MAN 3031

BUSINESS,
GOVERNANC
E & SOCIETY
Lecture 1
Created by: Audrey Spencer-Hastings

Updated by C. Hisby - Aug. 2023

Updated by C. Hisby - Aug. 2023
 Today’s Topics

• Definition of Law
• Theories of Law (Natural/Positive)
• Origin of Law (UK, Caribbean, USA)

• Sources of Law
• Types of legal systems – Civil,
Religious, Common
• Constitution
• Legislation
• Interpretation of legislation
• Common Law
• Precedent

Updated by C. Hisby - Aug. 2023

 Activity 1:
Discussion

• “The law affects every aspect of

our lives; it governs our conduct
from the cradle to the grave and
its influence even extends from
before our birth to after our
death.” (Keenan & Richie,
Business Law)

• Examples?

Updated by C. Hisby - Aug. 2023

Concept of law

Law is a Social Science

• Grows and develops with the
growth and development of
society

• New developments in society

create new problems and law is
required to deal with those
problems

Updated by C. Hisby - Aug. 2023

 Definition
• “The law is a set of rules, enforceable
by the courts, which regulate the
government of the state and govern
the relationship between the state
and its citizens and between one
citizen and another.” (Keenan &
Richie)

• “Law is a body of principles recognized

and applied by the State in the
administration of justice” (Salmond,
J.W.)

• Look up other definitions

Updated by C. Hisby - Aug. 2023
 ROLE AND
FUNCTION OF
LAW
• Regulates human behaviour
to achieve a well-ordered and
cohesive society

• Produces conditions
necessary for the
achievement and
maintenance of prosperity
(of whom?)
• Laws are the result of
policy (explain)

Updated by C. Hisby - Aug. 2023

 Object of law

JUSTICE

• Justice operates at two

different levels:
• Distributive justice
serves to secure
balance among the
members of a
community
• Corrective justice
serves to correct the
dis-equilibrium created
by a wrongful act

Updated by C. Hisby - Aug. 2023

 Theories of Law
(how laws
developed)
• Vary according to culture,
race, religion
• Many theories of law
exist. Two common ones
are:

1. Natural Law Theory

2. Positive Laws (John
Austin)

Updated by C. Hisby - Aug. 2023

 • Earliest theory developed in Greece (Heraclitus,
Socrates, Plato, and Aristotle)
• Natural law is defined by Salmond as “the principles
of natural justice if we use the term justice in its
Natural Theory widest sense to include all forms of rightful actions.”
• A person is created free, equal and independent by
taking the concept of Natural law as the individual
right to life, liberty, and security (Locke, Montesque)

Updated by C. Hisby - Aug. 2023

 • In simple terms, Natural Law is a theory
Updated by C. Hisby - Aug. 2023

that says that human beings possess

intrinsic values that govern our reasoning
and behavior. Natural law maintains that
these rules of right and wrong are inherent
in people and are not created by society or
court judges
Natural
Law • Example of natural law in our society is that
it is wrong for one person to kill another
Theory person

• Despite its contribution, however, no

scholar could provide the precise contents
of the natural law. As a result, it was
subjected to criticisms of scholars like John
Austin who rejected this theory and later
developed the imperative called positive
law theory.
Updated by C. Hisby - Aug. 2023

• It has the belief that law is the rule made

and enforced by the sovereign body of the
state and there is no need to use reason,
morality, or justice to determine the
validity of law.

POSITIV • The only things that can be regarded as law

E LAW are those that are enacted as such by the
person/body authorized to do so. The
THEORY definition has the following elements:
• The existence of a definite sovereign –
government lawmakers, courts and
administrative agencies
• The subjects must be in the habit of
obeying him because of his coercive
power to impose sanctions.
Origin of Law - UK

• The English legal system is based on a huge

foundation of over 900 years of law practice
in the United Kingdom.
• This should mean that the legal rules and
working law must have gone through a great
deal of changes. However, this is not so.
• Since 1066, in the rule of King William I, the
Anglo-Saxons were free to follow the existing
laws. It was not until the 1200 in the rule of
King Henry that a centralized system of
common law was established.
• This is the same ‘Common Law’ that very
much prevails in current times.

Updated by C. Hisby - Aug. 2023

 Origin of Law - USA
• The United States and most Commonwealth countries
are heirs to the common law legal tradition of English
law. Certain practices traditionally allowed under English
common law were specifically outlawed by the USA
Constitution, incorporating a number of civil law
innovations.
• All U.S. states except Louisiana have enacted “reception
statutes” which generally state that the common law of
England (particularly judge -made law) is the law of the
state to the extent that it is not repugnant to domestic
law or indigenous conditions.
• The passage of time has led to state courts and
legislatures expanding, overruling, or modifying the
common law. As a result, the laws of any given state
invariably differ from the laws of its sister states.

