law notes

1. Dr. Sandra O’Meally, JP
Law and the sources of law
Dr. Sandra O’Meally, JP
Wednesday, January, 25, 2023

2. LAW
Thomas Jefferson:
"The study of the law qualifies a man to be useful to
himself, to his neighbors, and to the public.”
“Long is the night to him who is awake; long is a mile
to him who is tired; long is life to the foolish who do
not know the true law.” ...
“'The only true law is that which leads to freedom,' ...
“It is not desirable to cultivate a respect for the law,
so much as for the right.”

3. Law and the Sources of Law
The Meaning of Law
 “The law is a set of rules, enforceable by the courts,
which regulate the government of the state and govern
the relationship between the state and its citizens and
between one citizen and another.” (Keenan & Richie)
 “Law is a body of principles recognized and applied by
the State in the administration of justice” (Salmond,
J.W.)
 The laws of a country are the governing body of rules
used by the country through its law enforcing
mechanisms; to impose penalties and other sanctions
against laws being broken.

4. The Meaning of Law
Rules are divided into three categories:
1.Rules used to implement and categorize
penalties to forbid certain types of behaviour.
2. Rules that require others to be compensated
by individuals who cause harm.
3. Rules that deal with some human activities
such as right to marry, to form a company, or
to make a will.
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5. The Need For Law
 Laws are required in society to regulate
and stabilize behaviour of individuals, and
this corresponds with what is acceptable
with the majority principles of society.
 Laws protect our general safety, and
ensure our rights as citizens against abuses
by other people, by organizations, and by
the government itself. We have laws to
help provide for our general safety.
 Laws are rules that bind all people living in
a community.
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6. The Need for Law
 Laws about food safety.
 Speed limits and traffic laws exist so that
we drive in a safe manner.
 Licensing for doctors and nurses ensures
proper training of the people who look
after us, and who often have our lives in
their hands.

7. Evolvement of Law
 Law is an evolutionary systemic process
involving the experiences of a vast number
of people.
 Law evolves out of repeated customs and
norms.
 The body of law is not static but constantly
changes and develops as societies grow
 These changes reflect the values, social
beliefs, norms and standards in a society
based on the various eras.
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8. Evolvement of Law
 A society develops a system of laws to enshrine
its values, concepts of justice and even its'
morals. A system of laws (i.e. a legal system) is
established to serve the vital function of
providing societal order and a mechanism for
the individuals within that society for
interacting with each other in the multitude of
situations that arise.
 In addition, a legal system is set up to provide
remedies for wrongs inflicted on individual
members of society and to deal with those who
disturb that public order via criminal and/or
injurious conduct.

