Business Law

BLAW2401

Lesson 1
Sources of Law
What is Law?
Definition

 Law is a set of rules created by state institutions

which make laws through the authority of the state.
The laws have sanctions which are recognised by the
state and enforced by state-authorised bodies.
Classification of Law

 Criminal Law
 Civil Law
Classification of Law

 Criminal Law: is about creating laws for the

protection of society as a whole and providing
punishment for those who break those laws. Criminal law
sets out types of behaviour that are forbidden within
society and if the behaviour occurs, then punishment will
follow.
Classification of Law

 Civil Law: is used to settle disputes between

individuals (which can include companies and
corporations).
Differences between Criminal and Civil
Law

The purpose of each is different.

 Criminal cases are brought to maintain law and
order and to protect society.
 Civil cases are brought to uphold the rights of
individuals and to provide redress.
Differences between Criminal and Civil
Law

The cases take place in different courts.

 A Criminal case is usually brought by the Crown
Prosecution Service (CPS) on behalf of the state (or
Crown).
 A Civil case is brought by an individual or company
or corporation.
Differences between Criminal and Civil
Law

The standard of proof is different.

 Criminal cases must be proven beyond reasonable
doubt.
 Civil cases only have to be proven on the balance of
probabilities.
Differences between Criminal and Civil
Law
The terminology used is different, and the person starting the case is given a different
name by each system.

 Criminal cases are usually brought on behalf of the

Crown (state).
 Civil cases are brought by a claimant, i.e. an
individual or company or corporation.
Hierarchy of the Court’s structure in
Jamaica

 The courts are organized at four levels, with additional

provision for appeal to the Judicial Committee of the Privy
Council in London. The Court of Appeal is the highest
appellate court. The Supreme Court has unlimited
jurisdiction in all cases, and sits as the Circuit Court to try
criminal cases.
Hierarchy of the Court’s Structure in Jamaica
Sources of law:
 Common law

 Equity
 
 Custom Law
 
 Doctrine of Judicial Precedent/Case law

 Legislation – Statutory Interpretation

 
 Delegated legislation
 
 Constitution – Constitutional Supremacy versus Parliamentary Sovereignty,
Charter of Fundamental Rights and Freedom
 Equity
Common Custom
Law Law

Sources of Legislation
Case Law
Law

Delegated
Legislation Constitution
Common Law

What Is Common Law?

 Common law is a body of unwritten laws based on
legal precedents established by the courts. Common
law influences the decision-making process in
unusual cases where the outcome cannot be
determined based on existing statutes or written
rules of law.(Segal 2020)
Common Law

 Common law, also known as case law, is a body of unwritten

laws based on legal precedents established by the courts.
 Common law draws from institutionalized opinions and
interpretations from judicial authorities and public juries.
 Common laws sometimes prove the inspiration for new

legislation to be enacted.
Equity

 The common law system was found to be too rigid, too

technical and too slow. The system was also found to not be
suitable for settlement of all disputes. Some disputes do not
fall within the scope of a writ and cannot be settled by a
common law jurisdiction. Thus, the legal system of equity
was born out of a desire to correct the defects of the common
law.
Equity

 Equity, according to (Alastair Hudson) is the means

by which a system of law balances out the need for
certainty in rule making on the one hand, with the
need for sufficient judicial discretion to achieve
fairness in individual factual circumstances on the
other.
Attributes of Equity

Equity’s as a modern source of law can

 prevent strict legal rules being applied unjustly.
 create substantive rules, especially in the law of
trusts.
 create procedural rules and remedies
Custom Law

 According to the law Lexicon, custom is a law not written,

established by a long usage, and the consent of our ancestors.
 According to strand’s judicial dictionary of words and
phrases, “custom may be defined to be law or right not
written, which being established by long use and the consent
of our ancestors, hath bin and daily is put in practice”
Custom Law

 Customary law may be defined as those rules of

human action established by usage and regarded as
legally binding by those to whom the rules are
applicable, which are adopted by the courts and
applied as source of law, because they are generally
followed by the political society as a whole, or by
some part of it.
Legislation

 Legislation means the process of lawmaking. 

