MLS- M.Keshinee

• Legal education


  • A skill for human knowledge which is relevant to the lawyer's art
  • A science which deals with the practical aspects of law - relating to statutes, moots or arguments on points of law
• Law

  • A very broad concept, difficult if not impossible to define
  • The system of rules which a particular country or community recognizes as regulating the actions of its members and which it may enforce by the imposition of penalties
  • A formal mechanism of social control
• Definitions of Law


  • Legal Positivism (John Austin, Professor Hart)
  • Marxist Theory
  • Natural Law (Plato, Aristotle, St Thomas Aquinas)
  • Legal Realism (Oliver Wendell Holmes, Karl Llewellyn, Lord Browne-Wilkinson)
  • Other Definitions (Max Weber, Thomas Hobbes)
• Law


  • A social science - encompasses rules controlling lives and activities of people in society
  • An art - Romans referred law as the art of proclaiming fair and good rules
  • A mixture of arts, science and social science
• Similarities between law and literature

  • Both are based on language and share a common tradition
  • Both depend on narrative - on the idea of telling a story
  • Argumentation and internal logic are crucial to both
  • Both require interpretive engagement to understand the text's implications
• Differences between law and literature

  • The literary text is an aesthetic object whereas the legal text is not
  • The language used in law and literature are different
  • Law and literature utilize 2 different vocabularies
  • Literature originates from humankind's aspirations and ambitions - law is the rule of human behaviour
• Law as a normative system


  • Specifies and evaluates conduct within the community
  • Like other normative systems such as religion, mores, ethics and morality - guides people on norms and standards of behaviour acceptable by society
  • An essential component of a civilized society
• Differences between law and religion

  • Religion elaborates on the genesis of the universe and the world of humans - believes in presence of God
  • Religion contains a set of rituals and practices
  • Religion requires both social conforming conduct and mental attitude
  • Compliance in religion is inspired by belief in God and non-compliance is believed to lead to punishment that God will inflict
  • Law stipulates rules for society with no concern about theories of creation
  • Law is based on rules of procedure and evidence
  • Law requires only social conforming conduct
  • Compliance in law is binding and non-compliance is sanctioned by the authorities
• Mores


  • Essential customs and conventions of a community
  • Concerned with usual practices existing in society
• Differences between law and morality

  • Law often contains moral rules but not all moral rules are incorporated in the legal system
  • Homicide is a criminal offence = Moral principle of 'Thou shalt not kill'
  • The mandatory force of contractual obligations = Moral principle that one must keep one's word
  • Larceny as a criminal offence = Moral principle of 'Thou shalt not covet the wealth of others'
  • L'obligation alimentaire est imposé aux ascendants et descendants selon l'article 205-207 du Code Civil - however, morality preaches to help all those who are in need
  • The Sale of good in law, can happen at whatever price agreed by the parties and could be a sale higher or even lower value than market value - however, this would be treated as morally unfair
• Branches of Law


  • Criminal Law
  • Civil Law
  • Public Law
  • Private Law
  • Domestic Law
  • International Law
  • Substantive Law
  • Adjectival Law
• Differences between Criminal Law and Civil Law

  • Criminal Law is concerned with acts/omissions contrary to public order
  • Civil Law regulates the relationship amongst private parties
  • In criminal law, the guilty person is liable to punishment in the form of fines or terms of imprisonment
  • In civil law, the system of remedies includes damages, injunctions, etc.
  • Common criminal offences include larceny, murder, wounds and blows, rape, assault, etc.
  • Common civil cases include law of contract, law of tort, family law, and property law
  • Criminal cases are prosecutions brought by the Director of Public Prosecutions in the name of the State
  • Civil cases are brought by the plaintiffs who are individuals or corporate entities
  • The prosecutor needs to prove the case beyond reasonable doubt in criminal cases
  • The plaintiff needs to prove his case on a balance of probabilities in civil cases
• Overlapping between criminal law and civil law

  In some situations, there may be overlapping 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


  • Relates to the distribution and exercise of power by the state
  • Governs the relationship between the state and its citizens
  • Protects the collective interests and promotes social objectives
  • The main mode of legal action is Judicial Review
• Areas of Public Law

  • Administrative law - laws that govern government agencies and their actions
  • Constitutional law - laws that govern the structure and powers of government
  • International law - laws that govern relations between nations
• In some situations, there may be overlapping between both criminal law and civil law whereby criminal as well as civil liability are entailed
• Areas of public law

  • Administrative law
  • Constitutional laws
  • Criminal laws
  • Municipal laws
  • International laws
• Areas of private law


  • Contract law
  • Tort law
  • Property law
  • Succession law
  • Family law
  • Employment law
• International law refers to rules governing international society, it distinguishes between public international law and private international law
• Private international law

  Refers to relations between private parties where an international element is involved, rules belonging to more than one jurisdiction can be equally applied
• Domestic/national law


  Denotes rules of a particular country applicable to the citizens on the territory and regulating its society, reflects the legal system in place in that country
• Dualism


  International and domestic legal orders exist as two separated, distinct sets of legal orders, requires transformation of international law into domestic law to make it binding
• Substantive law


  Describes the rules related to the subject-matter of the case, lays down the rights and duties of legal persons and guides the courts in making decisions
• Adjectival law


  Designates the rules governing the machinery of justice, relates to the enforcement of the rights and duties of the legal entities and determines the course of an action by providing the rules of evidence and procedure
• Civil law


  Legal system originating in Europe whose most prevalent feature is that principles are codified into a referable system which serves as the primary source of law
• Common law


  Legal system characterized by case law, which is law developed by judges through decisions of courts and similar tribunals
• The US, Canada, England, India and Australia are generally considered common law countries, while civil law countries include all of South America (except Guyana), almost all of Europe, China and Japan
• Differences between civil law and common law

  • Role of judges
  • Constitution
  • Precedent
  • Jury opinion
  • History
  • Sources of law
  • Type of argument and role of lawyers
  • Evolution
• Although the Arabs must be credited as the discoverers of Mauritius, it was the Europeans who charted the course of the island's history
• The Portuguese were the first Europeans to come to Mauritius, and they abandoned the island towards the end of the 16th century
• In 1598, a Dutch sailor, Admiral Wybrandt Van Warwick, landed on the island and claimed it on behalf of Holland, naming it 'Mauritius'
• Mauritius has a hybrid legal system - a fusion of French and British legal traditions, with the substantive part of the law inspired from French laws and the procedural aspect coming primarily from British laws
• During the French colonial period from 1715-1810, the population was segregated between Whites, Slaves and the Coloured, each governed by different laws
• The Whites were governed by the 'Coutumes de Paris' and the 'Ordonnances de Colbert', the Slaves by the Code Noir, and the Coloured also had their own set of laws
• Mauritius


  • Inherited from England: Type of Government, Constitution, Civil Service, British education system
• French Colonial Period


  Reign of the French colonists - 1715 to 1810
• Population segregation in French Colonial Mauritius


  • Whites
  • Slaves
  • Coloured
• Institutions established in French Colonial Mauritius

  1. Colonial Assembly

  2. Conseil Provisoire

  3. Notariat

  4. Conseil Provincial

  5. Conseil Superieur

  6. Royal Court
• After French Revolution, Conseil Superieur was conferred the appellation of Cour d'Appel
• Key changes introduced by British in Mauritius

  1. 1832 - Penal Code adopted

  2. 1838 - New Penal Code enacted in English and French

  3. 1836 - Rules of Court introduced to abolish provisions of Code de Procedure Civile and introduce English Rules of Civil Procedure

  4. 1841 - All future laws to be published only in English