SOURCES OF LAW


UNIT 1:

LECTURE NOTES
 Sources

There are five main legal sources of law.

The Constitution
Legislation/Statutes
Case Law/Common Law/Precedents
Equity
Customs
 The Constitution

The written Constitution is the most
important legal source.

This is a body of law containing the

rules which determine the structure
of the state and its principal organs.
 
It establishes the fundamental
principle according to which
the state is governed. It defines
and protects basic Human
Rights.
 LEGISLATION

This is the second most important
source of law in the
Commonwealth Caribbean.

It is sometimes referred to as hard

law
Legislation/Statute is a document

which contains laws made by
Parliament.
Subsidiary/Delegated Legislation
Created by statutory bodies who
Parliament has delegated legislative
powers. Eg. Bylaws &
Regulations or Orders
 
Autonomic Legislation
Independent powers to legislate
for members eg. Jamaica Bar
Association
 STATUTORY
INTERPRETATION

The ordinary function of courts is
to interpret statutory provisions
and to apply them.
 Stat. Interpretation
cont’d

Problems may occur when statutory
words are:
 Unclear, and the draftsmen did not
envisage the present situation.
Ambiguous, where a word/phrase,
used in a statute gives two or more
meanings.
 Statutory Int. cont’d

The task of interpretation may
vary in difficulty. F.A.R. Bennion
(Statute Law, 1990), has identified a
number of factors that may cause
doubt:
 
The draftsman may refrain from using
certain words that he or she regards as
necessarily implied. The problem here
is that the users may not realise that
this is the case
The draftsman may use a broad term
("a word or phrase of wide meaning")
and leave it to the user to judge what
situations fall within it
Ambiguous words may be used.

There may be unforeseeable developments.
There are many ways in which the wording
may be inadequate. There may be a printing
error, a drafting error or another error.
It is notable that the general methods of
statutory interpretation are not themselves
regulated by Parliament, but have been
developed by the judges.
 THE RULES OF STATUTORY
INTERPRETATION

The approach of the judiciary can be classified by
reference to the three main cannons (rules) of
statutory interpretation:
THE LITERAL RULE
THE GOLDEN RULE
THE MISCHIEF RULE
Other rules: The rules of
purposive construction The policy approach
The unified contextual approach
 LITERAL RULE

The intention of Parliament is to be
found by giving the words their
ordinary and literal meaning.
 Literal Rule

R v Judge of City of London 1892 1 QB
273 per Lord Esher: “If the words of an
Act are clear, you must follow them
even though they lead to a manifest
absurdity. The court has nothing to do
with the question whether the
legislative has committed the
absurdity.”
 Literal Rule

The court does not consider
the result of the application of
the rule which may or may not
be sensible.
 Literal Rule
 Commissioners
Example : Inland Revenue
v Hinchy [1960] AC 748 where HL held
that a penal provision that a person
delivering an incorrect tax ‘return should
forfeit ‘treble the tax which he ought to be
charged under this Act’ ie the penalty was
three times the whole amount payable for
the relevant year.
 
Parliament showed it intended
only three times the unpaid
amount by changing the law
shortly after.
Commonwealth Caribbean example:

Baptiste v Alleyne (1970) 16 WIR 437 : The
chocking of a female occupant of a house by
the accused who was standing outside of
the, with his hands stretched through the
window was held by De la Bastide for the
CA that the accused cannot be said to be
found in the building on the literal meaning
of the words of the ordinance. The CA
quashed the conviction.
 DEFECTS OF LITERAL
RULE

The literal interpretation of words used in
statute do not always evoke the intention of
Parliament.
Some deficiencies :
Assumption that words have plain ordinary
meanings apart from their context.
Alternative dictionary meanings are ignored.
Plain meaning cannot be used for words with
several meanings.
Judges often disagree on the
interpretation of plain meaning
words. 
Judges have to choose preferred
interpretation with alternative uses
of statutory word.
Narrow concentration on actual
words used to exclusion of
surrounding circumstances that
might explain what words were
actually intended to mean.
 GOLDEN RULE