• stare decisis: The principle of following judicial

precedent.
Updated by C. Hisby - Aug. 2023
Legal System of
USA
• Federalism, as set forth in the US
Constitution, divides governmental power
between the federal government and each of
the states.
• The United States has one federal legal
system, and each state has its own state legal
system.
• Federal laws regulate issues that concern the
entire country and economic activity that
crosses from state to state.
• Federal laws are the same in every state, but
state laws differ from state to state.
Something that is legal in one state may be
illegal in another state.
Updated by C. Hisby - Aug. 2023
 Origin of Law -
Jamaica

• Caribbean law influenced by

history
• Laws of the native Indians
replaced when the Europeans
came. They imposed laws from
their legal systems
• Countries with dual colonizers
had hybrid system (Guyana, St.
Lucia, Martinique)

• Jamaican law derived from England

Updated by C. Hisby - Aug. 2023

 Origin of Law - Jamaica
• Originated in England and in its earliest form was
based on societal customs and norms recognised and
enforced by the judgments and decrees (judgement) of
the courts.

• Over time, the term “Common Law” came to include

these early customs as well as legislative enactments
and the judicial decisions interpreting their application.

• The Common Law system became the law (custom,

statutes and judicial decisions) common to all of
England.

• Jamaica, as does the rest of the Commonwealth

Caribbean, has a Common Law legal system inherited
from England. Updated by C. Hisby - Aug. 2023
 Sources of Law –
Commonwealth
Caribbean
Numerous sources of law exist, including
constitutions, legislatures, executives, judiciaries,
administrative agencies, and international
organizations. Main sources are:
• the Constitution
• legislation
• Interpretation of legislation
• the common law and judicial precedent;
• Equity
• international law, including the law of
regional treaties

Updated by C. Hisby - Aug. 2023

Main Sources of law - UK

• Legislation enacted by parliament (primary

and secondary)
• Case law (Common Law) made by the
courts
• Equity
• International laws

Updated by C. Hisby - Aug. 2023

 Main Sources
of law - USA
• The three main sources of law are
1. Constitution – to regulate
government action
2. Statutory – to regulate
individual or private action
3. case law – to supplement the
law when there is no statute
on point and also to interpret
statutes and the
constitution(s)

• Although it is technically ranked the

lowest, judicial review makes case law
an extremely powerful source of law.

Updated by C. Hisby - Aug. 2023

Sources of law - Jamaica
• The three sources of law are
1. Constitution
2. Legislation
3. case law (common law)

Updated by C. Hisby - Aug. 2023

Common Law: Custom
Uniformity of conduct of all
persons under like
circumstances

• It is observed course of conduct

• It is a rule which has existed from
time immemorial and obtained the
force of law in a particular locality
• When same thing is done again and
again in a particular way, it assumes
the form of custom

Updated by C. Hisby - Aug. 2023

 Common Law - Decisions

• Court decisions are heavily reliant on prior judicial pronouncements

• Under the doctrine of Stare Decisis (latin for “let the decision stand”) courts
in our Common Law system are obliged to follow the decisions and rulings in
previously decided cases, or precedents, where the facts and issues are
substantially the same.
• Court's decision is binding authority for similar cases decided by the same
court or by lower courts
• Not binding on courts of higher rank but may be considered as persuasive
authority.
• Decisions from courts outside of Jamaica are not binding, but may also be
referred to as persuasive authority if there is no local case which has settled
the point in issue

Updated by C. Hisby - Aug. 2023

No Precedent?
• Our Common Law system allows
our judges to look to other
jurisdictions or to draw upon past
or present judicial experience for
analogies, to help in making
decisions in those situations.

• This flexibility enables the courts

to address new situations so that
no worthy litigant is left without a
remedy.

• At the same time the doctrine of

stare decisis provides certainty,
uniformity, and predictability
which promotes a stable legal
environment.
Updated by C. Hisby - Aug. 2023
 Source of Law:
Common Law &
Equity
• The deficiencies resulted in numerous
petitions to the king.
• The Lord Chancellor (the king's conscience)
was eventually appointed as “judge”
• Resulted in two divisions:
• Common law courts and
• Chancery division (Employed rules of
equity)
• The Rules of Equity therefore arose in England
when the strict limitations of common law
would not solve all problems

Updated by C. Hisby - Aug. 2023

 • Equity in law is a legal
system for obtaining a fair
result when existing laws do
not provide a solution
• the set of legal principles
that supplement strict
Source of Law: rules of law where their
application would operate
Equity harshly with maxims of
equity,

• Not to be confused with somewhat

similar principles of
1.Equity in Business
(shares/ownership in a company)
2.Equity in Society
(Fairness/impartiality)

Updated by C. Hisby - Aug. 2023

 The Constitution
• A constitution is primarily a set of rules and principles specifying how a country
should be governed, how power is distributed and controlled, and what rights
citizens possess
• Many nations have been forced to draw up a written constitution in response to a
revolution, war or as a step towards independence.
• It is usually written down and contained within a single document; the UK is
unusual in having an uncodified constitution with many sources.

