Introduction to Law: Definition, Categories, Functions

Definition of Law

• Law is a system of rules recognized by a country or community that regulates the actions of its members
• The system is enforced by penalties
• Law is a discipline and profession concerned with the rules of conduct of a community
• The customs and practices must be recognized as binding by the community and enforced by a controlling authority

Categorizing the Law

• Laws are categorized by subject for convenience and fall under two main categories: Criminal and Civil
• Criminal law deals with the rules relating to elements of crimes and potential defenses
• Civil law addresses wrongs committed by one private individual against another
• Civil law includes instances of injury suffered due to negligence, such as a motor vehicle accident

Functions of Law

• Legitimizes the recognition of the law as the supreme law applicable to all
• Allocates power, defining which individuals or bodies can exercise authority over public functions, such as the police and customs
• Orders society by controlling the conduct of affairs, exemplified by the Industrial Relations Act
• Controls individuals by ensuring peace, order, and protection of rights, as seen in criminal law
• Resolves conflicts through courts established to enforce and create law in areas like contract and tort
• Dispenses justice by enacting legislation to protect society, such as the Maternity Protection Act 1998
• Changes society and individuals by adapting to societal demands, preventing moral decay through laws and common law
• Social media issues like cyberbullying and defamation are addressed through cybercrime bills

Court Comments on Sharing Intimate Photos

• There is a tendency for anonymity for individuals who hide behind usernames and user profiles
• This anonymity can result in offensive, hurtful, and destructive online behavior
• Breach of confidentiality occurs when someone distributes photos without the claimant's consent
• The actions of distributing photos are usually intended to cause upset, embarrassment, and distress

Sources of Law

• Constitution
• Legislation
• Common Law
• International Law (Treaties)
• The different sources are not independent of each other

The Constitution

• The Constitution is a country's most important legislation in the Commonwealth Caribbean
• The Constitution declares itself to be the land's supreme law
• Any other law inconsistent with the Constitution is null and void to the extent of the inconsistency
• Judges determine if laws passed by Parliament contradict constitutional provisions
• The importance of Constitutions lies more significantly in its content than its supremacy
• Each Constitution in the Commonwealth Caribbean includes a Bill of Rights
• The document outlines fundamental rights and freedoms for everyone applicable to any state authority. including the police
• Rights and freedoms include the right to life, liberty, property, free association, free expression, freedom of the press, and freedom of religion
• The Constitution establishes and regulates social institutions within a democratic system
• It defines rules for entering upper and lower houses of government, the power of Parliaments to make and amend laws, and the procedure for enacting laws
• The Constitution establishes the Supreme Court and identifies who can appoint judges
• It addresses qualifications, remuneration, and procedures for removing judges from office
• The document deals with the powers of the President or Governor-General

Functions of the Constitution

• Defines citizens' rights and shapes both the legal and political systems
• Lays down mandatory procedures for government, serving as the foundation for judicial review
• States basic human rights with avenues for redress and new remedies for violations
• Defines the territory of the State
• There is creation, establishment and distribution of the functions of state institutions
• Grants authority to make laws
• Furnishes legitimacy through the existence of an independent body of law that regulates the State

Constitution Form and Structure

• The typical Constitution contains chapters/sections:
• A preamble
• Chapters on citizenship
• A section on fundamental rights and freedoms (Bill of Rights)
• Chapters defining powers of the Head of State and Parliament
• Chapters defining powers and establishment of the Executive and Judicature
• Chapters establishing and defining the role and functions of the Public Service and Judicial Commissions
• Chapters on finance
• A statutory formula grants Parliament power to make laws for peace, order, and good government

Legislation

• Refers to the body of laws enacted, and the Parliament derives authority from the Constitution
• It is the most important source of law, as referred to as codification
• Based on the Civil Law tradition, the legislative function is used for deliberate law making
• Parliament can create, repeal and abolish legislation
• Legislation is its own legal source, unlike common law, which requires statutory interpretation

The Making of Legislation

• Begins with a Green Paper, which introduces proposals to the public for discussion and invites comments
• A Green Paper contains ideas about a subject published by the government to allow discussion before decisions are made
• After consultations, the government issues a White Paper, outlining firm legislative proposals, shaping policy into legislation
• The White Paper results in a Bill, a document with provisions for Parliament members to vote on and bring into law, containing explanatory notes

