiary
legislation to be made, and will specify who
has the power to do so under that act.
• Subordinate legislation can only exist

in relation to an enabling act.
• Subordinate legislation contains the
many administrative details necessary
to ensure that the provisions of the act
will operate successfully.
• Section (2): CUSTOM

A. Meaning of custom:
• Custom is unwritten rules of law, which
emanate from the society through dealing and
transactions among individuals, which
gradually spread all over the country and as a
result people feel that they are bound to
comply with them.
B. Advantages of Custom:
• Custom is more flexible than the written
law.
• Custom implements legislation.
• Custom is found as reflection to the true
needs of the community.
• Disadvantages of Custom
1.Customary rules are often ambiguous.
2.Customary rules develop very slowly.
3.Custom may not facilitate the evolution of
a complete harmony in one country due to
the existence of different local customs.
• What is the different between the (custom) and

the (usages)?
• In English law the term custom is more commonly
confined to legal system exclusively; while
conventional custom is distinguish as ‘usage’.
• In French law consider the term custom is
regarded as the source of law, while the usage is
not a source of law and it’s just used to regulate
the relationship between the parties.
C. When can Custom be a source of law?

• To be regarded as conferring legally enforcable
rights, a custom must fulfill certain criteria.
1. Time immemorial:
• It must have existed since “time Immemorial”. In
practice today claimants usually seek to prove the
custom has existed as far back as living memory can
go, often as calling the oldest inhabitant as a
witness. However, this may not always be sufficient.
2. Reasonableness:
• A legally enforceable custom cannot conflict with
fundamental principles of right and wrong, so a
customary right to commit a crime, for example,
could never be accepted.
3. Certainty and clarity:
• It must be certain and clear. The locality in which the
custom operates must be defined, along with the
people to whom rights are granted and the extent of
those rights.
4. Locality:
• It must be specific to a particular geographical area.
When a custom is recognized as granting a right, it
grants that only to those specified. Custom is only
ever a source of local law.
5. Continuity:
• It must have existed continuously. The rights granted
by custom do not have to be exercised continuously
since the last century, but it must have been possible
to exercise then since then.
6. Exercised as a right:
• It must have been exercised peaceably, openly and
as of right. Customs cannot create legal rights if they
are only exercised by permission of someone else.
• In Mills v Corporation of Colchester (1867) it was
held that a customary right to fish had no legal force
where the right had always depended on the granting
of a license, even though such licenses had
traditionally been granted to local people on request.
7. Consistency:
• It must be consistent with other local customs.
• For example, if a custom is alleged to give the
inhabitants of one farm the right to fish in a lake, it
cannot give another farm the right to drain the lake.
• The usual course where conflict arises is to deny
that the custom has any force, though this is not
possible if it has already been recognized by a
court.
8. Obligatory:
• Where a custom imposes a specific duty, that duty
must be obligatory – a custom cannot provide that
the Lord of the Manor grants villagers a right of way
over his land only if he likes them.
9. Conformity with a statute:
• A custom which is in conflict with a statute will not
be held to give rise to law.
• Section (3): Principles of Islamic Law

• Sharia law is eclectic in its approach to guide the
individual in most daily matters.
• Sharia law controls rules and regulates all public
and private behaviors.
• It comprises the whole of the spiritual, political,
economic, social, domestic and private life of the
adherents of Islam and Muslim State.
• Islamic law is based upon four main

sources, the first and primary
element of sharia law is the Qur’an
Al-karem, while the second element
is the Sunnah. The third element is
the Ijma’a, while the fourth is the
Qiyas.
• Section (4): principles of justice

• The rules of justice are inspired by the common
sense and by the inner feelings of everyone; it
is the natural feeling to distinguish between
what is right and what is wrong. For instance,
stealing a property belonging to another person
without his consent is a wrong action, which
must be penalized by returning the property to
its owner.
• Judges should do their best endeavors

to find the suitable solution for the case
brought before them.
• Accordingly, they cannot refuse ruling
on a cases with the pretext that they
did not find an applicable provision.
• Section (5): interpretative sources of law

• Subsection 1: Judicial Precedents
• It should be noted that according to the Somali Legal
system and all countries in Civil Law System,
jurisprudence does not constitute an official source of
law.
• If a judge applies a previous order issued by other
judges, this, because he considers it as a specimen
of correct reasoning, not as an authority binding the
court.
• This process is termed analogy, because

of the essential similarity between the
cases upon which the argument is
founded and that to which the principle is
extended.
• Subsection 2: Doctrine
• Doctrine includes legal notes,
explanations, interpretation and
comments made by academic legal
writers, whether jurists, lawyers,
professors of law or even judges when
commenting on judgments.
• The Doctrine is considered an

interpretative “informal” source of law, the
jurists do not create the law, and rather
they guide the legislator to the rules of
law as to its substance, and help the
judges to the good direction in applying
the existing laws.
CHAPTER6: THE LEGAL SYSTEMS
• There are two main legal systems that govern

approximatley all countries: the Common law
system and the Civil law legal system.
A. Common Law System:
• Common law refers to law and the corresponding
legal system developed through decision of
courts, rather than through legislative statutes or
executive action.
• Common law is law created by judges: a

decision in the case currently pending
depends on decisions in previous cases and
affects the law to be applied in future cases.
• If however, the court finds that the current
dispute is fundamentally distinct from all
previous cases, it will decide as a matter of
first impression”.
• The common law countries, judicial precedents

remain the principal source of law. The courts of
those countries have the power to create rules of
law.
B. Civil Law Legal System:
• In the Civil law legal system (Latin system), the
legislation remain the principal source of law,
while the judicial precedents are considered a
constructive source only.
• In conclusion, Common law legal

system is opposed to civil law legal
system.
• Common law systems place great
weight on court decisions, which are
considered “law” with the same as
statutes.
• By contrast, in Civil law jurisdictions,

judicial precedent is given relatively
less weight.
CHAPTER7: THE SOMALI JUDICIARY
• Article 108. National Court Structure

