1. Prepared by: Medford Waldron, 766-6209 Page 1
CIPRIANI COLLEGE OF LABOUR AND
SECURITY ADMINISTRATION AND MANAGEMENT
What is Law?
In its simplest terms, laws may be thought of as a body or rules which regulates human conduct
and by extension the society that we live in. On a day to day basis, laws affect nearly every
aspect of our lives. Therefore, there are laws to deal with crimes such as robbery or murder and
other threats and challenges to society and those that regulate common activities such as driving
a car, renting an apartment, getting a job or getting married.
Although frequently thought of as just rules which create commands, laws are more than a
command. A law balances individual rights with the obligations that people share as members of
society. For example, when a law gives a person a legal right to drive, it may also restrict that
right with traffic laws, and make it a duty for her or him to know how to drive.
There are three broad types of rules:
1. Those which forbid certain types of behaviour under penalty;
2. Those which compensate one who is injured by another;
3. Those which specify what must be done to order certain types of human activity e.g.
to marry, to form a company or to make a will.
Categories of Law
There are many ways to classify laws and no one method of categorisation is necessarily any
better than another.
Regulates the interaction of citizens with the state (e.g. criminal law, constitutional law,
administrative law). Areas of law that are classed as Public law are:
2. Prepared by: Medford Waldron, 766-6209 Page 2
a) administrative law
b) company law (some areas)
c) constitutional law
d) criminal law
e) industrial law (some areas)
f) taxation and revenue law trade practices law (some areas)
Regulates the relationship between individuals within a state (e.g. contract law, tort law, property
law). Areas of law that are classed as Public law are:
a) banking law
b) company law (some)
c) contract law
d) equity law
e) family law
f) property law
g) succession law
h) tort law
i) trust law
Civil law is private law. It settles matters between two or more individuals or organisations. It
still has the roman standard in many countries because it was originated from the Roman law, in
that it is a codified body of rules. The end result is mostly damages in civil law.
Criminal law considers crimes committed against the state. Government identifies and
criminalises behaviour that is considered wrong or damaging not only to individuals but the
society as a whole. Therefore a crime is conduct forbidden by the state. When a conduct is
regarded by the state as being criminal, there is always a punishment attached to it‖. i.e. murder
3. Prepared by: Medford Waldron, 766-6209 Page 3
Criminal law is drafted by the government and passed in Parliament. Where an individual
commits an offence, he/she is prosecuted by the State. It is the duty of the police to enforce the
However, where there is a civil action, the State takes no sides. The State supplies the court, the
judge and if necessary the enforcement of the judge‘s rulings.
As a result, Criminal law punishes guilty offenders by either incarceration in a jailed, a fine paid
to the government in exceptional cases or Community service depending on the type of crime
committed. Contrary to criminal law, a defendant in a civil action is not imprisoned when found
liable but must compensate the claimant for losses arising from the defendant‘s acts.
What is a Legal System?
The whole body of rules that regulates a state is known as its legal system. Therefore, all the
laws of Trinidad and Tobago constitute our legal system. Legal systems function better when
people understand their legal rights and live up to their legal responsibilities.
Where did the Law come from?
Our legal system is largely fashioned after the British system comprising of English common and
statutory laws, which were brought to our twin island state by colonists. Although the
indigenous peoples, the Caribs and Arawaks would have had their own system of laws and social
controls, these became dormant in the face of the laws (rules) impressed upon them by the
In England, laws (rules of societal behaviour) were found within Customary law – which were
the laws established by the habitual use of a group of people over a long period of time.
However, after the Norman Conquest in Great Britain, there was a review of the system of rules
and the best customary practices from across the country were chosen by the King to form one
common body of unwritten rules known as the The Common Law. The common law
developed, based on the decisions of judges in the royal courts. It evolved into a system of rules
based on ―precedent.‖ Whenever a judge makes a decision that is to be legally enforced, this
decision becomes a precedent: a rule that will guide judges in making subsequent decisions in
similar cases. The common law is unique because it cannot be found in any code or body of
4. Prepared by: Medford Waldron, 766-6209 Page 4
legislation, but exists only in past decisions. At the same time, common law is flexible and
adaptable to changing circumstances.