The Role of Parliament

• The Bill is draft legislation presented to the Parliament for debate and voting
• After voting, the Bill requires a majority in Parliament
• If the is majority achieved, the Bill forwards to Head of State for Assent and becomes law

Function of Legislation

• Revises previous laws and the common law to address archaic issues and reflect modern demands
• Consolidates different laws for a specific topic. such as the several pieces of legislation for land in T&T from 1950-2020
• Changes case law or precedent into statute through codification

Subordinate/Delegated Legislation

• To save parliamentary time, main principles of an Act are presented in numbered sections, with other details presented as schedules at the end
• The main principles also help facilitate debate
• Acts of Parliament empower the Head of State, Ministers, to make regulations to effect purposes of the main, parent Act called Subordinate/delegated legislation

Functions of Delegated Legislation

• Allows for speed and efficiency, avoiding delays in passing legislation
• Handles technicalities and specific knowledge, as some legislation is too technical and is delegated to experts
• Provides flexibility, as delegated legislation can be revoked or amended easily
• Addresses bulk by handling too much information to put before Parliament

Common Law

• The Common Law is a major legal source in the countries of the Commonwealth Caribbean
• Common law is a body of rules developed over time by judges while resolving disputes between private individuals or between citizens and public authorities
• The Common law is referred to as judge-made law
• It developed ad-hoc and on a case-by-case basis
• The common law depends on an efficient system of recording cases and judgments in Law Reports
• It applies today if there are cases where there are no previous precedents
• It is debated if the common law merely declares the law or creates it
• Common law provides for stability in the application of the law
• Common law can be harsh and rigid; case details had to fit in the common law rules that were developed over time
• The principle of equity and rules of equity were created to add to the common law which applies notions of good sense and fairness

Other Legislation

• Implements treaties and legislation to make sure the state adheres to Treaty obligations
• Public policy (Covid-19 measures)
• Response to pressure groups (marijuana legalization)

Doctrine of Judicial Precedent

• The doctrine of precedent is central to the notion of common law as a legal source
• The doctrine provides the impetus and scientific rationale for the common law development on a case-by-case basis
• The doctrine assumes that in the absence of statutes on an issue, judges must base decisions on relevant case law
• There are two types of judicial precedents: binding and persuasive

Binding Precedent

• The doctrine of binding judicial precedent (stare decisis) assumes judges find the law in conformity with existing rules
• Judges are legally obligated to use decided cases and apply found principles
• Coercive character of the doctrine of precedent is uniquely English legal tradition.
• One of the first judicial pronouncements on the doctrine can be found in London Tramcars Co Ltd v London County Council
• Lord Halsbury said that 'once a decision of this House is given upon a point of law, the House can not question it again, and it if was res integra and could argued.

Persuasive Precedent

• Persuasive precedents are legal principles contained in judgments that offer guidance
• Judges refer to these precedents but are not bound by them
• Persuasive precedents originate from lower courts or other jurisdictions
• The decision of the Court Appeal of Barbados is of persuasive authority to a court in Jamaica

International Law as a Source of Law

• International Law is the body of legal rules applying to States in their international relations
• The ambassador is protected by applicable rules of law
• The two main sources of International Law are treaties and custom
• Governments of the Commonwealth Caribbean countries are signatories to a number of international treaties
• The most important treaties are the International Covenant on Civil and Political Rights, the American Declaration of the Rights and Duties of Man, and the Convention on the Elimination of all Forms of Discrimination Against Women
• The treaties declare the existence of the fundamental rights and freedoms, incorporated into Constitutions
• The third treaty declares the principles of equality between the sexes and the signatories are mandated to take all necessary steps to make the eradication of inequality

International Custom as a Source of Law

• Some debate surrounds whether international custom automatically a part of T&T law
• No court has accepted that custom is automatically a part of the country's law
• Some cases from the UK suggest that customary international law is part of the domestic law of England
• In R v. Jones (Margaret), the UK House of Lords held that a crime recognized by customary international law is not automatically recognized as a crime in English Law
• The question of whether customary international law is automatically a part awaits a final decision, but the better view appears to be against the automatic incorporation in Jamaican law

Hierarchy of Courts

• The law enforced in the Commonwealth Caribbean is administered by Courts or Tribunals
• The Courts and Tribunals are established under the Constitution or by specific legislation