• The national court structure shall be of
three levels, which are:
a)The Constitutional Court;;
b)The Federal Government level courts;;
c)The Federal Member State level courts.
• The highest court at the Federal

Government level shall be the Federal
High Court, whilst the highest court at
the Federal Member State level shall
be the Federal Member State High
Court.
• Article 109A. The Judicial Service

Commission
1.This Constitution establishes a Judicial Service
Commission.
2.The Judicial Service Commission shall be
comprised of nine (9) members, which shall be
as follows:
a)The Chief Judge of the Constitutional Court;
b) The Chief Judge of the High Court;

c) The Attorney General;
d) Two (2) people who are members of the
Somali Bar, appointed by the Somali Law
Society for a four (4) year term;
e) The Chair of the Human Rights
Commission;
f) Three (3) people of high reputation

within Somali society, proposed by
the Council of Ministers, and then
appointed by the President for a
term of four (4) years, and
renewable only once.
3) The Judicial Service Commission shall elect a

chair from amongst its members.
4) The term of office for the members of the Judicial
Service Commission is five (5) years, renewable
only once.
5) A disciplinary regulation passed by the Judicial
Service Commission shall apply to all the
members of the Judicial Service Commission.
6) In accordance with law and regulation, the

Judicial Service Commission shall do the
following:
a) Appoint, discipline and transfer any member of
the judiciary at the Federal level;;
b) To decide on remuneration and pensions of
members of the judiciary;;
c) To decide on other work matters of the judiciary.
• Article 109B: The Formation of the Constitutional

Court
1. This Constitution establishes the Constitutional Court
which is composed of five (5) Judges including the
Chief Judge and the Deputy Chief Judge.
2. The Judicial Service Commission shall nominate as
judge of the Constitutional Court only persons of high
integrity, with appropriate qualifications in law and
Sharia, and who is highly competent in Constitutional
matters.
3. The Judicial Service Commission shall propose to

the House of the People the person they want to
be appointed as a Constitutional judge.
4. If the House of the People of the Federal
Parliament approves the name proposed in
accordance with Clause 3 of this Article, the
President of the Federal Republic shall appoint
that Person as a judge of the Constitutional Court.
5.From amongst their members, the

Constitutional Court judges shall
appoint the Chief Judge and
Deputy Chief Judge.
PART2: THE THEORY OF RIGHT
CHAPTER1: KINDS OF RIGHTS
• Section: political rights

• Generally, the political rights comprise the
following rights:
1.The right to believe freely: each person has the
freedom to adopt any religion in which he believes.
• Article 17 of provisional Constitution states: “(1)
Every person is free to practice his or her religion.
• (2) No religion other than Islam can be propagated in
the Federal Republic of Somalia.
2. The right of a free opinion: each person is free

to express his opinions in any way such as
talking, writing and giving lectures, etc.
• Article 18. Freedom of Expression and
Opinions
• (1) Every person has the right to have and
express their opinions and to receive and impart
their opinion, information and ideas in any way.
• (2) Freedom of expression includes

freedom of speech, and freedom of the
media, including all forms of electronic
and web-based media.
• (3) Every person has the right to freely
express their artistic creativity, knowledge,
and information gathered through
research.
3. The freedom of press: each person has the

right to establish a newspaper and to express
therein his views and other writer’ view in
every field of social life.
4. The right to a peaceful assembly: people
may gather in different legal forms; such as
political parties, associations, companies, etc.
• Article 20. Freedom of Assembly,

Demonstration, Protest, and Petition
• (1) Every person has the right to organize and
participate in meetings, and to demonstrate and
protest peacefully, without requiring prior
authorization.
• (2) Every person has the right to present
petitions to State Institutions.
5.Public election rights: every

eligible national person has a
right to be a voter in public
elections and to run for a Member
of Parliament (MP).
5. Article 22. Right of Political Participation

• (1) Every citizen has the right to take part in public
affairs. This right includes:
• (a) The right to form political parties and to participate
in the activities of political parties;; and
• (b) The right to be elected for any position within a
political party.
• (2) Every citizen who fulfills the criteria stated in the
law has the right to elect and to be elected.
• Section 2: Public Rights

• Are the rights conferred upon every person as
a human being as a basic element of the
personality, such as the right to live, the right
to safety; the right of free thinking; the right to
the intellectual property; etc.
• These rights are considered as natural rights.
• The main categories of Public rights are:

1. The rights related to the material existence
of the person,
2. The rights related to spiritual existence of
the person,
3. The rights related to the activities of the
person:
1. The rights related to the material existence of

the person, include the right to live, the right to
have safety, etc.
• Each of these rights has a counterpart obligation
imposed upon all other persons, the violation of
rights or breach of these obligations may constitute
a felony or a misdemeanor according the penal
law. For example, violating the right to live may be
considered a murder or an attempt to murder.
• In some cases, the law permits the

violation of these rights, in example,
making a physical injury to a person is
considered as a crime, but, if such
injuries were made by a surgeon and
were authorized by the patient or by his
family, there will be no crime at all.
• Crimes against the material existence of man

are not permitted even with the consent of the
victim,
• Except for purposes of medical treatment,
exercising sports and other purposes the
importance of which is greater than the pains
and physical injuries suffered by man.
• In all cases such purpose will never affect the
right to life.
2. The rights related to spiritual and moral

existence of the person:
• These rights comprise the right to honor and good
reputation; the right to privacy in his private life,
telephone calls, and correspondence; the right to
his name, his thoughts, and inventions; and
copyright.
• Any infringement of any one of these rights may
entail a penal or a civil sanction or both of them.
3. The rights related to the activities of the

person whether it be physical or moral:
• These rights include the right of move inside or
outside the country; the right to work where on
likes; the right to receive education; the right to
be protected in one’s house; the right to
contract with others, and so on.
• These rights are called: personal liberties.
• Characteristics of Public Rights:

A. Public rights are out of the ambit of trade,
because they are inherent in the life of every
person and can never be separated from his or
her.
• Notwithstanding the above rule, a man may be
allowed to enter into deals relating to these
rights for human purpose.
• For example, giving human blood to save

others, fostering the child of another woman,
giving one’s name against consideration to
another person who will use it as a commercial
name for his business, etc.
• Such transaction are considered valid by way of
exception from the above rule on two conditions:
1. The transaction must not deprive a man from a

part or organ of his body if such part or organ
cannot be superseded by another. Accordingly,
a man cannot give his brain, heart to another.
2. The motive behind the transactions must not be
illegal. For example, it is illegal for a man to cut
one of his hands or legs to be exempted from
military service.
B. Public rights may not be acquired by way of

acquisitive prescription and may not prescribe
by extinctive prescription, as the rule in this
respect is “what is not alienable, is not subject
to prescription”.
C. Public rights are not transferable to Heirs:
heirs don not inherit the dead body of their
father, nor his right to honor or faith.
• They enjoy the same rights without

having them transferred from family
chief.
D. Any violation of any of the public
rights entails a right to have
compensation for damages.
• Section 3: Private Rights

• Private rights are part of nonpolitical rights.
They are subject to private law.
• Private rights differ from public rights, as
public rights are conferred upon all persons,
while private rights are conferred in certain
cases and do not have a general
applications.
• There must be a certain cause for acquiring such

rights.
• Private rights include, for instance, the right of
ownership of certain property by way of sale,
donation, testament, etc.
• Private rights may be classified into three groups
as follows:
• 1-Familial rights 2- Pecuniary rights 3-Intellectual
property right (IP rights).
1. Familial rights:
• A family is a group of individuals who are
connected with each other by kinship.
These include parents, sons, brothers and
sisters.
• Kinship may result also from marriage like
the relationship between the father, mother,
or brother of the husband and the wife.
• Relationships may also come as a result

of fostering a man cannot marry a woman
who was his sister in fostering because
this is prohibited in Islamic Law.
• Familial rights are the rights, which are
conferred upon a person because of
being a member of a certain family.
• Familial rights include a variety of rights, such as

follows:
a. The right of a husband to be obeyed by his wife.
b. The right of a wife to be well-treated by her husband
and to have her material necessary needs satisfied.
c. The right of a father to impose disciplinary measures
upon his children in their childhood and the right of
the father to be respected and obeyed by his
children.
d. The right of inheritance among the members of

the same family, etc.
• Familial rights have non-pecuniary nature,
except in relation to the right of alimony. they
are inalienable and may not be waived.
• They may not be subject to seizure. As to the
right of alimony, being a pecuniary rights, it
may be seized or waived.
2. Pecuniary rights:
• Pecuniary rights are a sort of rights the subject
matter of which can be evaluated in money.
These rights are alienable and can prescribe.
• They may be transferred to the heirs after death.
• These rights may be waived.
• All these provisions are totally different from the
characteristics of public and familial rights.
• Pecuniary rights are divided into two kinds of rights:

I. Personal rights;
II. Real rights;
1. Personal rights:
• Personal rights is a relationship between a debtor
and a creditor, by virtue of which creditor can
require the debtor to do something, to abstain from
doing something or to give something.
• The creditor cannot obtain his right

except by the intrevention of the debtor
himself, and this is why is called
“personal” right.
• So personal right is the name given from
creditor’s point of view, but as to the
debtor, we call it “obligations”.
• Personal rights are divided into three kinds:

a) The obligation to give something:
• Giving something means to transfer a real right or
to establish a real right on a certain thing or
property.
• For instance, the obligation of the seller to convey
to the purchser the title to the thing sold, and the
obligation of the purchaser to pay to the seller the
price agreed upon;
b) The obligation to do something:

• This kind of obligation comprises each
positive doing, apart from that of giving
something.
• For instance, the obligation of an actor to
act on a certain theatre, the obligation of a
teacher to give lessons, the obligation of a
worker to do his work, etc.
c) The obligation to abstain from doing something:

• This kind requires the debtor to be in a negative
situation where he obliges himself not to do the
prohibited matter.
• For instance, the obligation of a worker not to give
the secrets of his employer to any body else; the
obligation of a neighbor not to build buildings on his
land higher than a certain height or to leave a
distance from the neighboring house.
II. Real Right:

• Is a direct power vested upon a person towards a
certain thing.
• Things subject to the real rights may be: lands,
buildings, animals, plants, vehicles, books and so on.
• Real right gives to its owner the chance to get his
right directly without the intervention of a debtor,
because there is no debtor in this case, and that is
difference between personal rights and real rights.
• Real rights are divided into two big groups:

principal real rights and accessory real rights.
A. Principal real rights:
• Is a direct power vested upon a person, in
connection with a certain thing. The holder of such
right shall have all or part of the fruits of such thing.
• According to the Egyptian Civil Code, there are six
kinds of Principal Rights:
1. The right of ownership:

• An owner shall enjoy three main powers: the
power of use, the power of exploitation and
the power of disposing of the thing subject of
the ownership.
 The power of the use permits the utilization of
the owned thing according to its nature,
instance, food is made to be eaten, books to
be read.
 The power of exploitation, it gives the owner

the chance to obtain interests and benefits
from his ownership while maintaining same,
the lease is a perfect example of exploitation.
 The right of disposition, we should differentiate
between the material disposition and the legal
disposition; the first may be exercised by
consumption, alteration, improvement or any
material change in the thing itself.
• While the legal disposition is exercised by

transferring the ownership of the thing to
another person by virtue of sale in instance.
• Finally, although the right of Ownership
may be transferred to successors in case of
death of the owner, it remains a perpetual
right, it does not prescribe by lack of use.
2. The right of Usufruct:

• The owner of the right of usufruct is named (the
“Usufructuary”). The Usufructuary holds only two of
the powers of ownership, which are the use and the
exploitation.
• The Usufruct right is a temporary right, it expires
either by the death of the Usufructuary or by the end
of its term whichever occurs first. It is also expires by
the non use for fifteen years, or the destruction of the
thing.
3. The right of Use:

• This right only gives the user the first
power of the ownership, which is the right
of utilization. No exploitation or
disposition is permitted.
• It is not also a temporary right, which
expires for the same reasons as for the
usufruct.
4. The right of Accommodation:

• This right confers upon its holder and his
family the right to use a building owned by
another person for one purpose only which is
the accommodation.
• The right of Accommodation is also a
temporary right, which expires in the same
manner as usufruct.
5. the right of Hekr

• This right conferred on real
estates of endowments.
• It is a temporary right which can
not be concluded for a period
exceeding sixty years.
6. the right of Servitudes:

• The servitude rights are imposed on a real
estate for the benefit of another real estate
owned by a different owner.
• There must be two real estates, the first is
bearing the charge, which is named “servant
real estate”, and the other is enjoying the
charge, which is named “served real estate”.
• The right of servitude applies when a real estates is

surrounded by several real estates depriving its
owner from reaching the road, in such case, one of
these real estates bears the charge of granting a
right of way for the benefit of the deprived real
estate.
• It should be also noted that the two real estates
should be owned by two different owners, if the
owner is the same person, there will be no need for
a right of servitude.
B. Accessory Rights in Rem:

• An accessory real right is a power conferred
upon a creditor against a thing by which he
can get his debt by order of priority befor all
other creditors and can pursue such thing if it
is transferred to third party.
• These rights are considered accessory to a
personal right, and they called “real sureties”.
• These rights cover the ordinary creditors

against two risks: first,
first the insufficiency of
the available funds to settle all debts, as in
such case a creditor may be obliged to
accept only parts of his total debts.
• Second,
Second the debtor may dispose of some of
his properties, and then the creditors will be
unable to pursue these properties.
• Then a creditor having an accessory

right may face these two risk by having
a priority over other ordinary unsecured
creditors, and by having the possibility
to pursue the property of the debtor in
case of any disposition thereof to third
party.
• There are four kinds of accessory real rights:

• 1- Real estate Mortgage; 2- Pawn
• 3- Lien Right 4- Privilege Right.
1. Real Estate Mortgage: (‫لرسمي‬HH‫لرهنا‬HH‫لعقاريأو ا‬HH‫لرهنا‬HH‫)ا‬
• This accessory right in rem is usually given by an
authentic agreement concluded between the
creditor and the owner, by virtue of which the
creditor can claim for the sale of the morgaged real
estate in case of non settlement of his debts.
• The real estate mortgage shall be registered

at the competent real estate notary public
office.
2. Pawn ‫ي‬ ( ‫لحياز‬HH‫لرهنا‬HH‫)ا‬
• This accessory right in rem is granted by a
contract by which a debtor, hand over to the
creditor or to a third person choosen by the
parties as guarantee for his debts,
• Pawn is a property which the creditor retains until

full payment of his dues, otherwise he may obtain
payment out of the price of such thing, no matter
in whose hands it may be, in preference to other
unsecured creditors.
• It should be noted that the pledged property could
be a movable or an immovable.
• A Pawn right shall terminate by the extinction of
the secured debt:
3. Lein Right (‫الختصاص‬HH‫قا‬H‫)ح‬:

