UCC LAW 101 Lecture 1 (2).ppt
- 1. Dr. Sandra O’Meally, JP Law and the sources of law Dr. Sandra O’Meally, JP Wednesday, January, 25, 2023
- 2. LAW Thomas Jefferson: "The study of the law qualifies a man to be useful to himself, to his neighbors, and to the public.” “Long is the night to him who is awake; long is a mile to him who is tired; long is life to the foolish who do not know the true law.” ... “'The only true law is that which leads to freedom,' ... “It is not desirable to cultivate a respect for the law, so much as for the right.”
- 3. Law and the Sources of Law The Meaning of Law “The law is a set of rules, enforceable by the courts, which regulate the government of the state and govern the relationship between the state and its citizens and between one citizen and another.” (Keenan & Richie) “Law is a body of principles recognized and applied by the State in the administration of justice” (Salmond, J.W.) The laws of a country are the governing body of rules used by the country through its law enforcing mechanisms; to impose penalties and other sanctions against laws being broken.
- 4. The Meaning of Law Rules are divided into three categories: 1.Rules used to implement and categorize penalties to forbid certain types of behaviour. 2. Rules that require others to be compensated by individuals who cause harm. 3. Rules that deal with some human activities such as right to marry, to form a company, or to make a will. 4/13/2023 1 4
- 5. The Need For Law Laws are required in society to regulate and stabilize behaviour of individuals, and this corresponds with what is acceptable with the majority principles of society. Laws protect our general safety, and ensure our rights as citizens against abuses by other people, by organizations, and by the government itself. We have laws to help provide for our general safety. Laws are rules that bind all people living in a community. 4/13/2023 1 5
- 6. The Need for Law Laws about food safety. Speed limits and traffic laws exist so that we drive in a safe manner. Licensing for doctors and nurses ensures proper training of the people who look after us, and who often have our lives in their hands.
- 7. Evolvement of Law Law is an evolutionary systemic process involving the experiences of a vast number of people. Law evolves out of repeated customs and norms. The body of law is not static but constantly changes and develops as societies grow These changes reflect the values, social beliefs, norms and standards in a society based on the various eras. 4/13/2023 1 7
- 8. Evolvement of Law A society develops a system of laws to enshrine its values, concepts of justice and even its' morals. A system of laws (i.e. a legal system) is established to serve the vital function of providing societal order and a mechanism for the individuals within that society for interacting with each other in the multitude of situations that arise. In addition, a legal system is set up to provide remedies for wrongs inflicted on individual members of society and to deal with those who disturb that public order via criminal and/or injurious conduct.
- 9. Evolvement of Law Laws grow and develop with the growth and development of society. New developments in society create new problems and law is required to deal with those problems Parliament enacts and repeals laws based on the need of society or to control activities outside the norm Reign behaviour Monitor cultural or economic shifts 4/13/2023 1 9
- 10. Classification of Law Private law (Civil Law) allows individuals to bring an action against another to settle a form of civil dispute. It is concerned with the rights and duties of individuals towards each other. Public Law (Criminal Law) seeks to remedy society’s control by bringing an action by the public prosecutor for the State against another or it can also be instigated by a private citizen. ( In Jamaica the public prosecutor is referred to as the DPP –Director of Public Prosecution and the present holder of office is Paula Llewellyn) 4/13/2 023 1 10
- 11. Classification of Law Civil / Private Law - govern disputes between individuals in such areas as: Law of Torts Contract Law Property/Real Estate Law Administrative law Company Law Commercial Law Employment Law Family law 4/13/2023 1 11
- 12. Classification of Law Criminal law is the body of law that relates to crime. It prescribes conduct perceived as threatening, harmful, or otherwise endangering to the property, health, safety, and moral welfare of people inclusive of one's self. Criminal Law (Public Law - laws covering offences against the State such as theft, rape, murder, treason. 4/13/2023 1 12
- 13. Classification of Law Criminal law, as distinguished from civil law, is a system of laws concerned with punishment of individuals who commit crimes. It defines criminal offenses, regulates the apprehension, charging, and trial of suspected persons, and fixes penalties for wrongful acts . Most criminal laws are established by statues. 4/13/2023 1 13
