SOURCES OF LAW

L. SINCLAIR
 WHAT ARE SOURCES OF LAW?

This refers to
the basis of our laws-where the laws
that govern our nation
can be found.
WHAT ARE SOURCES OF LAW?
This refers to the locations of the laws that govern our
nation. Where can the laws mainly be found?

• Constitution
• Legislation
• Interpretation of legislation by the courts
• Common Law and Equity
• Precedent
 THE TYPES SOURCES OF LAW
In any particular legal system, there are
several types of sources.

(a) legal sources

(b) literary sources
(c) historical sources
 LITERARY SOURCES OF LAW
This describes the location of the law:
i. books
ii. legal treaties
iii. law reports
iv. legislation
 LITERARY SOURCES OF LAW
• Literary sources of law tell us where the law
is.

• They do not confer legitimacy on rules of

conduct or social arrangements.
 HISTORICAL SOURCES OF LAW
• Refers to the causative factors behind a rule
of law, its historical origin and development.

• E.g. the law of the Commonwealth

Caribbean is derived directly from our
colonial past.
 HISTORICAL SOURCES OF LAW
• The source of our law - the process under
colonization that led to the common law and
equity being transplanted to the Caribbean
under the reception of law.

• In England, the source of their country’s law

- its’ customs.
 HISTORICAL SOURCES OF LAW
• There is a very strong direct interrelationship
between the Commonwealth Caribbean legal
sources and our historical sources.

• The attitude of the judiciary and legislature, the

character and operation of legal institutions all
still reflect the colonial experience.
 HISTORICAL SOURCES OF LAW
• E.g. colonial Acts still remain on the statute
books – take for instance the vagrancy law.
• (now repealed)

• There was an Act for the Governing of

Negroes
 LEGAL SOURCES OF LAW
• Form the basis of the law’s validity.
• Give law its authority.

• A legal source is visible after a rule

becomes objectively definite, uniform and
compulsory- a law.
(LEGAL) SOURCES OF LAW
• Constitution
• Legislation
• Interpretation of legislation by the courts
• Common Law
• Equity
• Precedent
THE CONSTITUTION
• Premier source of law for all Caribbean Commonwealth
countries.

• England remains one of the few countries of the world that

does not possess a written constitution.

• Used by judges & lawyers who look to the Const. for the
continued protection of rights & the rule of law.
 THE CONSTITUTION
• Establishment of procedure to be adopted by the main organs of
state
• Function & powers of the Executive, the Legislature and the
Judiciary and GG
• Establishment of Service Commissions
• Establishment of the office, role & function of the Ombudsman
• Fundamental rights section which lays down the protection
offered to every citizen in matters such as, the right to work; the
right to a fair hearing; the right to own property.
THE CONSTITUTION
 LEGISLATION
• Legislation is defined as the process of making laws.
• 2 types- Primary legislation and Secondary (or Subsidiary
legislation.)
• More flexible than constitution. Used to address modern/current
issues.
• Must conform to Constit. Supremacy
• Primary legislation is made by Parliament.
• Secondary legislation is made by a Government authority or
functionary who is given power by Parliament.
 LEGISLATION
Primary Legislation:

• Gun Court Act

• Offences Against the Person Act
• Child Care and Protection Act
• Theft Act
• Cremation Act
• Coroner’s Act
 LEGISLATION
Example of Secondary Legislation:

• Constitution Jamaica authorizes the Service Commissions to

make Regulations.
• Under the T&T Constitution, some Government functionaries are
also given law-making power within defined boundaries.
• Eg, section 26 of the Hindu Marriage Act - Cap. 45:03 of
Trinidad and Tobago, Road Traffic Act, (s7 of Public Health
Act)
 INTERPRETATION OF LEGISLATION BY
THE COURTS
• Legislature or Parliament that makes law,
• Left to the Courts of Law to apply it.

• Sometimes, the meaning of a word/phrase in legislation before

the Court may pose a problem.

• To aid the Courts’ application of the law, rules of

interpretation have been created.
 INTERPRETATION OF LEGISLATION BY
THE COURTS
Below are three of the many rules of statutory interpretation:

• Literal rule
• Golden rule
• Mischief rule (the Purposive rule)
 INTERPRETATION OF LEGISLATION BY
THE COURTS
• The literal rule

• This rule allows that the words and phrases in a statute should be
given their ordinary and literal meaning and once the ordinary
meaning is clear the court should apply it even if to do so would
result in injustice.