• A creditor who obtains an enforceable
court ruling issued in the merits of the
case, and binding the debtor by something
specific, may obtain a lien right on the real
estate property of his debtor, guaranteeing
the original debt, its interests and all
expenses.
• It should be noted that a lien right may be

obtained by virtue of a judment confriming a
compromise or an agreement between the
parties, but not by virtue of a judgment
establishing the authenticity of a signature.
• A judgment charge can only be obtained on one
or more specific real estates owned by the
debtor at the time of the inscription of this right
and capable of being sold by public auction.
4. Rights of privilege (‫المتياز‬HH‫قوقا‬H‫)ح‬:

• A privilege is a right of preference
granted by law to a particular right by
reason of its quality.
• Privileges may be public, like the
privilege of taxes due to the government.
• They may also be private, such as the

priviliege of the lessor, or the hotel
owner, accordingly a lessor of a real
estate and an hotel owner are deemed to
be holders of furniture used and placed in
the leased premises and of effects
brought into the hotel by travelers
respectively.
• Public privileges extend to all

movable and immovable propert of
the debtor. Special privileges are
limited to a specific movable or
immovable only.
• Differences between the right in rem the right

in personam:
1. A right in rem is a power vested upon a person
against a definite thing, while the right in
personam is a personal relationship between
two parties, a debtor and a creditor, by virtue of
which the creditor can oblige the debtor to give
something, to do something or to abstain from
doing something.
2. The subject of the right in rem is a certain

thing, while in the right in personam it may be
doing or abstaining from doing something.
3. The accessory right in rem holder, have a
dirtect power upon a certain thing by virtue of
which he enjoys the advantage to use this
thing and to obtain his right from it befor all
other simple or unsecured creditors.
4. A principle right in rem (specifically the right of

wonership) is a perpetual right, while rights in
personam are always temporary because they
limit the liberty of the debtor and such limitation
must not be perpetual.
5. A right in rem can easily be transferred from one
person to another, especially in movables, while
rights in personam need the approval of the
debtor before being transferred.
6. Rights in rem are mentioned with limitation in

the law; while personal rights are not limted.
7. A personal right is enforceable only against
specific individuals, or a discernible category
of persons. While the real right is enforceable
and can be asserted against the world.
8. Personal rights are weaker than real rights.
And personal rights do not confer ownership.
CHAPTER2: COPYRIGHT AND
NEIGHBORING RIGHTS
• Copyright and related rights

generally protect the rights of
authors, performers, producers
of sound recordings and
broadcasting organizations.
NEIGHBORING RIGHTS
A. The Definition of Copyright
• “Exclusive right granted by the law to the
author of a work to disclose it as his own
creation, to reproduce it and distribute it to
the public in any manner or by any
means, and also to authorize others to
use the work in specified ways”
NEIGHBORING RIGHTS
B. The Definition of “Author”
• The “Author” can be defined as the person who
creates the work, i.e., the person who invests
intellectual efforts in a work regardless of whether
the efforts relate to science, literature or art.
• Hence, the author of a work of literature is the
person who writes it and the author of a piece of
music is its composer.
NEIGHBORING RIGHTS
• According to the Law, the author of a work is
the person whose name is indicated on, or
attributed to, the published work as being its
author.
• The author may be publish his work
anonymously or under a pseudonym,
provided that his/her personality can be
undoubtedly unidentified.
NEIGHBORING RIGHTS
• If the personality of the author is
uncertain, the publisher or produce of
the work, whether a natural person or a
legal entity shall be considered the
representative of the author in
exercising his rights until the identity of
the latter is disclosed.
NEIGHBORING RIGHTS
D. Kinds of protected works:
• They are three main kinds of protected works:
collective works, works of joint authorship and
derivative works.
• A collective work is a work made by more than
one author under the guidance of a natural
person who, or a legal entity which, undertakes
to publish the work under his or its name and
management.
NEIGHBORING RIGHTS
• It should be noted that the natural
person or the legal entity is considered
the author of the collective work and not
any of the contribution.
• Examples of collective works are
newspapers, magazines and
encyclopedias.
NEIGHBORING RIGHTS
• Works of Joint Authorship
• A work of joint authorship is found where a number
of authors have participated in the creation of a
work whether or not the individual contribution of
each of these participants can be distinguished.
• The following are merely examples of work of joint
authorship: a computer program created by a team
of computer programmers and system analysts,
And a work of literature written by several
collaborators.
NEIGHBORING RIGHTS
• The question here is who shall be considered
the author of the work?
• To answer such a question, we have to distinguish
between two cases:
A. Where it is possible to distinguish the individual
contribution of each of the authors in the work.
• An example of such a case is where a book
consisted of two parts and is written by two authors
and the contribution of each is known.
NEIGHBORING RIGHTS
• In this case, each of the authors

shall have the right to exploit
independently his part, but without
any prejudice to the rights of the
other author to exploit the joint work,
unless otherwise agreed in writing.
NEIGHBORING RIGHTS
B. Where it is impossible to distinguish the
contribution of each of the co-authors in the
joint work.
• Here all participants shall be equally considered
as authors of the work, unless there is agreement
to the contrary.
• Also, a co-author may not have exclusive
exercise of the copyright without the written
consent of all co-authors.
NEIGHBORING RIGHTS
• Where there is disagreement between

