WEEK 6: SOURCES OF LAW Flashcards
(31 cards)
Importance of knowing the source of law
- make effective use of legal sources is important for those in the legal industry (lawyers, judges, legal advisors, etc)
- judges will have something to refer to in order to make a court proceeding; referring to a wrong source will lead to a wrong judgement.
What is a judgement made per incuriam?
per incuriam = judgement made without taking into account judicial precedents of superior courts.
These judgements do not have to be followed as precedent by a lower court.
There are two types of legal sources, what are they?
Historical and legal sources.
What can you tell us about the historical sources of law?
- these indicate the factors which have been influential in the development of law but not actually recognised as law.
eg: religious practices, local custom, beliefs, opinion of a jurist.
What can you tell us about the legal sources of law?
- legal rules that make up the law; written and unwritten.
Malaysian law is derived from both written and unwritten law.
Where can the law be found?
statues, law reports, textbooks, decisions of the court.
There are two types of sources of law; primary and secondary.
How do you differentiate primary sources from secondary sources?
Primary sources are:
- actual laws.
- authoritative in supporting argument.
- binding in courts, some are only persuasive.
- issued directly from the law making body (official bodies from the three branches of government.)
What do primary resources contain?
Laws, orders, decisions, or regulations issued by a governmental entity or officials, such as the court, legislature, or executive agency.
What are the primary sources of law?
- constitution
- legislation
- delegated legislation
- case law
- conventions and treaties
What is a constitution?
a collection of basic principles and guidelines that determine how a country is established and governed as prescribed by laws, customs, or rules which are generally accepted.
What does a constitution mean and what does it do?
- fundamental law; written or unwritten.
- establishes the character of a government by defining the basic principles to which a society must conform.
- describes the organization of the government and regulation, distribution as well as the limitations on the functions of different government departments.
- prescribes the extent and manner of the exercise of its sovereign powers.
What are the other functions of a constitution?
1) Determines how public decisions are made by the government.
2) Sets the distribution of power among government agencies.
3) Sets the limits of the government authority and ways of choosing and electing a government.
4) Provides assurance and protection to the people (special rights and freedom of rights)
5) Guideline for the creation of laws on either side (whether it is the government or people).
What are the different types of constitutions?
- written
- unwritten
- rigid
- flexible
- federal and unitary
- monarch and republic
- presidential and parliamentary
Written constitution
- a single document; describes the arrangement of governance in a country.
- precise and systematic.
- also known as the codified or enacted constitution.
- creation is defined as a deliberate effort of the people.
- generally rigid; a defined procedure that is different from the procedure of making or amending ordinary legislation.
Eg of countries with this constitution: Malaysia, USA, India, Russia, France, Germany, Nigeria.
Unwritten constitution (evolved constitution)
- legal body; constitutional principles not written in a single document.
- derived from a number of sources (conventions, traditions, and customs, acts of parliament, common law) that are partly written and unwritten.
- result of the historical development of a country.
- flexible in nature; amendment procedure is simple as there is no difference in the procedures in making ordinary legislation and amending the constitution.
Eg of country with an unwritten constitution: British Constitution.
Rigid constitution
- difficult and seldomly amended.
- stipulates that at least some part of the constitution cannot be modified by the same procedures used to enact statutory law.
Eg: constitutional amendments of the US constitution cannot be made by an ordinary Act of Congress - requires supermajorities at both the ratification and modification stages.
- 2/3 majority in each House of Federal Congress.
- ratification by at least 3/4 of the legislatures of the individual states of the Union.
Majority of countries have rigid constitutions.
Flexible constitutions
- all laws of the constitution can be amended by the ordinary law-making process.
- allows any of the rules of the constitution to be modified through the simple procedure by which the ordinary statutes were enacted.
UK’s constitution is flexible due to its constitutional institutions and rules which can be abrogated and modified through a simple act of Parliament.
Federal constitution
- provides the ability to create governments at the state level.
- governments are able to have their own constitutions; connected and controlled by the central/federal constitution.
- alteration of the distribution of powers between the federal and state organs can only be achieved by amending the constitution (not a simple act of Parliament.)
- Individual states cannot have their powers reduced in that way.
Unitary constitution
- All state power is vested by the constitution in central organs.
- The only level of government besides the central is the local or municipal government.
- Local governments may enjoy considerable autonomy, their powers are not accorded constitutional status.
- Parliament at the Central level could, by a simple Act of Parliament, reduce the powers of, or even abolish these local authorities.
Differences between a federal and unitary constitution
Most countries have at least two levels of government: central and local. Some countries may contain a third level of government (responsible for the interests of more or less large regions)
- the distribution of powers between these levels of government is an important aspect of the constitutional organization of a state.
- states with two levels of government; distinctions made on the greater or lesser autonomy granted to the local level.
- a unitary or a federal system is dependent on how a constitution organizes power between the central and subnational governments.
- other than levels, the most important distinction between the two systems is that states or provinces of a federal state have constitutionally protected sovereignty.
- the state or provincial governments in a federal system share sovereignty with the central government and have final jurisdiction over a broad range of policy areas.
Differences between a monarchy and republic constitution
Monarchy - one of the various types of constitutions that provide no head of the state power to citizens of a country; unless related to a monarch.
- May proclaim an endless political power to a monarch or limit his/her political power.
Republican - most popular constitution today.
- Proclaims rights and freedoms for all citizens.
- Provides the ability to choose political leaders or be chosen as political leaders
Differences between a presidential and parliamentary constitution
Presidential - places power in the hands of a president.
- Usually dictates that the head of the state and the head of the executive branch is the president.
Parliamentary - gives power to a parliament.
- Primarily affect the head of the executive and the head of state branches.
- Dictates that the head of the state can be a prime minister. He/she can also be a part of a political party.
What are secondary sources of law and how are they important?
- Plain language writings about the primary sources of law; great place to start research on any legal topic.
- Not law and not binding to any legal court.
- Organize and explain the primary law to make it more accessible and understandable
- Repackage primary information into a more digestible form providing commentary, analysis and debate around the law.
- Not inferior to primary sources but rather complement them.
What are some examples of the secondary sources of law?
- > Textbooks
- > Legal Encylopaedias
- > Law dictionaries
- > Journals and articles
