Chapter 1 - Introduction to Law Flashcards
Definition of Mauritius Legal System
The Mauritian legal system is a reflection of the history of Mauritius over time. Mauritius has a hybrid legal system, that is , it is an amalgation of its two successive colonization by France and Great Britain respectively. Our legal system was shaped by the laws inherited from the two colonial powers and continues to be inspired from same. The French originated Code Napoleon and Code de Commerce still largely govern many aspects of our civil, contractual, property and commercial rights; the Code de Procedure Civil still governs procedural matters with respect to the enforcement of those rights to some extent and our criminal law is largely based on the French Code Penal. Many laws have been passed taking into consideration the evolution of the laws in England and France and the interpretation by the English and French Courts of such laws. The end result is the unique hybrid system of law, whereby put in more simplistic way, our substantive law is generally French based and our procedural laws are English based
Functions of Law
- Law prescribes the behaviour of man in society.
- preserves law and order and used as a mode of social control in society.
- instrument of social cooperation + social and economic change.
- to bring justice and to settle disputes.
- provides remedies.
- Law sets out rights and obligations.
- sets up the structure of government – The Constitution for e.g. assigns power and duties to the various levels of government).
- directs law making- this function is that of parliament
Branches of Law
- Criminal Law
- Civil Law
- Public Law
- Private Law
- Domestic Law
- International Law
- Substantive Law
- Adjectival Law
Criminal Law
- Criminal law deals with crimes—that is, actions considered harmful to society. Crimes range in seriousness from disorderly conduct to murder. Criminal law defines these offences and sets the rules for the arrest the possible trial, and the punishment of offenders. Law that is not criminal law is defined as civil law, although this also has another meaning, discussed later. Some crimes are also torts and the victim may sue for damages under civil law.
-In the majority of countries, the central government makes most of the criminal laws. In some countries, such as Australia and the United States, each state, as well as the federal government, has its own set of criminal laws. However, the criminal laws of each state
must protect the rights and freedoms guaranteed by federal constitutional law. - Within the field of criminal law, lawyers primarily play two roles: a prosecutor, representing “the people,” or a
public/private defense attorney, representing an individual with criminal charges.
Civil law ( Common law)
-Civil law is a major branch of the law. The law relating to civil wrongs and quasi-contracts is part of the civil law, as is law of property (other than property-related crimes, such as theft or vandalism). Civil law may, like criminal law, be divided into substantive law and procedural law.
Criminal Law v/s Civil Law
-Criminal Law concerned with acts/omissions
contrary to public order. Whereas Civil Law regulates the relationship amongst private parties.
- In Criminal law, Guilty person liable to punishment in the form of fines or terms of imprisonment. Whereas in Civil Law, it provides a different system of remedies which includes damages, injunctions, etc.
- In Criminal Law, common criminal offences are larceny, murder, wounds and blows, rape, assault, etc. Whereas in Civil law, common examples are law of contract, law of tort, family law, and property law.
- In Criminal Law, cases are known as prosecutions and are brought by the Director of Public Prosecutions (DPP) – cases are brought in the name of the State. However, In Civil Law, civil cases are brought by the plaintiffs (also known as claimant or in the case of family disputes, the petitioner) who are individuals or corporate entitles.
- In Criminal Law, The prosecutor needs to prove the case beyond reasonable doubt – which is a higher standard compared to civil cases. However, In Civil Law ,the plaintiff needs to prove his case on a balance of
probabilities, i.e. that the event was more likely to have
occurred than not.
Overlapping b/w criminal law and civil law
In some situations, there may be overlapping between both whereby criminal as well as civil
liability are entailed.
E.g. a motor accident where the driver may be prosecuted for non-adherence to road traffic
regulations (criminal law) and he may also be liable to pay damages to the victim (civil law).
Public Law
-Public law involves government directly. It defines a person’s rights and obligations in relation to government. Public law also describes the various divisions of government and their powers.
-Public law can be divided into four branches: (1) criminal law, (2) constitutional law, (3) administrative law,
and (4) international law. In many cases, the branches of public law, like those of private law, overlap. For example, a violation of administrative law may also
be a violation of criminal law.
Private Law
- Private law determines a person’s legal rights and obligations in many kinds of activities that involve other people. Such activities include everything from borrowing or lending money to buying a home or signing a job contract.
