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Concepts of the phrase 'source law' Flashcards

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1
Q

What does sources of law mean?

A

Sourced of law means the origin or basis of law.

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2
Q

Where did the legal system of the Commonwealth Carib originate

A

The UK

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3
Q

What is the basis of law in the commonwealth carib?

A

The common law

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4
Q

List 3 types of sources of law.

A

Legal sources
Literary sources
Historical sources

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5
Q

Describe literary sources of law

A
  • They describe the location of the law.
  • Literary sources tell us what the law is
  • They do not confer legitimacy on rules of conduct or social arrangements. (?)
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6
Q

Give some examples of literary sources.

A

Books
Legal treaties
Law reports
Legislation

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7
Q

Describe Historical sources of law

A

-Historical sources of law refers to the causative factors behind a rule of law, its historical origin and development

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8
Q

Give some examples of historical sources of law

A
  • historical origin
  • development of law from English Statute and common law
  • Reception of English common law
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9
Q

Describe legal sources of law

A
  • Legal sources of law form the basis of law’s validity. In other words legal sources give law its authority.
  • The identification of legal source occurs after the process by which rules of conduct acquire the character of law (become definite, uniformed and compulsory)
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10
Q

Give some examples of legal sources of law

A
  • the constitution
  • legislation
  • common law and judicial precedent
  • equity: origin and development in the Carib
  • custom and conventions
  • international law and laws of regional treaties
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11
Q

What is the constitution?

A

-The constitution legitimizes the law. It is the base from which the rule of law originates and derives its authority or validity.
(usually in the form of a written, legally binding document)
Alternative

-The constitution can be defined as a body of law containing the rule which determines the direction of a state. This includes the manner which the state is organized and the body of fundamental principles according to which the State governed.

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12
Q

What is the highest source of law for any jurisdiction?

A

The constitution.

In Collymore v AG it was said: ‘No one, not even parliament can disobey the constitution without impunity’

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13
Q

What happens if a law is inconsistent with the constitution?

A

It will be considered null and void

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14
Q

True/ False Constitutional Law is a brach of public law

A

True./ Constitutional law is the branch of public law of a nation dealing with the distribution of political power and governmental branches, authorities and functions.

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15
Q

Why is the constitution a source of law?

A

Because it is often referred to by judges and lawyers who look to the constitution for the continued protection of citizens’ rights and prevention of the rule of law.

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16
Q

What is the importance of the constitution?

A
  • premier source of law
  • supreme law clause
  • sets out the function and power of the three organ of the state (legislative,executive and the judicial)
  • provide a framework for protecting citizens right as set out in the fundamental rights provisions or charter of rights
  • it is a source of law because it enshrines the rights, privileges and duties which ensure good governance in the state
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17
Q

What are the 3 organs of the state?

A
  • Executive: Government propose law
  • Legislative: Parliament makes law
  • Judicial: Judges ensure law is fairly enforced
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18
Q

Idk tell me something about the following cases

A 
-Hinds v R
Collymore v AG
Maharaj v AG 
Pratt v Morgan 
IRC v Lilleyman
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19
Q

What does ‘stare decisis’/ ‘stare decisis et non quieta movere’ translate to?

A

standing by decisions and not disturbing settled points, or simply ‘let the descision stand’

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20
Q

What is the doctrine of judicial precedent?

A

The doctrine of precedent is based on the principle of stare decisis, which requires lower courts to take account of and follow the decisions made by the higher court where the material facts are the same, and state that as a general rule, courts follow earlier decisions of themselves or of courts of the same.

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21
Q

What are the two types of judicial precedent?

A
  • Binding Precedent

- Persuasive Precedent

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22
Q

What is binding precedent?

A

The doctrine of binding precedent, stare decisis, is based on the premise that the function of judges is not to create law, but yo find law in conformity with existing legal rules.
-The judge has legal obligation to use decided cases, not merely for guidance but is bound to apply the principle of law found in such case

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23
Q

State one of the first judicial pronouncements on the doctrine of binding precedent.

A

case of London Tramcars v. London County Council, where 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 the question again as was res integra and could re-argued.

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24
Q

What does “res interga” mean?

A

those points of law which have not been decided

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25
Q

What is persuasive precedent?

A

Those legal principles contained in judgments which merely offer guidance.
-the judge will refer to these precedent, but they are not binding. (they may originate from lower courts or other jurisdictions)

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26
Q

Meaning of ‘obiter dictum’

A

A judge’s comments or observations, in passing.

