TOPIC 5: SOURCES OF LAW AND CLASSIFICATIONS OF LAW

Question 1

POSITIVISM(S)

Answer 1

 Positivism is complex and abused term
 Legal positivism : defines what counts conceptually as law

Can be pragmatic/reasonable and focus on positive or posited laws
o Laws laid down
o Laws created be people ( in contrast to ideas of natural law or divinely –mandated law)

Question 2

POSITIVE LAWS

Answer 2

These include:
o	Constitutions 
o	Legislation
o	Subsidiary legislation 
o	Customary laws 
o	Common laws and case law

Question 3

1. Legislation

Answer 3

Refers to laws enacted enacted by the legislature (lawmaking power)

Question 4

1.1 Sources of Pacific Legislation:

Answer 4

1. Foreign Legislation: belonged to colonial power but has been adopted or applied
2. Locally enacted legislation, some made during colonial rule and others after independence

Question 5

2. Subsidiary legislation

Answer 5

Refers to laws authorized by legislation - parent legislation - to be made by persons or bodies with regard to some matters that are not dealt with fully in legislation.
Usually published together with legislation.
aka: Subordinate legislation, delegated legislation or statutory instrument.

Question 6

2.1 Types of Subsidiary referred to in practice:

Answer 6

Orders
Regulation 
Bylaw 
Ordinance
Proclamation

Question 7

3. TH E INVALIDITY OF LAWS

How can laws be considered invalid?

Answer 7

Any law inconsistent with the Constitution, is void to the extent of inconsistency.

Question 8

3.1. Constitutional review/Judicial Review

Answer 8

Judicial review - courts have the final say in Constitutional review and has the power to overrule legislation that doesn’t comply with constitution.

Question 9

3.2 Case Study: State vs Balelala - Judge overruled laws on Corroboration of evidence in related to rape cases, to the extent that it violated/breached the rights of women in accordance to principles of CEDAW.

Answer 9

The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) used to support and justify a Court’s decision to remove the corroboration warning requirement for evidence of victims of sexual violence on the ground of gender discrimination, which was prohibited in the Constitution of Fiji.

Question 10

3.3 Invalidity of subsidiary legislation

Answer 10

Can be invalid if inconsistent with authorizing/parent legislation

Question 11

Rules of consistency:

Answer 11

Must be:
intra vires = within powers and not
Ultra vires = outside powers

Question 12

CUSTOMARY LAW in the Pacific and USP countries recognition of Customs

Answer 12

Refers to practices or usages that are normative.

Most USP countries recognize customary law especially in regards to land ownership and use; whilst some may not recognize customs in law its importance remains meaningful in pacific society

Question 13

Challenges of Customs:

Answer 13

• Conflicts with human rights
• problems with standard of proof
• no rules of evidence
• reciprocate
• orally passed
• informal
• lacks precedence

Question 14

THE FOUR MAIN APPROACHES OF LEGAL RECOGNITION OF CUSTOM:

Answer 14

1. Constitutional recognition of custom as source of nationals laws
2. Constitutional recognition of custom as a source of law but not to be prescribed by (yet to be enacted) legislation
3. Legislation has provided for the application of custom related to specific subject matters by civil and criminal courts (PNG, SOLOMON ISLANDS, KIRIBATI, TUVALU)
4. Constitutional or legislative recognition of cutsoms for specific purposes such as customary land tenure, role of chief, or pleading of customs as a mitigating factor in the sentencing process.

Question 15

1. Constitutional recognition of custom as source of nationals laws

Answer 15

• Solomon Islands Constitution 1978 (Schedule 3 - Application of laws)
• Vanuatu Constitution 1980 (art 95)

Question 16

2. Constitutional recognition of custom as a source of law but not to be prescribed by (yet to be enacted) legislation

Answer 16

Underlying Law Act 2000 - recognition as a source of law.

