MUSLIM UNIVERSITY OF MOROGORO

FACULTY OF LAW AND SHARIA’H

BACHELOR IN LAW WITH SHARIA’H

COURSE NAME: JURISPRUDENCE II

COURSE CODE: LW 2203.

INSTRUCTOR: MR MUHIRU

TASK: GROUP ASSIGNMENT.

GROUP NUMBER: 09

SUBMISSION DATE: 15/05/2025.

S/N STUENT NAMES REG. NUMBER

1 ABUBAKAR HUDHAIMA BAKARI MUM2022-04-07316
3 MAHAMUDU A. MAHEZA MUM2022-04-08275
4 MOHAMED SAID MOHAMED MUM2022-04-08417
5 NASSOR K. HARUNA MUM2022-04-07669
6 RAMADHANI IDDY NJAMA MUM2022-04-07781
7 HAMZA ATHUMANI KAMBONA MUM2022-04-08037
8 SIWENA K. RAMADHANI MUM2022-04-07817
9 FATUMA OMARY MUHAMEDI MUM2021-04-06869
10 LUQMAN I. MSUYA MUM2022-04-07751
12 TATU YAHAYA AMRI MUM2022-04-07630

QUESTION

1. Discuss the concept of problem of rights, law and social change and its relevance to the
Tanzanian science of law. Provide critique if any.
1.1 INTRODUCTION

1.2 CONCEPT OF PROBLEM OF RIGHTS:

Problem of rights refers to the philosophical and legal challenges in defining, interpreting, and

applying rights within a legal system or society. This concept is central in legal philosophy,

particularly in debates between natural law theorists, legal positivists, and critical legal scholars 1.

1.3 DEFINITION AND NATURE OF RIGHTS:

Harold Laski “The right of Man” 1940 defined rights to mean “Rights are those conditions of

social life without which no man can seek, in general, to be himself at his best”. Also T. H.

Green defined rights to mean “Right is a power claimed and recognized as contributory to

common good”2.

Generally; RIGHTS are legal,social,or ethical principles of freedom or entitlement; that is,

rights are the fundamental normative rules about what is allowed of people or owed to people,

according to some legal system, social convention, or ethical theory.

1.4 NATURE OF RIGHTS:

The nature of rights is viewed differently by natural law theorists (naturalists) and legal

positivists, reflecting their broader philosophical outlooks on law, morality, and authority.

 Nature of rights according to natural law theorists (naturalists);

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https://www.scribd.com/document/461039314/Assignment (Assessed on 2/05/2025)
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https://jecollege.org/wp-content/uploads/rights.pdf (Assessed on 1/05/2025)
Naturalists believe that rights are inherent, universal, and derive from nature, reason, or divine will, not

merely from man-made laws. A naturalist would say slavery or tyranny is wrong, even if it's legal,

because it violates inherent human rights3.

John Locke (1632–1704) was prominent Western philosopher who conceptualized rights as

natural and inalienable. Like Hobbes, Locke believed in a natural right to life, liberty,

and property.

According to Locke, there are three natural rights:

 Life: everyone is entitled to live.

 Liberty: everyone is entitled to do anything they want to so long as it does not conflict with

the first right.

 Estate: everyone is entitled to own all they create or gain through gift or trade so long as it

does not conflict with the first two rights4.

 Natural right according to Positivist Perspective (Legal Positivism):

Positivists believe rights are creations of law, meaning they only exist when they are recognized

and enforced by a legitimate authority. Legal positivism states that all rights and authority come

from the state and what officials have promulgated. Natural law and natural rights can be valid

only if they can be enforced by the state. That, rights are enjoyed if recognized and protected by

legislation promulgated by the state.

 However natural right categorized in to two theory according Legal Positivists

A. Will Theory

3
Beitz, Charles R. The Idea of Human Rights. Oxford University Press, 2009.
4
https://doi.org/10.1093/acprof:oso/9780199572458.003.0003Pages48–72
Herbert L.A. Hart (1907-92), a British legal scholar, is credited with developing the will theory

of rights. He cited Kant as inspiring his thinking about the importance of human freedom, or

liberty. Freedom is the most basic right, according to will theory. It is a moral (or natural) right.

All other rights, moral or legal, are specific protected freedoms. Limiting anyone’s freedom

always requires the authorization of others’ rights; and the subjects of rights remain free to

“claim” them or not5.