The golden rule assumes that
Parliament does not intend an absurd
or ineffective result.
Then to avoid such a result words will
be implied in a statute.
In Grey v Pearson [1857] 6 HC Cas 61,
p 106 Parke B (later to become Lord
Wensleydale) held:
 GOLDEN RULE
“…the grammatical 
and ordinary sense of
the words is to be adhered to, unless that
would lead to some absurdity, or some
repugnance or inconsistency with the rest of
the instrument, in which case the
grammatical and ordinary sense of the words
may be modified, so as to avoid that
absurdity and inconsistency, but no farther.”
 GOLDEN RULE
This means that: 
the legislation could not have intended what
the words signify
the modification are mere correction of
careless language which gives the true
meaning and object of the statute
Where the intention of the statute is clear it
must not be reduced to a nullity except by
necessity
 GOLDEN RULE
are reluctant to
Although the courts
substitute words in a statute they will do so
where it makes sense.
It is treated as a rule of commonsense as per:
Ramoutar v Maharaj [1953] 1 WLR 649
It allows the court to alter the structure of a
sentence, give unusual meanings to words,
alter their collation, or reject them.
Caribbean Eg. Davis v R (1962) 4 WIR 375
 CRITICISMS OF
GOLDEN RULE
It should not be a significant departure
from literal rule.
Should only be used when literal rule gives
manifest absurdity or unreasonableness.
Used only where there is error in the
language or omissions.
 CRITICISMS OF
GOLDEN RULE
Danger in giving judges too much room
to manoeuvre.
Judges allowed too much freedom to
deviate from Parliament’s intention by
determining what is absurd.
Judges are not supposed to ‘make law’
but only to interpret it.
 CRITICISMS OF
GOLDEN RULE
It allows changes to Parliament’s
words.
 MISCHIEF RULE

Mischief Rule is the oldest rule of
statutory interpretation
It looks at what is wrong , defect or
mischief that Parliament is trying to
correct when it enacted the statute.
In Heydon case (1584) 3 Co Rep 7a it
was determined that four things need
to be considered:
 MISCHIEF RULE

1. What was the status of the law before
the act was passed?
2. What was the defect or mischief for
which the law had not provided?
3. What remedy did Parliament propose
to cure the defect?
4. The reason of the remedy?
 MISCHIEF RULE

It allows the court to look at the background of
the statute.
In Black Clawson case [1975] AC 591 Lord Reid
held: “The word mischief is traditional. I would
expand it this way. In addition to reading the Act
you look at the facts presumed to be known to
Parliament…and you consider whether there is
disclosed some unsatisfactory stat of affairs
which Parliament can properly be supposed to
heave intended to remedy by the Act.”
 MISCHIEF RULE

A Caribbean example in Bailey v Daniel (1910) 1 T
and T Sup Ct. R 379 the court confirmed :
1. The elementary rule is the literal rule.
2. It could be deviated from on adequate grounds, if
found that the literal meaning did not give the real
intention of Parliament.
3. That the true meaning of a statute is the reason
why it was made which can be found from
extraneous circumstances.
 MISCHIEF RULE

In Guyana Labour Union v
McKenzie GY 1981 CA 11 held: “ …
One should put themselves in the
shoes of the maker or makers and
to take into account the relevant
facts known to them when the
document was made…”
 IMPLICATIONS OF THE MISCHIEF
RULE

It goes beyond the mere language of
the statute.
It recognises that language must be
understood in a contest.
A difficulty faced is where to look to
identify the mischief as the Preamble
and other words in the statute may not
be good indicators.
 IMPLICATIONS OF THE MISCHIEF
RULE

It allows a realistic view to the meaning
of statutory words by giving a holistic
perspective to the Act.
 CASE LAW

The legal principles derived from
examining the judgments of cases
where there are no applicable
statutes.
This developed on a case by case basis.
Historical the common law was

essentially a body of unwritten legal
rules which were formulated by the
Kings courts in an informal an flexible
manner.

These Courts were the Courts of Kings

Bench, the Court of Exchequer and the
Court of Common Pleas
JUDICIAL PRECEDENT

From case law came the doctrine of Judicial
Precedent.
When judges try cases they will check to
see if a similar situation had come before a
court previously.
If precedent was set by a court of equal or
higher status, then the judge should follow
the rule of law established in the earlier case.
 Judicial Prec. Cont’d

There are two types of Judicial
Precedent;
Binding Precedent and
Persuasive Precedent
 
Judicial Precedent is therefore
dependent on the Hierarchy of the
Courts.
In the Commonwealth Caribbean
the hierarchy is as follows;
The Privy Council/ Caribbean Court of
Justice 
Courts of Appeal
Supreme Courts or High Courts
Intermediate Courts (family courts and
Resident Magistrates’ courts of Jamaica)
Inferior Courts (Magistrates’, coroners’
and Juvenile Courts)
 
The resulting rule with respect to
the hierarchy of the Courts is that
each court is bound by a decision
of a court above itself in the
hierarchy.
Additionally, some concepts are
important in understanding the
 Precedent.
doctrine of Judicial
The Ratio Decidendi – The legal
rationale given by the Judge for the
decision that he arrives at in the
particular case. It is the rule or
ruling of law contained in the
decision.
Obiter dicta – those statements of
the way’.
law which are ‘by
(Persuasive authority)
For eg. Statements of law
contained in dissenting judgments
or other remarks made by the judge
on non legal matters.
 LET’S THINK

Can you think of some advantages
and disadvantages of Judicial
Precedents?
 