 Legis means law and Latum mean “making”, and as
a whole it means lawmaking. According to Austin, it
means the making of law by a supreme or a
sovereign authority which must be followed by

people of every stratum of the society.

Advantages of Legislation

 Some main advantages of legislation are as follows.

 Abrogative Power—It can change or annul old law, which control isn’t controlled by different

sources.
 Effectiveness—It separates the elements of making law and overseeing it between the Legislature

and the legal executive.

 Declaration — it gives that principles of law will be known before they are authorised.
 Reliance on Accidental Legislation — Legislation is independent and emerges out of as the

authoritative source of law it need not hold up until the original case of legislation.
 Unrivalled in Form — It is predominant in structure, brief, clear, effectively available and

understandable as against case law, which is an increase of sense in a considerable amount of

pointless issue.
Disadvantages of Legislation

 Unbending nature—Law in the legislation is inflexible though the law in the precedents

is versatile and adaptable.

 In view of Hypothesis — Legislation, for the most part, continues

on speculative certainties, by considering the existing environment and surrounding in

which the established law is frequently observed to be blemished in its application to the

mind-boggling issues emerging in genuine life though piece-scratches develop out of the

commonsense exigencies and convenience.

 An excessive amount of Importance to the Wordings—Legislation appends a lot of

significance to its wordings. Thus, if the articulation is faulty, the law in itself gets

effectively turned.
Delegated Legislation

 Delegated(subordinate or subsidiary) legislation alludes to those laws made

by people or bodies to whom parliament has delegated law-making powers.
 Where Acts are made by Parliament, a Principal Act may cause arrangement
for Subsidiary Legislation to be made and will indicate who can make laws as
such under that Act.
 Delegated Legislation can just exist in connection to an empowering or parent
Act.
 Delegated Legislation contains the numerous regulatory subtleties essential to
guarantee that the arrangements of the Act will work effectively. It might be
directed by Government Departments, Local Councils or Courts.
Case Law

 Case Law, or Common Law, is the law developed over time by

judges in the superior courts.  Each case or judgment is the solution
to a dispute between two parties that has been determined by the
trial judge or bench of court judges. These decisions become the
precedent on which further court disputes will be settled.
 Case Law is a major source of law even in areas governed by
legislation. 
 https://ecu.au.libguides.com/c.php?g=410538&p=2798582
Constitution

 A country's Constitution is a set of fundamental ground rules

setting out the powers of the different branches of government
(i.e. executive, legislative and judicial ) and how these entities
operate and interrelate. The Constitution may also set out
basic principles, such as fundamental freedoms and rights. In
Civil Law systems these rules are usually embodied in
"Codes".
Constitution

 A constitution overrides any other source of law and

it is usually highly difficult to amend. There may be a
separate judicial court which considers constitutional
issues, namely whether any law, regulation or
administrative act is inconsistent with the
constitution and therefore void.
References
 aw.uok.edu.in/Files/5ce6c765-c013-446c-b6ac-b9de496f8751/Custom/Uni-5.pdf
 https://www.investopedia.com/terms/c/common-law.asp
 https://www.lawteacher.net/free-law-essays/equity-law/equity-modern-source-o
f-law-0833.php
 Legislation as a Source of Law By  Subodh Asthana - June 6, 2019
 https://blog.ipleaders.in/legislation-source-law/
 https://ppp.worldbank.org/public-private-partnership/legislation-regulation/fram
ework-assessment/legal-systems/sources-of-law#:~:text=A%20country's%20Co
nstitution%20is%20a,these%20entities%20operate%20and%20interrelate.&text
=A%20Constitution%20overrides%20any%20other,usually%20highly%20difficul
t%20to%20amend.
 https://www.researchgate.net/publication/332247267