FOUN1301 Form of Law PDF

George A. Pilgrim B.A M.Sc. FOUN1301 1  Procedural law consists of the set of rules that govern the proceedings of the court in criminal lawsuits as well as civil and administrative proceedings...

George A. Pilgrim B.A M.Sc. FOUN1301 1  Procedural law consists of the set of rules that govern the proceedings of the court in criminal lawsuits as well as civil and administrative proceedings. Procedural The court needs to conform to the law standards setup by procedural law, while during the proceedings. These rules ensure fair practice and consistency in the "due process". 2 Substantive Substantive law is a statutory law that deals law with the legal relationship between people or the people and the state. Therefore, substantive law defines the rights and duties of the people, but procedural law lays down the rules with the help of which they are enforced. 3 Difference In order to understand the differences between the structure and content of s in substantive and procedural law, let's use an example. Structure If a person is accused and undergoing and a trial, substantive law prescribes the punishment that the under-trial will Content face if convicted. 4  Substantive law also defines the types of crimes and the severity depending upon factors such as Difference whether the person is a repeat in offender, whether it is a hate Structure crime, whether it was self- and defense etc. Content It also defines the responsibilities and rights of the accused. 5  Procedural law, on the other hand, provides the state with the machinery to Difference enforce the substantive laws on the people. s in Procedural law comprises the rules by Structure which a court hears and determines what happens in civil or criminal proceedings. and Procedural law deals with the method and means by which substantive law is made Content and administered. 6 Difference in Structure and Content In other words, substantive law deals with the substance of the case, how the charges are to be handled and how the facts are to be dealt with; while procedural law will give a step by step action plan on how the case is supposed to proceed in order to achieve the desired goals. Therefore its procedural law that helps decide whether the case requires trial or otherwise. 7 Powers of Substantive vs. Procedural Laws Substantive law is an independent set of laws that decide the fate of a case. It can actually decide the fate of the under-trial, whether he wins or loses and even the compensation amounts etc. 8 Powers of Procedural laws on the other hand, Substantiv have no independent existence. Therefore, procedural laws only tell e vs. us how the legal process is to be executed, whereas substantive laws Procedural have the power to offer legal Laws solution. 9 Differences in Application Another important difference lies in the applications of the two. Procedural laws are applicable in non- legal contexts, whereas substantive laws are not. So, basically the essential substance of a trial is underlined by substantive law, whereas procedural law chalks out the steps to get there. 10 LEGAL SYSTEMS 11 LEGAL SYSTEMS Historically, the legal system of the Commonwealth Caribbean can best be described as mixed. The legal system of most of these countries is based on the laws of former colonial administration. Antoine (1999) also confirmed this, saying that:“The countries of the Commonwealth Caribbean continue to exhibit perhaps excessive tendencies of reliance on the form, structure, substance and content of the law as expressed in England.” With the exception of Guyana and St. Lucia, the legal system of the English-speaking Caribbean countries is based on the Common Law system. The legal systems of Guyana and St. Lucia are best described as “hybrid”, because Guyana has the influence of the Roman-Dutch tradition, while that of St. Lucia has a strong influence of the French civil law. 12 LEGAL SYSTEMS While many of the legal systems of the Commonwealth Caribbean have a very strong influence of the Common Law, there has been a reception of other legal systems, such as Hindu, Muslim and Indian law. These traditions and customs have been incorporated into the legislation of these countries. Nevertheless, the content of the laws of these countries today reflect their cultural, social, political and economic needs. 13 LEGAL SYSTEMS In 1962 and 1963, two weekend conferences were held in England on aspects of law and its administration in the British West Indies. They were attended by law students from the Caribbean studying in England and a core of lawyers, jurists and judges who would become the pioneers of Caribbean legal education. 14 LEGAL SYSTEMS Sir Hugh Wooding,of Trinidad described the existing system of law in the West Indies as ‘hopelessly inadequate to fulfil the requirements of our society and in many respects so unrelated to the verities of our life, economy and customs as to need urgent revision and thorough reform’. 15  LEGAL SYSTEMS Dorcas White (1970) struck a similar tone, exploring the challenges of making and interpreting laws in the postcolonial Caribbean. She concluded that, ‘West Indian law may be bad law, it may be irrelevant law, unsuitable to the peculiar circumstances of the region. It may be imposed law – that is, the law directed to the colonies by the British Parliament; it may be all that or even worse but it is still West Indian law.’ 1 6 LEGAL SYSTEMS Despite the similarities in law across the English-speaking Caribbean, it is not self-evident that we should think of law in regional terms. Much of what we think of as law is excruciatingly parochial and domestic. There was no imperial parliament routinely making laws for the British West Indies, nor was the English common law uniformly received in the Caribbean. 17 LEGAL SYSTEMS Colonial legislatures made their own laws, often, though not always, with close reference to those in Britain and certainly not with the aim of consistency with their Caribbean neighbours. Until the recent establishment of the CCJ, only one regional court survived independence, the Eastern Caribbean Supreme Court. And today there are twelve sovereign nations in the English-speaking Caribbean, and the highest law in each is a different constitution 18 COMMON LAW 19  The common law system originated in England, in form, character and substance, it should be of little surprise to learn that this system, Common through the process of colonisation, was imposed upon the former Law conquered territories, some of which now make up the Commonwealth Caribbean.” 20  "Unwritten rule of law" would be a reference to the common law. Common "rules of law” which do not rest for their authority upon any express or positive statute or other written declaration but Law rather upon statements of principles found in the decisions of the courts. Common law is the law of necessity and is applied in the absence of controlling statutory law 21  Common law can either be an allusion to the development of law through custom and usage, or to judge-made law or non- statutory law. Even judge-made law is open to different interpretations. Common Law This ‘common law’ is still used today in creating case law (which is in fact often known as common law in general, a judge must follow decisions made in courts which are higher up the hierarchy than his or her own. he body of decisions made by the higher courts, which the lower ones must respect, is known as case law. 22  In the broadest sense, it represents all judicial decision-making that is the basis of judicial precedent: that is binding law which later courts of the same or equal jurisdiction are obliged Common to follow. law Backgrou In other words, all case law. This includes authoritative judicial rulings nd on statutes and the constitution. In a narrower context, a ‘common law rule’ is an entirely judge-made legal principle, as contrasted with a judicial interpretation of legal text such as a statute or constitution. 23  The term ‘Caribbean common law’ signals that the common law tradition was a vital source of identity for Caribbean nationalists. Commo The common law was an emblem of m law Englishness, it constituted an indestructible ‘political genius’ deeply embedded in the ‘manners’ of the nation. It symbolised traditionalism and legal continuity, respect for the rule of law and protection of liberty against state encroachment. 24