9. Evolvement of Law
Laws grow and develop with the growth and
development of society. New developments in society
create new problems and law is required to deal with
those problems
 Parliament enacts and repeals laws based on the
need of society or to control activities outside the
norm
 Reign behaviour
 Monitor cultural or economic shifts
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10. Classification of Law
 Private law (Civil Law) allows individuals to
bring an action against another to settle a
form of civil dispute. It is concerned with the
rights and duties of individuals towards each
other.
 Public Law (Criminal Law) seeks to remedy
society’s control by bringing an action by the
public prosecutor for the State against
another or it can also be instigated by a
private citizen. ( In Jamaica the public
prosecutor is referred to as the DPP –Director
of Public Prosecution and the present holder
of office is Paula Llewellyn)
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11. Classification of Law
 Civil / Private Law - govern disputes
between individuals in such areas as:
 Law of Torts
 Contract Law
 Property/Real Estate Law
 Administrative law
 Company Law
 Commercial Law
 Employment Law
 Family law
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12. Classification of Law
 Criminal law is the body of law that relates
to crime. It prescribes conduct perceived as
threatening, harmful, or otherwise
endangering to the property, health, safety,
and moral welfare of people inclusive of
one's self.
 Criminal Law (Public Law - laws covering
offences against the State such as theft,
rape, murder, treason.
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13. Classification of Law
 Criminal law, as distinguished from civil law,
is a system of laws concerned with
punishment of individuals who commit
crimes. It defines criminal offenses,
regulates the apprehension, charging, and
trial of suspected persons, and fixes
penalties for wrongful acts .
 Most criminal laws are established by
statues.
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14. Classification of Law
 A statute is a formal written enactment of a
legislative authority that governs the legal entities
of a city, state, or country by way of consent.
Typically, statutes command or prohibit
something, or declare a policy.
 Statutes are rules made by legislative bodies; they
are distinguished from case law or precedent,
which is decided by courts, and regulations issued
by government agencies.
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15. Distinction between Law and
Morality
 Committing a murder has an effect on both
law and morality (concerning right/wrong or
good/bad behaviour), therefore, in many cases
law and morality have some relation and do
coincide.
 However, sometimes the concepts do not
interrelate, for example; homosexual
behaviour between consenting adults is not
illegal within some societies but it is viewed as
an immoral behaviour; resulting in a breach of
moral law.
 If it is illegal within a particular society it will
be an offence punishable by the law.
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16. Sources of Law
 The term sources of law is used in various
ways. It may also be considered as a
classification of law.
 The sources of law deal with the means by
which the law is brought into existence.
 English Law was developed centuries ago
based on the social, political and economic
life deriving from customs, moral, religious
beliefs, and business practices. These
customs, norms and standards aid in setting
the legal mechanism to control behaviour of
our society, provide safety and freedom of
citizens.
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17. Sources of Law
DERIVATIVES OF SOURCES OF LAW:
1. FORMAL SOURCES: Authority giving effect to the rule of law
for example: the state or sovereign
2. LITERARY SOURCES: This is where the law is physically
found
3. HISTORICAL SOURCES: This is founded on the concepts
develop under Common law and
Equity
Examples: Customs, religious beliefs, public policies, natural
justice
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18. The Main Sources of Law
LEGAL SOURCES:
This is the force and authority for enforcement
- 1. Constitution
- 2. Custom
- 3. Judicial Precedent
- 4. Legislation
- 5. European Law
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19. The Main Sources of Law
1. Constitution
 A constitution is the rule book for a country/state that
sets out the fundamental principles by which the state
is governed.
 It describes the main institutions of the state, and
defines the relationship between these institutions
(for example, between the executive, legislature and
judiciary).
 The Constitution which was drafted in August, 1962
and premier law of Jamaican is the highest, supreme

20. The Main Sources of Law
 2. Custom
During the middle ages in Europe, custom, laws were
created by using established and specific custom.
Although custom is referred to as one of the legal source of
law, the level of importance placed on it in mediaeval
times is not so today.
Case: Hutton v Warren 1836
The parties were landlord and tenants in farming
contractual relations. The Landlord gave notice to the
tenant to quit. There were disputes in relation to the
tenant’s obligation to continue working and cultivating the
land until notice expired in regards to allowances for work
done and the seed supplied.
The courts made a decision based on local custom which had
been incorporated into the contract.
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21. The Main Sources of Law
Other usage of customs are settled based on proving that
the custom has:
1. Been in existence since time immemorial and the
records must indicate that there is no interruption of
such usage.
2. Been enjoyed openly as of a right. That is there was no
force, no permission given for such use and the right
was not enjoyed secretly.
3. been reasonable, certainty and consistency with other
custom usage within a particular locality.
Read other cases below on Custom:
1. Simpson v Wells (1872)
2. Mercer v Denne (1905)
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22. The Main Sources of Law
3. Judicial Precedent
 Judicial precedents are judge-made laws derived
from case laws but is based on consistency. This
is a legacy of the courts of common law and
equity
 A precedent is a principle or rule established in a
previous legal case that is either binding on or
persuasive without going to courts for a court or
other tribunal when deciding subsequent cases
with similar issues or facts.
 The operation of Judicial precedent is that once a
principle has been established by a higher court it
becomes a binding precedent.
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23. The Main Sources of Law
 Under the doctrine of Stare Decisis (Latin for “let
the decision stand”) courts in our Common Law
system are obliged to follow the decisions and
rulings in previously decided cases, or
precedents, where the facts and issues are
substantially the same.
 Parliament normally adheres to certain
conventions which limit or guide its freedom. It
tries to enact laws for more beneficial
advantages; and tries to compensate rather than
deprive citizens.
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24. The Main Sources of Law
4. Legislation
 These are laws made by parliament or law
making powers delegated by Parliament.
 The powers of Parliament is to repeal statutes or
to make law as the needs arises.
 The function of Parliament is not just to make
new laws and alter existing ones but also to
make existing laws clearer for understanding.
 The courts are bound to apply legislation,
however, the disadvantage is how the judges
interpret the statutes.
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25. The Main Sources of Law
5. European Union
 European Union impacts the European Community.
The European law was implemented by the Treaty
of Rome 1957. The three European communities
are:
1. The European Coal and Steel Community
(ECSC)1957
2. The European Economic Community
(EEC) 1957
3. The European Atomic Energy Community
(EURATOM) 1957
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26. The Main Sources of Law
 European Law is very fundamental as the
European communities implement laws from
the various member states that are beneficial
to meet the needs of the group.
 The European Communities Act 1972 enacts
that UK Parliament will be effective via
application of the Communities, which signifies
that a provision of the EC will affect a member
state directly (the member state does not
require any further legislation).