As the society developed in England, the law expanded beyond that of a body of unwritten rules
and the rules which governed the nation came from different sources. These have embedded
themselves into our modern legal heritage right here in Trinidad and Tobago.
Sources of Law
The origin from which rules of human conduct come into existence and derive legal force or
binding characters, is known as the sources of law. It also refers to the sovereign or the state
from which the law derives its force or validity.
In Trinidad and Tobago, the sources of law are:
a) The Constitution;
b) Legislation – which includes Statutory Law and Delegated Legislation;
c) Case Law;
e) International Law;
The Main Sources of Law in Trinidad and Tobago
There are four main sources of Law:
a) The Constitution of Trinidad and Tobago
c) Case Law/Judicial Precedent (including Common Law and Equity)
d) International Law
Definition of a Constitution
Thomas Paine said, ―A constitution is not the act of government, but of a people constituting a
government, and a government without a constitution is power without right…..A constitution is
a thing antecedent to a government, and a government is only the creature of a constitution.‖
5. Prepared by: Medford Waldron, 766-6209 Page 5
Lord Bolingbroke said, ―By constitution we mean, whenever we speak with propriety and
exactness, that assemblage of laws, institutions and customs, derived from certain fixed
principles of reason, directed to certain fixed objects of public good that compose the general
system according to which the community have agreed to be governed.‖
The definition offer by Professor K.C. Wheare (1966) is ―… the whole system of government
of a country, the collection of rules which establish and regulate or govern the government‖. The
purpose of a constitution is said to be threefold. A constitution defines the power of the state
institutions, it safeguards the citizen fundamental rights and it provides a covenant and aspiration
of a state or nation. In simple language, constitution is basically a set of rules which identify and
govern the functions and powers of state institutions (executive, legislature and judiciary). By
determining their functions and powers it provides safeguard to the relationship between the state
and the citizen.
Therefore, the word ―constitution‖ can be used in the two senses:
Broad sense – System of Government, including legal and non-legal rules that exists in a
Narrow sense – Document or set of documents that lays down the aspirations of the country,
the principle organs of government and their relationship one to the other, and the relationship
between the government and the governed.
Therefore, a Constitution may be written or unwritten. As such, whether or not a state has a
written constitution, the actual protection of individual rights are protected by the democratic
political process, political practices and norm of acceptable government conduct, which while
not having the force of law, provide constitutional standards, which determine the respect
accorded to individual rights. Thus, the difference between an unwritten and written
constitution, are one of form, but certainly not of substance.
The important characteristic of a written constitution is that it allows for these rules to be
recognized and identified without having to search through other varying and differing historical
facts for evidence of a constitution. Constitutions come into existence either revolutionary or
evolutionary depending on the historical events that took place in a country. For example, the
British constitution is uncodified (unwritten) it is a combination of the written and unwritten
sources based on the UK‘s historical development.
6. Prepared by: Medford Waldron, 766-6209 Page 6
The Constitution is the supreme law of Trinidad and Tobago. Any law that is contrary to the
constitution is null and void.
Embedded within the Preamble of our constitution, is the following:
Whereas the people of Trinidad and Tobago recognise that men and
institution remain free only when freedom is founded upon respect for
moral and spiritual values and the rule of law.
The consistency in this approach to constitutional matters is religiously followed as shown in
Nankissoon Boodram V Attorney General (1995) quote:
“...a constitution of any country is not a sterile and lifeless document. It
is an organic and living thing. It must be resilient and amorphous, ready
to respond to the changing needs of the people it governs. Above all, it
must be even handed with its citizens, treating the lowliest of them with
the same dignity and fairness as the most upright for only then it would
be faithful to its preamble, which would not then be seen as pure
The Constitution recognizes certain rights and freedoms in Part 1 section 4.
The Separation of Powers
In order to truly place the role and functions of parliament in its proper perspective one cannot
avoid dealing with the doctrine of separation of powers.
