foun 1301 law 1

• Law


  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
• Categories of law


  • Criminal law
  • Civil law
• Criminal law


  • Deals with the rules of law relating to the elements of crimes and available defences
• Civil law


  • Deals with wrongs committed by one private individual against another, such as negligence
• Functions of law


  • To legitimise
  • To allocate power
  • To order society
  • To control individuals
  • To resolve conflicts
  • To dispense justice
  • To change society and individuals
• There is a tendency for persons to hide behind the perceived anonymity that comes from using a 'username' and/or a user profile while sitting behind a computer screen or when using a hand held device to engage in offensive, hurtful, divisive and destructive discourse
• The Court found as a fact that it was the Defendant who first breached the confidentiality by distributing/sending the photographs to ………without obtaining the Claimant's consent. The Court also found as a fact that the Defendant's actions were motivated by a desire to cause the Claimant upset, embarrassment and distress. In the circumstances therefore the Claimant is entitled to relief.
• Constitution


  The most important legislation of any country in the Commonwealth Caribbean, which declares itself to be the supreme law of the land
• Bill of Rights in the Constitution


  • Sets out the fundamental rights and freedoms to be enjoyed by everyone and which neither Parliament nor any other state authority is permitted to violate
• What the Constitution establishes and regulates

  • Rules governing entry into the upper and lower houses
  • The power of Parliaments to make laws, including laws which might amend the Constitution
  • The procedure which must be followed to enact such laws
  • The Supreme Court
  • The persons who have the authority to appoint judges
  • The qualifications for such appointments
  • The remuneration which judges are to receive, and the procedures to be followed in order to remove a judge from office
  • The institution of the President or the Governor General, including the powers of this highest institution in a country
• Functions of the Constitution

  • Defines citizens' rights and the shape of both the legal system and the political system
  • Lays down mandatory procedures for government
  • Provides for judicial review, states basic human rights, including avenues for redress of violations of such rights and promulgates new remedies
  • Defines the territory of the State, creates and establishes State institutions and distributes the functions of the State
  • Grants authority to make laws and furnishes legitimacy to the State through the existence of an independent body of law which regulates the State
• Typical contents of a Constitution in the region

  • A preamble
  • Chapters on citizenship
  • A section on fundamental rights and freedoms, called a Bill of Rights
  • Chapters defining the powers of the Head of State and Parliament
  • Chapters defining the powers and establishment of the Executive and Judicature
  • Chapters establishing and defining the role and functions of the Public Service and Judicial Commissions
  • Chapters on finance
  • A statutory formula giving Parliament power 'to make laws for peace, order and good government'
• Legislation


  The body of laws enacted by Parliament, which is the most important source of law
• Legislation


  • Based on the Civil Law tradition
  • Deliberate law making function - Parliament can create, repeal and abolish law
  • Legislation is its own legal source unlike the common law, requiring statutory interpretation
• The making of legislation

  1. Green Paper - introduces proposals for discussion and invites comments

  2. White Paper - sets out the government's firm proposals for the legislation

  3. Bill - the draft legislation presented to Parliament for debate and voting

  4. Bill must achieve the required majority in Parliament after voting

  5. If majority achieved the Bill is forwarded to Head of State for Assent after which is becomes law
• Functions of legislation


  • Revision of previous laws and the common law that may be archaic, problematic or the need to reflect modern demands
  • Consolidation - bringing together different laws for a particular topic
  • Codification - turning case law or precedent into statute
• Subordinate/delegated legislation


  Regulations made by the Head of State, Ministers or some other authority, to effect the purposes of the main or parent Act
• Functions of delegated legislation

  • Speed and Efficiency - to save parliamentary time
  • Technicality and Special Knowledge - some legislation is quite technical and therefore left to experts
  • Flexibility - can be revoked or amended very easily
  • Bulk - too much information to put before Parliament
• Common law


  A body of rules developed over time by judges in the course of resolving disputes between private individuals or between citizens and public authorities
• Common law


