Law Lecture 1 PDF

# Sources of Law There is a range of sources which are hierarchically ordered. - Constitution - Legislation - Statutes - By Laws ## Constitution The fundamental or basic law of a country which all other laws must conform. The structure of the legislature, powers, functions of the executive and t...

# Sources of Law There is a range of sources which are hierarchically ordered. - Constitution - Legislation - Statutes - By Laws ## Constitution The fundamental or basic law of a country which all other laws must conform. The structure of the legislature, powers, functions of the executive and the structure of the judiciary are determined by it. ### Preceding constitutions in Sri Lanka 1. The Ceylon (constitution) order in council, 1946: [Soulbury constitution] 2. The constitution of the public of Sri Lanka: [First Republican constitution 1972] ### Present constitution The current constitution is 1978, The second republican constitution. ## Legislation Acts passed by parliament of a sovereign state - Legislation is one of the most important sources of law in common law tradition - It sometimes calls 'Statutes' as well ### Applicability of legislation in Sri Lanka - Legislation of the United Kingdom Parliament - Prerogative instruments - Statutory instruments - Legislation enacted by local legislatures - Delegated legislation ## Prerogative Instruments Issued by the Sovereign of the United Kingdom During the colonial period, Ceylon being a ceded colony, the Crown had the power of legislation by means of prerogative instruments. ## Statutory Instruments An Act of the Parliament of United Kingdom may confer power on the Privy Council either: - to make subordinate legislation or - extent the powers/application of the Act to any colony **Example:** Some Acts passed by UK Parliament are not applicable to all colonies unless extended by an order in council. ## Local Legislation Local legislation is three types: - **Regulations and Proclamations** issued by the Governors between 1801 and 1833. Between 1801 and 1833, the Governor had the power to legislate for the colony. - **Ordinances** which were passed by the colonial legislatures of Ceylon between 1833 and 1947. - **Acts** which have been passed by the Parliament after 1948. ## Sri Lankan Legislation prior to 1947 & after 1947 ### Prior to 1947 **Industrial Disputes Act:** The main approach was to resolve the disputes between Employer & Employee. This included: - Termination of Employments - Reinstatements - Compensations etc. ## Delegated Legislation Delegated legislation issued from some body other than the supreme legislative authority, which body derives its authority from the supreme legislative authority, and which is therefore always subject to interference and control by the supreme authority. ## Judicial Precedent - Precedent may be defined as a previous instance or case which could rule of subsequent cases. - Also, some similar acts/circumstances may be supported or justified. - All systems of law follow precedents mainly considering the convenience while based on rational grounds. - Judicial precedent has been taken a significant place among the sources of law. - Decisions of a previous/ superior court, binds a future/lower court. - Not every part of the authoritative judgment binds... Only ratio decidendi. ## The doctrine of stare decisis A decision of a judge has two aspects: - It will decide the instant dispute between the litigants. - In the second place, the judge will give his reasons for his decision. **Stare decisis definition:** "Every Court is bound to follow any reported case decided by a court above it and some appellate courts are bound by their own decisions" For any doctrine of binding precedent to apply in a legal system, two conditions are necessary: - Firstly, a hierarchy of courts. A decision is generally binding only on a bench of lesser authority and therefore it is necessary that a nicely graded hierarchy of authority is established. - Secondly, there must be a system of Law reporting. ## Customs - Every community inherits certain practices which have been following by the public as a habit over a long period of time. - It is not an essential to recognize all customs by court which follows the community. **Example:** Wearing Black at funerals is a practice. - But with the establishment of judicial officers and the law courts which enforced customary rules and legal rules, and the creation of other law-making agencies such as legislation and case law, custom became less important.