- these may form the basis of persuasive precedent.

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27
Q

Does a Hight Court have to follow the decisions made my another Hight Court?

A

No. They may depart from the concept for good reason. However, they must follow decisions from courts above it such as the court of appeal and the Privy Council. All other courts are merely persuasive.

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28
Q

What are some advantages of Judicial Precedent?

A
  • It offers a degree of certainty and precision. Particularly useful when one considers the great volume of case law which forms the basis of common law.
  • Precedent and stare decisis are rule of law that are needed to prevented judges from imposing their personal whim on society under the guise of law.
  • It also avoid additional cost of appeal and unnecessary litigation
  • It forms the accountability for the judiciary discretion.
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29
Q

In summary the doctrine of precedent and stare decisis works to?

A
  • Stand by precedent
  • Not disturb settled points
  • adhere to set principles
  • apply the laws of future cases with similar material facts and bias.
  • uphold the rules of law
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30
Q

What are the rules of law?

A
  • Predictability
  • Equality
  • Consistency
  • Certainty
  • Uniformity
  • Stability
  • Objectivity
  • Continuity
  • Decrease
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31
Q

What are the disadvantages/criticism of Judicial Precedent?

A

-Rigidity (eg lower court must follow higher courts)
-inflexibility
-the danger of illogical distinction (judges may want to avoid applying otherwise binding prcedent or overruling)
-The magnitude and complexity of detail in the common law
The supreme Court may too rigid in adhereing to precedent which may lead to injustice and unduly restrain proper development of law. There may be compelling reason to NOT mechanically follow precedent. It may unduly restrict the proper development of law.

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32
Q

In Commonwealth Countries which courts sit at the apex of the hierarchy of courts?

A

The Judicial Committee of the Privy Council or the Caribbean Court of Justice (CCJ)

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33
Q

List the hierarchy of courts in the Commonwealth Carib.

A

Privy Council/ CCJ
Court of Appeal
High Courts/ Supreme Court
Intermediate Courts (family court and resident magistrates’ court [RM])

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34
Q

True/ False A court is sometimes bound by the decisions of a court of an equivalent status.

A

True

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35
Q

What is the meaning of ‘ratio decidendi’ ?

A

This means ‘the reasoning upon which of the case or principle of law the court uses to make its decision.’
The legal rationale which the judge gives for the decision that he arrives at in a particular case.

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36
Q

What is the meaning of ‘distinguishing a case’?

A

This term meaning that a previous case is different base on dissimilar facts or circumstances and thus does not have to follow precedent.

37
Q

What is the meaning of ‘overruling a case’?

A

This term means the setting aside of the decision of an earlier case ruling of a lower court decision.

38
Q

What is the meaning of ‘per incuriam’

A

‘Through a lack of care’
This occurs for example where some relevant precedent, legal principle or statutory provision which would have affected the outcome of the case decision was not brought to the attention of the court.

39
Q

What is legislation?

A

The process of making or enacting law.

40
Q

What are the types of legislation?

A
  • Primary Legislation- made by parliament

- Secondary (or Subsidiary) Legislation- made by government authority

41
Q

What are customs? And differentiate it from legislation.

A

Customs are rules/practices which simply grow or develop overtime , it has no draftsman.
This is different from legislation as legislation is deliberately made.
(legislation is written, custom subsists in conduct)

42
Q

What are the functions of legislation?

A

To cary out law reform, and create, alter or revoke law in order to fulfill the intention of the legislative body and ultimately the people. Legislation also fills the gaps of source law.

As well 8 others:
Revision, Consolidation of enactments, codification, collection of revenue or monetary control, implementation of treaties, social legislation, public policy& response to pressure group.

43
Q

For the function of legislation look at handout for exposition.

A
44
Q

Which arm of parliament writes laws?

A

the legislative arm

45
Q

Name the 2 kinds of Parliamentary Acts.

A
  • Private acts: this kind of act only affects the proposer or the sponsor of the Act. Proposer may be a company, corporation or private org.
  • Public Acts: These Acts affect the entire nation. Representatives in parliament on behalf of the people.
46
Q

True/False Legislation which is passed in conformity with international treaties or agreements is also public legislation.

A

true

47
Q

What do Statutes or Act of Parliament consist of?

