Business,

03 1 Governance

N 3 & Society
MA
Lecture 1:
Sem 1 AY 2020/21

Sandra O’Meally, JP
Today’s Topics
• Definition of Law
• Theories of Law (Natural/Positive)
• Origin of Law (UK, Caribbean, USA)
• Sources of Law
• Types of legal systems – Civil, Religious, Common
• Constitution
• Legislation
• Interpretation of legislation
• Common Law
• Precedent
Activity 1: Discussion
• “The law affects every aspect of our
lives; it governs our conduct from the
cradle to the grave and its influence
even extends from before our birth to
after our death.” (Keenan & Richie, Business Law)

• Examples?
Concept of law
Law is a Social Science
• Grows and develops with the growth and
development of society

• New developments in society create new problems

and law is required to deal with those problems
Definition
• “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.)

• Look up other definitions

Object of law
• JUSTICE
• Justice operates at two different levels:
• Distributive justice serves to secure balance among the
members of a community
• Corrective justice serves to correct the dis-equilibrium
created by a wrongful act
• Restorative Justice – system of justice that brings back
the person to the position that they were in before the
infraction
• Retributive justice - system of justice that seeks to
rehabilitate offenders for the wrong committed
 Theories of Law
(how laws developed)
Many theories of law exist. Two common ones are:

1. Natural Law Theory

2. Positive Laws (John Austin)
Natural Theory
• Earliest theory developed in Greece
(Heraclitus, Socrates, Plato, and Aristotle)
• Natural law is defined by Salmond as “the
principles of natural justice if we use the
term justice in its widest sense to include
all forms of rightful actions.”
• A person is created free, equal and
independent by taking the concept of
Natural law as the individual right to life,
liberty, and security (Locke, Montesque)
Source: Abyssinialaw.com
Natural Law Theory
• In simple terms, Natural Law is a theory that says that
human beings possess intrinsic values that govern our
reasoning and behavior. Natural law maintains that
these rules of right and wrong are inherent in people
and are not created by society or court judges
• Example of natural law in our society is that it is wrong for
one person to kill another person

• Despite its contribution, however, no scholar could

provide the precise contents of the natural law. As a
result, it was subjected to criticisms of scholars like John
Austin who rejected this theory and latter developed the
imperative called positive law theory.
Source: Abyssinialaw.com
POSITIVE LAW THEORY
• It has the belief that law is the rule made and
enforced by the sovereign body of the state and there
is no need to use reason, morality, or justice to
determine the validity of law.
• The only things that can be regarded as law are those
that are enacted as such by the person body)
authorised to do so. The definition has the following
elements:
• The existence of a definite sovereign – government
lawmakers, courts and administrative agencies
• The subjects must be in the habit of obeying him because
of his coercive power to impose sanctions.

Source: Abyssinialaw.com
 Origin of Law - UK
• The English legal system is based on a huge
foundation of over 900 years of law practice in the
United Kingdom.
• This should mean that the legal rules and working law
must have gone through a great deal of changes.
However, this is not so.
• Since 1066, in the rule of King William I, the Anglo-
Saxons were free to follow the existing laws. It was
not until the 1200 in the rule of King Henry that a
centralized system of common law was established.
• This is the same ‘Common Law’ that very much
prevails in current times.
Sources of law - UK

• Legislation enacted by parliament (primary and

secondary)
• Case law (Common Law) made by the courts
• European Union law
Origin of Law - USA
• The United States and most Commonwealth countries are
heirs to the common law legal tradition of English law. Certain
practices traditionally allowed under English common law
were specifically outlawed by the USA Constitution,
incorporating a number of civil law innovations.
• All U.S. states except Louisiana have enacted “reception
statutes” which generally state that the common law of
England (particularly judge -made law) is the law of the state
to the extent that it is not repugnant to domestic law or
indigenous conditions.
• The passage of time has led to state courts and legislatures
expanding, overruling, or modifying the common law. As a
result, the laws of any given state invariably differ from the
laws of its sister states.
• stare decisis: The principle of following judicial precedent.
Legal System of USA
• Federalism, as set forth in the US Constitution,
divides governmental power between the federal
government and each of the states.
• the United States has one federal legal system, and
each state has its own state legal system.
• Federal laws regulate issues that concern the entire
country and economic activity that crosses from state
to state.
• Federal laws are the same in every state, but state
laws differ from state to state. Something what is
legal in one state may be illegal in another state.
Sources of law - USA
• The three sources of law are
1. Constitution – to regulate government action
2. Statutory – to regulate individual or private action
3. case law – to supplement the law when there is no
statute on point and also to interpret statutes and the
constitution(s)
• Although it is technically ranked the lowest, judicial
review makes case law an extremely powerful
source of law.
Origin of Law – Jamaica &
Caribbean
• Originated in England and in its earliest form was based on societal
customs and norms recognised and enforced by the judgments and
decrees (judgement) of the courts.

• Over time, the term “Common Law” came to include these early
customs as well as legislative enactments and the judicial decisions
interpreting their application.