- The great majority of lawyers and judges spend most of their time dealing with private law matters. Lawyers handle most of these matters out of court. But numerous situations arise in which a judge or jury must decide if a person’s private-law rights have been violated.
- Private law can be divided into six major branches according to the kinds of legal rights and obligations involved. These branches are (1) contract and commercial law, (2) tort, (3) property law, (4) inheritance law, (5) family law, and (6) company law. The dividing line between the various branches is not always clear, however. For example, many cases of property law also involve contract law.
Public Law V/S Private Law
-Public Law, relates to the distribution and exercise of power by the state, public Law governs the relationship between the state and its citizens, Public Law protects the collective interests and promotes social objectives and the main mode of legal action is Judicial Review. Public Law includes: Administrative law - laws that govern government agencies, like the Department of Education and the Equal Employment Opportunity Commission, Constitutional laws are laws that protect citizens’ rights as afforded in the Constitution, Criminal laws are laws that relate to crime, Municipal laws are ordinances, regulations and by-laws that govern a city or town and International laws are laws that oversee relations between nations.
On the other hand,
Private Law, affects the rights and obligations of individuals, families, businesses and small groups and
exists to assist citizens in disputes that involve private matters. Its scope is more specific than public law and consists of Contract law that governs rights and obligations of those entering into contracts. Tort law that is rights, obligations and remedies provided to someone who has been wronged by another
individual, Property law that governs forms of property ownership, transfer and tenant issues. Succession law that governs the transfer of an estate between parties.
Family law that governs family-related and domestic-related issues and lastly Employment law that governs the relationship between employees and employers
Domestic Law (Municipal Law)
Municipal law is the national, domestic, or internal
law of a sovereign state defined in opposition to international law. Municipal law includes many levels of law: not only national law but also state, provincial, territorial, regional, or local law. While the state may regard them as distinct categories of law, international law is largely uninterested in the distinction and treats them all as one. Similarly, international law makes no distinction between the ordinary law of the state and its constitutional law.
International Law
International law deals with the relationships among nations both in war and in peace. It concerns trade,
communications, boundary disputes, methods of warfare, the uses of the ocean, and many other matters. Laws to regulate international relations have been developed over the centuries by customs and treaties. But international law, unlike other branches of law, is difficult to enforce.
-International law is the field of law that analyzes the particulars of relations shared by nations across the globe. Working in international law means your primary objective will be to analyze the implications of these
relationships in the public and private sectors. Practicing public international law tends to have national governments or international institutions as clients whereas private international law works with clients and their respective controversies one-on-one.
Domestic Law V/S International Law
International Law refers to rules governing international society. It distinguishes between public international law and private international law. Public int’l law concerns external relations of the State and other subjects of int’l law incl. int’l organisations – legal sources include treaties and customary law. E.g. of public int’l law = int’l humanitarian law, int’l criminal law, human rights, the Law of the Sea, int’l environmental law, etc. Private int’l law refers to relations between private parties where an international element is involved – rules belonging to more than one jurisdiction can be equally applied. The importance of private int’l law can be seen in areas such as international arbitration, E-commerce, etc. Private int’l law is also known as conflict of laws.
On the Other hand,
Domestic/National law denotes rules of a particular country applicable to the citizens on the territory and regulating its society. It normally reflects the legal system in place in that country. It varies from system to system and from country to country. The relationship b/w int’l law and domestic law can be based either on the dualism doctrine or the monism doctrine.
Dualism
- Int’l and domestic legal orders exist as 2 separated, distinct sets of legal orders.
- Differences in subjects, sources and content.
- Requires transformation of int’l law into domestic law to make int’l law binding on domestic authorities (process known as incorporation).
- States decide on the modes of incorporation.
- National law has priority over int’l law that has not been incorporated.
- By doing so, a state may not violate its national laws, but it might incur int’l responsibility.
Monism
-National law and int’l law seen as one unitary, coherent system.
-Int’l law is at the top of the pyramid and can either validate or invalidate acts of domestic legal systems.
-No need for transformation of int’l law into domestic law.
-No strict distinction between subjects of national and int’l law.
However, today, it can said that pluralism is the characteristic of the relationship between national and int’l legal systems.
