4.

Classification of Law

5. Structure & Hierarchy of the Criminal & Civil Courts

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Classification of Law:

(i) reasons for classification; Click to add text

(ii) classification bases:

(a) subject matter - for example, contract, criminal, tort;

(b) functional - for example, substantive and procedural;
(c) conceptual - for example, private law and public law.
Reasons for Classification

• Classification aids in teaching exposition and writing of what on

the surface is a jumbled mass of material; so too for those who
are concerned with its administration.

• The Police, Custom Officers and others will be daily confused if

they were concerned with the whole. Consequently, they are
only concerned with that segment of the law classified as the
Criminal law and import/export trade law respectively. 

• Also, the enactment of law and the writing about the law
necessitates focusing on some particular problem or area of
the law within one or other of the classification schemes. 
Classification Bases:

The law can be classified according to subject matter and in so

doing, arranged in alphabetical order, e.g. Administrative Law,
Agency Law, Banking Law, Business Law, Constitutional Law,
Comparative Law, Criminal Law and so on. 

(a) subject matter – for example, Contract, Crime, Tort;

Contract – two or more people who form an agreement, which
they intend to have legal consequences, have formed a contract.
So, if there is a breach of contract the parties can go to court to
obtain a remedy. 
Crime – when people sue each other they are involved in a civil
suit or action. In criminal matters actions are prosecuted by the
state. A crime is a public offence against the State. The object of a
criminal charge is not to compensate the victim; it is to punish the
offender.

Trust – when persons hold property for the benefit of others

example land, a trust is formed. People may do this for example
when people want to provide for their children when they die.
Trustees will be appointed to look after the property but will not
benefit from it themselves.
Tort – “The law of torts deals with the enforcement of duties
existing between individuals as members of society”. A breach of
those duties may be both a crime and a tort, for example battery,
trespass, and nuisance. A party who has been injured in tort, has
a right to be reimbursed in damages for the wrong committed.
This wrong is called a “tort”. It is a civil wrong independent of
contract. Tort arises out duties imposed by law and not by
agreement. Nuisance trespass and slander are well-known civil
wrongs.
(b) functional – for example, substantive and procedural;

The function that the law serves is also a basis for classification.
The laws that create rights and obligations or recognise and
Click to add text
protect such rights e.g. the provisions of your Constitution that
recognise and protect that group of rights called fundamental
rights, are referred to as substantive laws.
While procedural laws are those that lay down the procedure to
be followed to vindicate or defend that right. So the police officer
has a duty/obligation to arrest you for certain offences –
assuming the conditions exist for him so to do – an exercise
based on a substantive law that gives him the power of arrest.
Having arrested you, the law lays down the procedure that must
be followed by him and the Court for the proper determination
of the case.
(c) conceptual – for example, private law and public law.

Subject matter law can also be classified on the basis of the

involvement of the state as a party. Those subject areas with the
state as a party are referred to as Public Law e.g. Administrative
Law, Constitutional Law, Criminal Law and Revenue Law. Where
the law is concerned with parties in their private capacity, those
subject areas are referred to as Private Law e.g. the Law of
Contracts, Torts, Company Law, Conflicts of Laws.
Law is divided into private and public law. Private law relates to
people personally in everyday transactions. It also concerns
private bodies and associations. Private law includes tort,
contract commercial law, family, property and trusts law.

Public law deals with the constitutions and the function of

governmental organisations and their legal relationship with the
ordinary citizen and with each other. These relationships form
the basis of administrative and constitutional law. Crimes which
involve the State’s relationship with the power of control over
the individual, is the concern of public law.
5. Structure and Hierarchy of the Criminal and Civil Courts

(i) Evaluation of the Judicial Committee of the Privy Council and

the Caribbean Court of Justice;
(ii) Courts of Appeal, High Courts and Supreme Courts;
(iii) Magistrates’ Courts, including Juvenile Court, Family Court
and Petty Sessions.
The Judicial Committee of the Privy Council

The Privy Council became our final Court of Appeal because of

colonialism. The Court is based in England. Even though most
countries in the Caribbean are independent, the Privy Council retains
its’ jurisdiction in the Caribbean, but the nature of it has changed.

Although there is provision for this, few West Indian judges are
appointed to the Privy Council.