• Next- an example of a case in which the literal rule was applied.

 INTERPRETATION OF LEGISLATION BY
THE COURTS
• The case of Baptiste -v- Alleyne (1970) 16 WIR 437

• The defendant was found outside a house with his hand through a
window choking a female occupant. He was charged and convicted of
the offence ‘. . .found. . . in a building with intent…’

• A provision of Section 29 (d) of the then Larceny Ordinance allowed that

for a person to be convicted of such an offence, there must be clear and
unmistakable evidence that he has been, as the section says,‘ found in' the
building.
 INTERPRETATION OF LEGISLATION BY
THE COURTS
• Mr. Justice of Appeal, Michael De La Bastide posited:

• ‘he cannot in the Court`s view be said to have been found in the
building on a literal meaning or ordinary interpretation of the
words of section 29(d) of the Larceny Ordinance.’

• In this case the appeal was allowed, hence the conviction was
quashed.
 INTERPRETATION OF LEGISLATION BY
THE COURTS
• The case of R v Ramsonahai and Duke 3 WIR 1961 p. 537

• The appellants had conspired to and did plant two bottles of bush
rum on one Mohamed Ali whom the Police eventually found to
have had in his possession.
 INTERPRETATION OF LEGISLATION BY
THE COURTS
• Charges were laid against the appellants. The indictment charged
a conspiracy to prosecute M.A., knowing him to be innocent of
the summary conviction offence of being in unlawful possession
of bush rum under sec. 330 of the Criminal Law Ordinance Cap.
10 of British Guiana.
 INTERPRETATION OF LEGISLATION BY
THE COURTS
• Counsel said inter alia “ The ordinary and primary meaning of
the words “ to prosecute” is to commence proceedings by laying
an information.
• Counsel further contended that if the legislature intended the
meaning of the words ‘to prosecute’ to be extended to include
‘cause to be prosecuted’ then Parliament would have said so as it
had before many times.
 INTERPRETATION OF LEGISLATION BY
THE COURTS
• The golden rule

• The second rule of statutory interpretation is the golden rule.

This rule provides that if the literal and ordinary meaning of the
words of the statute give rise to ambiguity and/or an absurd result
which Parliament could not have intended, then the judge may
substitute a reasonable meaning in light of the statute as a
whole.
 INTERPRETATION OF LEGISLATION BY
THE COURTS
Davis -v- R (1962) 4 WIR 375

• The defendant was convicted for the offence which prohibited

parking a vehicle ‘… elsewhere than in a place provided for that
purpose and in a manner required by an authorized officer…’
Chief Justice McGregor said:
 INTERPRETATION OF LEGISLATION BY
THE COURTS
• “It seems clear that the intention of the Regulation was to create
two offences, the one, parking otherwise than in a place
provided by the Minister for that purpose; the other, parking
otherwise than in a manner required by an authorized officer.

• To obtain this interpretation it is necessary to insert the words

“otherwise than” between the word “and” and “in the manner. ..”
 INTERPRETATION OF LEGISLATION BY
THE COURTS
Mischief Rule (the Purposive Rule)

• The third rule of statutory interpretation is the mischief or

purposive rule.

• This rule was laid down in Heydon`s Case [1584] and provides
that judges when deciding cases must consider three factors:
 INTERPRETATION OF LEGISLATION BY
THE COURTS
• What the law was before the statute was passed.

• What problem, or 'mischief', the statute was trying to remedy.

• What remedy Parliament was trying to provide.

 INTERPRETATION OF LEGISLATION BY
THE COURTS

• Please note that later on the mischief rule became known as the
Purposive Rule.
 INTERPRETATION OF LEGISLATION BY
THE COURTS
• The case of R v George Green [ (1969) ] 14 WIR p. 204 .

• The Appellant was convicted on indictment of the offence of

cultivating ganja contrary to section 7 (c) of the Dangerous
Drugs Act.

• At the trial the evidence did not disclose whether the plants
which the Appellant was found to be cultivating contained any
pistilate plant known as cannabis sativa.
 INTERPRETATION OF LEGISLATION BY
THE COURTS
• Shelly J.A. stated:
• I gather … that one of the reasons for introducing the Dangerous
Drugs Law of 1942 was to follow international standards by
conformity with legislation in other countries and colonies who
were signatories to the International Convention on Dangerous
drugs.