Advantages
legal certainty and precision
Disadvantages 
1) The excessive volume of reported
cases makes the location of legal
principles difficult.
2) There is the danger of illogical,
technical distinctions in the process of
distinguishing precedent which leads to
excessive legalism and sometimes,
absurdity.
Per Incuriam
Certain decisions may be deemed to have

been reached per incuriam. This means,
literally, through a lack of care. It occurs,
for example, where some relevant
precedent, legal principle or statutory
provision which would have affected the
outcome of a decision, had it been
considered, was not brought to the
attention of the court.
Attorney General v Financial
Clearing Corporation (CA, The

Bahamas) No 70 of 2001, decided 8
October 2002.
Per Curiam - A court may also
make statements per curiam. These

are relevant to the issue at hand
and adequately informed by the
legal principles surrounding the
case.
These are not statements of legal
principle and therefore not binding
 
Stare Decisis: “Let the Decision Stand.”
 Avoiding Precedent

Overruling Decisions -: Although courts are
reluctant to overrule decisions, this power is
given to higher courts and parliament under
strict circumstances.
This includes ‘where a principle is manifestly
wrong or has become irrelevant, spent and
untenable that it will be overruled.’
The result of a decision that has
been overruled  is that it will be
treated as if it never existed.

As such judges tend to restate the

law for accuracy. Overruled
decisions are almost always
deemed to be arrived at based on a
misunderstanding of the law.
Distinguishing Precedent -: This

occurs where the court regards the
facts of a case as significantly different
from the facts of a cited precedent and
will not follow the precedent.

This principle is used more often by

judges to evade judicial authorities
which they consider unsound or
inappropriate.
The judge must say why the facts
are significantly different so as to

depart from precedent.

Reversing Precedent-: Where a

superior court reverses the
decision of a lower court in the
same case
 The Privy Council &
Precedent

It is now settled that the Privy Council will
not consider itself bound by its previous
decisions. However, the Privy Council is
always reluctant to disturb its previous
decisions (except in death row cases)

All other courts must follow the decisions of

the Privy Council and treat them as binding.
 EQUITY

Equity is a system which was inspired by
ideas of justice. It is based on rules of
conscience.
Equity evolved so as to correct the often
rigid rules of common law.
Because the doctrine of stare decisis
encouraged rigidity within the law, equity
developed to correct these deficiencies.
Equity trumps the law in that where
there is a conflict between equity and

the common law, equity prevails.
Unlike the common law remedies
which exist as of right, equitable
remedies are discretionary.
This does not mean that such discretion
is exercised arbitrarily.
Discretion is exercised according to
settled rules, ‘maxims of equity.’
These are sayings which have developed
that illustrates how equity will be applied.

Popular legal maxims includes;
Equity does not suffer wrong to be without
remedy – The ability of equity to create a
remedy where none exists under common
law.
Equity considers as done that which ought
to be done
He who comes to equity must come with
clean hands
 
He who seeks equity must do
equity

Equity looks to the intent and not

to the form
 
Equitable remedies includes the
injunction and specific
performance.
 CUSTOMS

This is a rare source of law which arise
out of the social mores and practices of
a people.
Customs are not considered as laws
unless so declared by the court.
In English Law customs formed the
basis of the common law.
However, today when we speak of
custom it is distinct from the common

law, as where the common law exists,
custom is in abeyance.
Custom has two fundamental
characteristics;
It must be an exception to the common
law
It must be confined to a particular
locality, eg. District or Parish
The party who claims a customary
right must prove its existence. The tests
are as follows; 
Antiquity-: The local custom must have
existed from time immemorial. In
existence for a very long time (1189)
Continuance -:Must have existed
continuously without interruption. Any
proved interruption defeats the claim
Peaceable enjoyment -: must have existed
peaceably by common consent or without
opposition. Cannot be forced nor in secret
or by licence 
Certainty and Clarity -: Must be capable of
being precisely defined. This includes the
locality to which it applies, the people to
whom rights are granted, the extent and
content of those rights.
Reasonableness -: the custom cannot be
unreasonable
 Reference

Holland, J. & Webb, J. (6th ed.).
(2006). Learning Legal Rules. New
York: Oxford University Press.

Antoine, R.B. (2nd ed.). (200?)

Commonwealth Caribbean Law and
Legal Systems