The doctrine states that in managing the affairs of state, the power to do so must not be
concentrated in any one person or group of persons. It has therefore been emphatically declared
that the three organs of the state must remain functionally separate from each other. These being
the Legislature who make laws, the Executive who prepares and initiate laws to be placed
before the legislature and the Judiciary who apply the law impartially without fear, favour or
prejudice. No organ of the state or other person may interfere with the functioning of the courts,
and all organs of the state, through legislative and other measures, must assist and protect the
courts to ensure their independence, impartiality, dignity accessibility and effectiveness.
7. Prepared by: Medford Waldron, 766-6209 Page 7
Under section 54 (1) of the Constitution, Subject to the provision of this section, Parliament may
alter any of the provisions of this Constitution or (in so far as it Constitution forms part of the
law of Trinidad and Tobago) any of the provisions of the Trinidad and Tobago Independence Act
54 (3) d a bill for an Act under this section shall not be passed by Parliament unless it is
supported at the final vote thereon –
1. In the House of Representatives, by the votes of not less than three-fourths of all the
members of the House; and
2. In the senate by the votes of not less than two-thirds of all members of the Senate.
The Rule of Law
The rule of law is an ambiguous term that can mean different things in different contexts. In one
context the term means rule according to law. No individual can be ordered by the government
to pay civil damages or suffer criminal punishment except in strict accordance with well-
established and clearly defined laws and procedures. In a second context the term means rule
under law. No branch of government is above the law, and no public official may act arbitrarily
or unilaterally outside the law. In a third context the term means rule according to a higher law.
No written law may be enforced by the government unless it conforms to certain unwritten,
universal principles of fairness, morality, and justice that transcend human legal systems.
A good example of state official having to abide by the law, is the case of Hochoy v Huge and
others 1964 – the Governor General of Trinidad and Tobago was named as a respondent in a
legal matter. He claimed that as the Queen‘s representative, in this country he was immune from
such and the courts had no jurisdiction over him. It was held. ―The courts of the country are the
Queen‘s Courts and not that of her representative and as her immunity from suit in her courts
was essentially personal, the Governor General as her representative could lay no claim to such
privilege secondly the law must be clear so that all will be able to understand.
Natural Justice also falls within the boundaries of the rule of law the most important are:
1. A man is innocent until proven guilty
2. A man must be given the opportunity to be heard
3. There must be the opportunity for appeal
8. Prepared by: Medford Waldron, 766-6209 Page 8
Legislation is the process through which written laws are enacted by a legislative body that is
established and empowered to do so. Legislation comes in two forms: Statutes which are the
laws that are passed in Parliament and Delegated Legislation which are laws that are made by a
Minister or Public Authority.
How a Bill Becomes an Act of Parliament
Our Parliament is divided into two houses: The Senate and The House or Representatives. In
each house there are successive stages in dealing with bills intended to become law.
The stages are:
a) First reading – publication and introduction into the agenda; no debate
b) Second reading – debate on the general merits of the Bill: no amendments at this stage.
c) Committee Stage – the Bill is examined by a standing committee of about 20 members,
representing the main parties and including some members at least who specialize in the
relevant subject. The bill is examined section y section and may be amended. Is the Bill
is very important all or part of the Committee stage may be taken by the House as a
whole sitting as a committee.
d) Report Stage – The Bill as amended in committee is reported to the full House for
approval. If the government had undertaken in committee to reconsider various points it
often puts forward its final amendments at this stage.
e) Third Reading – this is the final approval stage at which only verbal amendments may
Where statutory laws have been passed, sometimes it is easy to interpret the language of the
statute and at other times it is not, as one can draw more than one meaning. When this happens,
we say in law that the particular section or sections of the Act are ambiguous. As such, the
courts are charged with the responsibility of finding the true intention of Parliament. To do this,
the courts must interpret the piece of statutory law which is before it.
Statutory Interpretation is the process of interpreting and applying the true meaning of legislation
to a given situation. Although a statute may have a straightforward meaning, sometimes the
words may be ambiguous and creates more than one meaning which has to be resolved.