• In this case, the Court went behind the statute in order to

discover the reason behind its creation.
 SCENARIO
• Section 10 of the Transport and Harbours Act of Brobdingnag
states:

• 1. If any ship is found moored within one thousand meters of

the Loponac Bridge the Captain of the said ship shall be liable.

• 2. Anyone found liable for breach of this section shall be fined

one hundred thousand dollars.
 SCENARIO
• Ashrapi, though aware of this bit of legislation brought his barge
and moored it within one hundred meters of the Loponac Bridge.

• The Brobdingnag Harbour Master seized Ashrapi’s barge and

fined him one hundred thousand dollars. Ashrapi wishes to
contest the decision of the Harbour Master and has retained you
as his lawyer.
• Advise Ashrapi.
• Hint: The section speaks to ships. Ashrapi’s vessel is a barge.
 COMMON LAW
• Another name for common law is case law.

• Important source of law in the Commonwealth Caribbean.

• Common law is legal principles derived from cases.

• It is relevant where there are no applicable statutes

(written laws, legislation).
 COMMON LAW
• Common law or case law is a legal as well historical
source.
• It is a historical source because the existence of the
common law tradition is directly linked to our colonial
past.

• In other words we practice it because it was transplanted

to the region under the English.
 COMMON LAW
• Common law develops on a case-by-case basis.

• Originally this practice was oral, it was a body of

unwritten legal rules. (See origin of law)

• The court builds on the previous judgment in each case.

(see precedent)
 EQUITY
• Equity was originally inspired by ideas of fairness and natural
justice.
• Medieval times- common law was only law practiced in England.

• If litigants wished to bring a claim before the court he could

only do so by way of a Writ.
• Number of Writs available were limited and designed to fit
specific claims.
 EQUITY
• If the litigant could not find a Writ into which his claim could fit,
he was left without a remedy at law and his only alternative
would be to petition the King.

• Limitations and harshness of the common law were severe:

• Petitions before the King grew in number.
• King was advised by the Lord Chancellor
• Later became known as the King’s conscience.
 EQUITY
• The King eventually appointed the Lord Chancellor to hear all
petitions and to deliberate upon them.

• Hence the creation of a separate Division known as the

Chancery Division for the hearing of matters which were not
entertained in the common law courts.
 EQUITY
• Justice based on principles of equity

• Offered new remedies that were never available at common law.

• Such remedies were the injunction and the order for specific
performance.

• Certain rules of equity were also developed: since the Chancery never
intended to interfere with the rules governing the common law.
 EQUITY
• Each Lord Chancellor’s justice contracted and expanded to suit the
conscience of the Chancellor.

• At one time the rules of equity were being applied so rigidly, that the
courts of equity were accused of being as inflexible as the common law
courts which equity was designed to temper.

• Eventually, 12 twelve maxims of equity were created in an effort to bring

uniformity to justice

• During the years 1873 and 1875 the Judicature Acts allowed that matters
of common law and equity would be now heard in the same court.
 EQUITY
• It is evident therefore that equity today continues to command a position of
great importance and relevance in the Commonwealth Caribbean.

• Law of trusts -proven to be invaluable to the protection of the rights of

women and children in the Commonwealth Caribbean wherein equity may
deem a husband a trustee for a wife’s interest in the matrimonial home.

• Anton Pillar Order – to preserve intellectual property e.g. written, printed

or recorded information or on CD’s and PC software.

• Mareva Injunction- to prevent the removal of assets (for example, money

in a bank or an aircraft) from the jurisdiction of the court.
 PRECEDENT
• The Principle of Precedent

• Decisions taken at a higher court are to be followed by a lower court.

• In some cases the Precedent is merely persuasive; in others, it is binding,
• Meaning lower court is under an obligation to follow the decision of the
higher court.
• But only if the decision in the case coming from the higher court turns
upon similar facts and principles as those contained in the matter to be
decided in the lower court.
 PRECEDENT
• In those territories of the Commonwealth Caribbean where the Privy
Council is the final court of appeal, the decisions of the Privy Council are
binding upon the Court of Appeal and the High Courts of those
jurisdictions.

• For others it is the CCJ

 PRECEDENT
• Example of precedent applied
• Precedents are found in many law reports and are often referred
to as case law:

• In the case of The State -v- Sharma and Williams 25 WIR 166,
the Court of Appeal of Guyana referred to and applied the
interpretation it placed on the phrase “to prosecute”, in the earlier
case of R -v- Ramsonahai and Duke (1961) 3 WIR 535.