Essay: Law, the constitution, judicial precedent, common law & the courts

Law is defined as a set of legal rules within a state the breach of which can result in a punishment by the state of a citizen. It is said that the enforcement of these rules are designed to regulate human conduct within that state. It should be noted that laws may vary from state to state but ultimately each state has enforces laws to regulate their society.
As a citizen of Great Britain there are certain fundamental rights and freedoms which you can insist upon. However, in order to enjoy these rights and freedoms you may impinge upon the rights and freedoms of others. For example you have the right to assemble but you and a crowd of friends assemble outside of a nursing home talking and laughing loudly which may create a nuisance to the residents of the home; therefore you have exercised your right to assemble but created a nuisance to the business owner. As such, the government may implement laws to ensure that each citizens’ right is protected and that the vulnerable are not exploited.
Morality is defined in the Miriam-Webster Dictionary, “ a rule or group of rules conceived as universal and unchanging and as having the sanction of God’s will, of conscience, of man’s moral nature or of natural justice as revealed to human reason”. Morality essentially looks to man’s will and/or conscience for direction rather than the law.
It is often said that the Law developed out of the biblical rules on what is right and wrong where some see law and morality as two sides of the same coin and where the morals of citizens of the state are thought to be enough to police the state while others argue that morality has no place in the law and should only ever be considered in instances where it would cause a general public nuisance. Murder is one instance where law and morality meet in the middle as it is condemned in biblical rules, the law and man’s conscience. Adultery however, is frowned upon by moral rules but is not illegal and is unenforceable by the law, unless of course it is cited as the reason for a dissolution of marriage.
It should be noted that as a society changes so to does its morality, where some acts which were previously illegal are now legal but those acts are still found to be abhorrent to some sections of our society. Examples of acts which are still subject to debate are abortion, homosexual acts between consenting adults and same sex marriage all of which are legal but which some members of the society are vehemently against.
The constitution is considered as one of the most important legal sources in the Commonwealth Caribbean. This is so for two reasons.
The first reason is represents an indigenous source of law, is a true manifestation of the political will of the people represents a symbolic break with our colonial masters. It is believed that written constitutions in the Caribbean only blossom as post independent entities. The other reason for the constitution being considered as one of the most important legal sources in the commonwealth Caribbean is because of its adherence to constitutional supremacy, rather than parliamentary sovereignty as currently prevails in the United Kingdom.
While in its current form the constitution may be considered an example of legislation, another legal source, it must be distinguished from ordinary leglislation because of its importance to the philosophical orientation and authority.
The constitution can be defined as a body of law containing the written rules which determine the direction of the state, this includes the manner in which the state is organized and the body of fundamental principles according to which the state is governed. It represents the authority from which the rule of law originates and derives its validity/authority. It may be described as the Grundnorm or the basic norm of the society from which all other norms evolve. It is the parent law to which all other laws are measured and is the supreme law of the land.
In the case of Collymore v AG it was stated that, “no one, not even Parliament can disobey the constitution with impunity.
The constitution therefore is the ultimate source of power as it defines citizen’s rights and shapes the legal and political system. It is the constitution which lays down mandatory procedures for government, is the foundation for judicial review, outlines the basic human rights and allows for avenues of redress for violations of these basic rights and also allows for remedies.
Functions of the constitution include, the creation and establishment of state institutions and the distributions of the functions of the state; granting authority to make laws, defines the states territory; and provides the legitimacy to the state through the existence of an independent body of law which regulates the state. The most important function of the constitution, however is the protection and definition of its citizens fundamental human rights.
It should be noted that all other sources of law are measured against the constitution. It is therefore the yardstick against which the validity and authority of the law is measured.
The constitution contains the preamble, which sets out the constitution supremacy clause, which states the constitution is the supreme law of Barbados and is subject only to its own provisions, as any law inconsistent to it will be declared void, it also contains chapters on citizenship, outlines the fundamental rights and freedoms; defines the power of the head of state, establishes the executive, establishes and outlines the public service, has chapters on finance and outlines the statutory power giving parliament the power to make law for peace order and good governance.
It should be noted that the constitution contains provisions entrenchment. Some of these provisions may not be altered except by a referendum or a special majority of parliament, that is a 2/3 majority. See the case of Hinds v R (1966) where the Court noted the significance of entrenchment and took the position that the purpose of these provisions which are considered important may not be changed without mature thought from Parliament or a large portion of its members.
A significant contribution of the constitution to the development of the legal system is the testing of the validity of other laws and legal sources as the consititution is the rule of law.
This testing mentioned above is carried out by judicial review. This judicial review is important as it determines the importance and validity of ordinary legislation. This ordinary legislation is measured against the constitution and any portion which offends the constitutional norm is considered ultra vires, acting outside its powers. If legislation does not conform to the constitution it is considered null and voice and struck off the books. Where leglislation conforms with the constitution it is considered intra vires. These two concepts of intra and ultra vires are considered important in understanding how the constitution can invalidate or validate ordinary legislation as a legal source.
