Lecture 1 Introduction To Law and Legal Systems in The

INTRODUCTION TO LAW AND
LEGAL SYSTEMS IN THE

COMMONWEALTH CARIBBEAN
•What is Law?
W.H Auden in his work “Law is Like Love”

attempt to explain, in the form of prose, the
nature and meaning of Law. He penned:
WH AUDEN cont’d
“Law, says the Judge as he looked down his nose,

Speaking clearly and most severely,
Law is as I've old you before,
Law is as you know I suppose,
Law is but let me explain it once more,
Law is The Law” Definition of law
• However, in more modern times, Law has been defined

as a set of rules, of one kind or another, which carry
sanctions and are intended to guide the activities of
society and its members
INTRODUCTION TO LAW AND LEGAL
SYSTEMS cont’d
➢ Law is closely influenced by social activities. It is
therefore important to have an appreciation of the proper
social context within which our laws were derived before
one attempts the study of our law and legal systems.
➢ According to Marie Belle Antoine, the law and legal
systems of the Commonwealth Caribbean is borne out of
our colonial/ plantation experience.
➢ Historically, says Antoine, laws were used as a
mechanism for social control and public order in
plantation societies.
➢ Further, Antoine notes that the brutality of treatment
meted out to the Black slaves was sanctioned by the law
which existed at the time.
SYSTEMS cont’d
• What is a Legal Tradition/System?
This is “the sum of legal rules, legal
institutions and machinery which operate
within the particular country or jurisdiction”.
• See Chapter 3 of Antoine’s text

• There are many types of legal traditions/ legal systems.
For the purpose of this course we examine the following
legal traditions/ systems:
SYSTEMS cont’d
• The Common Law Legal Tradition/ System:
– originated in England.
– was imposed upon the Commonwealth Caribbean
through the process of colonization.
– describes the substantive and legal rules, techniques
and institutions which evolved from the early courts of
law in England after the Norman Conquest and the
subsequent ascendance of William, the Conqueror, to
the English throne in 1066.
– Rules were promulgate on an ad hoc basis by the
common law courts as matters came before them for
determination (soft/judge-made law)
SYSTEMS cont’d
• The Civil Law or Roman- Germanic Tradition/ Legal
System:
– has its historical base in Continental Europe, with its
true origin being founded on the laws of ancient
Rome
– found primarily in Latin America, parts of Africa,
Continental Europe, Japan, Indonesia etc.
– influences of this legal system may be found in St.
Lucia and the Republic of Guyana.
– influenced by the Natural law school of thought which
seeks to discover and teach a fully rational law, based
on reason.
– relies primarily on statute in the form of a Code as the
ultimate source and technique.
SYSTEMS cont’d
NB: students should explore the similarities
and differences between the common law
and the civil law legal tradition.
The Socialist Legal Tradition/ System

- has its origin in the Bolshevist Revolution of 1917
- laws are informed by the social, economic and political
forces heavily
- countries of the former USSR, Romania, Czech
Republic, Slovakia, Yugoslavia, Albania, Hungary,
Poland and in the Caribbean, Cuba, adopt this legal
tradition.
- Guyana has declared itself, through its Constitution, to be
socialist. It is however doubtful whether it is truly a part of
the Socialist Legal Tradition.
SYSTEMS cont’d
• Religious Legal Tradition:
- relies heavily on the respective religions
- For example, the Muslim and Hindu religions
informs the legal systems of Muslim and Hindu
territories. Legal rules may be found from a study
of the Koran (Muslim holy book) or the Satras
Hindu texts)
- within the commonwealth Caribbean, is most
present in highly plural societies countries, such
as Trinidad and Tobago which has large proportion
of Muslims and Hindus.
INTRODUCTION TO LAW AND
LEGAL SYSTEMS cont’d
• Hybrid Legal Systems (See Chapter 4 of
Antoine’s text):
– has fundamental characteristics of more than one
legal tradition/ system, usually a mixture of common
law and civil law.
– usually develops as a result of colonization, double
colonization, cession, purchase/ annexation by the
State with a legal system of different tradition than
that of the jurisdiction acquired.
– exists in St. Lucia as a result of the transplantation of
the common law on the civil law tradition.
SYSTEMS cont’d
• Note:
See Chapter 5 for Antoine’s discourse on
the Reception/ Imposition of Law on the
Commonwealth Caribbean.
SOURCES OF COMMONWELATH
CARIBBEAN LAW
• There are three main sources of law:
a. Legal Sources – these shape and
inform and the particular legal system.
b. Literary Sources – describes the
location of the law i.e. in books, texts,
legal treatise, law reports or legislation.
c. Historical Sources – refer to the causative
factors behind a rule of law, its historical
origin and development.
CARIBBEAN LAW (cont’d)
• See Chapter 6 of Antoine’s text
• For the purposes of this course we will be
focusing on primarily on the legal sources.
• These are, inter alia (among others):
• The Constitution
• Legislation/ Statutes
• Case Law
• Equity
• Customs
• The Constitution:
• This is a body of law containing the rules which
determine the structure of the state and it principal
organs. It establishes the fundamental principle
according to which the state is governed. It is the
authority base for the rule of law
• Unlike England which operates under parliamentary

sovereignty, the Commonwealth Caribbean adheres to
the principles of constitutional supremacy.
• The constitution is the supreme law and all other laws

that contravene the provisions of the constitution are, to
the extent of their inconsistency, null and void
SOURCES OF COMMONWEALTH
• Interpretation and effect (Chapter 1)
• Chapter 1 explains the meaning of terms and
ideas expressed in the Constitution and make
clear that the Constitution is the supreme law of
Jamaica and that all other laws are secondary to
it and depend upon it. ..." If any other law is
inconsistent with this Constitution, this
Constitution shall prevail and the other law shall,
to the extent of the inconsistency, be void"
(Section 2).
Citizenship (Chapter 2)
• Under Chapter 2 of the Constitution, persons born in Jamaica and

