Sources of Law
3/25/2010
Every lawyer needs to know where to find the Law, in relation to a particular issue, when he needs it. Hence, it is vital for the lawyer operating in a specific legal system to know what the sources of law are in that system.
1
3/25/2010
Material Sources of Law Formal
Historical Legislation Case-Law Custom
Legislation
A body of binding rules of Law
Constitution
Primary Legislation
Subsidiary Legislation
2
3/25/2010
THE CONSTITUTION
3
3/25/2010
Supreme Law of the Land Section 2 of the Constitution:
“This Constitution is the supreme law of Mauritius, and if any other law is inconsistent with this Constitution, that other law shall, to the extent of the inconsistency, be void.”
The Supreme Court is the guardian of the Constitution It is empowered to strike down any enactment that is unconstitutional e.g. Mahboob v Govt of Mauritius (1982) MR 135
The Constitution organises the institutional life of the state by creating the most important institutions of the State, together with the framework for their effective co-existence. It embodies the concept of “Separation of Powers” by setting out the functions of the 3 organs of the State. It enshrines a Bill of Rights to safeguard basic human rights of the individual in its Chapter II
4
3/25/2010
The supremacy of the Constitution however is not absolute. It may be amended with the support of a “qualified majority”. Section 47 of the Constitution permits the National Assembly to alter the Constitution.
(1) Subject to this section, Parliament may alter this Constitution. (2) A Bill for an Act of Parliament to alter any of the following provisions of this Constitution (a) this section; (b) sections 28 to 31, 37 to 46, 56 to 58 other than 57(2), 64, 65, 71, 72 and 108; (c) Chapters II, VII, VIII and IX; (d) the First Schedule, and (e) Chapter XI, to the extent that it relates to any of the
Every lawyer needs to know where to find the Law, in relation to a particular issue, when he needs it. Hence, it is vital for the lawyer operating in a specific legal system to know what the sources of law are in that system.
1
3/25/2010
Material Sources of Law Formal
Historical Legislation Case-Law Custom
Legislation
A body of binding rules of Law
Constitution
Primary Legislation
Subsidiary Legislation
2
3/25/2010
THE CONSTITUTION
3
3/25/2010
Supreme Law of the Land Section 2 of the Constitution:
“This Constitution is the supreme law of Mauritius, and if any other law is inconsistent with this Constitution, that other law shall, to the extent of the inconsistency, be void.”
The Supreme Court is the guardian of the Constitution It is empowered to strike down any enactment that is unconstitutional e.g. Mahboob v Govt of Mauritius (1982) MR 135
The Constitution organises the institutional life of the state by creating the most important institutions of the State, together with the framework for their effective co-existence. It embodies the concept of “Separation of Powers” by setting out the functions of the 3 organs of the State. It enshrines a Bill of Rights to safeguard basic human rights of the individual in its Chapter II
4
3/25/2010
The supremacy of the Constitution however is not absolute. It may be amended with the support of a “qualified majority”. Section 47 of the Constitution permits the National Assembly to alter the Constitution.
(1) Subject to this section, Parliament may alter this Constitution. (2) A Bill for an Act of Parliament to alter any of the following provisions of this Constitution (a) this section; (b) sections 28 to 31, 37 to 46, 56 to 58 other than 57(2), 64, 65, 71, 72 and 108; (c) Chapters II, VII, VIII and IX; (d) the First Schedule, and (e) Chapter XI, to the extent that it relates to any of the