Foun1301 Sources of Law PDF

FOUN1301 Sources of Law George A. Pilgrim B.A 1 M.Sc. SOURCES OF LAW 2  The four primary sources are constitutions statutes Sources of law cases regulations These laws and rules are issued by offi...

FOUN1301 Sources of Law George A. Pilgrim B.A 1 M.Sc. SOURCES OF LAW 2  The four primary sources are constitutions statutes Sources of law cases regulations These laws and rules are issued by official bodies from the three branches of government. 3  Barbados law In Barbados the legal system is derived from English common and statutes. The courts administer the laws of Barbados which consist solely of local Barbado legislation. s The judicial system comprises a lower Magistrates court and the Supreme Court, which includes a Court of Appeal and a High Court. The Constitution is the supreme law of Barbados and, subject to the provisions of this Constitution, if any other law is inconsistent with this Constitution, this Constitution shall prevail and the other law shall, to the extent of the inconsistency, be void 4  The Attorney General is responsible for the administration of the legal and judicial system. Final appeal from Barbadian courts used to be to the Privy Council in England. The Caribbean Court of Justice established by the Agreement Establishing the Barbados Caribbean Court of Justice to which Barbados is a party, and which was signed at Bridgetown, Barbados on 14th February, 2002. 5  In 2005 the Caribbean Court of Justice in Port of Spain, Trinidad and Tobago, became the final court of appeal, replacing the Privy Council in the UK. Barbados In the United States, the Supreme Court has the final say as to the constitutionality of statutes passed by either state or federal legislatures. 6  Every government has an THE organisational structure that defines the specific responsibilities CONSTITU of its public officials. Some officials make the laws, others see to their enforcement. Taxes must be levied TION and collected and revenues spent (in the public interests). 7  There must be provision for preserving the domestic peace and THE providing for national defence. The fundamental written document CONSTITUTI that states how government shall operate and define its limitations is ON the Constitution. 8 Constitutional Law USA The first source of law is constitutional law. Two constitutions are applicable in every state: the federal or US Constitution, which is in force throughout the United States of America, and the state’s constitution. The US Constitution created our legal system, as is discussed in Chapter 2 “The Legal System in the United States”. States’ constitutions typically focus on issues of local concern. 9  Constitutions define how governments are to be Constitution organized, and the power and responsibilities of those governments. Constitutions can also serve to protect individual liberties. For s – USA example, in the federal Constitution, the first 3 Articles are devoted to laying out the structure and scope of the federal government, while the First 10 Amendments (the “Bill of Rights”) are MODEL primarily devoted to protecting individual liberties. Because a constitution is the blueprint for the entire government, everything that the government does must be consistent with the Constitution. If any action taken by any part of the government is inconsistent with the Constitution, that action is said to be "unconstitutional" and it must be struck down 10  Caribbean constitutions came into force on the country s attainment of independence. In fact the document THE known as the Barbados constitution is CONSTITUT The Barbados Independence Order Act 1966. This document is therefore a ION – law of the parliament of Britain. DEFINITION:A (document) which contains Caribbean a body of legal rules which sets out the framework of government, states how it Model ought to operate and make declarations about the ideology and purpose of the state and society. The constitution also outlines the rights and duties of citizens. 11 Sandiford (2000:60) defines the constitution as: The essential pre-eminent, organic law that sets the nature, principles, purposes and arrangements for creating and operating the system of government in a country. It establishes the sources of sovereignty in the state, sets out the character, principles and basic rules for regulating branches of government, the organisation of government, and the relationships between the state and the individual, the restraints upon the use of public power, the rights and responsibilities of individuals, and the broad social and economic framework of government. It is supplemented by other laws, rules, orders and regulations made by the legislature or other organs of government, which however are limited by the constitution itself, and are subsidiary to it.􏰃 12 FUNCTIONS 1) The provision of fundamental law. 2) Creation of state institutions and the distribution of the functions of the state 3) Creation of the power to make laws (section 48(1)) 4) Protection of fundamental rights and freedoms (see sections 11-23) 5) A declaration of the ideology of the state 6) Definition of state territory 7) Furnishings of legitimacy to the state through the existence of an independent body of law, which regulates the state. 13  (3) main features 1) The supremacy of the constitution 2) Emphasis on freedom of the 3) Monarchical System constitu tion 14 THE CONSTITUTION Independence dates of some Islands: Jamaica and Trinidad & Tobago 1962; Guyana and Barbados 1966; The Bahamas 1973; Grenada 1974; Dominica 1978; St Lucia and St. Vincent 1979; Belize and Antigua & Barbuda 1981; and St Kitts, Nevis & Anguilla 1983. English speaking Caribbean constitutions are basically similar in structure and content. The exception is Guyana where there is an Executive Presidency. Trinidad & Tobago and Dominica have both established a Republican system. 