LW111- Module 1 WK2

• Sources of law


  Authorities by which law is made
• These questions are interesting to think about considering what a deep effect the law has on all of our lives
• Binding authority


  Sources that must be followed in the adjudication of the courts
• Persuasive authority


  Sources that may be followed in the adjudication of the courts with varying degrees of discretion
• Many laws (legislations/subsidiary legislations) are made under domestic legal systems after independence or self-government; others originated from abroad and have been in use since the dependency or colonial period
• Current laws include some laws that were made in other countries and were originally used in the colonial era
• Primary sources of law

  • Constitution
  • Legislations
  • Subsidiary Legislations
  • Case Laws
  • Common Law
• Lawmaking powers are divided among three branches of government: executive; legislative; and judicial
• Executive branch creates


  Administrative law, which is published as legislations, and subsidiary legislations
• Legislative branch creates


  Laws ("legislations") that are passed and published as legislations
• Judicial branch creates


  Law in the form of decisions, also called case laws, that are published in law reports
• Case law


  Law that is based on judicial decisions, concerning unique disputes resolved by courts using the concrete facts of a case
• Case law


  • Courts adhere to stare decisis, which generally means that courts respect and adhere to the precedent of previous decisions
  • The effect of a court's decision on other courts will depend both on the level of the court and its jurisdiction
• Common law


  A body of law based on court decisions rather than codes or statutes, where courts and judges need to follow earlier decisions and rulings, otherwise known as caselaw, when dealing with similar cases later
• Most USP countries recognise customary law, especially with respect to land ownership and use
• Constitutional or legislative recognition of customs for specific purposes such as customary land tenure, role of chiefs or pleading of customs as a mitigating factor in the sentencing process
• Any law inconsistent with the Constitution, including legislation and subsidiary legislation, is void to the extent of the inconsistency
• Subsidiary legislation can also be invalid if it's inconsistent with the authorising or parent legislation (or other legislation)
• Sources of law


  • SIDIARY
  • LEGISLATION
  • COMMON LAW
  • CUSTOMARY LAW
  • OTHER SECONDARY SOURCES OF LAWS
• Applicable in countries like Fiji, Marshall islands, Niue, and Cook Islands
• Applicable in countries like Vanuatu, Solomon Islands, and Samoa
• Applicable in countries like Tonga
• Any law inconsistent with the Constitution, including legislation and subsidiary legislation, is void to the extent of the inconsistency


  Courts have the final say in constitutional interpretation and may 'strike down' legislation that doesn't comply
• Judicial (or constitutional) review


  The process where courts have the final say in constitutional interpretation and may 'strike down' legislation that doesn't comply
• Subsidiary legislation can also be invalid

  If it's inconsistent with the authorising or parent legislation (or other legislation)
• Intra vires


  Within the powers
• Ultra vires


  Beyond the powers
• Extra vires


  Outside the powers
• Classification of laws have been made time to time
• For a proper understanding of law, a classification of law is not only desirable but also necessary
• Classification of Law makes clear the relation between different rules and their effect on each other
• Classification of Law helps in arranging them in a concise and systematic manner
• Classification of Law can help a lawyer to understand the law
• Classification of laws


  • Domestic (Local) Law and International Law
  • Public Law and Private Law
  • Substantive Law and Procedural Law
  • Civil Law and Criminal Law
• Domestic law


  Regulates relations between the individuals under the sway of the respective state and the relations between this state and the respective individuals
• Public law


  Governs relations between legal persons and a government, between different institutions within a state, between different branches of governments, as well as relationships between persons that are of direct concern to society
• Private law


  Concerned with the relationship between individuals with one another or private relationship between citizens and companies that are not of public importance
• Differences between Public and Private Law

  • Public law deals with issues that affect the general public or the state – society as a whole
  • Private law deals with the rights and obligations of individuals, families, businesses and small groups and exists to assist citizens in disputes involving private matters
  • Public law includes inter-relationships between the state and the general population
  • Private law includes participation among private citizens
  • Public law consists of three subdivisions: Constitutional, administrative and criminal law
  • Private law consists of the law of obligations and the law of torts
  • Public law deals with a larger scope
  • Private law operates with a more specific scope
  • Public law focuses more on the issues that affect the general public or the state itself
  • Private Law deals more with the issues affecting private individuals, or corporations
• International law


  A set of rules which are binding between countries and aims to ensure security and peace among various countries
• Categories of international law

  • Customary International law
  • Treaty law
  • Public International law
  • Private International law