- 20 Marks
BCL – L1 – Q11 – Sources of Law
Question
(a) Identify all sources of law per Article 11 of the 1992 Constitution
(b) Explain what is meant by case law and precedent within the context of the hierarchy of the courts.
(c) Illustrate the rules and presumptions used by the courts in interpreting statutes.
Answer
(a). The Constitution;
Enactments made by or under the authority of the Parliament established the Constitution [or legislation];
Any Orders, Rules, and Regulations made by any person or authority under a power conferred by this Constitution [or subsidiary or subordinated legislation];
The existing law or the written and unwritten laws of Nexis that existed immediately before the coming into force of the 1992 Constitution; and
The common law [or the English common law, English doctrines of equity, and the rules of customary law].
(b). Case law is the law as established by the outcome of former cases.
It consists of judgments given by higher (appellate) courts. Lower courts in adjudicating a case before it must apply a ‘binding’ precedent developed by a Superior Court. These case laws also become precedents binding on courts within the same jurisdiction.
Judicial precedent is the application of previous ruling or judgment of the court on a point of law in a legal dispute. It is based on the underlying principle of consistency and fairness so that judgments, decisions, and orders of the court or adjudicating bodies must follow precedent. Precedents are legal bases that establishes a principle or rule followed in adjudicating other cases with similar issues or facts.
(c). There are three main rules to interpret a statute; the literal, golden and mischief rule and also the integrated approach, known as the purposive approach;
The literal rule uses the plain ordinary meaning of words. Fisher v Bell [1960] 3 All ER 731
The golden rule is an extension of the literal rule and has both a narrow and wider application and is used where the literal rule creates an absurdity. This is evident in the narrow sense in Adler v George [1964] All ER 628
The mischief rule allows judges slightly more discretion. It looks at the gap or the mischief the statute was intended to cover. In the case of Corkery v Carpenter [1951] 1 KB 102
The purposive approach is used by the majority of European countries when interpreting their own legislation and also by the European Court of Justice in interpreting European Union law and is becoming increasingly influential. In Jones v Tower Boot Co Ltd (1997) IRLR 168 CA.
- Tags: Golden Rule, Literal Rule, Mischief Rule, Purposive Approach, Statutory Interpretation
- Level: Level 1
- Topic: Sources of Law
- Uploader: Samuel Duah