persons born outside Jamaica of Jamaican parents have an
automatic right to Jamaican citizenship.
• Women who have married Jamaican men and former citizens of the
United Kingdom and Colonies who had become naturalized or
registered as British subjects in Jamaica can also register as
Jamaican citizens.
• Parliament is given power in the Constitution (under Section 11) to
make further provision for the acquisition, deprivation and
renunciation of citizenship; and the Governor-General (under
Section 8) is given power to deprive of their Jamaican citizenship
those Jamaican citizens who acquire citizenship or the rights of
citizenship of another country.
• Fundamental rights and freedoms (Chapter 3)
Chapter 3 provides that every person, regardless of race, place of
origin, political opinions, colour, creed of sex, is entitled to certain
fundamental rights and freedoms. These include the right to life; the
right to personal liberty; freedom of movement; freedom from
inhuman treatment; enjoyment of property; freedom of conscience;
freedom of association; respect for private and family life; and
freedom from discrimination. The enjoyment of these rights and
freedom is "subject to respect for the rights and freedoms of others
and for the public interest". In the public interest, individual rights
may be also suspended in a manner prescribed by the Constitution
(e.g. in the event of war, calamity of threat of subversion). Any
person who believes that his rights are being violated or threatened
may apply to the Supreme Court (or on appeal to the Court of
Appeal) for enforcement of rights and for redress.
• Governor-General (Chapter 4)
• Under Chapter 4, the Governor-General is given authority, as the
representative of Her Majesty the Queen, to name the date of a
general election, to appoint Ministers and assign them
responsibilities to appoint Parliamentary Secretaries, the Attorney
General, Senators, Privy Councilors, the Chief Justice, the President
of the Court of Appeal, the Director of Public Prosecutions and
members of the Services Commissions.
• In most cases the Governor-General acts in accordance with the
advice of the Prime Minister, in some cases also after consultation
with the Leader of the Opposition and in other cases in the
recommendation of such authorities as the Services Commissions
and the Privy Council. In only a few matters, mainly minor ones,
does the Governor-General act in his own discretion. The Governor-
General's formal Assent is also required for Bills of Parliament to
become law.
• Parliament (Chapter 5)
Under Chapter 5 of the Constitution, Parliament
is given power to make laws for the peace, order
and good government of Jamaica. Parliament
consists of Her Majesty the Queen, represented
by the Governor-General, and two legislative
Houses, a nominated Senate and an elected
House of Representatives. The Governor-
General opens Parliament once a year with the
"The Speech" and gives the Royal Assent for
each Bill, passed by the two Houses, to become
law.
A Bill may be introduced by any member of either
House. (However, in practice most Bills are
introduced in the House of Representatives).
Money Bills can only be introduced in the House
of Representatives. The Senate may delay
money Bill for not more than one month and any
other Bill for not more than seven months. The
House of Representatives can end the term of
office of a Government if a majority, of all its
members, supports a motion of no confidence.
The Senate consists of 21 members,
appointed by the Governor-General, 13
nominated by the Prime Minister and eight
nominated by the Leader of Opposition.
Any Jamaican citizen of 21 years or over
or any Commonwealth citizen 21 years or
over living in Jamaica for at least one year,
can become a member of either House of
Parliament.
• Executive powers (Chapter 6)
• Under Chapter 6 of the Constitution, the
Governor-General is required to appoint as
Prime Minister the member of the House of
Representatives who is best able to "command
the support" of a majority of the members of that
House. The Prime Minister selects the Ministers,
Ministers of State and Parliamentary Secretaries
to be appointed by the Governor-General. He
forms the Cabinet and presides over it.
• The Prime Minister advises the Queen on the
appointment of the Governor-General. He has
the power to advise the Governor-General to
dissolve Parliament and to name the date of a
general election at any time within the five years
of the life of a Parliament. Important acts by the
Governor-General are carried out on the advice
of or after consultation with, the Prime Minister;
and for some measures the Leader of the
Opposition is also consulted.
• The Cabinet is responsible for the general
direction and control of government. It
consists of the Prime Minister and not less
than 11 other Ministers (there is no
maximum). All Cabinet Ministers must be
members of one of the two Houses of
Parliament but not more than four from
Senate.
• Each Cabinet Minister is assigned one or
more areas of responsibility (e.g.
"agriculture", "health" or "housing")
sometimes called portfolios. The Cabinet
as a whole must account to the people
through Parliament for its actions. Each
Cabinet Minister is also individually
responsible for the subject/subjects
assigned to him/her.
• Cabinet Ministers are assisted by Ministers of State and
Parliamentary Secretaries. However, the day-to-day
work of each Ministry is administered and supervised by
a senior civil servant called a Permanent Secretary is
assisted by the staff of the Ministry who are civil
servants. Other important executives are Attorney
General, a political appointee chosen by the Prime
Minister, who is legal adviser to the Government; and the
Director of Public Prosecution, who is responsible for
starting, continuing and discontinuing criminal
prosecutions.
• The Director of Public Prosecutions is a
qualified attorney-at-law. In exercising his
functions, he is not subject to the direction
or control of any person or authority. He
cannot be removed from office except on
the recommendation of a special judicial
tribunal. His salary is constitutionally
safeguarded. The Constitution secures the
office of Leader of the Opposition.
• The Leader of the Opposition, appointed by the
Governor-General, is the member of the House
of Representatives who commands the support
of a majority of those members who do not
support the Government. The Leader of the
Opposition must be consulted on a number of
important matters such as appointments of the
Chief Justice, the President of the Court of
Appeal and members of the Services
Commissions. The Opposition Leader
nominates eight of the 21 Senators.
• The Judicature (Chapter 7)
• A network of courts, ranging from Petty
sessions of the Court of Appeal, and even
beyond, to the Judicial Committee of the
Privy Council in London, is responsible for
the administration of justice in Jamaica.
The head of the judicial is the Chief
Justice whose office, like that of all judges,
is made secure by the Constitution.
• The judges' salaries and conditions of service
are secured by the Constitution and judges can
be removed from office on the advice of the
Judicial Committee of the Privy Council in
London. Any person dissatisfied with a judgment
by any of the courts (except Pretty Sessions)
can appeal to the Court of Appeal. Petty
Sessions are heard by judge in chambers. The
Supreme Court administers both criminal and
civil law. Its criminal cases are handled by
Circuit Courts after committal by
• Resident Magistrates. The Supreme Court deals with
civil actions involving negligence, breach of contract,
slander, trespass, divorce, equity, guardianship of
infants, and estates of lunatics. It also issues writs and
summonses. There are special courts dealing with
revenues, gun crimes, and traffic offenses and family
matters. Judges are appointed by the Governor-General
on the advice of a Judicial Service Commission, which
includes among its members the Chief Justice, who is its
Chairman, and the President of the Court of Appeal. The
Governor-General on the advice of the Prime Minister
appoints the Chief Justice and the President of the Court
of Appeal, after consultation with the Leader of the
Opposition.
• Finance (Chapter 8)
• Under chapter 8 of the Constitution,
except where a law provides otherwise, all
revenues of Jamaica are paid into a
"Consolidated Fund" and then become
very difficult to get out. The Constitution
specifies how money may be moved out of
the Consolidated Fund.
• The Minister of Finance must prepare a budget
showing estimates of revenue and expenditure
for each "financial year" (April 1-March 31). The
estimates are tabled in the House of
representatives and must be debated and
approved by the House. Proposed expenditure
is in the form of an "Appropriation Bill", which
when passed becomes the Appropriation Act.
The Minister of Finance may then issue
"warrants" permitting payments out of the
Consolidated Fund.
• Before the Appropriation Act is passed the
House of Representatives may allow
expenditure of a carry-on allowance known as a
"vote on account".
• The Minister of Finance can authorize payment
for unexpected expenditure through a
Contingencies Fund. He may also get approval
from the House of Representatives for additional
expenditure during the financial year by
introducing Supplementary Estimates.
• The Constitution provides for the appointment of
an Auditor General who is responsible for
auditing the accounts of all Government
departments except his own. The audit of the
Auditor General's department is carried out by
the Minister of Finance.
• The Auditor General is subject to the direction
and control of no other person or authority. His
salary is secured by the Constitution and he can
be removed from office only on the
recommendation of a specially constituted
judicial inquiry.
• Public Service (Chapter 9)
• As in the case of the Judicial Service
Commission, there are a Public Service
Commission and a Police Service Commission,
provided under Chapter 9 of the Constitution,
with the responsibility for the appointment,
dismissal and disciplinary control of civil
servants and police officers. The Governor-
General makes appointments to the Services
Commissions on the recommendation of the
Prime Minister after consultation with the Leader
of the Opposition.
• Notwithstanding the control exercised by
the Services Commissions in general,
Permanent Secretaries and the Financial
Secretary are appointed by the Governor-
General acting on the recommendations of
the Public Service Commission after
consultation with the Prime Minister. A
• Permanent Secretary may be transferred by the
Governor-General on the advice of the Prime
Minister, and power to appoint Ambassadors,
High Commissioners or other principal
representatives abroad is vested in the
Governor-General acting on the advice of the
Prime Minister, provided that where the
appointment involves a civil servant the Prime
Minister must consult with the Public Service
Commission.
• Nb: See Chapter 7 of Antoine’s text
• Legislation:
– This is the second most important source of
law in the Commonwealth Caribbean.
– See Chapter 13 of Antoine’s text
– In reading the text pay close attention to the
differences/ similarities between legislation
and all other sources of law.
– According the Honourable MR. Justice
Crabbe “ legislation is an instrument of
change and innovation in any country”.
– Functions of Legislation:
▪ revision of outdated/ stale law
▪ clarifies, simplifies and consolidates laws
developed in a piecemeal manner
▪ Codifies the common law
▪ Incorporates and enforces treatise
obligations
▪ Public policy
▪ A means of effecting social change an
demonstrate sensitivity to concerns of
pressure groups.
• Types of Legislation:
• Orders in Council from the prerogative-