Cook Islands 1965 (art 66a (1) )

FSM Constitution 1978 (Article V - Traditional rights, Section 1)

Marshall Islands Constitution 1979 (Article X) Traditional rights, section 2 - Declaration of the Customary law (1)

Question 17

3. Legislation has provided for the application of custom related to specific subject matters by civil and criminal courts (PNG, SOLOMON ISLANDS, KIRIBATI, TUVALU)

Answer 17

PNG CUSTOMS RECOGNITION ACT CAP 19 (1963)
- provides for recognition of customs by the court in connection to certain topics stated in the Act. Also provides proof of pleading of customs as a mitigating factor in the sentencing process.

Question 18

4. Constitutional or legislative recognition of customs for specific purposes such as customary land tenure, role of chief, or pleading of customs as a mitigating factor in the sentencing process.

Answer 18

Vanuatu Criminal procedure Code Cap 136, section 199. Account to be taken of compensation by customs.

Samoa Constitution 1962, section 100 - matai titles

Republic of Marshall Islands Constitution 1978, article X - section 1 traditional rights of tenure land preserved

Question 19

COMMON AND CASE LAW in the Pacific
definition?
roles?
institutions that use this law?

Answer 19

• laws made by judgments
• In USP countries, common law – as well as Equity – was maintained, through:
  o A cut-off date usually applies to reflect that the English law and precedents were no longer in force
  Limitations:
  o There is often a requirement of ‘suitability to local circumstances’ (often ignored in practice)

Question 20

Common law development: Past

Answer 20

Historically, courts of common law used written Roman law, it was more reliant on judicial development of law through reasoned opinions expressed in law reports, as a result case law is often called common law
Limitations:
- case law was traditionally only persuasive,
- was to difficult to follow because it was inaccessible
- didn’t provide motivation for decision

Question 21

Common law development: Present

Answer 21

1. Creation of a clear judicial hierarchy
   improvements in law reporting, made it possible for some case laws to be treated as binding
2. introduction of moder ‘stare decisis’
   
   • (let the decision stand) is a strong type of precedent in which a single decision of a court will bind lesser courts
3. Common law merged with equity

Question 22

THE HIERARCHY OF LAWS

Answer 22

1. Constitutions
2. Legislations
3. Subsidiary legislation
4. Custom or customary law
5. (Applied and adopted) Common law is problematic as explained above
6. Local case law is complicated, as it may be binding, but may also be more-or-less persuasive; even where its ranked below other laws, judicial interpretation and application of laws remains extremely important
7. Persuasive (or secondary) sources can also doctrine (legal scholarship); this are probably more important the harder is it to access laws

Question 23

CLASSIFICATIONS OF LAW

1. May be divided according to the extent of the geographical or political area to which they apply;

Answer 23

o International law: operates outside a country. Its rules regulate relationships between states (public law) or relationships between individuals (private international law)
o Domestic law: operates within a country, i.e. national, regional ( state, province, or district) or local sub-district, shire, municipality, city or town)

Question 24

2. May divide laws according to origin:

Answer 24

o Anglo-american or Common Law (Originally based on English Law
o Custom or customary law (based on unwritten indigenous customs, traditions and practices)
o and introduced law (derived from legal traditions)

Question 25

DOMESTICALLY WITHIN A STATE : PRIVATE and PUBLIC LAW definition? roles? institutions that use this law?

Answer 25

1. Private law or Civil Law is concerned with matters relating to private individuals( eg: contracts, families, land)

Question 26

PUBLIC LAW definition? roles? institutions that use this law?

Answer 26

 Public law is concerned with matters relating to the state (eg: constitutional law and administrative law)  State v Wapulae, violation of Division 3 PNG Constitutional human rights (Life, freedom of movement, fair trial)  State v Beng  The STATE vs BALELALA (2004) FJCA – Judicial review and overrule of Corroboration laws in relation to Rape offences. Violated CEDAW principles,

Question 27

``` CLASSIFICATION OF INTERNATIONAL LAW: Private International law & Public International law definition? roles? institutions that use this law? - Ordinary Supreme Courts ```

Answer 27

Private international law (Conflicts of law) regulates the relationships between people or bodies of different countries o Laws on Extradition Treaties

Question 28

``` 2. Public International law definition? roles? institutions that use this law? - International Criminal Court - International Court of Justice - Ordinary Supreme Courts ```

Answer 28

Public international law regulates the relationship between independent countries or states. It includes treaties, as well as international customs and is enforced by international courts, tribunals, and arbitrators. o UDHR  State v Wapulae, violation of Division 3 constitutional human rights (Life, freedom of movement, fair trial) o CEDAW - elimination on discrimination against women,  The STATE Vs BALELALA (2004) FJCA – Judicial review and overrule of Corroboration laws in relation to Rape offences. o CROC - rights of the child is paramount

Question 29

BASIC CLASSIFICATIONS: Substantive law v Procedural law definition? roles? institutions that use this law?

