Module 2: Sources of Law
Module 2 asks where legal rules come from and, more heavily, how sources rank and interact when they conflict. Expect problem questions forcing a choice between statute, precedent, equity and the constitution.
Hierarchy
Constitution > legislation (and delegated legislation validly made under it) > common law and equity, with equity prevailing in a conflict > custom. Treaties bind the state internationally; in dualist Commonwealth Caribbean systems they create domestic rights only when incorporated by legislation.
Constitution
The supreme law: inconsistent legislation is void to the extent of the inconsistency. Entrenchment requires special majorities, sometimes referendums, so ordinary statutes cannot override it. Courts construe it purposively and generously.
Legislation
Acts dominate: they override precedent, codify, consolidate and repeal. Presumptions work against retrospectivity and against removing common law rights without clear words; a later inconsistent statute impliedly repeals an earlier one. Delegated legislation - regulations, rules, orders, by-laws - is made under an enabling Act for speed, flexibility and expertise. Parliamentary controls are affirmative or negative resolution and scrutiny committees; judicial control is review for ultra vires (substantive, procedural, unreasonableness), and the court cannot amend the instrument.
Precedent
Stare decisis: the ratio decidendi of a superior court in the same hierarchy binds; obiter dicta merely persuade. Courts distinguish on material facts, overrule (higher court), or hold a decision per incuriam. Decisions outside the hierarchy - including Privy Council appeals from other territories - are persuasive only.
Equity and custom
Equity cured the rigidity of the common law (limited writs, damages as of right) and supplies maxims plus discretionary remedies: specific performance, injunction, rescission, rectification. A custom must be ancient, continuous, certain, reasonable, consistent and not contrary to statute, and the person asserting it must prove it.
Worked example
A High Court must decide whether a doctor owes a duty to a patient's companion. The local Court of Appeal decided the point in 1996; the Privy Council, on appeal from another state, decided otherwise in 2010; the CCJ is this state's final court and has not ruled. Reasoning: the 1996 decision binds - same hierarchy. The 2010 decision is persuasive only, being from another hierarchy. A CCJ ruling would bind once given. The High Court can escape the 1996 case only by distinguishing it on material facts, and must identify the material difference.
Traps
- Treating obiter dicta as binding or ignoring the ratio/obiter distinction.
- Assuming every Privy Council decision binds every territory.
- Applying a treaty directly without implementing legislation.
- Forgetting delegated legislation fails if it exceeds its enabling Act.