- 14. Classification of Law A statute is a formal written enactment of a legislative authority that governs the legal entities of a city, state, or country by way of consent. Typically, statutes command or prohibit something, or declare a policy. Statutes are rules made by legislative bodies; they are distinguished from case law or precedent, which is decided by courts, and regulations issued by government agencies. 4/13/2023 1 14
- 15. Distinction between Law and Morality Committing a murder has an effect on both law and morality (concerning right/wrong or good/bad behaviour), therefore, in many cases law and morality have some relation and do coincide. However, sometimes the concepts do not interrelate, for example; homosexual behaviour between consenting adults is not illegal within some societies but it is viewed as an immoral behaviour; resulting in a breach of moral law. If it is illegal within a particular society it will be an offence punishable by the law. 4/13/2023 1 15
- 16. Sources of Law The term sources of law is used in various ways. It may also be considered as a classification of law. The sources of law deal with the means by which the law is brought into existence. English Law was developed centuries ago based on the social, political and economic life deriving from customs, moral, religious beliefs, and business practices. These customs, norms and standards aid in setting the legal mechanism to control behaviour of our society, provide safety and freedom of citizens. 4/13/2023 1 16
- 17. Sources of Law DERIVATIVES OF SOURCES OF LAW: 1. FORMAL SOURCES: Authority giving effect to the rule of law for example: the state or sovereign 2. LITERARY SOURCES: This is where the law is physically found 3. HISTORICAL SOURCES: This is founded on the concepts develop under Common law and Equity Examples: Customs, religious beliefs, public policies, natural justice 4/13/2023 17 17
- 18. The Main Sources of Law LEGAL SOURCES: This is the force and authority for enforcement - 1. Constitution - 2. Custom - 3. Judicial Precedent - 4. Legislation - 5. European Law 4/13/2023 1 18
- 19. The Main Sources of Law 1. Constitution A constitution is the rule book for a country/state that sets out the fundamental principles by which the state is governed. It describes the main institutions of the state, and defines the relationship between these institutions (for example, between the executive, legislature and judiciary). The Constitution which was drafted in August, 1962 and premier law of Jamaican is the highest, supreme
- 20. The Main Sources of Law 2. Custom During the middle ages in Europe, custom, laws were created by using established and specific custom. Although custom is referred to as one of the legal source of law, the level of importance placed on it in mediaeval times is not so today. Case: Hutton v Warren 1836 The parties were landlord and tenants in farming contractual relations. The Landlord gave notice to the tenant to quit. There were disputes in relation to the tenant’s obligation to continue working and cultivating the land until notice expired in regards to allowances for work done and the seed supplied. The courts made a decision based on local custom which had been incorporated into the contract. 4/13/2023 1 20
- 21. The Main Sources of Law Other usage of customs are settled based on proving that the custom has: 1. Been in existence since time immemorial and the records must indicate that there is no interruption of such usage. 2. Been enjoyed openly as of a right. That is there was no force, no permission given for such use and the right was not enjoyed secretly. 3. been reasonable, certainty and consistency with other custom usage within a particular locality. Read other cases below on Custom: 1. Simpson v Wells (1872) 2. Mercer v Denne (1905) 4/13/2 023 1 21
- 22. The Main Sources of Law 3. Judicial Precedent Judicial precedents are judge-made laws derived from case laws but is based on consistency. This is a legacy of the courts of common law and equity A precedent is a principle or rule established in a previous legal case that is either binding on or persuasive without going to courts for a court or other tribunal when deciding subsequent cases with similar issues or facts. The operation of Judicial precedent is that once a principle has been established by a higher court it becomes a binding precedent. 4/13/2023 1 22
- 23. The Main Sources of Law Under the doctrine of Stare Decisis (Latin for “let the decision stand”) courts in our Common Law system are obliged to follow the decisions and rulings in previously decided cases, or precedents, where the facts and issues are substantially the same. Parliament normally adheres to certain conventions which limit or guide its freedom. It tries to enact laws for more beneficial advantages; and tries to compensate rather than deprive citizens. 4/13/2 023 1 23