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27. The Main Sources of Law
 The Constitution is laws setting out the general
framework and structure for the government of
Jamaica to operate; and enacting benefits and
rights of individuals in the country.
 The Constitution is the superior law of the land.
Section 2 of the Constitution, 1962 stipulates that
any law in the land which is void to the extent of
the inconsistency negates and the Constitution
will prevail. The Constitution is considered the
most important or supreme source of law.
 Collymore v AG (1967) 12 WIR 5 “ No one, not even Parliament, can
disobey the Constitution with impunity.”
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28. THE CHARACTERISTICS OF ENGLISH LAW
 CONTINUITY The continuity of a legal system
generally means that the law and the
relationships established thereby continue in
force despite other significant changes, such as
the demise of a system of government and the
advent of a new state.
 COMMON LAW Common law is law that is derived
from judicial decisions instead of from statutes.
Common law, also known as judicial precedent,
judge-made law, or case law, is the body of law
created by judges and tribunals. AND
 EQUITY refers to a particular set of remedies and
associated procedures involved with civil law.
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29. THE CHARACTERISTICS OF ENGLISH LAW
 JUDICIAL DECISIONS - Judicial precedent or
decisions is a process which is followed by the
judges to take the decision. In Judicial precedent,
the decision is taken by following the similar
cases happened in the past. So judicial decision is
based on the principle of stare decisis i.e. “stand
by the decision already made”.
 TRIAL BY JURY - The jury evaluates the evidence,
applies the appropriate law (guided by the
judges) to the facts, and thereby arrives at a
decision.
 DOCTRINE OF SUPREMACY – no one is above the
law.
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30. THE CHARACTERISTICS OF ENGLISH LAW
 ABSENCE OF CODIFICATION - codification is the process
of collecting and restating the law of a jurisdiction in
certain areas, usually by subject, forming a legal code,
i.e. a codex (book) of law. Codification brings greater
certainty of law in a legal system. Uncodified laws are
those that originate from court decisions (common
law) and general customs and practices.
 THE APPLICATION OF PRECEDENT, Precedent refers to a
court decision that is considered as authority for
deciding subsequent cases involving identical or similar
facts, or similar legal issues. Precedent is incorporated
into the doctrine of stare decisis and requires courts to
apply the law in the same manner to cases with the
same facts. read pages 14-15 from recommended text.
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31. DQ 1 Assignment
Question 1
(a) Discuss the four legal sources of law. Stating the advantages and
disadvantages of each.
(b) Give the implications of each legal sources of law on the Jamaican
legal system.
(c) Explain the main characteristics of the common law legal system
and relate these features to the Jamaican Legal system.
(d) “Although the features of delegated legislation is considered to be
undesirable, it is absolutely necessary for the effective governance of
modern societies.” Discuss.
(e) The Constitution is a written source of law and is considered
to be of optimum supremacy; however, what is the role of
legislation and its power in terms of bridging that supremacy.
Due day: February 8, 2023
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32. Reading Assignment
Abbott, K.R., & Pendlebury, N. & Wardman,
K.: Business Law, 8th Edition, 2007,
Thomson Learning, London.
Chapters 3 – 4
Chapter 6 – The origins of the Common Law, pg
40; The Origins of Equity, The Court
of Chancery and Common Law and
Equity pages 43-46
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33. 4/13/2
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NEXT WEEK :
THE STRUCTURE OF THE ENGLISH LEGAL SYSTEM
&
THE JAMAICAN LEGAL SYSTEM