made under the prerogative power with the
advice of the Privy Council. They mainly
applies to the armed forces, states of
emergency and the civil service
• Acts of Parliament – created by Parliament
as part of it inherent law-making function.
There are private and public Acts of
Parliament.
•
• Delegated Legislation- is usually
concerned with detailed changes to the
law made under powers from an existing
Act of Parliament. The main types of
delegated legislation are Regulations/
Orders and Bye Laws. For reasons of
speed, efficiency, technicality, special
knowledge, flexibility and to avoid bulk,
parliament may delegate a body to
create legislation.
• Comparing legislation with common law, statutes
generally have the power to change the
established common law, but the common law
cannot overrule or change statues.
• A statute can only be overruled or amended by
another, later statute.
• Judges must normally apply statutes, even if
they are contrary to established common law.
• The task of the judge is to interpret and apply
the statute
• Case Law/ Common 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
– Over time the common law became rigid
and inflexible thereby giving way to the
development of the Equity.
– Central to continued growth of the
common law is the doctrine of judicial
precedent and an efficient system of law
reporting
• Judicial precedent means the process whereby
judges follow previously decided cases where
the facts are of sufficient similarity. The doctrine
of judicial precedent involves an application of
the principle of stare decisis ie, to stand by the
decided. In practice, this means that inferior
courts are bound to apply the legal principles set
down by superior courts in earlier cases. This
provides consistency and predictability in the
law.
• RATIO DECIDENDI AND OBITER DICTUM
• The decision or judgment of a judge may fall into two

