TOPIC 5: SOURCES OF LAW AND CLASSIFICATIONS OF LAW Flashcards
POSITIVISM(S)
Positivism is complex and abused term
Legal positivism : defines what counts conceptually as law
Can be pragmatic/reasonable and focus on positive or posited laws
o Laws laid down
o Laws created be people ( in contrast to ideas of natural law or divinely –mandated law)
POSITIVE LAWS
These include: o Constitutions o Legislation o Subsidiary legislation o Customary laws o Common laws and case law
- Legislation
Refers to laws enacted enacted by the legislature (lawmaking power)
1.1 Sources of Pacific Legislation:
- Foreign Legislation: belonged to colonial power but has been adopted or applied
- Locally enacted legislation, some made during colonial rule and others after independence
- Subsidiary legislation
Refers to laws authorized by legislation - parent legislation - to be made by persons or bodies with regard to some matters that are not dealt with fully in legislation.
Usually published together with legislation.
aka: Subordinate legislation, delegated legislation or statutory instrument.
2.1 Types of Subsidiary referred to in practice:
Orders Regulation Bylaw Ordinance Proclamation
- TH E INVALIDITY OF LAWS
How can laws be considered invalid?
Any law inconsistent with the Constitution, is void to the extent of inconsistency.
3.1. Constitutional review/Judicial Review
Judicial review - courts have the final say in Constitutional review and has the power to overrule legislation that doesn’t comply with constitution.
3.2 Case Study: State vs Balelala - Judge overruled laws on Corroboration of evidence in related to rape cases, to the extent that it violated/breached the rights of women in accordance to principles of CEDAW.
The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) used to support and justify a Court’s decision to remove the corroboration warning requirement for evidence of victims of sexual violence on the ground of gender discrimination, which was prohibited in the Constitution of Fiji.
3.3 Invalidity of subsidiary legislation
Can be invalid if inconsistent with authorizing/parent legislation
Rules of consistency:
Must be:
intra vires = within powers and not
Ultra vires = outside powers
CUSTOMARY LAW in the Pacific and USP countries recognition of Customs
Refers to practices or usages that are normative.
Most USP countries recognize customary law especially in regards to land ownership and use; whilst some may not recognize customs in law its importance remains meaningful in pacific society
Challenges of Customs:
- Conflicts with human rights
- problems with standard of proof
- no rules of evidence
- reciprocate
- orally passed
- informal
- lacks precedence
THE FOUR MAIN APPROACHES OF LEGAL RECOGNITION OF CUSTOM:
- Constitutional recognition of custom as source of nationals laws
- Constitutional recognition of custom as a source of law but not to be prescribed by (yet to be enacted) legislation
- Legislation has provided for the application of custom related to specific subject matters by civil and criminal courts (PNG, SOLOMON ISLANDS, KIRIBATI, TUVALU)
- Constitutional or legislative recognition of cutsoms for specific purposes such as customary land tenure, role of chief, or pleading of customs as a mitigating factor in the sentencing process.
- Constitutional recognition of custom as source of nationals laws
- Solomon Islands Constitution 1978 (Schedule 3 - Application of laws)
- Vanuatu Constitution 1980 (art 95)
- Constitutional recognition of custom as a source of law but not to be prescribed by (yet to be enacted) legislation
Underlying Law Act 2000 - recognition as a source of law.
Cook Islands 1965 (art 66a (1) )
FSM Constitution 1978 (Article V - Traditional rights, Section 1)
Marshall Islands Constitution 1979 (Article X) Traditional rights, section 2 - Declaration of the Customary law (1)
- Legislation has provided for the application of custom related to specific subject matters by civil and criminal courts (PNG, SOLOMON ISLANDS, KIRIBATI, TUVALU)
PNG CUSTOMS RECOGNITION ACT CAP 19 (1963)
- provides for recognition of customs by the court in connection to certain topics stated in the Act. Also provides proof of pleading of customs as a mitigating factor in the sentencing process.
- Constitutional or legislative recognition of customs for specific purposes such as customary land tenure, role of chief, or pleading of customs as a mitigating factor in the sentencing process.
Vanuatu Criminal procedure Code Cap 136, section 199. Account to be taken of compensation by customs.
Samoa Constitution 1962, section 100 - matai titles
Republic of Marshall Islands Constitution 1978, article X - section 1 traditional rights of tenure land preserved
COMMON AND CASE LAW in the Pacific
definition?
roles?
institutions that use this law?
- laws made by judgments
- In USP countries, common law – as well as Equity – was maintained, through:
o A cut-off date usually applies to reflect that the English law and precedents were no longer in force
Limitations:
o There is often a requirement of ‘suitability to local circumstances’ (often ignored in practice)
Common law development: Past
Historically, courts of common law used written Roman law, it was more reliant on judicial development of law through reasoned opinions expressed in law reports, as a result case law is often called common law
Limitations:
- case law was traditionally only persuasive,
- was to difficult to follow because it was inaccessible
- didn’t provide motivation for decision
Common law development: Present
- Creation of a clear judicial hierarchy
improvements in law reporting, made it possible for some case laws to be treated as binding - introduction of moder ‘stare decisis’
- (let the decision stand) is a strong type of precedent in which a single decision of a court will bind lesser courts
- Common law merged with equity
THE HIERARCHY OF LAWS
- Constitutions
- Legislations
- Subsidiary legislation
- Custom or customary law
- (Applied and adopted) Common law is problematic as explained above
- Local case law is complicated, as it may be binding, but may also be more-or-less persuasive; even where its ranked below other laws, judicial interpretation and application of laws remains extremely important
- Persuasive (or secondary) sources can also doctrine (legal scholarship); this are probably more important the harder is it to access laws
CLASSIFICATIONS OF LAW
1. May be divided according to the extent of the geographical or political area to which they apply;
o International law: operates outside a country. Its rules regulate relationships between states (public law) or relationships between individuals (private international law)
o Domestic law: operates within a country, i.e. national, regional ( state, province, or district) or local sub-district, shire, municipality, city or town)
- May divide laws according to origin:
o Anglo-american or Common Law (Originally based on English Law
o Custom or customary law (based on unwritten indigenous customs, traditions and practices)
o and introduced law (derived from legal traditions)
DOMESTICALLY WITHIN A STATE : PRIVATE and PUBLIC LAW
definition?
roles?
institutions that use this law?