B. Interest theory

Jeremy Bentham (1748-1832) initiated the interest theory. As a utilitarian, he was critical of the

idea of moral rights, but conceded that the rights could be useful in legal systems6.

1.5 CONFLICT OF RIGHTS

Refers to situations where two or more legally recognized rights come into opposition, making it

difficult or impossible to fully realize all of them simultaneously. This concept is critical in

jurisprudence, particularly in constitutional law, human rights law, and ethics, where courts and

lawmakers must balance competing claims to determine which right should prevail.

 The following are the examples on the conflicts of rights:

A. Right to Privacy vs. Right to Security:

The conflict between the right to privacy and the right to security arises when efforts to ensure

public safety encroach upon individual privacy rights. This tension is particularly evident in the

digital age, where surveillance technologies and data collection practices are employed to

prevent crime and terrorism, potentially infringing upon personal privacy.

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https://www.scribd.com/document/461039314/Assignment (Assessed on 2/05/2025)
In the case of Carpenter v. United States7, the U.S. Supreme Court ruled that accessing

historical cell phone location records constitutes a search under the Fourth Amendment,

requiring a warrant. This decision underscored the importance of privacy in the context of digital

data, even when such data could aid in criminal investigations.

B. The right to freedom of expression vs. protection from hate speech or

defamation:

This is a classic example of a conflict of rights, where exercising one right may potentially

infringe upon another’s rights?

Freedom of Expression

This right allows individuals to express their opinions, beliefs, and ideas without fear of

censorship or punishment. It's protected under international instruments like Article 19 of the

Universal Declaration of Human Rights (UDHR) 8 and Article 18 of the Constitution of

Tanzania9.

Protection from Hate Speech and Defamation:

On the other hand, this refers to a person’s right to reputation, dignity, and protection from

speech that incites violence or spreads harmful falsehoods. This is grounded in defamation laws

and hate speech regulations.

E.g. A journalist writes an article accusing a local political leader of corruption, without

sufficient evidence. The article uses harsh language and labels the leader as “a thief ruining the

nation.”
7
(2018)
8
(1948)
9
(of 1977 as amended from time to time)
If the accusations are untrue or reckless, the leader may sue for defamation, claiming that his

dignity and reputation have been unlawfully attacked. The journalist may defend himself under

the right to freedom of expression, claiming the public has a right to know.

2.0 CONCEPT OF LAW AND SOCIAL CHANGE:

2.1 LAW AND SOCIAL CHANGE

One enviable attribute of law is its ability to adapt to changing situations. Thus, the Law is never

static. Change is an integral part of our lives and our existence has been through stages of growth

and development from childhood, teenage, adulthood and old age. Similarly, several changes

occur in the society we live. Human societies have evolved from primitive hunting and

gathering stages to horticultural, agrarian, industrial/modern and contemporary post-modern

society10.

2.2 THEORIES OF SOCIAL CHANGE

The Meaning of Social Change:

Mazumdar, H. T. “Social change may be defined as a new fashion or mode, either modifying

or replacing the old, in the life of a people, or in the operation of a society.”

Theory of social change:

i. Technological Theory of Social Change

10
https://www.studocu.com/row/document/jomo-kenyatta-university-of-agriculture-and-technology./bachelor-of-
law/law-and-social-change-lecture-notes/)
This theory propounded by W.F. OGBURN an American sociologist in his influential 1947

Emphasizes that technological advancements are a key driver of societal transformation or

technological innovation leads to change in the material environment, which then prompts shifts

in social institution, customs, and relationships.11

ii. The Conflict Theory

The Conflict Theory views social change as the result of tensions, struggles, and clashes between

different groups in society, especially those with unequal access to resources and power. Rooted

in Karl Marx’s analysis of class struggle, this theory sees history as driven by conflict between

the ruling class (bourgeoisie) and the working class (proletariat).12

iii. The Evolutionary Theory of Social Change

The Evolutionary Theory of Social Change suggests that society develops progressively over

time, moving in an upward, cumulative direction.13 This according Herbert Spencer

iv. Cyclical Theory:

Cyclical change is a variation on unilinear theory which was developed by Oswald Spengler

