Sources of Law

Methods by which the laws were created.

 Common Law
 Constitution
 Legislation

Common Law (Case Law/Judge-made Law)

 Body of rules developed overtime by judges during resolving disputes.

 It is developed on a case by case bases.
 In each case the court builds on the principles stated in the previous case.
 Its principles apply when there are no statutes to govern

NB Central to the doctrine of stare decisis (Latin) or judicial precedent (Same thing as Stare decisis)

This allows the judge to look to previously decided cases on the SAME issue to find the relevant law,
upon which to base his/her decision.

The two types of Stare decisis

 Binding Precedent
 Persuasive Precedent

Binding Precedent

These are principles in a case that a judge must follow

NB Courts are not bounded by laws of a lower court it must be from a higher court.

Persuasive Precedent

These are principles that merely offer guidance, the judge may refer to them but he/she isn’t bound
to follow them. These may originate from lower courts or courts in other jurisdictions.

The degree of persuasiveness will depend on a number of factors, including: the jurisdiction the case
comes from, status of the court (higher or lower), date of the decision (how current), reputation of
the judge.

Courts may avoid precedents in certain cases:

 Overruling decisions – a decision may have been overruled by statutes or by a higher court.
Judges are not bounded by overruled decisions because the court will take the view that the
law has changed since that case was decided
 Distinguishing Precedent - this may not be applied if it can be distinguished from the facts.
Distinguishing a precedent, a court must point to a material difference in the facts of the
precedents and the facts of the case currently before the court. Eg. One cannot use voice
recordings when the identification was based on visual evidence.
 Reversing a Decision- a previous decision has been reversed eg. An appellate court has
applied the same principles of law and have arrived at a different conclusion.

Adv. & Disadv. Of Precedents

Adv. Legal certainty and assists the legal decision-making process

Disadv. Creates rigidity within the legal processes, therefore, important legal changes might not take
place.

Constitution

This is the document which establishes the structure, procedures, powers, and duties of a
government, it also guarantees certain rights to the citizen.

NB Commonwealth Caribbean Constitutions are based on the British Westminster model but have
been modified to suite their content.

Key features of our constitution include:

 Codification- Codified Constitution is one that is written in a single document which is the
single source of constitutional law in this state.
NB UK does not have a codified constitution

NB the constitution is higher than any other law (supreme law of the land). Anything that
challenges the constitution will be declared void.

Adv. It is simpler to read and easily understood

 Supremacy - any law that challenges the constitution will be void

 Amendment Procedures- Extraordinary procedures are required for constitutional
amendments. In the Jamaican context:
- Simple majority – 50% of the vote + 1. This can give u the means you need to amend
the constitution.
- Special majority – this is when you receive 2/3 of the votes
- Special majority + a Referendum- 2/3 + votes
 Separation of powers doctrine- Constitutions usually divide power between various
branches of government, the standard model involves the three main branches of
government.

Safeguarding judicial independence

Constitutions usually have safeguards for judicial independence. Provisions are in place to protect
the judges (see chapter 7 of the constitution)

Provisions

 Independent Appointment Process – the chief justice and president of the court of appeal
shall be appointed by the governor general, acting on the recommendation of the prime
minister after consultation with the leader of the opposition. The other judges are
appointed by the governor general on the advice of the judicial services commission.
 Security of tenure- no office of judge of the supreme court or of the court of appeal shall
be abolished while there is a judge holding that office (job is secure). A judge usually holds
 office till the age of 70. However, a judge can continue in office beyond that age with the
governor general’s permission to complete cases that he/she has started.
 Termination - a judge can only be removed from office by the governor general after the
judicial committee of the privy council (JCPC) has advised that the judge should be
removed. A judge maybe removed from office only for in ability to carry out the functions
of the office due to illness (physical or mental) or any form of misbehaviour.
 Remuneration (salary)- their salaries shall not be altered to his/her disadvantage while
holding office.

NB Judges enjoy judicial immunity, they are protected from liability for anything done or said while
in office in the capacity of a judge.