the co-authors concerning the work of
joint authorship, each of them have the
right to bring the case to the competent
court. Also, any of the co-authors shall
have the right to bring action in the case
of infringement of copyright.
NEIGHBORING RIGHTS
• Derivative work is a work which is derived
from an existing one, such as translations,
musical re-arrengements, compilations of
works, including readable databases, from
the computer or otherwise, and collections of
expressions of folklore, which, by reason of
the arrangement and selection of their
sontents, are considered as cteated works.
NEIGHBORING RIGHTS
• The Rights of the author
• Generally, we can say that there are two main
categories of the author’s rights: The Moral
Rights and The Pecuniary Rights.
1.The Moral Rights:
• Most of the copyright laws recognize, directly or
indirectly, four moral rights which are as follows:
NEIGHBORING RIGHTS
1. The author shall have the exclusive rights to

decide to publish his work and to choose the
form of publication.
2. The author shall have the exclusive right to
claim authorship of the work and have his
name indicated on all reproductions thereof
whenever that work is communicated to the
public.
NEIGHBORING RIGHTS
3. The author shall have the exclusive right to

make the transformation or adaptation he
chooses regarding his work. He may also
translate his work.
4. The author shall have the right to object to any
infringement of his rights and to prevent any
suppression, addition, or modification in
connection with his work.
NEIGHBORING RIGHTS
2. The pecuniary Rights:
• Pecuniary rights comprise, in particular, the faculty to
do or to authorize the doing of any of the following:
I. Publish or otherwise reproduce the work for public
distribution.
II. Communicate the work to public by performance,
broadcasting, or by wire.
III. Make translations or any kind of adaptation of the work
and to use these in public.
NEIGHBORING RIGHTS
G. Duration of Copyright Protection:
• It means in the field of copyright the time during which
Copyright in a work is recognized by law.
• Expiry of the term of protection means as a rule
extinction of copyright. Some of Copyright laws
however, provide for the perpetual existence of the
moral rights, laying down special rules for the
safeguard of the cultural interests related to the work
after the termination of the corresponding economic
rights.
NEIGHBORING RIGHTS
• The general term of protection extends in

most countries to the life time of the author
and certain number of years thereafter, in the
majority of cases 50 years and in some other
countries more or less than 50 years, to be
computed as a rule from the beginning of the
first calendar year following the year of the
author’s death.
NEIGHBORING RIGHTS
H. The Neighboring Rights:
• Neighboring Rights includes: Performers, Producers
of phonograms and Broadcasting organization.
• Performers are actors, singers, recitalists, chanter,
musicians or dancers in protect literary and artistic
works that are protected pursuant to the provisions
of the law herein, or that have fallen into public
domain or such persons who perform in any manner
including folklore expressions, in such works.
NEIGHBORING RIGHTS
• Producers of phonograms are natural or juridical
person who first records a phonogram or a
performance made by a performer, without fixing the
sound to the image, upon preparing an audio-visual
work.
• While, Broadcasting means the audio or audio-visual
transmission of work, performance, phonogram or the
work or performance recording, to the public by
wireless means. Transmission via satellites is also
deemed broadcasting.
NEIGHBORING RIGHTS
• Performers shall enjoy the following financial
exclusive rights:
1. Communicating their performance to the public and
grant licenses for making available to the public, rental
or leasing of the original recording of the performance
or copies there from.
2. Preventing exploitation of their performance in any
manner, without previous written authorization there
from.
NEIGHBORING RIGHTS
• Producers of sound recordings shall enjoy

the following exclusive economic rights:
1.Prevent any exploitation of their recordings in
any manner, without their prior written
authorization.
2.Making a sound recording available to the public
by wire or wireless means or through computers
or any other means.
NEIGHBORING RIGHTS
• Broadcasting organizations shall enjoy

the following exclusive economic
rights:
1.Authorize the exploitation of their
recordings.
2.Prevent any communication to the public,
without their prior written authorization.
CHAPTER3: THE PERSONS
• Definition of a person:
• A person may defined in law as an entity which
is capable of enjoying and enforcing rights and
undertaking obligations, whereas a thing is the
subject of such rights and obligations.
• Persons are two kinds: natural persons and
artificial persons (Juristic persons).
• A natural person is always a

human being,whereas an artificial
person is a corporation created
under the law (such as company or
a society).
• Section (1): natural persons

• Beginning and End of personality:
• The personality of an individual begins from his
birth and ends by his death.
• This legal personality presumes that, since his
birth, he is capable of acquiring rights and
assuming liabilities.
• It easy to prove birth or death by returning

to the official registries which are prepared
for that.
• A personality may begin before birth as in
case of an Embryo.
• Aslo there is a presumtive death as in case
of the missing person.
• Position of the missing perosn:

• Introduction:
• A missing person is a person who has
disappeared for no known reason. He is
someone about whom nothing is known, he is
someone whose whereabouts are unknown,
and whose life or death cannot be
determined.
• Many questions may arise concerning

the security of transactions with the
missing person’s estate, such as the
disposition of his land, the right to
proceeds of insurance policies on his
life and pensions etc.
• Most countries have a set period of time

which an individual is presumed to be dead if
there is no evidence to the contrary.
• If the missing individual is the owner of a
significant estate, the court may delay
ordering a death certificate to be issued if
there has been no real effort to locate the
missing person.
• In most common law jurisdictions a missing

person can be declared legally dead no less
then seven years.
• This time frame may be reduced in certain
cases, such as deaths in major battles or
mass disasters such as the Septemper 11,
2001 attacks.
• In the United Kingdom a missing

person may be delclared legally dead
after seven years from disappearing
without explantion, unless other
convincing evidence of the person’s
death can be shown.
• elsewhere, the wait is even longer. an absent

person is presumed to have died if:
1. He has been missing from his home or usual residence
for a period of seven years;
2. Such absence has been continuous and without
explanation
3. Persons most likely to hear from him have heard
nothing
4. He cannot be located by diligent search and inquiry.
1. Missing persons in Islamic Law:

• The four schools for islamic law are somewhat
different from each other, regarding to the
duration that a missing person (AL-Mafqud) is
declared legally dead:
• The Hanafi school provides that we have to wait
as long as the missing person may be considered
alive on the basis of a usual life-span.
• Abu hanifa says that (90) years (or 70 years

according to an laternative ruling) must elapse,
he can be declared dead. This would mean that
his wife and his heirs must wait that long.
• The Maliki school fixed seven years (some says
4 years) starting from the date of his
disappearacne, regardless of the circumstances
surrounding the disappearance.
• This would mean that the wife of the missing

person shall wait for (4) years and then observe
an “Iddah” of four months and ten days, after
which she may remarry.
• The shafi’i and hanbali school takes the view
that ifthe person has been missing in hard
circumstances (Battle, earthquake) the judge will
order a four-year waiting period for his wife and
his heirs.
• If the person has been missing in normal

circumstances (Traval to work or to study abroud),
the judge must wait not less than four years, from the
date of disappearance, before declared him legally
dead.
• Concerning about the wife whose missing husband
returns back after having been declared dead, the
maliki school says that if the missing person returns
before the consummation of the second marriage,
she will belong to the missing person.
• But if he returns after after consummation she will

remain the second’s wife.
• It will be wajib, for the second husband to pay dowry to
the first.
• According to Amed bin Hanbal, if the second husband
has not consummated the marriage she belongs to
the first; but if he has, the choice lies with the first
husband he may either reclaim her from the second
husband and give his the Dowry or allow her to remain
with his by taking the Dowry.
• Missing person in Somali

Civil Law?
• Article 32
• Sub-Section (2): Characteristics of the legal

personality
• There are about five characteristics of the legal
personality: the Name, the Domicile; the Status, the
Capacity and the Patrimony.
I. The Name: the name is the main way to differenctiate
between persons of the society.
• It consists in all European countries of the personal
name and the name of the family.
• In Egypt and Somalia the name of a person

consists of his personal name, the name of his
father and the name of his grand father.
• It seems clear that the name is considered as
a personal status right, which cannot be sold
or disposed of by any means. No person is
allowed to assign, sell or transfer his name to
another person, as it is not a patrimonnial
right.
II. The Domicile:

• Every person has his own domicile. It plays a
very important role in law. As an example, the
general rule is that suit is to be brought in the
place of the defendant’s domcile.
• A person may have more than one domicile at
the same time.
III. The status:

• There are two kinds of status: the political
stauts (nationality) and the civil status
(Kindship).
• The nationality is an individual’s allegiance to
a particular state. Nationality by birth may be
based either on the descent from a national,
or on the fact of birth within state territory.
IV. The Capacity

• Capacity is of two kinds: the capacity to be
the subject of right (capacity to enjoy); and
the capacity to act (capacity to exercise).
• The law divides the person’s life, in terms of
age, in relation to the “capacity to exercise”
into three main stages:
1. From the time of the person’s birth to the ages

of seven. During this stage, the person totally
lacks any capacity to exercise (stage of the
indiscriminating child).
2. From the age of seven to the age of
eighteenth. During this stage, the person
possesses incomplete capacity to exercise.
(stage of the discriminating child).
3. Starting the age of eighteenth, the person

is considered as “major” and is assumed to
possess descrimination, unless he is
declared lacking total or partial legal
capacity (stage of the descriminating
major).
• The person is incapacity to act in one of the
following reasons:
1. A minor of non discrimination.

2. A Lunatic or an imbecile.
3. A Prodigal
4. Person infected by two or more disabilities.
• Subsection (2): JURISTIC PERSONS

A. Definition of a juristic persons:
• A juristic person is any being which is not
human to whom law attributes personality.
B. Public and Private Juristic persons:
• The public juristic persons include, according
to the civil law, the state and itself, its
branches which perform public service.
• The private juristic persons include

the associations and the non-profit
organizations.
• It is important to say that the typical
example of private juristic persons is
the companies, whether civil or
commercial.
• Persons of international law:

• The main persons of international law are, states
and international organizations.
• With regard to states, international law is
interested in several matters. For example
sovereingnty, independence, domestic
jurisdictions, law of the sea, transfer and loss of
territory, state responsibility, diplomatic and
consular relations.
• Concerning international
organizations, they raise so many
questions such as legal personality,
structure, source of law, legal acts,
privileges and immunities, and
international responsibility.
CHAPTER4: THE THINGS
A. Definition:
• Everything that is not outside the ambit of trade by
its nature or by virtue of the law may be the object
of financial rights.
• Thus, there are things that can be the object of
exclusive possession, such as cars, buildings,
foods, ..etc.
• While there are things that cannot be the object of
exclusive possession, such as the sun, the air or
the sea.
B. Catigories of Things:
• Things may be divided into materail and non-
matierial things.
• They may be either consumable or non-
consumable.
• They also may either be fungible or non-fungible.
• Finally, they may either be immovalbe or
movalbe.
I. Material and Non-Material Things:

• Material things are those things that their
existence can be felt and seen by sight or
touch such as houses, cars, books, …etc.
• While non-material things are those things
that their existence can be felt only by sense,
such as copyright, patent or trade marks…
etc.
II. Consumable and Non-Consumable Things:

• “Consumable things are those things whose utility,
by reason of their destined use, consists in their
consumption or disposal”.
• From the this definition we can deduce that
Consumable things are those things which are not
used repetitively, while non-consumable things are
those things which do not depreciate from the first
use, even if its continues use reduce its value or its
strength.
• Consumption may be material or legal.

Material consumption is realized by the real
disappearance of the thing, such as food or
consumption of fuel.
• While legal consumption is realized by the
going out of the thing from the person who
owns it, such as spending money or selling of
goods.
• The importance for the distinction between

consumable and non-consumable things
appears in that consumable things may not
be the object of the right of use since this
right requires the user to return the thing he
uses to its owner while consumable things
are destined for consumption and therefore
cannot be returned to its owner.
III. Fungible and Non-Fungible Things:

• Fungible things are those things which can be
replaced one by another in a payment and which
it is customary in trade to estimate by number,
measure, volume or weight such as money.
• Non-Fungible things are those that are so
dissimilar that they cannot replace each other
such as lands, houses or the animals.
• The distinction between fungible and non-

fungible things is very important, especially in
the time of transfer the property to the buyer.
Thus, title to property of non-fungible things is
transferred to the buyer, immediately upon the
signature of the contract of sale, while in
respect of fungible things, title is not
transferred to the buyer unless the things are
set aside.
IV. Immovable and Movable Things:

• Things which are fixed and which cannot be
removed without damage are immovable. All
other things are movables.
1. Immovable things:
• Immovable things may either be naturally
immovable or, otherwise, things deemed
immovable because they are destined to serve an
immovalbel thing:
 Naturally immovable things are those things

which are fixed and which be removed without
dmage, such as lands buildings, trees.
 A deemed immovable things is a movable thing
placed by its owner in an immovalbe thing
owned by the state person in order to serve or
exploit such immovable. For example, an
agricultural machine in a land a technical
machine in a factor.
 There are three conditions for a movable thing to

be considered as a deemed immovable thing:
1. The movable and the immovable things must be
owned by only one person.
2. The movable thing must be dedicated for use to
serve or exploit such immovable thing.
3. The dedication must happen from the owner or
his representative.
2. Movable things:
• Movable things may either be naturally movable
things or, otherwise, movable things by destination:
• Naturaally movable things are those things which
are not fixed and which cannot be removed form
one place to other without damage.
• The naturally movable things may either be material
such as animals, cars, …etc.
 Movable thing by destination is

an immovable thing which is
destined to be removed to
another place or separated from
the immovable such as a peace
of a house.
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Introduction to Law

PART1: THE THEORY OF LAW

• Chapter1: the concept of law

Chapter 1: kinds of rights

B. The Aims of Law

1. To set up an official framework of

2. To provide facilities for people to

3. To settle disputes about what the

C. Characteristics of the legal rule:

I. The legal rule is both general and abstract

• The generality of the legal rule does not

In these examples, the legal rule only conerns a

II. The legal rule governs the behavior and

• It is important to mention that the legal

III. The legal rule is accompanied by

• However, if they do not do as expected,

• The most glaring and reprehensible is the

Chapter2: distinction between legal rules

• It is evident that both law and morality serve

• Some portions of the moral rules coincide or

• Law, however, is not necessarily the same

• In conclusion, we can deduce

B. Law and religion:

• There is common interest of law and religion in

Hierarchy of the legal rules:-

• Types and degrees of sanctions:-

 The second one is a civil sanction, such as

There are two main branches of law: the public

Private law is the law governig

A. The public law:

1. Constitutional law: is a group of legal

a) The form of the country, i.e. kingdom or a

d) The public authorities and relationships

f) Rights of individuals, such as the right of

• All other laws in the state are bound to

• If the constitution cannot be amended like

• The constitution may be drafted by the

• The same procedure may be

• It's worthy to note that administrative law is a relatively recent

• Its general principles and rules are

• Financial Law is concerned with three

• Public resources are revenue derived

• Tax Law is dominated by the

4. Criminal Law is a set of rules which

• Criminal law is dominated by the principle of

A.Penal Law (whether public or private)

• Criminal Law is the law which describes acts

• As for the law of criminal procedures,

• The civil sanction aims the enforcement of a

5. Public International Law:

• The Public international law is intrested in

• Public international law deals with the following

3. Kinds of state and territories.

B. The private law:

• As for family relationships, the civil law deals with

• The civil code deals with the following matters:

4. Principal Rights in rem, such as

• The first group comprises the

• The second comprises those transactions