Sources Of Law PDF

Sources of Law Lesson 03   What is a source of Law? A place in which the law is stated and from which a law derives its validity Definition Traditional sources of Law Contemporary sources of Law Cons...

Sources of Law Lesson 03   What is a source of Law? A place in which the law is stated and from which a law derives its validity Definition Traditional sources of Law Contemporary sources of Law Constitution, Statutes, Case Morals, customs, religion Law/Judicial Decisions, International Conventions   What are Morals? It is what the society agrees to be right and acceptable Traditional Sources of Law  What are customs? A way of behaving or a belief that has been established for a long time.   Chinnappa v Kanakar A custom which permitted a landowner to cross over into his neighbor’s land to repair his fence with new ola leaves, has the force of law in Jaffna.  Gracia Catherine v Wijegunawardena A marriage solemnised according to the customs, rites and Case Law ceremonies of the Roman Catholic Church has legal validity irrespective of legal registration and is therefore regarded as a lawful marriage.  Ratnamma v Rasiah The tying of a thali is essential for the validity of a Hindu customary marriage.  Social A traditional way of behaving or doing something that is specific to a society, place or time. Customs It is a part of culture Legal when in operation, it carries certain sanctions. Has the strength of law Customs   Immemorial antiquity  Continuous enjoyment  Observance as of right  Certainty Validity of a  Reasonableness Custom  The custom must not be contrary to any fundamental right or to any other statutory provision  Customs must not vary too much in comparison to the other customs of the same locality Law & Religion  Non-Aggression Buddhism & International Human Rights Laws “Hatred is never appeased by Article 1 of the UDHR hatred in this world. By non- ‘All human beings are born hatred alone is free and equal in dignity hatred appeased. and rights’ This is an eternal law.” The 05 Precepts - Do not harm/kill, The - Do not steal, Buddhism - Do not commit sexual misconduct, Infinite value of - Do not lie, - Do not consume human life alcohol/drugs Buddhism & Equality International Humanitarian Laws Prince Siddhartha Gauthama being Asadisa Jātaka Channa’s best friend Kusa Jātaka  The ‘Neighbour Principle’ Equality Donoghue v Stevenson Peace The Prince of Christianity The 10 Commandments Peace 'he who lives by the sword shall die by the sword’ The Infinite Christianity & Family Value of Law / Colonization Human Life - Monogamous Marriage - Divorce 'thou shalt - Legitimacy / Illegitimacy of children not kill'  Sins converted into laws Holiness of Life Arab Countries Justice Stand out firmly for justice, as witnesses Punishments by Law and Islam of God, even as against yourselves or your parents, or your Judgement kin, and whether it be against rich or day poor. (Qur'an 4:135) Gravest sins in accordance with the Quran: murder (abortion), Interpretations suicide, disrespect differ for parents, adultery, theft, bribery etc  Good and evil in Hinduism are Rule of determined through human Dharma (law, duty, ought) : the need to comply with the rules in order to behaviour and its Law compliance and conformity to maintain order and stability; dharma. Peaceful According to resolution of war the Hindu concept of law, Hinduism - War was always the last resort a person's dharma - A Dharmishta regulates all Solution activities Equality Justice Brahmin or outcast should be treated with the same respect  Common Law The law that has been developed on judicial precedents. Also known as case laws / judge-made laws. Contemporary Sources of Law Statutory Law The written laws passed by the legislative branch of a country and those which have been accepted by the society.  A statute/ Legislation is a piece of law that is enacted by the Parliament.  It is a primary source of law in any country.  Legislation emanating from the Parliament takes superiority over all other forms of law.  A statute can, - Repeal or amend any existing law. - Consolidate all the statutory provisions of a particular subject area - Codify all laws, statutory provisions and case law  Important parts of a Statute Short Title Short title Long title Long Title Cross Headings Date of Assent Sections/subsections Date of Assent Marginal Notes Cross Heading Section/ Sub-Section Marginal Note   The decisions of Judges in cases brought before the Courts are a major source of law.  Such decisions are recorded in Law reports and are used in determining Judge-made Laws what the law is.  Judges in deciding cases must look to the previous, relevant case law.  In doing so Judges should operate within the doctrine of judicial precedent, which means that similar cases should be decided alike.  As the Courts are arranged hierarchically, a Court is bound by the decisions of a Court above it and, usually, by a Court of equivalent standing. Case Names Smith v Jones (1998) 2 WLR 123  UK Sri Lanka  All England Reports (All ER)  New Law Reports (NLR) Law Reports -  Weekly Law Reports (WLR)  Sri Lanka Law Reports (SLLR) Abbreviations  Appeal Cases (AC)  Queen's Bench (QB)  Family (Fam)  Chancery (Ch)  Names of Parties Civil Cases = Claimant (plaintiff) v Defendant  Criminal Cases = R (The Crown) v Defendant  This is where one person brings an action against another  This is where a case is heard between the Crown (the person, e.g. Smith sues Jones. Government) and an individual or an organisation e.g. R v Smith where Smith is the accused.  A case can be between two individuals, two companies or a company and an individual. The parties involved in a case are either a claimant/defendant or appellant/respondent.  The “R” stands for Rex (the King) or Regina (the Queen) - in some reports this is abbreviated to Reg. These are latin terms.  The name of the person bringing the action comes first followed by the name of the defendant, e.g. Smith v Jones.  A case can be pronounced in a number of ways, e.g. “R. v  The small letter “v” is an abbreviation of versus. However, Smith” would be pronounced either “the Crown against the term “and” is also used to pronounce it, rather than “v” Smith”, or it can be referred to simply as “Smith” or “versus”. e.g. the case “Smith v Jones” would be pronounced “Smith and Jones” THANK YOU! Lecturer : Ravini Perera Email : [email protected]