Foundation Of Mauritian Laws

Prepared by: Akchay Ramdin & Friends

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Group 1

The relationship between different sources of law in the Mauritian Legal System

What is LAW, its characteristics and functions? The collection of rules imposed by authority.

Norm of conduct emanating from a formally recognised source.

Laid with a degree of generality and is binding upon everyone.

Tell us how to behave.

Promote social justice, establish and maintain peace in society

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Sources of law means the origin from which rules of human conduct came into existence and derived legal force or binding characters.

Sources of Law

Material

Formal

Historical

Legislation

Case-Law

Custom

Sources of law

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Material sources of law are historical influences which account for the existence of a given rule of law at a given time and at a given place.

Mauritius has been in the possession of France from 1715 to 1810 and as a British colony from 1814 until it achieved independence in 1968.

MATERIAL

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French Law

English Law

Mauritius

Legal System

Therefore, the country's legal system is based on the French Civil Code and English common law.

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• In both France & England, the only prevailing laws were in terms of customs. Then Unification was achieved.

• In both countries the aim of unification was to bring about a universal legal system which would be more flexible and would perform its functions more effectively.

Relationship between French Civil Code and English Common Law.

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French Civil CodeEnglish Common Law

Unification of Law achieved much later after the revolution.

Started through the process of codification.

Code Civil/Code Napoleon, Code De Procedure Civil and Code De Commerce promulgated during French era. French Penal Code & Code d’instruction criminelle promulgated in the British colonial period.

Unification of Law achieved at a very early stage by the courts of the middle ages

Started by the issue of writs

Too many writs leading to establishment of Courts of Chancery (Equity) which allowed recognition of factors like trust unlike the traditional common law. 7

FORMAL

1.LEGISLATION

Constitution

Primary Legislatio

n

Subsidiary Legislatio

n

A body of binding

rules of law

1.Legislation2.Case Law3.Customs

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Constitution ↔ Legislation

1. is a set of rules & the supreme law.

2. concerned with both laws and principles.

3. Constitution is not a process. It is a composition instead.

1. Laws enacted by a legislative body.

2. concerned with laws.It has nothing to do with principles.

3. Legislation is a process.

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Constitution ↔ Legislation

4. It lays the conditions under which certain duties and actions are performed.

5. Constitution-making is a one-off undertaking.

6. Defines the macro aspect of state.

4. Legislation is concerned with law making.

5.  Legislation is an on-going exercise.

6. Deals with the micro-elements.

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Primary Legislation ↔ Secondary Legislation

1. Acts voted and which have become law through parliament.

2. Time consuming process, consisting of multiple stages.

1. Rules and legislation made by the executive branch, for e.g. by ministers, local councils and public authorities to whom law-making power has been delegated.

2. Secondary legislation must be authorised by primary legislation, and conform to boundaries it has laid down.

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Relationship between legislation and case law

• Law may be found to proceed from many legal sources. One of which is enacted law, having its source in legislation and the other is case law having its source in precedent.

• Judges make law by applying and interpreting the law , whether common law or a statute, on a case by case basis. Case law goes from a specific application to a general application.

• Both legislation and precedent are equally important and one cannot achieve its objective without the other.

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Legislation↔ Case Law1. Legislation has

abrogative power. It can abolish the existing law, which necessary for legal reform.

2. Legislation is making rules for cases that have not yet arisen.

3. Legislation is a superior over precedent.

1. Precedent does not enjoy the abrogative power and it cannot reverse the existing law.

2. Precedent must wait until the actual concrete incident comes before the Courts for decision.

3. Law can be made against some precedent but the precedent cannot exist opposed to statute law.

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Relationship between Custom and Legislation

Before, people used to abide by custom only since there was no legislation.

In fact, custom is the main source of legislation.

Both had virtually common aims such as conformity in conduct and social behaviors.

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Custom ↔ Legislation1. rules that a particular

society has, based on cultures and traditions.

2. Was not legally enforced.

3. Custom if not abided by bears virtually no sanction.

1. is that source of law which consist in the declaration of legal rules by a competent authority.

2. Has a binding character.

3. Non compliance is met with sanctions (preventive, remedial or punitive)

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Other Sources of Law

Doctrine General Principal

1. legal scholarship, the body of legal writing and opinions of jurists.

2. -Need expressed- Sir H.Moollan.

-Lallah Report.

1. underlie the legal order they establish. Inferred through the process of inductive reasoning from legislation.

2. -Mahbood v GM(Separation of powers). -Pandoo v State. 16

In the light of the exposé, it can be deduced that in one way or another the sources of law are related to each other. One thing to be highlighted is that all other sources of law must be consistent with the Constitution of Mauritius.

“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.’’ [S2]

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Thank You For Your Kind Attention