15 THE The constitutions have to a large extent codified the unwritten CONSTITUT conventions of the British constitution. The effect of this is ION that while parliament is Sovereign in Britain it is the constitution that is supreme in the Caribbean. This has implications for the law making process in both situations. 16 THE CONSTITUTION a) There were certain common factors that affected the creation of constitutions for the Caribbean: b) They were produced by representatives of the British government and local political leaders at the colonial office (Whitehall). Hence Barrow s statement that he will not be found “loitering on colonial premises after closing time” c) Local people were generally not consulted by their leaders on the contents of the constitution. (The possible exception being Eric Williams of T& T).Colonial authorities (Britain) insisted on certain provisions being in the Constitution. 17  In all the territories the constitution is the supreme law of the land. This is due to the fact that the constitution is THE written. CONSTITUT The constitution is therefore the: Highest law and the fundamental law ION of the land. Section 1 of the Barbados constitution provides: 18  This constitution is the supreme law of Barbados and subject to the Provisions of this THE constitution, if any other law is inconsistent with this CONSTITUTI Constitution, this constitution ON shall prevail and the other law shall, to The extent of the inconsistency is void. 19  The Courts have the power to determine that laws passed by parliament are void. THIS IS ONE OF THE CHECKS IN THE SYSTEM. This process is THE called Judicial Review. An CONSTITUTI individual with locus Standi must ON approach the court on an issue related to the Act. The court could then pronounce on the constitutionality of the Act in question 20 Statutory Law USA The second source of law is statutory law. While the Constitution applies to government action, statutes apply to and regulate individual or private action. A statute is a written (and published) law that can be enacted in one of two ways. Most statutes are written and voted into law by the legislative branch of government. This is simply a group of individuals elected for this purpose. The US legislative branch is called Congress, and Congress votes federal statutes into law. Every state has a legislative branch as well, called a state legislature, and a state legislature votes state statutes into law. Often, states codify their criminal statutes into a penal code. 21 Statutes USA Statutes are created by the federal, state and local legislatures, which are comprised of elected officials who have the power to create laws. Courts must apply statutes, if available, to the facts of a case. If no statute exists, courts defer to common law or case law. Common law refers to law that has not actually been codified or passed by a legislature, but is nonetheless applied by courts based on tradition and the legal history of the United States and even dating back to the legal system in England. Case law refers to law that comes directly from court decisions. "Case law" consists primarily of judicial interpretations of the Constitution, a statute or the common law. "Case law" includes Supreme Court and lower court decisions 22  Because statutes are passed by legislatures who are empowered to make laws, statutes control over common law or case law where the two conflict. An exception to this is that a statute can be thrown out by a court if, under interpretations made by applicable case law, the statute is unconstitutional Statutes (inconsistent with the Constitution). The process through which an idea becomes a law is long and complicated. Although the federal and state procedures can be technically quite different, they are, at their most basic levels, similar. 23 Case Law The third source of law is case law. When judges rule on the facts of a particular case, they create case law. Federal case law comes from federal courts, and state case law comes from state courts. Case law has its origins in English common law 24  There is a term called the doctrine of stare decisis which states that the Judicial court’s decision becomes a precedent to be followed in future cases of a similar nature. The reason why a precedent is recognized is that the Precedent verdict of the judiciary is assumed to be correct. The use of precedents helps the litigant gain confidence in the judicial system. The administration of the judicial decision becomes just and fair. 25  Those who are authorized to establish mandatory precedents are the highest courts. Precedents are established following some formal requirements such being reached through unanimous or composed decisions. Judicial precedents (usually known as Judicial jurisprudence) are established through repeating the use of one ratio decidendi to Precedent solve more than one case. Such cases have to be similar in order to be solved using the same ratio. The highest courts’ resolutions on opposite judicial opinions, which have been upheld by different courts, are also helpful to establish judicial precedents. Usually, judicial precedents can only be interrupted or revoked by grounded and justified decisions of the highest judges. How not only affecting every single authority but also nullifying enacted legislation 26  How far do judicial precedents and judicial opinions reach? What are their effects? Who are the authorities bound by them? There are restricted legal systems within which judicial Judicial opinions and judicial resolutions are constrained to resolve the issues contested in Precedent each single case and which are mandatory only for courts and judges. However, there are also legal systems within which judicial opinions and judicial precedents can have general effects (erga omnes) and far reaching powers not only affecting every single authority but also nullifying enacted legislation 27