(Decline of the West, 1918) and Arnold J. Toynbee (A Study of History They argued that

societies and civilizations change according to cycles of rise, decline and fall just as individual

persons are born, mature, grow old, and die.14

v. Economic (Marxian) Theory of Social Change:

11
https://www.academia.edu/25227760/Theories_of_Social_Change (Assessed on 3/5/2025)
12
https://www.academia.edu/25227760/Theories_of_Social_Change (Assessed on 3/5/2025)
13
https://www.academia.edu/25227760/Theories_of_Social_Change (Assessed on 3/5/2025)
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https://www.academia.edu/25227760/Theories_of_Social_Change (Assessed on 3/5/2025)
The theory, primarily shaped by Karl Marx, argues that economic factors are the main drivers of

social change. Marx believed that social change happens when there's a conflict between

evolving productive forces (e.g., new technologies or labor practices) and the existing, rigid

production relations (like outdated class structures).15

2.3 LAW AS AN INSTRUMENT OF SOCIAL CHANGE:

Law plays an important indirect role in regard to social change by shaping have a direct impact

on society. For example: A law setting up a compulsory educational system.

On the other hand, law interacts in many cases indirectly with basic social institutions in a

manner constituting a direct relationship between law and social change. For example: A law

designed to prohibit polygamy.

Law plays an agent of modernization and social change. It is also as an indicator of the nature of

societal complexity and its attendant problems of integration. Further, the reinforcement of our

belief in the age-old panchayat system, the abolition of the abhor able practices of

untouchability, child marriage, sati dowry, etc. are typical illustrations of social change being

brought about in the country trough law16.

Law is an effective medium or agency, instrumental in bringing about social change in the

country or in any region in particular. Therefore, we rejuvenate our belief that law has been

pivotal in introducing changes in the societal structure and relationships and continues to be so.

As of today, the decisions of the Court are not just being tested on the touch stone of social

justice, but indeed they are being cited of as precursors to ‘social rights. The Court has pro-

actively and vigorously taken up to cause of social justice and has gone to the extent of

15
https://www.academia.edu/25227760/Theories_of_Social_Change (Assessed on 3/5/2025)
16
Galanter, Marc, Law and Society in Modern India, Oxford University Press, New Delhi, 1997.
articulating newer social rights such as the right to food, right to health, right to education Thus,

the march of law is clearly in favour of Supreme Court having performed a pro-active role in

social change of the languishing masses17. It certainly has acted as a catalyst in the process of

social transformation of people wherein the dilution of caste inequalities, protective measures for

the weak and vulnerable sections, providing for the dignified existence of those living under

unwholesome conditions, etc., are the illustrious examples in this regard.

Law plays an important indirect role in social change by shaping various social institutions,

which in turn have a direct impact on society. [e.g. Mandatory school attendance upgraded the

quality of the labor force, which in turn played a direct role in social change by contributing to

an increased rate of industrialization. The law interacts in many cases directly with basic social

institutions, constituting a direct relationship between law and social change].

2.4 CONCEPT OF PROBLEM OF RIGHTS, LAW AND SOCIAL CHANGE AND ITS

RELEVANCE TO THE TANZANIAN SCIENCE OF LAW;

2.5 Problem of rights in relevance to Tanzania science of law

A. Right to Privacy vs. Right to Security:

The conflict between the right to privacy and the right to security arises when efforts to ensure

public safety encroach upon individual privacy rights. This tension is particularly evident in the

digital age, where surveillance technologies and data collection practices are employed to

prevent crime and terrorism, potentially infringing upon personal privacy. This is relevant due to

the article 16(1) of the Constitution.18

17
Kothari, Rajni, Politics in India, Orient Longman, New Delhi, 1970
18
The Constitutional of United Republic of Tanzania 1977 as amendment time to time
 B. The right to freedom of expression vs. protection from hate speech or

defamation:

This is a classic example of a conflict of rights, where exercising one right may potentially

infringe upon another’s rights? This conflict its relevance to the Tanzania science of law.

Freedom of Expression

This right allows individuals to express their opinions, beliefs, and ideas without fear of

censorship or punishment. It's protected under article 18 (a-d)19

Protection from Hate Speech and Defamation:

On the other hand, this refers to a person’s right to reputation, dignity, and protection from

speech that incites violence or spreads harmful falsehoods. This is according section 32 (1) & 33

of the Media Service Act.20

E.g. A journalist writes an article accusing a local political leader of corruption, without

sufficient evidence. The article uses harsh language and labels the leader as “a thief ruining the

nation.”

