Sources of Law Notes (Law Unit 1, Mod 1)

Dajanae Dawkins

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There are two broad sources of law

-Primary

-Secondary

🏛️Primary Sources

Primary legal sources are the actual laws

Examples: The constitution, Case Law (court cases/common law), Statutes/Legislation, Administrative rules and regulations, Equity, Customs

🏛️Secondary Sources

Secondary legal sources are what tell you where to find the primary source

Examples: Legal Dictionaries, Legal encyclopaedias and digests, Law journals, Law reviews, Legal manuals, Legal Treaties

There are six sources of law:

*The Constitution (most important)

*The legislation

*The interpretation of legislation (statutory interpretation, various acts like sex offence act, etc)

*Common law

*Equity

*Customs

🏛️1.The constitution

-This is the primary source of law, in fact the number one source of law in any country

-By the virtue of the constitution all laws are subject to the provisions of the constitution

-No law must contravene/abrogate/abridge/be contrary to the provisions of the Constitution

-Section 2 of the Constitution of Jamaica states as follows:

‘The constitution of Jamaica is the supreme law of the land and if any law is inconsistent with it then that other law shall to the extent of the inconsistency be void

Cases: (supremacy of parliament and constitution)

Maharaj v AG of TT

Julian Robinson v AG of JA (Nids Case)

Hinds v R

🏛️Why is the Constitution ‘that guy’ (so powerful)?

1.It sets out the establishment and the procedure to be adopted by the three main organs of the state

*The legislative (The Parliament)

*The executive (The Cabinet)

*The judiciary (The Court)

2.It empowers parliament and the country at large to make laws

3.It encourages parliament to amend laws

4.It empowers the court to declare any law that is inconsistent with the constitution to be declared null and void (notes Section 2 of The Constitution of Jamaica)

5.It defines the territory of the state

6.It creates and establishes institutions of the state and defines and distributes their functions (eg: positions and organs such as The Ombudsman, D.P.P, Public Service Position, Governor General)

7.It creates and guarantees fundamental chartered rights for individuals; offers protection (eg; FREEDOM OF SPEECH, TO RELIGION)

More Cases: (supremacy of parliament and constitution)

Collymore v Attorney General (TT) (CA)

Bribery Commissioner v Ranasinghe (TT)

Andrew Holness/Senator’s case

🏛️2.Legislation

-Legislation is defined as the process of making laws

-Important source of law because it sets out the relevant legal principles/rules/regulations in the statute to guide the court

-It is referred to for charging individual of crimes

-There are two types: Primary and secondary

🏛️Primary legislation

-made by parliament

-one of the most important source of legislation (constitution is more supreme)

eg: Domestic violence act, Child Care and Protection Act, Fire Arms Act, Education Act, Road Traffic Act, The Offence Against The Person Act, The Dangerous Drugs Act, The Bail Act

**Another aspect of primary legislation is International Treaties; these are agreements between more than one international countries

**There are different types of international treaties (Conventions, relating to drugs,

children, etc)

🏛️Functions of primary legislation

*to carry out law reform; important because at times old laws become stale/obsolete/irrelevant and inconsistent with the realities of life. Some old laws have become unpopular with current court decisions

*to create new laws; required to synchronise with the realities currently occurring in a country. The laws of a country must be current, vibrant and applicable to a country’s social, economic and political affairs

*to amend old laws/alter; same as law reform

*to revoke existing laws in order to fulfil the intention of Parliament and ultimately the people

*consolidation; to group laws to use in a case (eg: sections of one legislation that relate to the same topic/issue)

*codify the law; Parliament creates a statute from common law (eg: case law may say if same sex are found kissing its an offence, thus Parliament will make a statute banning it)

🏛️Secondary Legislation

-where a government authority or functionary authority/arm of the government is given power by Parliament to make legislations

-eg: Services Commission, The Judicial Service Commission, The Police Service Commission

🏛️3.Common Law

-Simply means case law

-It is important because it describes the legal principles derived from examining the judgements of cases where there are no applicable statutes/where there are applicable statutes

-The common law is both a legal source and a historical source

-It is a legal source because it is found in cases

-It is a historical source because it is linked to colonisation

Case law has basic principles:

>Judicial precedent-the court adopted, applied and followed previous case principles) (courts on the same level, one SC [supreme court]  adopting from another SC))

>Sub judice- a case is before the judge, not yet decided dealt with but in the process of deciding a ruling

>Fair comment- to make a comment without malicious intent nor anything of the sort; a statement based on facts presented

>Ratio Decidendi (decision/held/ruled)-decision of the court/the legal verdict of a case and the reasoning behind it (very important)

>Obiter Dicta-opinion expressed by the court (when the case is too overwhelming, the court expresses its personal views, its not considered/important)

>Binding precedent/Stare Decisis-A lower court MUST adopt and apply the ruling/the ratio decidendi of a superior court in previous cases of a similar nature (similar to the one they’re working) (eg; SC accepts the ruling of the CA)

-The only way a lower court doesn’t follow the decision of a higher court, is if the higher court overturns their own decision (the one the lower court followed)

