The Concept of Law

Law is defined as the enforceable body of rules that govern society.

There are two concepts of law:

- Natural Law
- Positive Law
 Natural Law is perceived to be that law which is shaped by a divine being
and thus provides the guidelines for proper moral behavior to be exhibited
and practiced by mankind.
 Positive Law is the law created by the sovereign which must be obeyed even
if and when it is unjust.
The Origin of Law

England
Before the Norman Conquest, England did not possess a unified legal system. The
legal system which presided over the land was different for the various territories.
The king, consequently, had no control over the country as there was no effective
government.
However, in 1066, William the Conqueror usurped the previous king, and
established a central government. This government standardized the law, making a
decree that one law will be common to all of England; the ‘Common Law’.

Caribbean
 When the Europeans came to the West Indies, they transplanted their laws
on the countries that which they ruled over. They imposed these laws on the
slaves, indigenous people, and the indentured servants.
 This imposition of law was used to control their subordinates socially,
economically and racially.
Reception of Law Doctrine
 The reception of law doctrine describes the process in which legal
phenomena which were developed in a given environment are consciously
exported to another.
- Rose Marie Belle Antoine argues that the term should be referred to as the
doctrine of imposition to keep in line with the history of the Caribbean.
- The imposition of law in colonial territories were meant to control the colonized.
It was not meant for the development of law and citizenry
Role and Function of Law
 The role and function of law is to bring cohesion to and maintain order
within societies.
Rose-Marie Belle Antoine argues that the role and function of law in the slavery
period was to be used as ‘an instrument of social control and public order in
plantation society... Their primary function was to maintain the slave system by
guaranteeing the economic, social, and racial subordination of the Negroes.’ (1674
law of Jamaica, slaves are goods and chattels) (1711 law of Jamaica, barring slaves
from ownership of property)
Law, Moral, Ethics and Religion

Moral and Ethics

 Moral and ethics constitute ‘that right reason’, which exists within all men
and which leads us to distinguish right from wrong and good from evil.
- Moral rules are also social rules, but not all social rules are moral rules.

 Law and Moral exists simultaneously to uphold the rules of proper social
behavior that is necessary for the achievement of social cohesion in every
well-ordered society.
Naturalist theory argues that law should reflect morality. Thomas Aquinas sees
natural law as higher law that comes from God, the principles of which ‘... should
be reflected in the laws societies make for themselves.’

Case Laws for Law and Moral

R v Knuller (1973)
Knuller (Publishing, Printing, and Promotions) Ltd. published a magazine
containing advertisements soliciting homosexual acts, which was considered
offensive under public decency laws at the time.
The publication was charged with the offense of conspiracy to corrupt public
morals, a common law offense.
 The main legal question was whether the offense of conspiracy to corrupt
public morals could be applied in this case, given that the conduct in
question was not explicitly prohibited by statutory law but was deemed
contrary to societal norms.
The House of Lords upheld the conviction, confirming that the common law
offense of conspiracy to corrupt public morals was valid and applicable.

Shaw v DPP (1962)

Shaw published a booklet called The Ladies' Directory, which contained
advertisements for the services of prostitutes. The directory provided names,
photographs, and contact information, essentially facilitating solicitation.
Shaw was charged with:
o Conspiracy to corrupt public morals (a common law offense),
o Living on the earnings of prostitution (a statutory offense),
and
o Obscene publication (under the Obscene Publications Act
1959).
 The primary legal question was whether Shaw could be convicted of
conspiracy to corrupt public morals, a common law offense not
explicitly mentioned in statutory law, and whether the courts had
jurisdiction to address such an offense.
The House of Lords upheld Shaw’s conviction for conspiracy to corrupt
public morals, affirming that the offense existed under common law

Law and Religion

 Religion is defined as recognition on the part of man of some higher unseen
power as having control of his destiny, and as being entitled to obedience,
reverence and worship. (Oxford Dictionary)
 The religion of the European colonizers is what influenced the English law
and has shaped the morality of the Caribbean people.
Influences of Religion:
1. Religious rules were given statutory force and validity. (Thou shalt not steal
and Thou shalt not kill – Criminal Law (Offences) Act)
2. Wearing of the bib, or bands, by members of the legal profession.
3. Neighbour Principle established in Donoghue v. Stevenson
4. Law’s Definition of Marriage (Hyde v Hyde)
Sources of Law

Within the legal framework, there are five sources of law:

1. Constitution
2. Legislation
3. Common Law
4. Equity
5. Precedent

The Constitution
 The Constitution is the highest source of law that contains the establishment
of and procedure to be adopted by the main organs of state.
- It contains:
i. The executive, the legislature and the judiciary, with their respective
jurisdictions, functions, and powers
ii. The establishment of service commissions
iii. The establishment of the office
iv. Role and function of the Ombudsman
v. The fundamental rights section, outlines the rights of the citizens.