In interpreting statutes, judges use various tools and methods to ascertain the intention of
9. Prepared by: Medford Waldron, 766-6209 Page 9
The Traditional Rules:
The Literal Rule – here the words of the statute are given their plain ordinary meaning unless
the language of the statue defines some of its terms otherwise: Fisher v Bell. In the Sussex
Peerage Case the courts said―…If the words are precise and unambiguous then no more can be
necessary than to expound those words in that natural and ordinary sense. The words themselves
alone do in such cases best declare the intention of the law given‖. In Trinidad and Tobago the
case of Baptiste v Allyene followed the literal rule in interpreting s 29(d) of the Larceny
Defects of the Literal Rule:
Two defects are:
The most important ﬂaw in the literal rule is the assumption that words have plain,
ordinary meanings apart from their context. This is based on a false premise, as
demonstrated in the case law;
Judges who apply the rule often speak of using the dictionary meaning of a word.
However, dictionaries usually provide alternative meanings and these are often ignored.
Where there is more than one meaning to a word, it still requires interpretation, which
may be a subjective process.
The Golden Rule – this rule proceeds upon the assumption that Parliament does not intend an
absurd or ineffective result. To avoid such a result, words will be implied into a statute if they are
absolutely necessary. The ﬁrst recorded use of the phrase ‗golden rule‘ seems to have been by
Jervis CJ in Mattison v Hart. The rule was restated in Grey v Pearson by Parke B (later to
become Lord Wensleydale). It is this latter dictum which was to become the focal point for the
development and application of the rule. Lord Wensleydale said:
“I have been long and deeply impressed with the wisdom of the rule, now, I believe,
universally adopted . . . that in construing . . . statutes, and all written instruments, 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”.
10. Prepared by: Medford Waldron, 766-6209 Page 10
The rationale of the rule is that the legislature could not possibly have intended what its words
signify, and that the modiﬁcations thus made are mere corrections of careless language which
give the true meaning and object of the Act. Where the main object and intention of a statute are
clear, it must not be reduced to a nullity by the drafter‘s unskillfulness or ignorance of the law,
except in a case of necessity, or the absolute intractability of the language used. Nevertheless, the
courts are very reluctant to substitute words in a statute, or to add words to it, and it has been said
that they will only do so where there is a ‗repugnancy to good sense‘.
The rule may thus be expressed as a rule of commonsense, treated as such in Barnes v Jarvis,
where Lord Goddard, CJ said: ‗A certain amount of commonsense must be applied in construing
statutes‘. This commonsense approach was followed in the case of Ramoutar v Maharaj;
Criticisms of the golden rule
The golden rule should not be viewed as a significant departure from the literal rule.
This is, therefore, a limited exercise of judicial power;
The golden rule is applied in very few cases;
It is difficult to reconcile the cases based on a ﬁnding of ‗absurdity‘;
Consequently, the application of the golden rule is erratic. As Zander puts it, ‗one can
never know whether a particular conclusion will be so offensive to the particular judge to
qualify as an absurdity and if so, whether the court will feel moved to apply
The Mischief Rule- The mischief rule is perhaps the oldest known rule of statutory
interpretation. It attempts to look at what defect, wrong or ‗mischief‘ Parliament was trying to
correct when it enacted the particular statute. The classic statement of the mischief rule is that
given by the Barons of the Court of Exchequer in Heydon Case:
That for the sure and true interpretation of all statutes in general (be they penal or beneﬁcial,
restrictive or enlarging of the common law), four things are to be discerned and considered.
These four things are:
(a) What was the status of the law before the Act was passed?
(b) What was the defect or ‗mischief‘ for which the law had not provided?
(c) What remedy did Parliament propose to cure the defect?
(d) The reason of the remedy.
11. Prepared by: Medford Waldron, 766-6209 Page 11
The judge‘s duty is to interpret the legislation so as to suppress the mischief and advance the
remedy ‗and to add force and life to the cure and remedy, according to the true intent of the
makers of the Act, ―pro bono publico‖.
A broad view, but subsequent emphases on literalism had narrowed its context. In explaining the
reborn mischief rule in the landmark case of Black Clawson, Lord Reid said:
„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 state of affairs which Parliament can
properly be supposed to have intended to remedy by the Act‟.
Difficulties and inconsistencies with the three main rules of statutory interpretation have led to
alternative approaches to interpretation. In general, proponents of these new approaches argue
that too much emphasis is placed on literalism and the words contained within the statute and not
enough on the context and aims of the Act.