• The UK constitution is often described as ‘partly written and wholly uncodified’. A

codified constitution is one in which key provisions are collected together in a
single legal document.
• A constitution must have one supreme power over and above all other power in
the state.
Updated by C. Hisby - Aug. 2023
 Legislation

• Legislation is a law or a set of laws that have

been passed by Parliament. The word is also
used to describe the act of making a new law.
• An example of legislation is the rule that bans
the use of plastic bags and Disaster Risk
Management Act.

• Purposes: to regulate, to authorize, to outlaw,

to provide (funds), to sanction, to grant, to
declare or to restrict.

Updated by C. Hisby - Aug. 2023

 • Two types
• Primary legislation(Statutes)
• Made by Parliament The most
Source of important source of law

Law: • Secondary (subsidiary) legislation

Legislation • Made by government authority

given that power by Parliament
(Commissions, certain regulatory
agencies & ministers) e.g FSC
regulation of the pensions industry
Updated by C. Hisby - Aug. 2023
 Source of Law:
Interpretation by
the Judiciary
• Rules of interpretation
• Literal rule
• Words and phrases should be given their literal
meaning (even if the application would result in
injustice)
• Golden rule
• If the literal meaning are ambiguous the judge may
substitute a “reasonable” meaning
• Mischief (Purposive) rule
• Judges must consider
• What the law was before the statue was
passed
• What problem or mischief the statute was
trying to remedy
• What
Updated by C. Hisby - Aug. 2023 remedy Parliament was trying to provide
 Source of Law –
International
Treaties
• Examples
• Human Rights
• Child Protection
• Labour

Updated by C. Hisby - Aug. 2023

 Types of Legal
Systems
• Major types of legal systems in the world:
1. Civil Law (based on Codes)
2. Religious Law (based on Religious Texts)
3. Common Law

Some legal systems involve a combination of

two or in a few instances all three of
these types.

Updated by C. Hisby - Aug. 2023

 Civil Law

• A body of rules that delineate private

rights and remedies, and govern disputes
between individuals in such areas as
contracts, property, and family law;
distinct from criminal or public law.
• Civil law systems, which trace their roots to
ancient Rome, are governed by doctrines
developed and compiled by legal scholars.
Legislators and administrators in civil law
countries use these doctrines to fashion a
code by which all legal controversies are
decided.
• Most widespread legal system – in about
150 countries
Updated by C. Hisby - Aug. 2023
Civil Law
• Concerned with the rights and duties of
individuals towards each other.
• State’s involvement confined to providing
a civilised method of resolving dispute
that has arisen.
• Legal process is begun by the aggrieved
citizen and not by the state.
• Private law is also called civil law and is
often contrasted with criminal law

Updated by C. Hisby - Aug. 2023

 Religious Law

• Religious law refers to the concept of a religious

system or document being used as a legal resource,
refers to the concept that the word of God is law.
The use of religion for public law has a static and
permanent quality, preventing improvement during
legislative acts of government or development
during judicial antecedent.

• The most important kinds of religious law are

Halakha in Judaism, Sharia in Islam, both of which
denote the "path to follow", and Canon law in
some Christian groups.

• In some cases, these are proposed simply as

individual moral guidance, whereas in other cases
they are proposed and may be used as the source
for a country's legal system.

Updated by C. Hisby - Aug. 2023

 Summary
• Law impacts every stage of life.
• There are many definitions of law.
• Natural law occurs naturally based on
human beings inherent values of right and
wrong while positive laws are man-made.
• The constitution, legislation and common
law are popular sources of law.
• UK does not have a written constitution
• Common types of legal systems are civil
law, religious law and common law.

Updated by C. Hisby - Aug. 2023

 Sources
• https://supremecourt.gov.jm/content/legal
-system
• http://www.aboutlawschools.org/legalsyst
ems/religiouslaw/
• https://www.abyssinialaw.com/about-us/it
em/479-major-theories-of-law
• http://www.mim.ac.mw/books/Keenan%20
and%20Riches'%20Business%20Law,%209t
h%20edition.pdf

Updated by C. Hisby - Aug. 2023

The
End

Have a productive week

Updated by C. Hisby - Aug. 2023