 Lawyers look to the Constitution for the protection of citizens’ right and the
preservation of the rule of law.
- Maharaj v. AG of Trinidad and Tobago, upheld the constitutional
principle that a man must be told of the case being brought against him.
Legislation
 Legislation is defined as the process of making laws. Its function is to carry
out law reform and create, alter or revoke law in order to fulfill the intention
of the legislative body and ultimately the people.
There are two types of legislation:
1. Primary Legislation/Acts of Parliament
2. Secondary (Subsidiary) Legislation
Primary Legislation/Acts of Parliament

 Primary Legislation/Acts of Parliament are created by the legislative arm of

Parliament as part of its inherent law-making function under the ‘separation
of powers’ doctrine.

There are two types of parliamentary statues:

 Private Acts – These are acts proposed by a corporation, company or private
organizations. (The Mustard Seed Missionaries (Incorporation and Vesting)
Act, 2011)
 Public Acts – Acts proposed by the people through its representatives in
Parliament. These affects the entire nation.

Secondary/Subsidiary Legislation

 Secondary legislation is made by a government authority or functionary that

is given power by Parliament to make such legislation. For Jamaica this
would be the Senates
Procedure for Elevating a Bill to an Act
1. Drafting and Proposal
2. First Reading
3. Second Reading
4. Committee Stage
5. Report Stage
6. Third Reading
 7. Senate Review
8. Approval by Both Houses
9. Governor General Assent
10. Becoming Law

Interpretation of Law
There are three ways of statutory interpretation:
1. Literal Rule
2. Golden Rule
3. Mischief Rule (Purposive Rule)

Literal Rule
 The words and phrases in a statue will be given its ordinary and literal
meaning, even if the outcome seems unfair or illegal.

Case Law: Baptiste v. Alleyne (1970)

The defendant was found outside a house with his hand through a window choking
a female occupant. He was charged and convicted of the offence ‘found ... in a
building with intent ...’
Section 29 (d) of the Larceny Ordinance stated that for a person to be convicted of
such an offence, there must have been undeniable evidence that he had been,
‘found in’ the building.
Bastide JA posited, ‘he cannot in the Court’s view be said to have been found in
the building on a literal meaning of the words of section 29 (d) of the Larceny
Ordinance.’

Golden Rule
 If the literal and ordinary meanings of the words of the statute give rise to
ambiguity or an absurd result which Parliament could not have intended, the
judge may substitute a reasonable meaning in light of the statute as a whole.
Case Law: Davis v R (1962)

Mischief Rule
 Considering three factors: (i) what the law was before the statue was passed
(ii) what problem, or ‘mischief’, the statue was trying to remedy (iii) what
remedy Parliament was trying to provide.
Case Law: R v George Green

Common Law/Judicial Precedent

 The legal principles derived from examining the judgements of cases where
there are no applicable statutes.
 - The principle of precedent is that decisions taken at higher court are to be
followed by a lower court.
There are terms associated with the principles of precedent:
 Ratio Deciendi - ‘the reasoning upon which the case turns.’ The court
examines the particular principle, rule or ruling of law that had been
contained in the decision of the preceding case.
 Obiter Dictum - ‘things said by the way.’ Something that was stated by a
judge in a case, however it was not essential to the decision of the case. This
is not binding, although it maybe you used as persuasive authority in a latter
case.
 Stare Decisis - ‘let the decision stand.’ It is necessary to abide by precedents
when the same points arise again litigation.
 Overruling – The setting aside of the decision in an earlier case. Only the
higher courts in certain strict circumstances are given this authority.
 Distinguishing a Precedent – A precedent whether persuasive or binding
doesn’t have to be applied if it can be distinguished on its facts. Meaning
that a judge must point to difference in the facts of the precedent and the
current case.

Binding Precedent
 The function of the judge in this case is not to create law, but to find law in
conformity with existing legal rules. The judge has a legal obligation to use
decided cases and apply the principles of law found in the case
- London Tramcars Co Ltd v London County Council (1898)
Persuasive Precedent
 Legal principles contained in judgments which merely offer guidance.

Advantages and Disadvantages of the Doctrine of Judicial Precedent

Advantages
- Certainty and Predictability: Framework for the courts follow, so similar
cases are treated in the same.
Case Law: Pratt and Morgan v. AG for Jamaica (1993)
  The Privy Council ruled that the prolong delay of more than five years in
carrying out a death sentence constituted inhumane or degrading
punishment, contrary to the Jamaican Constitution.
Disadvantages
- Excessive Number of Cases: The volume of reported cases makes the
location of legal principles difficult.
- Rigidity of the System: Social changes, Binding Nature of Higher Court
decisions from outside of the region (Privy Council)

Jury System
 The jury system is an essential element of the democratic process. It
attempts to secure fairness in the justice system.