Courts of Limited Jurisdiction

• Specific courts or tribunals can only hear, and determine on specific matters which the Statute identifies, and over which the court gives its authority Courts and tribunals include:
• Industrial Courts (Trinidad and Tobago and Antigua) - hearing and determination of industrial disputes between employers, employees, and their trade unions, such as collective agreements
• Rent Tribunals are set up to resolve disputes between landlords and tenants
• Public Service Disciplinary Tribunals purposes is to examine and determine the facts in relation to disciplinary charges against public servants

Magistrate's Court

• District-based courts that handle criminal offenses, preliminary enquiries, plus limited family matters (custody, maintenance, access, domestic violence cases)
• Hears and determines matters by a single person, a Magistrate.
• Must follow rules of natural justice, such as the Bail Act

High Court

• Also called a superior Court of Record.
• Records are preserved for reference and legal guidance
• "High Court" in some Caribbean jurisdictions is a Court of unlimited jurisdiction
• It is a Supreme Court that is administered by judges with unlimited authority
• The High Court gets its authority from the Constitution and acts as the Guardian of the Constitution
• There are different Courts (Civil, Criminal and Family) to deal with issues
• Civil Courts address Contract, Tort, and Judicial Review
• Criminal Courts address Murder, and have trial by jury

High Court Limitations

• For civil cases, the High Court does not normally sit with a jury
• A jury sits for serious crimes like murder, manslaughter, treason, and rape
• Judges make decisions about the law in the case while the jury decides the facts
• It falls ultimately to the jury to decide the guilt or innocence of the accused at the end of the trial
• Governments have proposed to reduce reliance on juries, including in murder cases

Court of Appeal

• Hears appeals from High Court and Magistrate's Court
• The right to appeal is dependent on Act of Parliament
• Administered by Court of Appeal Judges
• Appeals from Magistrate Court include Sentence too severe, and Magistrate erred in law
• Appeals from High Court include issues of law, and procedural appeals

Court of Final Appeal - The Privy Council

• Most Commonwealth Caribbean States' court of final appeal
• Also called the Judicial Committee of the Privy Council
• Appeals to the Privy Council originated during the early days of colonies from court in England
• The modern form of the Privy Council has its roots in the English Judicial Committee Act of 1833

Privy Council Jurisdiction

• Hears appeal from Court of Appeal from Commonwealth countries (T&T)
• Based in the UK; judges of the UK Supreme Court sit as Judges of Privy Council
• Limited to certain matters as directed by each country constitution
• The Privy Council handles election petitions in T&T
• Two types of appeal to the PC: "as of right” and “with leave"
• "As of right” appeals involves matters of constitutional interpretation
• Cases of criminal nature requires serious miscarriage of law for the PC to grant leave

Caribbean Court of Justice

• The CCJ applies international law rules under the Treaty of Chaguaramas
• The treaty considers itself the "Guardian of the Revised Treaty of Chaguaramas," emphasizing accessibility, fairness, efficiency, and transparency in decision-making
• Acts as final court of appeal from member states who recognise CCJ as final court instead of Privy Council
• The Caribbean Court of Justice is situated in Trinidad but can sit in any other Member State

Other Facts About the CCJ

• Judges are appointed by a Regional Judicial and Legal Service Commission
• Must ensure the independence of judges who may engage in the same circles, emerge from the same class and share similar views

CCJ- Original Jurisdiction

• The Revised Treaty of Chaguaramas establishes Caribbean Community and Common Market Single market and economy
• Any individual, company or member nation can bring a matter before the CCJ in its original jurisdiction
• A ruling was sought in the case of SM Jaleel & Co Ltd & Guyana Beverages Inc Claimants v The Co-Operative Republic of Guyana
• Guyana levied the tax of G$ 10 per beverage container with No similar tax payable in respect of locally made non-returnable containers
• Guyanese manufacturers had a clear competitive advantage over other CARICOM manufacturers, so the tax essentially a discriminatory import duty, which a breach of Article 87 of the RTC

Country Usage of the Courts

• Guyana, Barbados, Belize and Dominica use the CCJ as its final court of appeal
• Antigua/ Barbuda and Grenada had a referendum on CCJ and voted no to CCJ