A
  1. ‘long tittle’- this is the Act’s official name. the content and aims of the legislation will appear with the aim.
  2. ‘short title’
    3.Date of assent- does not necessarily have to be the date when the statute comes into force. It is the date when the Head of State approved it. In our case that would be the Governor General.
    4Words of enactment- these will simply be ‘be enacted. ..’
48
Q

Describe the process of Parliament passing a bill.

A

The upper and Lower House must discuss proposed public legislation. That is the Senate and the Cabinet must have a Parliamentary debate. Then there will be a first, second ,and third reading of the Bill.

  • First reading- announces the title of the bill
  • Second reading- the bill is debated
  • Third reading- the bill is passed

Nb.Bills are usually introduced in the Upper House, government usually introduces them, but any Member of parliament can introduce one.

49
Q

Give 2 examples of primary legislation.

A
  • The Criminal Law (Procedure) Act of Guyana

- The Gun Court Act 1974 if Jamaica

50
Q

What are Secondary or delegated/ subsidiary legislation

A

Secondary legislation is made by a Government authority or functionary who is given power by Parliament to make such legislation. In other words Parliament has delegated power given to them.

51
Q

Give an example of subsidiary legislation.

A

Contained in section 129 of the Constitution of Trinidad and Tobago which authorizes the Service Commission to make regulations.

nb. in Trinidad and Tobago Constitution some government functionaries are also given law making power within defined boundaries.

52
Q

What should the overall approach to interpreting statues consist of?

A

a. The judge should look at the context of the provision to be interpreted and apply the grammatical or ordinary, literal or technical meaning of the words, if they are clear, even if it results in unjust consequences;
b. The judge should use discretion to apply a secondary meaning if the first leads to absurdity;
c. The judge may read in words necessarily implied by the statue and may add to, alter or ignore words in order to prevent a provision from being absurd, u intelligible or unworkable;
d. The judge may make use of intrinsic aids to determine the intent of presumption of legislation.

53
Q

What are the rules of interpretation which have been created to aid the judicial role of applying laws?

A
  • Literal rule
  • Golden rule
  • Mischief rule (purposive rule)
54
Q

What is the literal rule?

A

This rule allows that the word and phrase is 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.

(look at the handout for examples of the literal rule being applied)

55
Q

Give an example of the literal rule being applied.

A

1)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 offense’…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.

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.
(main one)

2)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. Charges were laid against the appellants. The indictment charged a conspiracy to prosecute M.A., knowing him to be innocent of the summary conviction offense of being in unlawful possession of bush run under sec.330 of the Criminal Law Ordinance Cap of British Guiana.
It was argued that the offense is NOT committed if the evidence discloses an intention merely to cause a public prosecution by conspiracy. The ordinary and primary meaning of the word “to prosecute’ is to commence proceeding by laying information. If the legislature intended the meaning of the word to include “cause to be prosecuted” the parliament would have stated explicitly as it had I other laws.

56
Q

What is the golden rule?

A

The second rule of statutory law is the golden rule. This rule provides that if the literal and ordinary meaning of the words of the statute gives 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.

57
Q

Give an example of the golden rule being applied.

A

The case of 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: It seems clear that the intention of the Regulation was to create two offences, one, parking otherwise that in a place provided by the Minister for that purpose; and the other, parking otherwise that 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…”

58
Q

What is the mischief rule?

A

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 four factors:

i. The law before the statute was passed to obtain the purpose of the law
ii. The problem/mischief the statute was to address
iii. The remedy Parliament intended to provide
iv. The reason for the remedy. (see George Green case)

nb. The application of the literal rule does NOT always or usually resolve the problem of interpretation. Therefore , it is necessary to apply the golden rule or the mischief/purposive rule under particular circumstances.

59
Q

Give an example of the mischief rule being applied.

A

The case of R v George Green. ( 1969). 14 WIR p 204

The Appellant was convicted on indictment of the offense 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.
The Court held that the term ‘ganja’ as defined by section 2 of the Act is referable only to the pistilate known as cannabis sativa and did not include any part of the staminate plant and therefore the offence of cultivating ganja contrary to section 7 of the law relates only to cultivating the pistilate plant known as cannabis sativa.
The court stated that one of the reasons for introducing the Dangerous Drugs Law of 1942 was to follow international standards by conformity with the legislation on other countries and colonies who were signatories to the International Convention on Dangerous drugs.
In this case the Court went behind the nature of the statute in order to discover reason behind its creation

60
Q

What is equity?