parts: the ratio decidendi (reason for the decision) and
obiter dictum (something said by the way).
• RATIO DECIDENDI - The ratio decidendi of a case is

the principle of law on which a decision is based. When
a judge delivers judgment in a case he outlines the facts
which he finds have been proved on the evidence. Then
he applies the law to those facts and arrives at a
decision, for which he gives the reason (ratio decidendi).
• OBITER DICTUM - The judge may go on to speculate about what
his decision would or might have been if the facts of the case had
been different. This is an obiter dictum.
• The binding part of a judicial decision is the ratio decidendi. An

obiter dictum is not binding in later cases because it was not strictly
relevant to the matter in issue in the original case. However, an
obiter dictum may be of persuasive (as opposed to binding) authority
in later cases.
• A difficulty arises in that, although the judge will give reasons for his
decision, he will not always say what the ratio decidendi is, and it is
then up to a later judge to "elicit" the ratio of the case. There may,
however, be disagreement over what the ratio is and there may be
more than one ratio.
AVOIDING PRECEDENTS
• DISTINGUISHING
• A binding precedent is a decided case which a
court must follow. But a previous case is only
binding in a later case if the legal principle
involved is the same and the facts are similar.
Distinguishing a case on its facts, or on the point
of law involved, is a device used by judges
usually in order to avoid the consequences of an
earlier inconvenient decision which is, in strict
practice, binding on them.
• What is reasonably distinguishable depends on
the particular cases and the particular court -
some judges being more inclined to 'distinguish'
disliked authorities than others. In Jones v
Secretary of State for Social Services [1972] AC
944, Lord Reid stated:
• "It is notorious that where an existing decision is
disapproved but cannot be overruled courts tend
to distinguish it on inadequate grounds.
I do not think that they act wrongly in so doing,
they are adopting the less bad of the only
alternatives open to them. But this is bound to
lead to uncertainty "
• At the other extreme, Buckley LJ in Olympia Oil
v Produce Brokers [1914] 3 KB 1262 stated:
• "I am unable to adduce any reason to show why
that decision which I am about to pronounce is
right but I am bound by authority which, of
course, it is my duty to follow "
• OVERRULING
• A higher court can overrule a decision made in
an earlier case by a lower court eg, the Court of
Appeal can overrule an earlier High Court
decision.
• Overruling can occur if the previous court did not
correctly apply the law, or because the later
court considers that the rule of law contained in
the previous ratio decidendi is no longer
desirable.
• An example of the former is the overruling of
Anderton v Ryan [1985] 2 All ER 335 by the
House of Lords in R v Shivpuri [1986] 2 All ER
334 concerning the Criminal Attempts Act 1981,
and an example of the latter is the House of
Lords' decision in Miliangos v George Frank Ltd
[1975] 3 All ER 801 which overruled previous
authority that judgments could not be given in
foreign currency.
• REVERSING
• Reversing is the overturning on appeal by a higher court, of the
decision of the court below that hearing the appeal. The appeal
court will then substitute its own decision.
• PER INCURIAM
• A decision which is reached per incuriam is one reached by
carelessness or mistake, and can be avoided. In Morelle v Wakeling
[1955] 2 QB 379 Lord Evershed MR stated that "the only case in
which decisions should be held to have been given per incuriam are
those of decisions given in ignorance or forgetfulness of some
inconsistent statutory provision or of some authority binding on the
court concerned".
• In Secretary of State for Trade and Industry v Desai (1991) The
Times 5 December, Scott LJ said that to come
• within the category of per incuriam it must be
shown not only that the decision involved some
manifest slip or error but also that to leave the
decision standing would be likely, inter alia, to
produce serious inconvenience in the
administration of justice or significant injustice to
citizens.
• However, this rule does not permit the Court of
Appeal to ignore decisions of the House of
Lords.
• In Cassell v Broome [1972] AC 1027 Lord Denning MR
held the House of Lords' decision in Rookes v Barnard
[1964] AC 1129 to be per incuriam on the basis that it
ignored previous House of Lords' decisions. He was
rebuked sternly by the House of Lords who considered
that the Court of Appeal 'really only meant' that it 'did not
agree' with the earlier decision:
• "Even if this is not so, it is not open to the Court of
Appeal to give gratuitous advice to judges of first
instance to ignore decisions of the House of Lords."
(Lord Hailsham)
• PERSUASIVE PRECEDENTS
• A persuasive precedent is one which is not absolutely

binding on a court but which may be applied. The
following are some examples:
• * Decisions of English courts lower in the hierarchy. For
example, the House of Lords may follow a Court of
Appeal decision, and the Court of appeal may follow a
High Court decision, although not strictly bound to do so.
• *
• Decisions of the Judicial Committee of the Privy
Council.
• * Decisions of the courts in Scotland, Ireland, the
Commonwealth (especially Australia, Canada
and New Zealand), and the USA. These are
usually cited where there is a shortage or total
lack of English authority on a point.
• * Obiter dicta of English judges.
•
• OTHER PERSUASIVE AUTHORITIES
•
• Where there is no direct authority in the form of
decided cases, persuasive authority may be
found in legal writings in textbooks and
periodicals. In modern times many authors have
been cited frequently in court, both by counsel
and by judges in judgments, eg Smith and
Hogan, Criminal Law.
• ADVANTAGES AND DISADVANTAGES OF
PRECEDENT
•
• ADVANTAGES
• * There is certainty in the law. By looking at
existing precedents it is possible to forecast
what a decision will be and plan accordingly.
• * There is uniformity in the law. Similar cases will
be treated in the same way. This is important to
• give the system a sense of justice and to make
the system acceptable to the public.
• * Judicial precedent is flexible. There are a
number of ways to avoid precedents and this
enables the system to change and to adapt to
new situations.
• * Judicial precedent is practical in nature. It is
based on real facts, unlike legislation.
• * Judicial precedent is detailed. There is a
wealth of cases to which to refer.
• DISADVANTAGES
• * Difficulties can arise in deciding what the ratio
decidendi is, particularly if there are a number of
reasons.
• * There may be a considerable wait for a case to
come to court for a point to be decided.
• * Cases can easily be distinguished on their
facts to avoid following an inconvenient
precedent.
• * There is far too much case law and it is too
complex.
• THE JUDGES' ROLE IN PRECEDENT
• The old view of the judges' role was that
they were merely 'declaring' the existing
law (the 'declaratory theory'). Lord Esher
stated in Willis v Baddeley [1892] 2 QB
324:
• "There is no such thing as judge-made
law, for the judges do not make the law,
though they frequently have to apply
existing law to circumstances as to which
it has not previously been authoritatively
laid down that such law is applicable."
• The modern view is that judges do make law.
Lord Radcliffe said (Not in Feather Beds, p215,
1968):
• "there was never a more sterile controversy than
that upon the question whether a judge makes
law. Of course he does. How can he help it?"
• The reality is that judges are continually applying
the existing rules to new fact situations and thus
creating new laws.
• THE POSITION OF THE HOUSE OF LORDS
• In the mid-nineteenth century the House of Lords