>Persuasive precedent-Cases/precedents that are not binding but have fairly sound arguments; thus lower courts don’t have to follow the ruling of a higher court in a previous case (Eg: A case from France being used in England isn’t binding as it is French while England is Commonwealth (english))

*Only Binding precedent can win a case on its own

*Persuasive precedent can only win a case if Binding precedent is used with it

COURT HIERARCHY

1.Privy Council (PC)

2.Court of Appeal (CA)

3.Supreme Court (SC)

4.Parish Court (pc)

🏛️4.Equity

https://www.lawteacher.net/free-law-essays/property-trusts/the-law-of-equity.php

-This came about because of the failures and shortcomings of the common law, in that, in many instances because the common law laid down strict principles there were instances where the common law could not assist a litigant (suing or is being sued) because the court had to follow the strict legal principles

-It came about due to the strictness/inadequacies of common law

-The common law did not and could not apply the principle of conscience

-If they applied the strict principles then unfairness would arise

-Equity means; conscience, fairness, moral justice in the legal sense

-equity prevails over common law

🏛️Equitable Remedies (common law falters in these instances/doesn’t provide for it, which is why equity picks up for that inadequacy)

*issued by court

1.Specific performance of contract

2.Injunctions

-the court forcing a person to do/not do something

A)Mandatory/Permanent/Interlocutory (to stop someone from doing something until the case is handled)

B)Anton pillar orders

(an order to restrain someone from destroying critical documents)

C)Mareva orders/Freezing order

(an order to ‘freeze accounts’ [freezes all money in the account]/freeze a certain amount of money in the account. So if you have 50 mil, and 25 is frozen, you can use the other 25)

D)Proprietory estoppel (regarding land)

(you are stopped from doing what you intend to do with the land, because it would be unjust/inequitable if you continued)

(eg: you see your neighbour building a wall for six months and its after it is built you tell them to take it down, that’s literally so unfair because you saw them building it for how long)

(remedy for misrep)

E)Misrepresentation

F)Estoppel

(you are stopped from doing what you intend to do, because it would be unjust/inequitable if you continued)

(same thing as if you misrep someone, the one who the misrep was towards would be compensated in equity)

(remedy for misrep)

3.Rescission of Contract

🏛️The Maxims of Equity

*at least one must be found for equity to be used)

1.He who comes to equity must come with clean hands

-any litigant seeking equity from the court must be honourable/upright and not be doing something wrong as well/hiding anything (eg: you report your girl cheating but you’re cheating too)

2.Equity is equality

-equity puts everyone on an equal footing

3.He who seeks equity must do equity

-if you seek equity you must be a good/fair person

-seeking justice? must be just as well

4.Equity looks on that as done which ought to be done

-if you misrepresent something on purpose, leaving the other party in shambles, the party gets what was promised because it is unjust to lie about it, convincing her she’ll get it, when you know she won’t

-eg: a contract done orally but one party says it wasn’t written thus tries to cheat the other party

5.Equity will not assist a volunteer

-the litigant who is seeking relief cannot be accidentally part of the proceedings (must be deliberate, must have an interest in the matter/be involved somehow)

-if the issue happened with you, your friend can’t seek equity on your behalf

6.Equity acts in personam and not in rem

-equity acts in relation to a person and not a thing

-eg: gives an injunction against a person and not a car/dog

7.Equity follows the law

-equity prevails if there is a clash between a legal and equity principle in the court

8.Equity will not suffer a wrong without a remedy

-once you prove that there is an injustice, equity will give you a remedy

9.Equity looks at the intent and not the form

10.Where the equities are equal the earlier equity in time prevails

🏛️5.Custom

-Can be viewed as both a historical and legal source of law in the Commonwealth Caribbean because it is the principle source of all English Law in that it forms the basis of the Common Law which has been transplanted to the region

-When common law exists then customs takes a secondary place (customs can’t override common law; common law prevails customs)

-not a written rule but something that is generally adhered to in a particular area (eg: At Immac you must stand when a teacher enters)

-for customs to apply there should be no common law on the matter

-In order for customs to be valid it must meet two fundamental criteria:

1)Must be an exception to the common law

2)The custom must be confined to a particular locality (area/parish/county/district)

In order for these two characteristics to be established, the following elements must be established:

>Antiquity; the local custom must have existed from time immemorial. Essentially the court must be satisfied that there is or has been a long standing tradition of that rule

>Continuity; this means that the custom must exist continuously for a long time without any interruption

>Peaceable enjoyment; this means that the custom must have existed peaceably by common consent or without opposition. It also means the custom must have come into force with consensus. It must not be forced upon the people or evolve in secret or via license/permission

>Mandatory; this means that the custom must be obligatory (it is followed constantly, but not forced upon a person, you do it so much that it becomes a mandatory habit)

>Certainty and Clarity; this means that the custom must be certain and clear in all respects. It must be capable of being defined precisely. It must include the locality to which it applies. (which set of people it will affect, which set have or don’t have rights and the extent and content of those rights

>Must be Consistent; observed regularly

>Reasonableness; must not be unreasonable