One such approach is the Purposive Approach. This approach seeks to promote the general
legislative purpose underlying the provision in issue.
It suggests that the court can use a wide variety of aids to ﬁnd this purpose. In Magor
and St Mellons v Newport Corporation, Lord Denning said:
„We do not sit here to pull the language of Parliament to pieces and make nonsense of it .
. . We sit here to ﬁnd out the intention of Parliament and carry it out, and we do this
better by ﬁlling in the gaps and making sense of the enactment...‟
The purposive approach is particularly important when interpreting Constitutions in the
Rules Of Language
In addition to the primary rules of interpretation as described above, the courts have developed a
number of ‗rules of language‘. Unlike the rules of construction discussed above, these are not
legal rules and ‗simply refer to the way in which people [lawyers] speak in certain contexts‘.
Of the several rules of language the following may be singled out.
12. Prepared by: Medford Waldron, 766-6209 Page 12
This rule says that general words which follow two or more particular words in an Act must be
confined to a meaning of the same class (ejusdem generis) as the particular words. The intention
is to cover a wide range of similar circumstances by first creating a genus, category or class that
is two or more examples, followed by a
In the landmark case of Powell v Kempton Park Racecourrse Co, for example, a
section of the Betting Act prohibited the keeping of a ‗house, office, room, or other place‘
for betting with persons resorting thereto. At issue was whether ‗Tattersall‘s Ring‘ at a
racecourse was an ‗other place‘ within the meaning of the Act. The House of Lords held
that it was not, since the words ‗house, office and room‘ created a genus of indoor places.
A racecourse, being outdoors, did not fall within the genus.
Presumptions Of Statutory Interpretation
In addition to the rules discussed above, the courts, when faced with doubtful cases, may apply
certain presumptions. These serve as first principles imposed on the statute to be interpreted.
The main presumptions are as follows:
a) The presumption against changes in the common law - The courts will contain the
abrogation of the common law in its interpretation of statute to only what is necessary to
give effect to the intention of the Act.
b) The presumption against ousting the jurisdiction of the courts - the court will presume
that the jurisdiction of the courts will not be ousted or avoided except by the plain and
express words of a statute.
c) The presumption that persons should not be penalised except under clear law - under this
rule, if words in a penal statute are ambiguous and there are two reasonable
interpretations, the more lenient one will be applied to an accused.
d) The presumption against the retroactive operation of statutes - this is a ﬁrmly established
rule. Its rationale is to prevent the harsh and chaotic operation of law.
Internal and External Aids are also used to help in interpreting statute. The Internal
Aids being: the Preamble, Short Title, Marginal Notes, Interpretation Section,
Punctuation etc. All being contained within the Act. The External Aids being:
Dictionaries, Subordinate Legislation, Regulations as well as, Hansard the use of which
was established by the case of Pepper v Hart.
13. Prepared by: Medford Waldron, 766-6209 Page 13
Delegated legislation comes into being when parliament confers on persons or bodies,
particularly Ministers in charge of Government Departments, power to make regulations for
specified purposes, such as regulations which have the same legal force as the Act under which
they are made.
Types of Delegated Legislation:
Rules and regulations
Advantages of Delegated Legislation
a) It saves time of Parliament, allowing Parliament to concentrate on discussing matters of
b) It can be brought into existence swiftly, enabling ministers to deal with urgent situations,
such as a strike in an essential industry;
c) It enables experts to deal with local or technical matters;
d) It provides flexibility I that regulations can be added to or modified from time to time
without the necessity for a new act of parliament.
Disadvantages of Delegated Legislation
a) Law making is taken out of the direct control of elected representatives and is place in the
hands of employees of government departments. This is in theory less democratic.
b) Parliament does not have enough time to effectively supervise delegated legislation or
discuss the merits of the rules being created.
c) A vast amount of law is created, statutory instruments out-numbering by far the amount of
Acts passed each year.