• The Common Law system became the law (custom, statutes and
judicial decisions) common to all of England.

• Jamaica, as does the rest of the Commonwealth Caribbean, has a

Common Law legal system inherited from England.
Sources of law - Jamaica
• The three sources of law are
1. Constitution
2. Legislation
3. case law (common law)
Types of Legal Systems
• Major types of legal systems in the world:
1. Civil Law (based on Codes)
2. Religious Law (based on Religious Texts)
3. Common Law

Some legal systems involve a combination of two or

in a few instances all three of these types.
Civil Law
• A body of rules that delineate private rights and
remedies, and govern disputes between individuals in
such areas as contracts, property, and family law;
distinct from criminal or public law.
• Civil law systems, which trace their roots to ancient
Rome, are governed by doctrines developed and
compiled by legal scholars. Legislators and
administrators in civil law countries use these
doctrines to fashion a code by which all legal
controversies are decided.
• Most widespread legal system – in about 150
countries
Civil Law
• Concerned with the rights and duties of individuals
towards each other.
• State’s involvement confined to providing a civilised
method of resolving dispute that has arise.
• Legal process is begun by the aggrieved citizen and
not by the state.
• Private law is also called civil law and is often
contrasted with criminal law
 Religious Law
• Religious law refers to the concept of a religious system or
document being used as a legal resource, refers to the concept
that the word of God is law. The use of religion for public law has
a static and permanent quality, preventing improvement during
legislative acts of government or development during judicial
antecedent.

• The most important kinds of religious law are Halakha in

Judaism, Sharia in Islam, both of which denote the "path to
follow", and Canon law in some Christian groups.

• In some cases, these are proposed simply as individual moral

guidance, whereas in other cases they are proposed and may be
used as the source for a country's legal system.
Common Law: Custom Uniformity
of conduct of all persons under like
circumstances

• It is observed course of conduct

• It is a rule which has existed from time immemorial
and obtained the force of law in a particular locality
• When same thing is done again and again in a
particular way, it assumes the form of custom
 Common Law - Decisions
• Court decisions are heavily reliant on prior judicial
pronouncements
• 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.
• Court's decision is binding authority for similar cases decided by
the same court or by lower courts
• Not binding on courts of higher rank but may be considered as
persuasive authority.
• Decisions from courts outside of Jamaica are not binding, but
may also be referred to as persuasive authority if there is no
local case which has settled the point in issue
No Precedent?
• Our Common Law system allows our judges to look
to other jurisdictions or to draw upon past or
present judicial experience for analogies, to help in
making decisions in those situations.
• This flexibility enables the courts to address new
situations so that no worthy litigant is left without a
remedy.
• At the same time the doctrine of stare decisis
provides certainty, uniformity, and predictability
which promotes a stable legal environment.
Common Law Procedures
• Disputes are settled through an adversarial exchange of evidence
and argument.
• Opposing parties present their cases before a neutral fact finder – a
jury or a judge.
• Where a Judge sits with a jury, the jury are the fact finders. Where
the Judge sits alone, the judge has the dual responsibility of
determining the appropriate law to apply, as well as the facts proved.
• Where the Judge sits with a jury, the Judge directs the jury on the
relevant law to be applied to the facts the jury finds proved.
• The jury or the judge evaluates the evidence, applies the appropriate
law to the facts, and thereby arrives at a decision.
• Following the decision, the party against whom the decision is made,
(with the exception of the prosecution in a criminal case on a verdict
of acquittal), may appeal the decision to a higher court.
The Constitution
• A constitution is primarily a set of rules and principles specifying
how a country should be governed, how power is distributed and
controlled, and what rights citizens possess
• Many nations have been forced to draw up a written constitution in
response to a revolution, war or as a step towards independence.
• It is usually written down and contained within a single document;
the UK is unusual in having an uncodified constitution with many
sources.
• The UK constitution is often described as ‘partly written and wholly
uncodified’. A codified constitution is one in which key provisions
are collected together in a single legal document.
• A constitution must have one supreme power over and above all
other power in the state.

Source: https://www.tutor2u.net/politics/reference/what-is-a-constitution
Legislation
• Legislation is a law or a set of laws that have been
passed by Parliament. The word is also used to
describe the act of making a new law.
• An example of legislation is the rule that bans the
use of plastic bags.

• Purposes: to regulate, to authorize, to outlaw, to

provide (funds), to sanction, to grant, to declare or
to restrict.

Source: https://www.parliament.uk/site-information/glossary/legislation/
Summary
• Law impacts every stage of life.
• There are many definitions of law.
• Natural law occurs naturally based on human beings
inherent values of right and wrong while positive
laws are man-made.
• The constitution, legislation and common law are
popular sources of law.
• UK does not have a written constitution
• Common types of legal systems are civil law, religious
law and common law.
 End
• Have a productive week
• https://supremecourt.gov.jm/content/legal-system
• http://www.aboutlawschools.org/legalsystems/reli
giouslaw/
• https://www.abyssinialaw.com/about-us/item/479-
major-theories-of-law