The Privy Council’s jurisdiction as the final Court of Appeal is very

restricted. There are two ways to appeal to the Privy Council. You can
either get leave to appeal from our local Court of Appeal or from the
Privy Council if the local court has refused and there are no provisions
made for an appeal.
The Judicial Committee of the Privy Council

The grounds for appeal to the Privy Council are laid out in the
constitutions of the commonwealth Caribbean. In civil matters
appeals are available as of right provided the amount in dispute is of
the prescribed value or exceeds the states statutory limit or where
the value of the disputed property is of the prescribed value.

If the matter is civil or criminal but involves a question of

constitutional interpretation, the right of appeal will be ‘as of right’.
The appeals are not limited to final judgments. Interlocutory
judgments can be appealed as well provided the statutory monetary
limit is met. Appeals concerning divorce are also ‘as of right’. There
can also be appeals from industrial courts.
The Judicial Committee of the Privy Council

Though the JC of the PC has power to hear criminal & civil matters, it
will limit its powers to hearing property cases above a certain value.
In criminal cases there has to be a serious miscarriage of justice.

There is an unfettered right to appeal in any case that raises a

constitutional or a fundamental right issue.

Note: The Privy Council does not review facts or evidence, because it
does not benefit from the presence of witnesses, nor is it familiar
with the circumstances of the local courts.
The Caribbean Court of Justice

The Caribbean Court of Justice The Agreement Establishing the

Caribbean Supreme Court (the Agreement) is the treaty instrument in
which the political leaders of CARICOM agreed in principle to
establish the anticipated Regional Supreme Court.

 This Court will be called the Caribbean Court of Justice. It will be the
final Court of Appeal of the States who ratify the agreement.
Therefore, the Privy Council would be replaced. 

Whether the court will come into being depends on whether appeals
to the Privy Council are abolished. The governments of the region will
need special parliamentary majorities or public approval in order to
do this. 
The Caribbean Court of Justice

The Constitution – The bench of the Caribbean Court of Justice will

comprise of an odd number of judges – not more than nine and no
less than five. A President will head it. Heads of Government can
change the number of judges that can sit in the court. It has been
decided that the court will be based in Barbados. But if circumstances
require it, the court can sit in the territory of the Contracting Party.
The court may also sit in two divisions comprising of at least ten
members.
The Caribbean Court of Justice

The appointment, removal and discipline of judges is the

responsibility of the specially created Legal Services Commission. It
will also determine their terms and conditions of service. Only a
qualified majority of three-quarters of the Contracting Parties, in
conjunction with the recommendation of the Legal Services
Commission can appoint or remove the President.

To be appointed, persons will have had to be a judge for fifteen years

in a court of unlimited jurisdiction in the Commonwealth or have
distinguished themselves in practice for a similar period of time.
The Caribbean Court of Justice

Jurisdiction – The Caribbean Court of Justice will have original jurisdiction.

But this will be limited to interpreting the Chaguaramus Treaty which
established CARICOM and laid down its’ sphere of operation. The court will
also have ‘all of the jurisdiction and powers possessed in relation to that
case by the Court of Appeal of the Contracting Party from which the appeal
was brought.

Appeals to the Caribbean Court of Justice in respect of categories of appeal

will be the same as the Privy Council’s. That is, there will be appeals:

(i) as of right; (ii) with leave; and (iii) those with special leave.
 CCJ vs PC

Perceived disadvantages of establishing the CCJ

Opponents argue that:

• The PC is properly and satisfactorily functioning as the final court of

appeal for Commonwealth Caribbean territories

• There may not be available in the Commonwealth Caribbean enough

judges of the level of erudition and skill to enable them to function
effectively at the level of the CCJ

• The decisions therefore of those appointed judges to CCJ may be of a

poor quality
 CCJ vs PC

Perceived disadvantages of establishing the CCJ

Opponents argue that:

• Adequate and sustainable funding for the running and maintenance of

the CCJ may not be forthcoming from member states

• The judges of the CCJ may be vulnerable to political manipulation from

member states.
 CCJ vs PC

Perceived advantages of establishing the CCJ

Proponents postulate that:

• There are enough members of the legal profession possessing the

requisite degree of skill and integrity to occupy positions within CCJ.

• Though a decision handed down by the CCJ action in its own jurisdiction
may not be enforceable, it is believed that sanctions and pressures can
be applied to ensure compliance from a disobedient party or member
state.