14. Prepared by: Medford Waldron, 766-6209 Page 14
Control of delegated legislation
a) Judicial control. If a minister, government department, or local authority exceeds it
delegated power its action would be held by the court to be ultra vires (beyond the
powers of) and therefore void.
b) Parliamentary control. There are several methods of parliamentary control. Some
statutory instruments must be laid before Parliament and will cease to be operative if
the House so resolves within 40 days. Others require a vote of approval from the
House. In addition there are committees in both Houses whose function is to
scrutinize statutory instruments with a view to seeing whether the attention of
Parliament should be drawn to the instrument on one of a number of specified
grounds, for example because the instrument is obscurely drafted.
COMMON LAW/CASE LAW
Doctrine of Judicial Precedent:
Rose-Marie Belle Antoine in her Commonwealth Caribbean Law and Legal Systems comments
on the doctrine of Judicial; Precedent as follows: ―Central to the notion of the common law as a
legal source is the doctrine of precedent, in particular, binding precedent or stare decisis. The
phrase is an abbreviation of a Latin maxim, stare decisis et non quieta movere. Translated, it
means standing by decisions and not disturbing settled points, often simply translated as ‗let the
decision stand‘. The doctrine provides the impetus and scientific rationale for the development of
the common law on a case-by-case basis. It is, therefore, an important source of law.
Two important questions need to be considered in a discussion of the doctrine of judicial
precedent in the Commonwealth Caribbean. We must first examine the nature of the doctrine
itself. What are its limitations, characteristics and advantages?
Secondly, we must question how the doctrine has operated in the Commonwealth Caribbean, in
particular, whether it has contributed to, or undermined the development of a Commonwealth
We shall see that while the English doctrine of precedent is followed closely in the
Commonwealth Caribbean, historical and geo-political realities elaborate upon the rules of
precedent as expressed in the English courts. It is necessary therefore for us to search for a more
philosophical understanding of what judicial precedent means to our legal system. The doctrine
of judicial precedent proceeds on the assumption that where there are no appreciable statutes on
a particular issue, the judge must look to the case law, that is, cases decided previously on the
15. Prepared by: Medford Waldron, 766-6209 Page 15
said issue, to find the relevant law upon which to base his or her decision. Thus, the judge
reasons by analogy.
These previously decided cases, or rather, the principles of law contained in such cases, are
called ‗judicial precedents‘. There are two types of judicial precedents: ‗binding precedent‘ and
‗persuasive precedent‘. Binding precedent will be seen to be the more important in the sense that
it allows the preservation of case law principles.‖
Precedents depend upon various things to be effective. One of the most important being that the
courts in a country are organized into a court structure. This means that the courts are ranked
with respect to the amount of judicial authority that they possess. This judicial authority really
manifests itself in a court‘s ability to directly impact on the rules which govern our daily lives.
The court with the most authority sits at the top as they can permanently change or alter these
rules. As a result, Precedents fall into different categories. As mentioned above, some are
binding which means that all the lower courts must follow the decisions of the higher courts,
while others are only persuasive meaning that:
a) In most instances, they did not come from one of the higher courts in the court structure,
but may have been the decision of a lower court;
b) They came from a court outside the court structure;
c) Were things said by the way from a higher court in the court structure.
The modern doctrine of binding precedent is about 120 years old. Its present form is due to two
Two requirements must be met if a precedent is to be binding:
a. It must be a ratio decidendi statement; and
b. The court must have a superior, or in some cases equal status to the court considering the
statement at a later date.
The Ratio Decidendi and the Obiter Dicta
It is a legal phrase which refers to the legal, moral, political, and social principles used by a court
to compose the rationale of a particular judgment. The ratio decidendi is, as a general rule,
binding on courts of lower and later jurisdiction through the doctrine of stare decisis which
means let the decision stand.
All pronouncements that do not form a part of the court's rulings on the issues actually decided in
that particular case (whether they are correct statements of law or not)—are obiter dicta, and are
not rules for which that particular case stands, but are just things said by the way.
16. Prepared by: Medford Waldron, 766-6209 Page 16
Sometimes the binding nature of a precedent can be too rigid and as a result, the courts have
developed ways to avoid this. These include:
Precedent can be overruled either by statute or by a superior court. Judges are usually
reluctant to overrule precedents because this reduces the element of certainty in the law.
A decision is overruled when a judge in a different case states that the earlier case was
A decision is reversed when it is altered on appeal.
A case is distinguished when the judge states that the material facts are sufficiently
different to apply different rules of law.