developed the practice that it would be bound by its own
decisions. This was reaffirmed in London Tramways Co
v London County Council [1898] AC 375. The House of
Lords felt that decisions of the highest appeal court
should be final in the public interest so that there would
be certainty in the law and an end to litigation. However,
this practice was criticised from the 1930s. Some of the
Law Lords said that the rule did not produce the desired
certainty in the law and it had become too rigid (eg, Lord
Wright, Lord Denning and Lord Reid).
• Nevertheless, the practice was not changed until
1966 by Lord Gardiner LC, through the Practice
Statement [1966] 3 All ER 77. The practice
statement was accompanied by a press release,
which emphasized the importance of and the
reasons for the change in practice:
• It would enable the House of Lords to adapt
English law to meet changing social conditions.
• It would enable the House to pay more attention
to decisions of superior courts in the
Commonwealth.
The change would bring the House into line with
the practice of superior courts in many other
countries. In the USA, for example, the US
Supreme Court and state supreme courts are
not bound by their own previous decisions.
•
• A. Paterson's survey of nineteen Law
Lords active between 1967 and 1973
found that at least twelve thought that the
Law Lords had a duty to develop the
common law in response to changing
social conditions (A. Paterson, The Law
Lords, 1982).
• EXAMPLES OF JUDICIAL ACTIVISM &
SOCIAL CHANGE
• 1. In Herrington v British Railways Board [1972]
AC 877, the House of Lords overruled (or at
least, modified) Addie v Dumbreck [1929] AC
358. In Addie, the House of Lords had held that
an occupier of premises was only liable to a
trespassing child who was injured by the
occupier intentionally or recklessly.
• In Herrington, their Lordships held that a
different approach was appropriate in the
changed social and physical conditions
since 1929. They propounded the test of
'common humanity' which involves an
investigation of whether the occupier has
done all that a humane person would have
done to protect the safety of the
trespasser.
• 2. In Miliangos v George Frank (Textiles) Ltd
[1976] AC 443, the House of Lords overruled Re
United Railways [1961] AC 1007. In Re United
Railways, it had been held that damages in an
English civil case could only be awarded in
sterling. In Miliangos, the House of Lords held
that damages can be awarded in the currency of
any foreign country specified in the contract. A
new rule was needed because of changes in
foreign exchange conditions, and especially the
instability of sterling, since 1961.
• 3. In R v Howe [1987] 2 WLR 568, the House of Lords
overruled DPP for N. Ireland v Lynch [1975] AC 653, and
decided that the defence of duress is not available to a
person charged with murder, whether as a principal or as
a secondary party. In Lynch, the House of Lords had
held that duress was available as a defence to a person
who had participated in a murder as an aider and
abettor. In Howe, their Lordships desired to restore this
part of the criminal law to what it was generally
understood to be prior to Lynch, even though to do so
would produce the illogical result that, whilst duress is a
complete defence to all crimes less serious than murder,
it is not even a partial defence to a charge of murder
itself.
• But note that in R v Gotts [1992] 1 All ER 832,
the House of Lords extended the decision in
Howe by holding that duress is not a defence to
attempted murder. Lord Griffiths said: "We face
a rising tide of violence and terrorism against
which the law must stand firm recognizing that
its highest duty is to protect the freedom and
lives of those that live under it. The sanctity of
human life lies at the root of this ideal and I
would do nothing to undermine it, be it ever so
slight".
• 4. In R v R (Rape: marital exemption) [1991] 4 All ER
481, the House of Lords abolished altogether a
husband's 250 year old immunity from criminal liability
for raping his wife. Their Lordships justified the decision
on the basis that the case was not concerned with the
creation of a new offence but with their duty to act in
order to remove from the common law a fiction which
had become unacceptable. Lord Keith saw the decision
as an example of the ability of the common law to evolve
in the light of changing social, economic and cultural
developments.
• GUIDELINES FOR JUDICIAL LAW-MAKING
• In two subsequent cases, the House of Lords declined to
change the law on the ground that to do so was the
province of Parliament:
• 1. In R v Clegg [1995] 1 All ER 334, it had been argued
that the House should make new law by creating a new
qualified defence available to a soldier or police officer
acting in the course of his duty of using excessive force
in self-defence, or to prevent crime, or to effect a lawful
arrest, which would have the effect of reducing murder to
manslaughter.
• 2
• However, Lord Lloyd, though not averse to judicial law-
making and citing R v R as a good recent example of it,
declared that he had no doubt that they should abstain
from law-making in the present case since the reduction
of murder to manslaughter in a particular class of case
was essentially a matter for decision by Parliament, and
not for them as a court, to decide upon. That point in
issue was part of the wider issue of whether the
mandatory life sentence for murder should be
maintained. These issues can only be decided by
Parliament.
• . In C v DPP [1995] 2 All ER 43, the House
referred to the anomalies and absurdities
produced by the rebuttable common law
presumption that a child between the ages
of 10 and 14 is incapable of committing a
crime. Nevertheless, their Lordships
refused to abolish the presumption,
preferring instead to call upon Parliament
to review it. Lord Lowry gave the following
guidelines for judicial law-making:
• (a) judges should beware of imposing a remedy
where the solution to a problem is doubtful;
(b) they should be cautious about making
changes if Parliament has rejected opportunities
of dealing with a known problem or has
legislated while leaving the problem untouched;
(c) they are more suited to dealing with purely
legal problems than disputed matters of social
policy;
• (d) fundamental legal doctrines should not lightly
be set aside; and
(e) judges should not change the law unless
they can achieve finality and certainty.
• On the issue of the treatment and punishment of
child offenders Lord Lowry concluded that this
was a classic case for parliamentary