  • Developed in an ad-hoc and case by case basis
  • Depends on an efficient system of recording cases and judgments - Law Reports
  • Applies today if there are cases where there are no previous precedents
  • Argued that the common law does not merely declare the law but creates it
  • Provides for stability in the application of the law
  • Was harsh and rigid, leading to the development of equity and rules of equity which add to the common law
• Functions of legislation


  • Collection of revenue
  • Implementation of Treaties
  • Public Policy
  • Response to pressure groups
• Doctrine of judicial precedent


  Central to the notion of the common law as a legal source, providing the impetus and scientific rationale for the development of the common law on a case-by-case basis
• Common law


  Does not merely declare the law but creates it
• Common law


  • Provides for stability in the application of the law
  • Harsh and rigid - details of your case had to fit in the common law rules that were developed over time
• Equity


  • Development of the principle of equity and rules of equity which add to the common law
  • Applies notion of good sense and fairness
• Legislation


  • Collection of revenue
  • Implementation of Treaties
  • Public Policy - Covid-19
  • Response to pressure groups - marijuana?
• Doctrine of judicial precedent

  • Central to the notion of the common law as a legal source
  • Provides the impetus and scientific rationale for the development of the common law on a case-by-case basis
• Binding precedent


  The judge has a legal obligation to use decided cases, not merely for guidance, but is bound to apply the principles of law found in such case
• Persuasive precedents


  Legal principles contained in judgments which merely offer guidance, but are not binding
• International law


  The body of legal rules which apply to States in their international relations
• Main sources of international law

  • Treaties
  • Custom
• Important international treaties for the Commonwealth Caribbean

  • International Covenant on Civil and Political Rights
  • American Declaration of the Rights and Duties of Man
  • Convention on the Elimination of all Forms of Discrimination Against Women
• Whether customary international law is automatically part of T&T law awaits a final decision, but the better view appears to be against the automatic incorporation of customary international law in Jamaican law
• Courts of limited jurisdiction


  Specific court or tribunal may only hear and determine those specific matters which the Statute identifies, and over which it gives its authority
• Courts of limited jurisdiction

  • Industrial Courts
  • Rent Tribunals
  • Public Service Disciplinary Tribunals
• Magistrate's Court


  • Established in districts
  • Has conduct over criminal offences, preliminary enquiries, limited family matters (custody, maintenance, access, domestic violence)
  • Hears and determine matters by a single person (Magistrate)
  • Must follow rules of natural justice
• High Court


  • Supreme Court - administered by judges
  • Unlimited jurisdiction
  • Gets its authority from the Constitution
  • Guardian of Constitution
  • Different Courts - Civil, Criminal and Family to deal with the specific issues
  • Civil - Contract, Tort, Judicial Review
  • Criminal - Murder - trial by jury
• For civil cases, the High Court does not normally sit with a jury. With respect to certain serious crimes, there is usually a jury for Court cases; such crimes include murder, manslaughter, treason, and rape. Where there is a judge and jury, the judge will make decisions about the law in the case, while the jury will make decisions about the facts. In a criminal case, therefore, it falls ultimately for the jury to decide the guilt or innocence of the accused at the end of the trial. From time to time, there have been government proposals to reduce reliance on juries, including in murder cases
• Court of Appeal


  • Hears appeal from High Court and Magistrate's Court
  • Right to appeal dependent on Act of Parliament- no general right to appeal
  • Administered by Court of Appeal Judges
  • Appeals from Magistrate Court - Sentence too severe, Magistrate erred in law
  • Appeals from High Court - issues of law, procedural appeals
• Privy Council


  • The court of final appeal for most Commonwealth Caribbean States
  • Hears appeal from Court of Appeal from Commonwealth countries (T&T)
  • Located in the UK - judges of the UK Supreme Court sit as Judges of Privy Council
  • Limited to certain matters as directed by each country constitution. E.g. election petitions in T&T
  • Its jurisdiction is limited and restrictive