Cases are reconciled when the judge finds that the material facts of both cases are so
similar that he can apply the same rules of law.
A case is so disapproved when a judge, without overruling an earlier case, gives his
opinion that is was wrongly decided.
Advantages and Disadvantages of Precedent
a) Certainty - It provides a degree of uniformity upon which individuals can rely.
Uniformity is essential if justice is to be achieved. The advantage of certainty by itself
outweighs the several disadvantages of precedent.
b) Development - New rules can be established or old ones adapted to meet new
circumstances and the changing needs of society.
17. Prepared by: Medford Waldron, 766-6209 Page 17
c) Detail - No code of law could provide the detail found in English case law.
d) Practicality - The rules are laid down in the course of dealing with cases and do not
attempt to deal with future hypothetical circumstances.
e) Flexibility - A general ratio decedendi may be extended to a variety of factual situations.
For example the ―neighbour test‖ formulated in Donoghue v Stevenson (1932)
determines whether a duty not to be negligent is owed to a particular person whatever the
circumstances of the case.
a) Rigidity. Precedent is rigid in the sense that once a rule has been laid down, it is
binding even if it is thought to be wrong.
b) Danger of illogicality. This arises from the rigidity of the system. Judges who do
not wish to follow a particular decision may be tempted to draw very fine
distinctions in order to avoid following the rule, thus introducing an element of
artificially into the law.
c) Bulk and Complexity. There is so much law that no one can learn all of it. Even
and experienced lawyer may overlook some important rule in any given case.
d) Slowness of growth. The system depends on litigation for rules to emerge. As
litigation tends to be slow and expensive the body of case law cannot grow
quickly enough to meet modern demands.
e) Isolating the ratio decedendi. Where it is difficult to find the ratio decedendi of a
case this detracts from the element of certainty.
18. Prepared by: Medford Waldron, 766-6209 Page 18
INTERNATIONAL LAW AND CUSTOM
Legal principles which are to be desirable for all nations.
International Law comes from three sources:
a) Treaties/International Agreements;
b) International Customary Law;
c) General principles of law recoginised by nations e.g Illegal Child Labour which led to the
UN Convention on the Rights of the Child, Human Trafficking etc.
Best evidence of International Law is that every state recognizes its existence and that it
is under an obligation to observe it;
Rules of International law are complex;
An International instrument does not necessarily become legally binding in the strict
sense. It will be persuasive only where the state needs to incorporate it into domestic
Where an international instrument is incorporated, the true source or origin is
international law and not legislation;
Examples of International instruments:
UN Declaration on Human Rights;
UN Covenant on Civil and Political Rights;
UN Covenant on Economic, Social and Cultural Rights;
UN Convention on the Rights of the Child.
The United nations is an international organization whose membership is approximately
192 member states. Its aims are among others:
a) To facilitate co-operation in international law;
b) International Security;
c) Economic Development;
d) Social Progress;
e) Human Rights.
19. Prepared by: Medford Waldron, 766-6209 Page 19
The UN is divided into administrative bodies:
a) The General Assembly;
b) The Security Council;
c) The Economic and Social Council;
d) The Secretariat – Information and Facilities;
e) The International Court of Justice.
International law allows states some measure of freedom on how they will implement a
ratified treaty, which may be by incorporation into domestic law or reforming existing
law to give effect to the self-executing operation of the Treaty;
Enforceability and justicability is stronger in the area of human rights (Justicability
means whether a court possesses the ability to provide adequate resolution of the dispute
or final determination);
Courts are more willing to treat international notions of human rights as enforceable;
There is no contractual obligation, but a diplomatic one;
Australian Courts – ―International law is a legitimate and important influence on the
development of the common law, especially when international law declares the
existence of universal human rights‖.