investigation, deliberation and legislation.
• RECENT EXAMPLES OF JUDICIAL LAW-MAKING
• 1. In Gillick v W. Norfolk Area Health Authority [1985] 3
All ER 402, the House of Lords was asked to consider
whether a girl under sixteen needed her parents' consent
before she could be given contraceptive services. One
side claimed that teenage pregnancies would increase if
the courts ruled that parental consent was necessary,
and the other side claimed that the judges would be
encouraging under-age sex if they did not. The House of
Lords held, by a majority of three to two, that a girl under
sixteen did not have to have parental consent if she was
mature enough to make up her own mind. (Note: since
Parliament had given no lead, the House of Lords had
no option but to make a decision one way or the other.)
• 2. In Re S (Adult: refusal of medical
treatment) [1992] 4 All ER 671, a health
authority applied for a declaration to
authorise the staff of a hospital to carry out
an emergency Caesarian section
operation upon a seriously ill 30 year old
woman patient. She was six days overdue
beyond the expected date of birth and had
refused, on religious grounds, to the
operation.
• The evidence of the surgeon in charge of
the patient was that the operation was the
only means of saving the patient's life and
that her baby would not be born alive if the
operation was not carried out. Stephen
Brown P, made the declaration sought, in
the knowledge that there was no English
authority directly on the point.
• There was however, some American
authority which suggested that if this case
was heard in the American courts the
answer would likely have been in favour of
granting a declaration in these
circumstances.
• 3. In Pepper (Inspector of Taxes) v Hart
[1993] 1 All ER 42, the House of Lords
allowed the use of Hansard as an extrinsic
aid to the interpretation of statutes (subject
to certain conditions). In doing so their
Lordships declined to follow dicta in three
of their earlier decisions.
• In Airedale NHS Trust v Bland [1993] 1 All
ER 821, the House of Lords considered
the fate of a football supporter left in a
coma after the Hillsborough stadium
disaster. The court had to decide whether
it was lawful to stop supplying the drugs
and artificial feeding that were keeping the
patient alive, even though it was known
that doing so would mean his death soon
afterwards.
• Several Law Lords made it plain that they felt
that cases raising "wholly new moral and social
issues" should be decided by Parliament, the
judges role being to "apply the principles which
society, through the democratic process, adopts,
not to impose their standards on society".
Nevertheless the courts had no option but to
make a decision one way or the other, and they
decided that the action was lawful in the
circumstances, because it was in the patient's
best interests.
• See Chapter 8 of Antoine’s Text
Equity:
• HISTORICAL INTRODUCTION
• Before 1066 all laws were local and enforced in the manorial,
shire and hundred courts. Under the Normans, Royal Courts
began to emerge from the King's Council (Curia Regis). These
did not take over the jurisdiction of the local courts
immediately, but over a long period of time the local courts lost
jurisdiction over cases and thus lost income. A practice was
started of sending judges around the country to hold assizes
(or sittings) to hear cases locally. This enabled the judges, over
a period of roughly 200 years, to take the best local laws and
apply them throughout the land, thus creating law which was
`common to the whole country ie, common law.
• Originally the King's Council carried
out the three functions of state, namely
legislative, executive and judicial. It
dealt with all cases in which the King
had a direct interest, like breaches of
the peace. Eventually the courts split
off from the Council and formed the
main common law courts.
• The Court of Exchequer, which dealt
with the collection of revenues, was the
first to separate, in the reign of Henry I
(1100-1135). The Court of Common
Pleas stayed in Westminster Hall to
deal with disputes between individuals,
while the King's Council traveled round
the country.
• The Court of King's Bench separated
sometime after 1230. Justices of the
Peace (or magistrates) originated from
a Royal Proclamation of 1195 creating
'Knights of the Peace' to assist the
Sheriff in enforcing the law. They were
later given judicial functions and dealt
with minor crimes.
• COMMON LAW PROCEDURES
• Precedent
As the work of the common law courts grew,
the judges began to use previous decisions
as a guide for later cases. This was the
beginning of the doctrine of precedent.
• The writ system
• The judges also developed the writ
system. A writ is simply a document
setting out the details of a claim. Writs
were issued to create new rights not
recognised by the local courts and this
helped to attract business.
• Over a period of time the writ system
became extremely formal and beset
with technicalities and claims would
only be allowed if they could fit into an
existing writ.
• The rule was 'no writ, no remedy'. For
example, certain writs of trespass
would only be issued for those acts
done with force and arms against the
King's Peace. If the two requirements
were not met, a person had no claim.
• Even if a writ was obtained, the judges
would often spend more time
examining the validity of the writ than
the merits of the claim. Writs were
issued by the clerks in the Chancellor's
Office and they began to issue new
writs to overcome these difficulties, in
effect creating new legal rights.
• In 1258 the Provisions of Oxford
forbade the issue of new writs without
the permission of the King in Council.
As a result the common law became
rigid and the rules operated unjustly.
• In 1285 the Statute of Westminster II
authorised the clerks to issue new writs
but only if claims were in 'like cases' to
those before 1258. This was restrictive
and made further development of the
common law very technical.
• Other defects in the common law
• There were also other faults with the
common law courts, for example:
• * the common law courts used juries which
could be intimidated and corrupted.
• * the common law had only one remedy,
damages, which was often inadequate.
• the common law paid too much attention to
formalities, eg if a contract was made which
required written evidence for its
enforcement, then lack of such evidence
meant that the common law courts would
grant no remedy.
• * the common law courts did not recognise
the trust.
• THE DEVELOPMENT OF EQUITY