If the accusations are untrue or reckless, the leader may sue for defamation, claiming that his

dignity and reputation have been unlawfully attacked. The journalist may defend himself under

the right to freedom of expression, claiming the public has a right to know.

C. Protection of right of movement v. power of detention of public officer

19
Ibid
20
[Cap
The person has been given a right to movement under the constitution by virtue of Article 17 of

the Constitution21, this is contradicted by the power of Regional Commissioner of being a

mandate to detain any person to 48 hours in cell. This is well enshrined under Section 7(3) of the

Act22.

2.6 Law and social change in relevance to the Tanzania science of law:

Law serves as a pivotal instrument for social change by shaping societal norms, promoting

justice, and addressing inequalities. Through legislative reforms and institutional initiatives, the

Tanzanian legal system has aimed to transform various aspects of society.

1. Gender Equality and Women's Rights

Tanzania has undertaken significant legal reforms to promote gender equality:

Marriage Laws: Efforts have been made to align the legal marriage age with adulthood to

protect young girls. - Case Law: In Rebeca Z. Gyumi v. Attorney General23, the High Court

ruled in 2016 that these provisions were unconstitutional, violating the rights to equality and

non-discrimination. The Court of Appeal upheld this decision in 2019, mandating the

government to amend the law to set the minimum marriage age at 18 for both sexes.

Workplace Equality: Addressing issues like equal pay, sexual harassment, and sextortion

remains critical to promoting gender equality in employment settings.

Inheritance Rights: Gaps in women's inheritance rights, shaped by religious and customary

laws,

2. Political Participation and Electoral Reforms

21
The Constitution of United Republic of Tanzania of 1977, [Cap 2 R: E 2008] as amended from time to time
22
The Regional Administration Act, [Cap 97 R: E 2006]
23
2016
Tanzania's electoral laws historically prohibited independent candidates from contesting

elections. Case Law: In Tanganyika Law Society Legal and Human Rights Centre and

Reverend Christopher Mtikla v. United Republic of Tanzania 24, the African Court on Human

and Peoples' Rights ruled that the ban on independent candidates violated the African Charter on

Human and Peoples' Rights. The Court ordered Tanzania to amend its laws to allow independent

candidacy.

3.0 CONCLUSION

Law serves as a powerful tool for social change by shaping societal norms, protecting individual

rights, and promoting justice. Through judicial interpretation, legislation, and constitutional

provisions. Law can address inequalities, protect marginalized groups, and ensure more equitable

society. Landmark case like Rebeca Gyumi v. Attorney General25, demonstrate how law adapts

to societal needs, safeguards fundamental rights, and pushes for reforms to areas like legal aid

and constitutional integrity. By providing a framework for addressing social issues, law not only

regulates but also fosters societal progress, making it an essential instrument for bringing about

positive social change.

REFERENCE

 THE CONSTITUTIONAL OF UNITED REPUBLIC OF TANZANIA 1977 (as

amendment time to time)
24
2011
25
2016
BOOKS

 Galanter, Marc, Law and Society in Modern India, Oxford University Press, New Delhi,
1997.

 Kothari, Rajni, Politics in India, Orient Longman, New Delhi, 1970

CASE LAWS

 REBECA GYUMI V. ATTORNEY GENERAL (2016)

 CARPENTER V. UNITED STATES (2018)
 Tanganyika Law Society Legal and Human Rights Centre and Reverend Christopher
Mtikla v. United Republic of Tanzania 2011

WEBSITES

 https://www.academia.edu/25227760/Theories_of_Social_Change (Assessed on
3/5/2025)

 https://jecollege.org/wp-content/uploads/rights.pdf (Assessed on 1/05/2025)

 https://doi.org/10.1093/acprof:oso/9780199572458.003.0003Pages48–72
 https://www.scribd.com/document/461039314/Assignment (Assessed on 1/05/2025)
 https://www.studocu.com/row/document/jomo-kenyatta-university-of-agriculture-and-
technology./bachelor-of-law/law-and-social-change-lecture-notes/)
 https://www.academia.edu/25227760/Theories_of_Social_Change (Assessed on
3/5/2025)
 https://www.scribd.com/document/461039314/Assignment (Assessed on 2/05/2025)