The constitution validates other legal sources and gives parliament and the legislature the authority to make law. It is this power by which the state is allowed to sign international treaties.
The constitution therefore is of primary importance in the growth and development of legal sources in Barbados and by extension the legal system in the Caribbean commonwealth.
Judicial precedent.
The doctrine of judicial precedent was developed early in the English common law courts and refers to the practice of referring to previous decisions and arguing by analogy to the present case in order to arrive at a solution to the current problems in the present case.
It should be noted that both judges and lawyers refer to previously decided cases in order to finda solution of the case before them.
A case is made up of two components, the facts and the decision. The facts of the case is the story alleged by the defendant and the plaintiff in support of their contention and it is upon these facts that the judge must come to a decision or find the facts of the case by applying certain legal rules to decide the case. There are three major aspects of the judge’s decision in a case, the decision between the plaintiff and the defendant; the reason for the judge’s findings based on the facts and the judge’s reasons for the legal ruling.
The legal principle upon which the judge places his decision is called the ration dicidendi. It is this part of the case which is binding on judges in a later case. In order for the ratio to be binding , it must be ascertained that the relevant facts of the case are similar to the material facts of the case whose decision is sought to be followed. Also of note to this discussion is the obiter dicta, which when translated loosely means things said in passing. In these instances a judge may make an observation on a point of law other than those covered by the case and these observations on legal principle not part of the ratio decidendi are referred to as the obiter dicta. The obiter dicta should not be discarded as it may contain some important piece of learning in a particular area, in a superior court, and may be of great weight in an inferior court before whom they may be cited.
Precedents are classified as either binding or persuasive. Binding precedents are where a court is bound to follow the ratio decideni of a previously decided case whether it agrees or not. This binding nature of precedent depends upon the position of the court in the legal structure. For example the Court of Appeal is bound by the Caribbean Court of Justice, the court of appeal is bound by the High Court and the magistrate’s court is bound by the high court.
A persuasive precedent is where the decision is not binding upon a court but where respect must be paid to decisions of that court because of its position in a particular legal system. For example a decision in the Trinidad Courts may not bind Barbadian courts however these decisions shouldn’t be discarded especially where the case is being decided in a higher court.
Certain tools used by lawyers and judges when applying precedent are distinguishing, this is a process used by judges in order to avoid following a precedent which would otherwise be binding but the court does not consider that case to be on point, reversing this is where the previous decision was reversed on appeal on a point of law or the decision of the lower court is set aside, overruling where a case is overruled where in a later and separate case the higher court decides a similar case applying a different legal principle where the higher court believes that the lower court wrongly applied a principle of law, disapproving this is where in a later case the court gives an opinion that an earlier case was wrongly decided without overruling the earlier decision.
Some of the advantages of judicial precedent are certainty, that is the courts are bound by the previous decision of a higher court because it is compelled to do so, flexibility, the law allows for the court to extend the principle to a different set of facts and growth with the flexibility offered because of distinguishing it allows growth in the law as a single principle may be applied to different facts.
Some of the disadvantages of judicial precedent are rigidity in that a judge may be compelled to apply a precedent he does not agree with, complexity because of distinguishing there may be a case of various ratios decidendi being applied to different cases in circumstances where the facts are similar and uncertainty there may be several precedents with fine distinguishing elements and it creates uncertainty as to which decision a court is likely to follow.
Common law
Prior to 1066 there existed primitive system of law. There was no unified legal system and no central government as we know it today. There existed instead three fairly distinct legal systems.
These legal systems were the Danish, which were adopted after the Viking invasion, the median law, which followed in the saxon invasion and the wessex which was applied in the south and west.
Prior to 1066 the population was small and divided into shires which were sub-divided into hundreds and the hundreds into villas. It should be noted that there was a court for each shire and hundred.
The shire court was presided over by the sheriff, the bishop and the eldorman and sat twice a year. The Hundred court was presided over by the hundredmen and assisted by 12 senior thanes. This court had jurisdiction only over the local area and dealt with humbler matters than those occupied the attention of the shire courts.
Local customs were applied in these courts and these customs varied from area to area. At that time the law was local and consisted of dooms which were codes applied by the anglo/saxon kings. The dooms were not common and dealt with public law and such things as fines and methods of proof. It should be noted that there was little distinction between criminal and civil wrongs at that time and the procedure of proof was primitive. Trials at that time were adjudicated by ordeal or compurgation.
In 1066 William of Normandy gained the crown of England and began to rule using existing institutions. However, gradually a cental system of courts took over and the local courts dwindled into decay over a period of time. It should be noted that William and his successors were efficient administrators and established a strong central government at westminister. This was achieved the appointment of a body of advisors which comprised barons and lords and were know as the curia regis or magnum concilium.