Meaning:
The word "equity" means fair or just in
its wider sense, but its legal meaning is
the rules developed to mitigate the
severity of the common law.
Petitioning the King

• Disappointed litigants began to petition
the King as the "Fountain of Justice",
the procedure being to present a
petition (or bill) asking him to do justice
in respect of some complaint.
• For a time the King in Council
determined these petitions himself, but
as the work increased he passed them
to the Chancellor as the "Keeper of the
King's Conscience".
• The Chancellor was usually a
clergyman, generally a bishop, and
learned in the
• civil and canon law. The King, through his
Chancellor, eventually set up a special court,
the Court of Chancery, to deal with these
petitions. The Chancellor supervised the
Chancery where clerks (who originally
worked behind a wooden screen - cancelleria
- hence Chancery) issued writs,
commissions and other legal documents.
•
• The Chancellor dealt with these
petitions on the basis of what was
morally right. The Chancellor would
give or withhold relief, not according to
any precedent, but according to the
effect produced upon his own
individual sense of right and wrong by
the merits of the particular case before
him.
• In 1474 the Chancellor issued the first
decree in his own name, which began
the independence of the Court of
Chancery from the King's Council.
• New Procedures
• Equity was not bound by the writ
system and cases were heard in
English instead of Latin. The
Chancellor did not use juries and he
concerned himself with questions of
fact. He could order a party to disclose
documents.
• The Chancellor issued subpoenas
compelling the attendance of the
defendant or witnesses whom he could
examine on oath.
• New Rights
• Equity created new rights by
recognising trusts and giving
beneficiaries rights against trustees. (A
trust arises if one party gives property
to trustees to hold for the use of
beneficiaries.) The common law did not
recognise such a device and regarded
the trustees as owners.
• Equity also developed the equity of
redemption. At common law, under a
mortgage, if the mortgagor had not repaid
the loan once the legal redemption date had
passed, he would lose the property but
remain liable to repay the loan. Equity
allowed him to keep the property if he repaid
the loan with interest. This right to redeem
the property is known as the equity of
redemption.
New Remedies
• Equity created new remedies:
• (a) Specific performance, which is an order
telling a party to perform their part of a
contract. This was useful where damages
were not adequate, eg, in the sale of land.
Thus if the seller refused to sell after signing
a contract, the buyer could obtain an order of
specific performance making the seller sell
the house.
• (b) Rectification, which allowed a written document
to be changed if it did not represent the actual
agreement made by the parties.
• (c) Rescission, which allowed parties to a contract to
be put back in their original position in the case of a
contract induced by a misrepresentation.
• (d) Injunctions, usually an order to stop a person
doing a particular act, like acting in breach of
contract (a prohibitory injunction).
• EQUITY AND THE COMMON LAW
• Rivalry between the Courts
• The Court of Equity (or Chancery)

