TOPIC 1: CHARACTERISTICS

AND SOURCES OF LAW

Week 1 and 2
Lecturer: Mr. Dervin Sambula
What is Law?
Generally, law is a set of rules which governs
the way members of a society act towards one
another.

English law may be defined as a body of rules,

created by the state, binding within its
jurisdiction and enforced with the authority of
the state through the use of sanctions. P.6
Law for Business Students.
Why do we need Law?

Any society, or group within it, however small,

will make rules for the purposes of
organisation, to promote the safety and
convenience of members and to regulate their
relationships with each other.
A system of law may be needed for the following
reasons:

1 to provide a governmental structure and legislative

procedures: constitutional law;

2 to provide public services and to raise taxes to pay

for them: administrative and revenue law;

3 to regulate and promote the economy:

administrative, civil and criminal law are all involved;
4 to promote public order and preserve national
security: criminal law;

5 to give individual members personal rights and

duties in relation to others and to enable personal
enforcement of these rights: the civil law. Civil law
duties may arise through agreement between the
parties (the law of contract), or be imposed directly
(the law of tort);

6 to give legal validity to approved relationships and

transactions between members of the society: this
involves the law of contract, the law of property and
succession, company and partnership law, and family
law.
Essential Legal terms

The claimant and defendant

These are the parties in a civil case (action). The claimant sues
(brings the case against) the defendant.

The prosecution and the defence

These are the parties to a criminal case. The ‘defence’ is

sometimes called the defendant or the accused. The
prosecution is sometimes called the Crown, reflecting the fact
that criminal proceedings are brought by the state in the name of
the Crown. This is why criminal cases are usually reported as R
v (Snodgrass).
The appellant and the respondent

These are the parties in an appeal hearing.

The appellant is the party who is bringing the
appeal against the decision of the court below,
in which the respondent won his or her case.
 CLASSIFICATION OF LAW
Criminal Law Civil Law
1. Regulates behavior perceived 1. Gives legal rights to individuals
as being anti-social and to govern their formal and informal
dangerous to the public. relationships with each other.

2. Criminal matter generally 2. Initiated by the person who claim

initiated by the Police. they have been wronged.

3. Prosecution must prove the guilt 3. Claimant must prove the

of the accused “beyond all defendant is liable “on a balance of
reasonable doubt”. probabilities”.

4. Aim is to punish the criminal. 4. Aim is to compensate the

claimant for the wrong committed
against them.
 Sources of Law
Where does the law come from?
-Customs
-Legislation; primary and delegated legislation
-Judicial Precedent or Common Law
-Constitution
-Equity
 CUSTOMS
-arise out of the social mores and practices of a
people.
-exception to the common law.
-rules of law which apply in a particular locality
and form a body of law distinct from the
common law.
-evolve over time to become law.
-customs are not judicially recognized until they
are settled by a judicial decision.
-The party who pleads a customary right must prove
that it exist.
Test:
1.Antiquity- it must have existed from time
immemorial (proof, as far back as living memory goes)
2.Continuance- it must have existed continuously
without interruption from the accepted date.
3. Peaceable enjoyment- it must have existed
peaceably, by common consent or without opposition.
4. Mandatory- it must be obligatory or mandatory.
5. Certainty and clarity- it must be certain and clear.
6. Consistency- One custom cannot contradict another.
7. Reasonableness- it cannot be unreasonable or
unfair.
 LEGISLATION
-Legal rules which derives authority from Parliament/
National Assembly.
-What gives National Assembly this Authority:
1. Belize Constitution section 68-
“Subject to the provisions of this Constitution, the National
Assembly may make laws for the peace, order and good
government of Belize.”
2. Separation of Powers doctrine
-Parliament is also given the power to confer or delegate
such law-making power on other authorities or
functionaries.
Functions of Legislation:

1.Revision - revision of substantive rules of the common

law.