As a result of Williams efficient administration uniformity of law was achieved by the forming of a central control where by representatives of the king were sent out from westminister to all parts of the country and made representatives made records of land and wealth. In the course of time the function of the representatives became judicial rather than administrative and came to be known as itinerant justices. These itinerant justices derived their authority from the king’s command by Royal Commissions. These commissions were divided into three types goal delivery which allowed these justices to try all person found in goals, oyer and terminer which allowed judges to try all serious criminal cases since their last visit and the assize which allowed judges to try civil cases otherwise tried in the royal court.
During the early years itinerant judges applied local customs. When they visited they ascertained the customs of the local court and applied those customs of law. On completing their circuit the returned to the Royal courts and discussed the merits of the different customs discovered. It is through this method that they came to agree on certain customs that they formed a uniform patter of customary law which they applied throughout the entire country. Thus was developed the body or rules common to the whole of England and came to be known as the common law.
During this period an important practice grew up that of stare decisis, let the decision stand and whenever a new problem came up the rule was followed by subsequent judges. Cases became more certain and predictable and acquired the character of a legal system. So out of the varied customs there came about the common law of England because it was common to all parts of England. It is unwritten and considered the universal custom of the realm.
As the common law developed one key implement was the writ system.
At common law civil cases where commended by the plaintiff purchasing a document known as a writ from the writ office. These writs were formal documents which commanded the defendant to do some act by giving effect to the plaintiff’s right or to attend court to explain why not.
There was in place a different writ for each cause of action. A cause of action only existed if there was an existing writ on the register. There were only a limited number of writs and where there was no writ suitable to the plaintiff’s circumstances he could not go to court to get a remedy. Thus the write system dominated the civil law for ubi rmedium ibi jus, where there was not remedy there was no right. It should be noted that if the Plaintiff selected the wrong writ his matter would be dismissed from court.
In an effort to assist the Clerks in the writ office tried to assist by creating new writs. However, this practice was frowned upon the judges who refused to accept new writs.
It is against this backdrop that equity developed. Equity was considered as a gloss to the common law. It means fairness and to some extent conscious.
The common law was a complete system of law and provided remedies in the form of damages, however these remedies were not always adequate and equity developed to remedy the defects and harshness of the common law.
Some of the defects of common law was the limitation on the number of writs which were available, the court lacked jurisdiction, the common law did not provide remedies in instances where the person wanted to prevent someone from infringing on their rights and the limitation on the creation of new writs.
In instances where the common law was found to be defective persons would apply to the king for remedies. As the volume of work increased these cases were handed over to the Lord Chancellor as the keeper of the kings conscious.
The procedure for equitable applications was that once the chancellor received the application he would subpoena the defendant to court and was required to then right the wrong which existed by clearing his conscious. If the defendant did not then they would be placed in prison until they did. Thus equity was said to act in personam and not in rem.
Some of the equitable remedies include injunction, recission, rectification and specific performance.
At first there was no conflict with the common law, however conflict began to raise its head as in some instances the common law court would grant a remedy and the court of equity would grant an injunction preventing the party from executing their remedy.
As a result of the Earl of Oxford’s case it was advised that where equity and common law conflicted that equity must prevail. The maxims of equity show that equity is meant to deal with fairness thus, he who comes to equity must come with clean hands or he who seeks equity must do equity.
There also developed some criticism of equity where decisions changed from Lord Chancellor to Lord Chancellor and it was said that the equity varied by the length of the lord chancellor’s foot.
Both common law and equity contributed to modern English law, with common law responsible for contract law while equity was found to responsible for the creation of mortgages.
The Courts
A Magistrate’s Court usually comprises Magistrates, known as Justices of the Peaches (JPs). A Court Clerk sits with the JPs to advise them on law and procedure. In some areas, usually in large Metropolitan Towns, a District Judge, or paid professional sits instead of JPs. All cases start in Magistrate’s Courts. Magistrates Courts deal with summary offences, which are the least serious criminal offences. They also deal with plea before venue or either way cases, i.e. those that can be tried in Magistrates’ Courts or the Crown Court, and not guilty trials on either way offences that are suitable for summary trial if the defendant does not elect to be tried by a jury.
Youth Courts are special Magistrates’ Courts which deal with all but the most serious charges against people aged between ten (the age of criminal responsibility) and under 18. JPs are specially trained to sit in Youth Courts.
Crown Court Centres deal with indictable offences, the most serious offences, which are trial by Judge and Jury.
Crown Courts are found at around 90 venues, in six regional areas called circuits.
They are presided over by High Court Judges, Circuit Judges and part-time Recorders. The type of Judge who presides over a case with a Jury depends on which the Crown Court the case is heard at.