became very popular because of its
flexibility; its superior procedures; and
its more appropriate remedies.
• Problems arose as to the issue of
injunctions: the common law courts
objected to the Chancellor issuing
injunctions restraining the parties to an
action at common law either from
proceeding with it or, having obtained
judgment, from entering it in cases
where, in the Chancellor's opinion,
injustice would result.
• Consequently, a certain rivalry
developed between the two courts and
this came to a head in the Earl of
Oxford's Case (1616) 1 Rep Ch 1 in
which the common law court gave a
verdict in favour of one party and the
Court of Equity then issued an
injunction to prevent that party
enforcing that judgment.
• The dispute was referred to the King
who asked the Attorney-General to
make a ruling. It was decided that in
cases of conflict between common law
and equity, equity was to prevail. From
that time on the common law and
equity worked together, side by side.
• As equity was developing, it had no
fixed rules of its own and each
Chancellor gave judgment according to
his own conscience. This led to
criticism about the outcome of cases
and John Selden, an eminent
seventeenth century jurist, declared,
"Equity varies with the length of the
Chancellor's foot".
• To combat this criticism Lord Nottingham
(Lord Chancellor 1673-82) started to
introduce a more systematic approach to
cases and by the nineteenth century, equity
had become as rigid as the common law.
Delays were caused by an inadequate
number of judges and the officials depended
on fees paid by the litigants so that there was
every incentive to prolong litigation for
individual tasks and multiply these tasks.
•
• Some attempt was made to assimilate the
remedies granted by the Court of Chancery
and the common law courts. Thus under the
Common Law Procedure Act 1854 the
common law courts were given some power
to award equitable remedies and the
Chancery Amendment Act 1858 gave the
Chancellor the power to grant damages in
addition to, or in substitution for, an
injunction or a decree of specific
performance.
• The Judicature Acts 1873-75
• The Judicature Acts 1873-75
rationalised the position. They created
one system of courts by amalgamating
the common law courts and the court
of equity to form the Supreme Court of
Judicature which would administer
common law and equity.
• The Supreme Court of Judicature consists of
the High Court divided into divisions known
as the Queen's Bench Division, Chancery
Division, and the Probate, Divorce and
Admiralty Division (re-named the Family
Division in 1970 and the work reassigned);
the Court of Appeal; and, since the Supreme
Court Act 1981, the Crown Court. Each
Division exercises both legal and equitable
jurisdiction.
• Thus any issue can be adjudicated in any
Division; and any point of law or equity can
be raised and determined in any Division;
but, for the sake of administrative
convenience, cases are allocated to the
Divisions according to their general subject-
matter. Thus the court "is now not a Court of
Law or a Court of Equity, it is a Court of
complete jurisdiction." (Pugh v Heath (1882),
per Lord Cairns.)
• It was foreseen that a court which
applied the rules both of common law
and of equity would face a conflict
where the common law rules would
produce one result, and equity another.
• Section 25 of the Judicature Act 1873
provided that if there was any conflict
between these principles, then equity was to
prevail. However, this did not fuse the
principles of common law and equity, which
still remain as separate bodies of rules. "The
two streams have met and still run in the
same channel, but their waters do not mix"
(Maitland).
• NEW REMEDIES
• In recent times the courts have used their equitable
jurisdiction to develop new remedies:
• Mareva Injunctions
In 1975 the Court of Appeal recognized the Mareva
injunction for the first time. This is a court order
freezing the assets of a party to an action or
stopping that party moving the assets out of the
country.
• In Mareva v International Bulkcarriers
[1975] 2 Lloyd's Rep 509, a shipowner
let the 'Mareva' to a foreign charterer,
with payment half monthly in advance.
The charterer defaulted on a payment.
• The ship-owner found out that the
caterers had money in an English bank
and sought an injunction freezing the
account. It was held that an order
would be granted to stop the charterers
from moving the money abroad before
the case was heard.
• Normally the application will be ex parte,
which means that one party applies without
giving notice to the other side for if the other
party did have notice, they could move the
assets.
• In The Due Process of Law (1980) Lord
Denning described the Mareva injunction as
"The greatest piece of judicial law reform in
my time".
• Anton Piller Orders
• In 1974 the High Court started to grant
what later became known as Anton
Piller orders. This is an order to a
defendant to allow the plaintiff on to the
defendant's premises to inspect, copy
or remove documents or other objects
relating to the plaintiff's property.
• The aim is to stop the defendant
removing or destroying vital evidence.
The defendant may refuse entry, but
such action would be regarded as
contempt of court, for which the
defendant could be sent to prison.
Once again it is an ex parte application.
The use of such orders was confirmed
in the following case.
• In Anton Piller v Manufacturing
Processes Ltd [1976] Ch 55, the
plaintiffs made electrical equipment
and employed the defendants as their
agent in the UK. They suspected that
he was selling their technical drawings
to competitors and so applied for an
order..
• The court held that an ex parte
mandatory injunction would be
granted, to the effect that the plaintiff
could enter the defendant's premises
and inspect relevant documents.
• These orders have been used for
breach of copyright, passing off and
matrimonial disputes
• THE SUBJECT-MATTER OF EQUITY
• It may be helpful to the understanding
of equity to list the subjects which
should properly be included within it.
No list can be exhaustive. However, the
following matters are assigned to the
Chancery Division by the Supreme
Court Act 1981:
• *
• The sale, exchange or partition of land,
or the raising of charges on land;
* The redemption or foreclosure of
mortgages;
* The execution of trusts;
* The administration of the estates of
deceased persons;
• Bankruptcy;
* The dissolution of partnerships or the
taking of partnership or other
accounts;
* The rectification, setting aside or
cancellation of deeds or other
instruments in writing;
*
• Probate business, other than non-
contentious or common form business;
* Patents, trade marks, registered
designs or copyright;
* The appointment of a guardian of a
minor's estate;
* All causes and matters involving the
exercise of the High Court's jurisdiction
under the enactments relating to
companies.
• Customs (See Chapter 10 of Antoine’s
text):
– Arise out of the social mores and practices
of a people.
– Evolve overtime
– Not recognized as laws until they are
settled by judicial decision. The party that
pleads a customary rule must prove it.
• The tests to followed:
– Antiquity – the custom must have existed from
time immemorial
– Continuance – the custom must have existed
continuously, without interruption
– Peaceful enjoyment – the custom must have
existed peaceably, by common consent or
without opposition. Must have come into force
with consensus. It could not have been
forced, nor evolved by secret or by licence.
– Mandatory - it must be obligatory
– Certainty and clarity – must be clear in all respects/
capable of being defined precisely
– Consistency – customs must not be contradictory
– Must not be unreasonable
– See Antoine’s text for her discourse on the operation
of customs in the Commonwealth Caribbean i.e
customs and land ownership, west indian chattel
houses, customs and succession
• Generally, where the common law fails to
do just as a result of it inability to consider
the social norms and needs of society at
large, custom is a good source of law to
look to.
• Nevertheless Antoine sees the existing
rules of customary law as inadequate to
address the needs of the west Indian
society. (See Antoine’s text)

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INTRODUCTION TO LAW AND

LEGAL SYSTEMS IN THE

W.H Auden in his work “Law is Like Love”

“Law, says the Judge as he looked down his nose,

• However, in more modern times, Law has been defined

• See Chapter 3 of Antoine’s text

The Socialist Legal Tradition/ System

• Unlike England which operates under parliamentary

• The constitution is the supreme law and all other laws

• Under Chapter 2 of the Constitution, persons born in Jamaica and

• Orders in Council from the prerogative-

• The decision or judgment of a judge may fall into two

• RATIO DECIDENDI - The ratio decidendi of a case is

• The binding part of a judicial decision is the ratio decidendi. An

• A persuasive precedent is one which is not absolutely

• In the mid-nineteenth century the House of Lords

• THE DEVELOPMENT OF EQUITY

Petitioning the King

• Rivalry between the Courts

• The Court of Equity (or Chancery)

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