2.Consolidation of enactments - to clarify and simplify

the status of an existing law.

3.Codification - to clarify and simplify the status of case

law by legislation.
4. Collection of revenue or monetary control

5. Implementation of treaties – incorporation

6. Social legislation- to deal with the day-to-day administration

of the country

7. Public policy

8. Response to pressure groups- to respond to pressure groups

within the society.
Types of Legislation:

1.Primary Legislation

2.Delegated Legislation
 Primary Legislation
- created by the legislative arm of National
Assembly
- Two Types:
(a) private Acts – proposed by a
corporation, company or private
organization.
(b) public Acts – proposed by the
people through its representatives in
National Assembly.
Procedure to create an Act:
-Bill is proposed/ introduced by a member of National
Assembly

-Three readings in the Lower House

-Consideration of Bill by the Upper House

-Governor General’s Assent

-Act published in the Gazette

 Delegated Legislation

-Parliament delegates powers to subordinates or

statutory bodies to create legal rules.
- main types of delegated legislations are bylaws and
regulations or orders
Qualities of Delegated Legislation:

Speed and efficiency

Technicality

Flexibility

Bulkier
 JUDICIAL PRECEDENT OR COMMON LAW

Case law as opposed to statute law

When the common law first began to develop in the early
centuries after the Norman Conquest, there was no
centralised legal system and there were great variations in
the law across England. Judges appointed by the Crown
had the task of welding together a system of law applicable
(and therefore common) to the country as a whole. This
law gradually emerged from principles developed and
applied to cases which came before the courts.

Common law in this context means judge-made law. P.12

 Common law
Doctrine of Judicial Precedent
“where there are no applicable statutes on a particular
issue, the judge must look to the case law, that is, cases
decided previously on the said issue, to find the
relevant law upon which to base his or her decision”

- Judicial precedent is the actual principle of law in the

previously decided case.
Types of Judicial Precedents:

1.binding precedent

2.persuasive precedent
Binding Precedent

-Comes from the doctrine of binding judicial precedent, stare

decisis.
-judge has a legal obligation to use decided cases, not merely
for guidance, but is bound to apply the principles of law found
in such case.
Case: London Tramcars Co Ltd v London County Council
[1898], Lord Halsbury stated that:
‘a decision of this House once given upon a point of law is
conclusive upon the House afterwards, and it is impossible to
raise that question again as it if was res integra and could be
re-argued’.
 Binding Precedents
Advantages Disadvantages
1. Legal certainty and 1. the excessive
precision volume of reported
cases makes the
location of legal
principles difficult
2. illogical, technical
distinctions in the
process of
distinguishing
precedent
3. Rigid
Persuasive Precedent
-legal principles contained in judgments which merely offer guidance
-judge will refer to these precedents, but they are not binding
-may also originate from courts lower in the hierarchy and the decisions of
courts in other jurisdictions
-In Commonwealth Caribbean, precedents from other Commonwealth
Caribbean jurisdictions and the UK are usually highly persuasive
Case: Boodram v AG and Another (1994) the Court of Appeal of Trinidad
and Tobago, in being persuaded by a decision from the Jamaican Court of
Appeal on the question of pre-trial publicity, referred to Jamaica as a: “country
which shares with us . . . a common history and jurisprudence [and] . . . a
strong common bond which we share with . . . the other islands of the region.”
- The degree of persuasiveness of such a precedent depends on a variety of
factors including the jurisdiction from which it emanates, the status of the
court which makes the decision and its date.  
 Caribbean Court of Justice

Court of Appeal

High Court

Lower Courts
(Magistrate Court and Family Court)

Each court is BOUND by the decisions of the court

above it.
 Review Questions
1.What is law and why is it necessary?

2.List different sources of law?

3.What must a person prove in order to rely on customs as a source

of law?

4.Explain in detail what is meant by common law or judicial

precedent?

5.List the two types of legislation and the process by which each is
created?