 The jury system is used in two instances:

- Civil or criminal matter
- Criminal matters whether it is summary or an indicatable offence

 The modern jury is composed of a maximum of twelve members.

- In murder and treason trials, the jury consists of 12 members, while in
other criminal trials, it consists of 9 members.
- In civil matters, the jury consists of nine members.
Lord Camden believed ‘Trial by jury is indeed the foundation of our free
constitution; take that away and the whole fabric will soon moulder into dust.’

 The jury’s purpose is to be the sole judges of facts. For them to be judges of
facts, they must be ignorant of the facts of the case. Impartiality in
adjudicating arises from the ignorance of facts. The need for impartiality is
demonstrated in the case of Howe v R, where one of the jurors2 had been
present at a previous conviction of the accused. This was sufficient grounds
to establish bias.
Special Jury
 The ‘special jury’ consists of persons with special qualifications that relate
to the matter being tried. The judge has the discretion to use the special jury
in matters where it is important or tis a complicated civil case where their
expertise is essential for the efficient dispensing of justice.
Case Law: Police Commissioner v Hinds where the defendant, editor of the
newspaper "Truth," was accused of criminal libel. Prior to the trial, an article in
"Truth" alleged that police were inquiring into jurors' private lives, causing unrest
among those summoned for jury duty. The Crown argued that this suggested the
defendant had improper contact with potential jurors, potentially compromising the
trial's fairness, and thus requested a special jury under Section 7 of the Jurors Act,
1891.

The Right to Trial by Jury

 The right to trial by jury is a fundamental legal principle that ensures

individuals accused of crimes have the right to be judged by a group of their
peers, rather than solely by a judge.
- In the Caribbean, there has been a decline in the importance of a right to
trial by jury. This is due to several reasons, two of which are the rapid
growth of litigation and an appreciation the juries are both
unpredictable and infallible.
 In determining the availability of jury, the question is if the matter is a civil
or criminal matter.
 If it is a criminal matter, it then depends on whether it is a summary or
indictable offence.
- As a general rule, trial by jury is only available for indictable offences.
 If it is a civil matter, it depends solely depends on the discretion of the judge
if good cause is shown, except for those of a specified nature, such as
defamation or fraud.

Challenges to the Jury

  The process known as ‘challenging the jury’ is used to attain the ideals of
representativeness, objectivity and impartiality in jury trials.
- Bias of the juror is shown through intimate knowledge of the
circumstances of the case or prejudice in any form.
There are two types of challenges to the jury:
- Challenge for cause
- Preemptory challenge
Challenge for Cause
 A term used in the jury selection process in which an attorney asks the court
to disqualify a potential juror from serving on the jury panel. The challenge
is based on the claim that the juror has a specific bias, prejudice or conflict
of interest that would prevent them from being impartial in the case.
- There is no limit to the number of challenges for cause that can be made,
as long as the reason is valid.
Peremptory Challenge
 A term used in the jury selection process that allows an attorney to remove a
potential juror from the jury pool without providing a specific reason.
- Each party has a limited number of peremptory challenges based on the
jurisdiction and type of case.

Discharging the Jury

 The jury possesses the discretion to decide whether a juror’s misconduct,
irregular behaviour or circumstances will prejudice the trial and will then
discharge him.
Case Law: Gibson v R, after the commencement of a murder trial, the court
discover that, one of the jurors was the brother of the deceased. The juror was
immediately discharged and the trial heard by the remaining 11 jurors. On appeal
the court held, that a fundamental principle was raised, i.e. that justice must not
only be done but must be seen to be done. However, in this instance, the court did
not find that the right to a fair trial had been prejudiced.

Advantages of the Jury System

 1. Fairness and Impartiality: Jurors are not involved in the legal system and this
allows them to efficiently separate facts from law.
2. Protects the Accused: A jury trial is used so that the accused may have a fair
opportunity to contest the charges in front of a group of peers.
Disadvantages of the Jury System
1. Potential for Bias: Jurors may have bias, whether they know it or not, that
would affect their judgement
2. Lack of Legal Expertise: Jurors are not trained in law, legal procedures and
other. This can lead to a misinterpretation of legal concepts and technical
evidence.
3. Rick of Emotional Decisions: Jurors may be swayed by emotions which
leads to decisions being based more on feelings than on rational analysis of
facts