- 24. The Main Sources of Law 4. Legislation These are laws made by parliament or law making powers delegated by Parliament. The powers of Parliament is to repeal statutes or to make law as the needs arises. The function of Parliament is not just to make new laws and alter existing ones but also to make existing laws clearer for understanding. The courts are bound to apply legislation, however, the disadvantage is how the judges interpret the statutes. 4/13/2023 1 24
- 25. The Main Sources of Law 5. European Union European Union impacts the European Community. The European law was implemented by the Treaty of Rome 1957. The three European communities are: 1. The European Coal and Steel Community (ECSC)1957 2. The European Economic Community (EEC) 1957 3. The European Atomic Energy Community (EURATOM) 1957 4/13/202 3 1 25
- 26. The Main Sources of Law European Law is very fundamental as the European communities implement laws from the various member states that are beneficial to meet the needs of the group. The European Communities Act 1972 enacts that UK Parliament will be effective via application of the Communities, which signifies that a provision of the EC will affect a member state directly (the member state does not require any further legislation). 4/13/2023 1 26
- 27. The Main Sources of Law The Constitution is laws setting out the general framework and structure for the government of Jamaica to operate; and enacting benefits and rights of individuals in the country. The Constitution is the superior law of the land. Section 2 of the Constitution, 1962 stipulates that any law in the land which is void to the extent of the inconsistency negates and the Constitution will prevail. The Constitution is considered the most important or supreme source of law. Collymore v AG (1967) 12 WIR 5 “ No one, not even Parliament, can disobey the Constitution with impunity.” 4/13/2 023 1 27
- 28. THE CHARACTERISTICS OF ENGLISH LAW CONTINUITY The continuity of a legal system generally means that the law and the relationships established thereby continue in force despite other significant changes, such as the demise of a system of government and the advent of a new state. COMMON LAW Common law is law that is derived from judicial decisions instead of from statutes. Common law, also known as judicial precedent, judge-made law, or case law, is the body of law created by judges and tribunals. AND EQUITY refers to a particular set of remedies and associated procedures involved with civil law. 4/13/2023 1 28
- 29. THE CHARACTERISTICS OF ENGLISH LAW JUDICIAL DECISIONS - Judicial precedent or decisions is a process which is followed by the judges to take the decision. In Judicial precedent, the decision is taken by following the similar cases happened in the past. So judicial decision is based on the principle of stare decisis i.e. “stand by the decision already made”. TRIAL BY JURY - The jury evaluates the evidence, applies the appropriate law (guided by the judges) to the facts, and thereby arrives at a decision. DOCTRINE OF SUPREMACY – no one is above the law. 4/13/2023 1 29
- 30. THE CHARACTERISTICS OF ENGLISH LAW ABSENCE OF CODIFICATION - codification is the process of collecting and restating the law of a jurisdiction in certain areas, usually by subject, forming a legal code, i.e. a codex (book) of law. Codification brings greater certainty of law in a legal system. Uncodified laws are those that originate from court decisions (common law) and general customs and practices. THE APPLICATION OF PRECEDENT, Precedent refers to a court decision that is considered as authority for deciding subsequent cases involving identical or similar facts, or similar legal issues. Precedent is incorporated into the doctrine of stare decisis and requires courts to apply the law in the same manner to cases with the same facts. read pages 14-15 from recommended text. 4/13/2023 1 30
- 31. DQ 1 Assignment Question 1 (a) Discuss the four legal sources of law. Stating the advantages and disadvantages of each. (b) Give the implications of each legal sources of law on the Jamaican legal system. (c) Explain the main characteristics of the common law legal system and relate these features to the Jamaican Legal system. (d) “Although the features of delegated legislation is considered to be undesirable, it is absolutely necessary for the effective governance of modern societies.” Discuss. (e) The Constitution is a written source of law and is considered to be of optimum supremacy; however, what is the role of legislation and its power in terms of bridging that supremacy. Due day: February 8, 2023 4/13/2023 1 31
- 32. Reading Assignment Abbott, K.R., & Pendlebury, N. & Wardman, K.: Business Law, 8th Edition, 2007, Thomson Learning, London. Chapters 3 – 4 Chapter 6 – The origins of the Common Law, pg 40; The Origins of Equity, The Court of Chancery and Common Law and Equity pages 43-46 4/13/2 023 1 32
- 33. 4/13/2 023 1 33 NEXT WEEK : THE STRUCTURE OF THE ENGLISH LEGAL SYSTEM & THE JAMAICAN LEGAL SYSTEM