Answer 29

1. Substantive law  Provides the content (substance) of legal rights or obligations before the law 2. Procedural law  Provides the procedures by which legal rights or obligations can be determined and enforced

Question 30

CIVIL vs CRIMINAL definition? roles? institutions that use this law?

Answer 30

1. Civil law/ private law related to relationships between individuals and liability for civil claims 2. Criminal law regulates conduct punishable by the state

Question 31

PROCEDURE AND EVIDENCE definition? roles? institutions that use this law?

Answer 31

1. Procedure law is usually contained in enacted law and follows the civil/criminal division in substantive law, i.e. o Civil procedure regulates civil proceedings (often made by a Chief Justice under powers given by legislation) o Criminal procedure regulates criminal proceedings (usually in legislation)  The law of evidence regulates the evidence that can be produced in legal proceedings, o

Question 32

2. EVIDENCE definition? roles? institutions that use this law?

Answer 32

The law of evidence regulates the evidence that can be produced in legal proceedings; i.e. such matters as relevance, admissibility and reliability of evidence, and the competence and compellability of witnesses o these laws are often partly legislative, partly judicial

Question 33

CONTRACT, TORT AND PROPERTY LAW definition? roles? institutions that use this law?

Answer 33

1. Contract law concerns agreements made between people or bodies who have legal capacity to do so 2. Torts involves civil wrongs committed when one person causes injury, damage or loss to another in circumstances the courts consider should require him to pay damages for compensation 3. Property law is about the ownership, use and transfer of property. Its usually divided into two, with different requirements:

Question 34

FAMILY LAW definition? roles? institutions that use this law?

Answer 34

1. FAMILY LAW o Concerned with the law relating to births, deaths, and burials, marriages, nullity of marriage, divorce or dissolution of marriage, the custody of children, and the rights to property of a marriage o In some countries marriages are permitted to be undertaken in accordance with custom, o But most other aspects of family law are regulated by legislation and case law

Question 35

2. BUSINESS OR COMMERCIAL LAW definition? roles? institutions that use this law?

Answer 35

o Is concerned with those matters of particular importance to business or commerce, especially such things as companies, partnerships, agencies, bills of exchange, and sale of goods. Most of this law is enacted law ( i.e. legislation)

Question 36

3. Criminal Law definition? roles? institutions that use this law?

Answer 36

3. Criminal Law | o Is the law that determines what conduct is punishable by the State. In most countries this is enacted law.

Question 37

CONSTITUTIONAL LAW definition? roles? institutions that use this law?

Answer 37

o Made up of rules that regulate the power and relationships of the main organs of the State: Head of state, government ministers, ministries and Departments, public service and courts) o Most of these rules are contained in a constitution (and its interpretation by appropriate courts), o But some are also provided in statutes and some by convention or tradition

Question 38

Administrative law definition? roles? institutions that use this law?

Answer 38

o Is mainly concerned with rules regulating the relationship between the agencies of the state and private individuals o In particular, such rules define the limits of the powers of the state agencies, and control the way those powers should be exercised within those limits o Most of those rules have been developed by the courts, relatively few are contained in enacted law.

Question 39

REVENUE LAW definition? roles? institutions that use this law?

Answer 39

o Is the body of law that determines what revenues or monies the government can require people to pay it finance its operations and other activities it is supporting o This category of law is entirely contained in enacted laws 

Question 40

PLANNING LAW definition roles? institutions that use this law?

Answer 40

o Is concerned with land planning. o It is applied especially in urban areas, where many people live and work close together so are more likely to interfere with each other’s activities and spoil each other’s environment.