Hobbs  CLB 45 – the Barbadian Court of Appeal specifically relied on
international norms and evolving standards of civilization in coming to its decision on the
Criticisms of International law
How is it enforced and how do we punish states, as sanctions are sometimes ineffective;
Diplomatic problem with sanctions where countries have strong trade ties e.g. many
countries refused to impose sanctions on South Africa for apartheid;
International Courts and Organizations
The very existence of these international courts raises the issue of international law;
20. Prepared by: Medford Waldron, 766-6209 Page 20
International courts decisions address violations of particular treaties and international
instruments. The courts give interpretations of these instruments;
International Court of Justice – is a world court located in Hague, Netherlands. It is
the successor to the Permanent Court of International Justice. The International Criminal
Court has global jurisdiction. The International Court of Justice settles legal disputes
submitted by member states of the United Nations. It also gives advisory opinions to
international agencies and the UN General Assembly.
International Organizations – these may have their own treaties/international
agreements, which states may have signed individually. They may carry out judicial
functions, but they are not courts. They examine the extent to which states may comply
with international agreements. The World Trade Organization supervises and liberalizes
international trade. It deals with trade on a global level and is responsible for negotiating
and implementing new trade agreements. It has approximately 153 members, about 95%
of the total worldwide trade. It polices members to adhere with world trade agreements.
Where a party wishes to petition these international bodies, he/she must have exhausted
all local remedies;
International Decisions of Human Rights
This is the most significant area of international law. The two most important human
rights bodies are:
The European Court of Human Rights; and
The United Nations Human Rights Committee.
UK decisions based on the rulings of the European Court of Human Rights have been
highly influential upon the Privy Council which has a direct impact on courts in the
There is a regional acceptance of international law in the Commonwealth Caribbean.
This has led to a symbolic relationship between international human rights instruments
and our own constitutions;
In the famous Sunday Times case, for example, the UK was pressed to reform its law on
freedom of expression and freedom of the press, to bring it in line with the standard of
international law. The European Court agreed, concluding that the interference did not
21. Prepared by: Medford Waldron, 766-6209 Page 21
correspond to a social need sufﬁciently pressing to outweigh the public interest in
freedom of expression within the meaning of the Convention. It was not, therefore, a
legitimate restriction of fundamental rights. The tests used by the European Court for
imposing restrictions on fundamental human rights were much more liberal than that of
the English Court, the latter being much more willing to impose restraints on such rights.
This international court ruling has produced a signiﬁcant change in English constitutional
jurisprudence and has also inﬂuenced Commonwealth Caribbean public law. It
demonstrates the power of international law and decision-making as a legal source.
In Minister of Home Affairs v Fisher  AC 319 the courts said that
Commonwealth Caribbean constitutions were influenced by the ECHR and the Universal
Declaration on Human Rights;
In Pratt and Morgan v Jamaica the Privy Council declared that the ECHR served as a
model for the constitutions of most Commonwealth Caribbean countries. This case
proves that international conventions have an impact on our indigenous law in the
Commonwealth Caribbean. In this case, undue delay on death row constituted cruel and
inhumane punishment as prohibited under the constitution of Jamaica
Where a practice develops among States in such a uniform and constant manner that it
becomes accepted by the international community, it is called ‗international custom‘;
Such custom, is treated as binding on all States and becomes part of the law of all
nations. It does not, therefore, depend on a treaty or other international instrument for its
While there is consensus that international custom is binding, its defect as a source of law
is that it is difﬁcult to prove;
In Colombia v Peru, known as ‗the asylum case‘, the claim was unsuccessful as The
International Court of Justice held that the party relying on such custom must prove that
it was established in such a way as to make it binding on the other party.
In the Commonwealth Caribbean, as the now famous case of Collymore v AG held that
there was no constitutional right to strike in Trinidad and Tobago as this could not be
derived from the freedom of association. The dictum has been followed in other
Commonwealth countries, including those in the Commonwealth Caribbean. Still, the
judgment has been severely criticised. It is, further, an old judgment. Recent judicial
developments have moved closer to Ben Israel‘s argument. One good example is the
Scandinavian case of NHOARD which accepted that a right to strike was implicit under
22. Prepared by: Medford Waldron, 766-6209 Page 22
Convention No 87 of the ILO on Freedom of Association. This Convention promulgated
a right which was accepted by all nations. As with Caribbean Constitutions, the right to
strike under the Convention is not explicit but the freedom of association is protected.
It is clear, therefore, that once a practice has been elevated to the status of international
custom, it becomes binding on all States and is a legitimate source of law.