- Private law or Civil Law is concerned with matters relating to private individuals( eg: contracts, families, land)
PUBLIC LAW
definition?
roles?
institutions that use this law?
Public law is concerned with matters relating to the state (eg: constitutional law and administrative law)
State v Wapulae, violation of Division 3 PNG Constitutional human rights (Life, freedom of movement, fair trial)
State v Beng
The STATE vs BALELALA (2004) FJCA – Judicial review and overrule of Corroboration laws in relation to Rape offences. Violated CEDAW principles,
CLASSIFICATION OF INTERNATIONAL LAW: Private International law & Public International law definition? roles? institutions that use this law? - Ordinary Supreme Courts
Private international law (Conflicts of law) regulates the relationships between people or bodies of different countries
o Laws on Extradition Treaties
2. Public International law definition? roles? institutions that use this law? - International Criminal Court - International Court of Justice - Ordinary Supreme Courts
Public international law regulates the relationship between independent countries or states. It includes treaties, as well as international customs and is enforced by international courts, tribunals, and arbitrators.
o UDHR
State v Wapulae, violation of Division 3 constitutional human rights (Life, freedom of movement, fair trial)
o CEDAW - elimination on discrimination against women,
The STATE Vs BALELALA (2004) FJCA – Judicial review and overrule of Corroboration laws in relation to Rape offences.
o CROC - rights of the child is paramount
BASIC CLASSIFICATIONS: Substantive law v Procedural law
definition?
roles?
institutions that use this law?
- Substantive law
Provides the content (substance) of legal rights or obligations before the law - Procedural law
Provides the procedures by which legal rights or obligations can be determined and enforced
CIVIL vs CRIMINAL
definition?
roles?
institutions that use this law?
- Civil law/ private law related to relationships between individuals and liability for civil claims
- Criminal law regulates conduct punishable by the state
PROCEDURE AND EVIDENCE
definition?
roles?
institutions that use this law?
- Procedure law is usually contained in enacted law and follows the civil/criminal division in substantive law, i.e.
o Civil procedure regulates civil proceedings (often made by a Chief Justice under powers given by legislation)
o Criminal procedure regulates criminal proceedings (usually in legislation)
The law of evidence regulates the evidence that can be produced in legal proceedings,
o
- EVIDENCE
definition?
roles?
institutions that use this law?
The law of evidence regulates the evidence that can be produced in legal proceedings;
i.e. such matters as relevance, admissibility and reliability of evidence, and the competence and compellability of witnesses
o these laws are often partly legislative, partly judicial
CONTRACT, TORT AND PROPERTY LAW
definition?
roles?
institutions that use this law?
- Contract law concerns agreements made between people or bodies who have legal capacity to do so
- Torts involves civil wrongs committed when one person causes injury, damage or loss to another in circumstances the courts consider should require him to pay damages for compensation
- Property law is about the ownership, use and transfer of property. Its usually divided into two, with different requirements:
FAMILY LAW
definition?
roles?
institutions that use this law?
- FAMILY LAW
o Concerned with the law relating to births, deaths, and burials, marriages, nullity of marriage, divorce or dissolution of marriage, the custody of children, and the rights to property of a marriage
o In some countries marriages are permitted to be undertaken in accordance with custom,
o But most other aspects of family law are regulated by legislation and case law
- BUSINESS OR COMMERCIAL LAW
definition?
roles?
institutions that use this law?
o Is concerned with those matters of particular importance to business or commerce, especially such things as companies, partnerships, agencies, bills of exchange, and sale of goods. Most of this law is enacted law ( i.e. legislation)
- Criminal Law
definition?
roles?
institutions that use this law?
- Criminal Law
o Is the law that determines what conduct is punishable by the State. In most countries this is enacted law.
CONSTITUTIONAL LAW
definition?
roles?
institutions that use this law?
o Made up of rules that regulate the power and relationships of the main organs of the State: Head of state, government ministers, ministries and Departments, public service and courts)
o Most of these rules are contained in a constitution (and its interpretation by appropriate courts),
o But some are also provided in statutes and some by convention or tradition
Administrative law
definition?
roles?
institutions that use this law?
o Is mainly concerned with rules regulating the relationship between the agencies of the state and private individuals
o In particular, such rules define the limits of the powers of the state agencies, and control the way those powers should be exercised within those limits
o Most of those rules have been developed by the courts, relatively few are contained in enacted law.
REVENUE LAW
definition?
roles?
institutions that use this law?
o Is the body of law that determines what revenues or monies the government can require people to pay it finance its operations and other activities it is supporting
o This category of law is entirely contained in enacted laws
PLANNING LAW
definition
roles?
institutions that use this law?
o Is concerned with land planning.
o It is applied especially in urban areas, where many people live and work close together so are more likely to interfere with each other’s activities and spoil each other’s environment.