A

Equity means fairness, justice or what is morally just. It is regarded as a court of conscience to cure the harshness that resulted from applications for a rigid technical common law.
It creates remedies that were not available at common law.

61
Q

Is equity a sufficient body of law?

A

No. It grows alongside common law. “ Originally the chancery court had an exclusive jurisdiction in equity where the common law had no remedy or relief

62
Q

What is common law/ case law?

A

Common law or case law is a legal principle derived from cases.
It os a body of law derived from cases.
It is relevant where there are no applicable statutes.

63
Q

What kind of source of law is common law/case law?

A

Both a legal and Historical source.
-Historical source because the existence of the common law tradition in the Commonwealth Caribbean is directly linked to our colonial past. (transplanted to the region by the british)
-

64
Q

What makes common law unique?

A

It develops on a case-by-case basis. It is this ad hoc legal system growth that makes common law unique.

65
Q

What is the meaning of ‘ad hoc’ ?

A

‘for this purpose only’.

66
Q

Name the three branches which the common law court comprised of.

A
  • The Court of King’s Bench
  • The Court of Exchequer
  • The Common Court of Common Pleas
67
Q

True/False the common law was historically the only law practiced in England.

A

true but like before they had like split system before norman conquest

68
Q

What is a writ? give and example.

A

A letter in the name of the king commanding someone to do what was specified in the writ.

eg. ‘writ on right’ commencing an action of land
‘writ of trespass’ for injury to person or property.

69
Q

Briefly explain how writs work.

A

If a litigant wished to bring a claim before the court he could only do so by way of writ. They had to try to fit their circumstances into the writ in order to bring their cases before the common law court. If they could not, they could obtain no redress and only alternative would be petition the king.

70
Q

What were the problems with the Writ System.

A
  • the limited number of available writs
  • the writs were designed to fit very specific claims, which meant that if the litigants claim did not fit an existing writ, the only remedy was to petition the king
71
Q

How did the Court of Chancery come to be?

A

The limitations and harshness of the common law were so severe that the petitions before the king grew in numbers. When he sat to hear petitions the king was advised by the Lord chancellor who later became known as the king’s conscience. 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 that were not entertained in the common law courts.

72
Q

What was the original name of the court of chancery?

A

Sessions of the Chancellor

73
Q

How did the chancery division relate to equity?

A

The Chancery Division headed by the lord Chancellor dispensed justice based on principles of equity and offered new remedies that were never available at common law. Such remedies include the injunction and the order of specific performance.

74
Q

What is the significant difference between equity and common law?

A
  • The set of remedies in which equity entails discretionary remedies to compel or prevent the actions of the parties, rather than just damages
  • the substance of equity pertains to matters of law, (rather than finders of fact)
  • The source of the rules governing decision is based on fairness and flexibility based on general guidelines and NOT judicial precedent.
75
Q

What is ‘maxim of equity’( like the meaning of the term)?

A

Sayings which have developed that illustrates the way in which the body of law that is equity will be applied.

76
Q

Name and explain 5 maxims of equity. (name all 11/12 for brownie points)

A
  1. ‘Equity does not suffer wrong to be without remedy’. - this maxim expresses the ability of equity to create a new remedy where none exists under the common law.
  2. ‘Equity does not assist a volunteer’. - For example a decree of specific performance to compel a person to do something will not be granted to a person who has given no consideration for it.
  3. ‘He who comes to equity must come with clean hands’. A person who expects a remedy in equity must himself have a clear conscience and must have done no wrong with respect to the matter before the court. (Hubbard v Vosper, Duchess of Argyll v Duke of Argyll)
  4. ‘Equity looks to the intent and to the form’ The doctrine of part performance and estoppel may be traced to this maxim
  5. Equity acts in personam rather than in rem’. In accordance with the maxim, the right of a beneficiary will be viewed essentially as a personal right rather than a right in the property itself and cannot, therefore, be assigned.
  6. ‘He who seeks equity must do equity’. This is similar to the requirement for ‘clean hands”. It means that a person applying for an equitable remedy must be prepared to act in an equitable manner himself. (chappell v Times newspaper ltd.; Hawley v Edwards ) While this maxim goes hand in hand with the maxim of ‘clean hands’ the difference is that the requirement to ‘do equity’ looks to the future and not to the past, as the requirement to come with ‘clean hands’ does. Consequently, the respondents, in a case of specific performance should have been prepared to do equity and pay interest on the purchase money for the property of which they had deprived the appellant.
  7. Equity follows the law
  8. Equity regards as done that which ought to be done
  9. Equity will not allow a statute to be used as a cloak for fraud
  10. Equity delights in equity
  11. Equity aids the vigilant, not those who slumber on their rights
  12. ?
77
Q

What does equity exist to do?

A

to correct the deficiencies of the common law, it may grant remedies even if no strict legal rights exist.

78
Q

Note: One of the essential differences between equity and common law is that whereas common law remedies are available ‘as of right’, regardless of the plaintiff’s conduct once there is an infringement of his legal right. , equity is a discretionary remedy. Thus an equitable remedy is only granted if the court decides that the plaintiff deserves it. As a result, even if there is a wrong BUT the plaintiff’s conduct was inappropriate, he receives no remedy. Likewise, if damages, which is a ‘legal ‘remedy, for a wrong are sufficient, the court may not award an equitable remedy.

A

rawr

79
Q

Note: A good description of the nature of equity is found in the accident case of Dudley v Dudley:
Note equity is not a part of the law, but a moral virtue, which qualifies, moderates and reforms the rigour, hardness and edge of the law, and is an universal truth; it does also assist the law where it is defective and weak…Equity therefore does not destroy the law, nor create it, but assists it.
It is important to remember that when there is a conflict between equity and common law, equity will take precedence.

A

rawr

80
Q

Give some examples and brief explanations of remedies. (3 at least)

A
  1. Rectification - which forces a party to a contract to change the term of a contract in order to achieve fairness between the parties.
  2. Rectification - which forces a party to a contract to change the term of a contract in order to achieve fairness between the parties.
  3. The Anton Piller Injunction – which preserves intellectual property material such as written or recorded information inclusive of that found on CD’s and software.
  4. The Marvea Injunction- which preserves the removal of assets from the jurisdiction of the court. It is formally known as a “freezing order”. (for example money in a bank or an aircraft)
  5. The law of trusts- it arises where property is conveyed to T (the trustee) in circumstances where equity will compel him to administer it for the benefit of B (beneficiary). The trust is also in succession law where property is involved, such as in the drafting of wills. It also aids 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.
  6. Estoppel - operates whenever, in the particular circumstances, it would be unconscionable for a party to be permitted to deny that which knowingly or unknowingly, he has allowed or encouraged another to assume to his detriment. Case (Bacchus and Another v Ali Khan and others)
81
Q

What are the new rights of equity?

A
  • Rights of a beneficiary under a will or trust:
  • Existence of an equitable interest; and
  • Equity of redemption (Construction Service Ltd V Daito Kogyo Co)
82
Q

Which Caribbean courts apply the principles of equity?

A

All Commonwealth Carib courts apply the principles of equity to the extent that these territories have built up and expanded upon their own jurisprudence in this area of the law.

83
Q 
Case reference(equity) 
In the area of injunction the case of The Demerara  Turf Club v Phang  (1968)  LRG laid done the principle of the assessment of the ‘balance of convenience ‘ between parties before the grant of injunctive relief.  It was 12 years later in the locus classicus of American Cyanamid v Ethicon the same principle was developed and applied in England.
All of the Commonwealth Caribbean courts apply the principles of equity to the extent that these territories have built up and expanded upon their own jurisprudence in this area of the law :  in the Trinidadian case of Coosals Quarry Ltd V Teamwork (Trinidad ) LTD H.C.A 5011/85 Sharma J. suggested that where material favourable to the defendant is contained in voluminous material to be put before the court , the plaintiff when applying for injunctive relief ex- parte should  mention all the said  material in his affidavit.
A

delete this if you want to

but rawr anyways

84
Q

True/False England has a written constitution.

A

False

85
Q

Name five sources of law

A 
The constitution 
Legislation by courts 
Common law and equity 
Precedent 
Interprettaion of legislation by the courts
86
Q

What Carib countries have the constitution enshrined in a supremacy clause?

A

Guyana Article 8 of the Guyana (1980) Constitution enshrines it

  • the Jamaica Orders-in-Council Constitution (1962) section 2
  • The Constitution of Barbados, section 1
  • The Constitution of the Republic of Trinidad and Tobago, section 1
87
Q

What was the only law practiced in England during the medieval times?

A

Common law

88
Q

What is the meaning of ‘ratio decidendi’?

A

‘the reasoning upon which a decision stands’

89
Q

What is the meaning of ‘stare decisis’

A

‘let the decision stand’

Law (9 decks)

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