The Relationship between different sources of law in the mauritian legal system

1. Group 1
Prepared by:
 Akchay Ramdin
 & Friends 
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2. 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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3. Sources of law
Sources of law means the origin from which rules of human
conduct came into existence and derived legal force or
binding characters.
Material Historical
Sources of Legislation
Law
Formal Case-Law
Custom
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4. MATERIAL
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.
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5. Therefore, the country's legal system is based on
the French Civil Code and English common law.
French
Law
Mauritius
Legal
System
English
Law
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6. Relationship between French Civil
Code and English Common Law.
• 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.
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7. French Civil Code English Common Law
 Unification of Law achieved  Unification of Law achieved
much later after the at a very early stage by the
revolution. courts of the middle ages
 Started through the process  Started by the issue of writs
of codification.
 Code Civil/Code Napoleon,  Too many writs leading to
Code De Procedure Civil establishment of Courts of
and Code De Commerce Chancery (Equity) which
promulgated during French allowed recognition of factors
era. French Penal Code & like trust unlike the
Code d’instruction traditional common law.
criminelle promulgated in
the British colonial period.
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8. FORMAL
1. Legislation
2. Case Law A body of
3. Customs binding rules
of law
1.LEGISLATION
Primary Subsidiary
Constitution
Legislation Legislation
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9. Constitution ↔ Legislation
1. is a set of rules & the 1. Laws enacted by a
supreme law. legislative body.
2. concerned with both 2. concerned with laws.
laws and principles. It has nothing to do
3. Constitution is not a with principles.
process. It is a 3. Legislation is a process.
composition instead.
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10. Constitution ↔ Legislation
4. It lays the conditions 4. Legislation is
under which certain concerned with law
duties and actions are making.
performed.
5. Legislation is an
5. Constitution-making on-going exercise.
is a one-off
undertaking.
6. Defines the macro 6. Deals with the
aspect of state. micro-elements.
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11. Primary Legislation ↔ Secondary Legislation
1. Acts voted and which 1. Rules and legislation
have become law made by the executive
through parliament. branch, for e.g. by
ministers, local councils
and public authorities to
whom law-making power
has been delegated.
2. Time consuming 2. Secondary legislation
process, consisting of must be authorised by
multiple stages. primary legislation, and
conform to boundaries it
has laid down.
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12. 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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13. Legislation↔ Case Law
1. Legislation has 1. Precedent does not enjoy
abrogative power. It can the abrogative power and
abolish the existing law, it cannot reverse the
which necessary for legal existing law.
reform. 2. Precedent must wait
2. Legislation is making until the actual concrete
rules for cases that have incident comes before
not yet arisen. the Courts for decision.
3. Legislation is a superior 3. Law can be made against
over precedent. some precedent but the
precedent cannot exist
opposed to statute law.
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14. 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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15. Custom ↔ Legislation
1. rules that a particular 1. is that source of law
society has, based on which consist in the
cultures and traditions. declaration of legal rules
by a competent authority.
2. Was not legally enforced.
2. Has a binding character.
3. Custom if not abided by
bears virtually no 3. Non compliance is met
sanction. with sanctions
(preventive, remedial or
punitive)
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16. Other Sources of Law
Doctrine General Principal
1. legal scholarship, the 1. underlie the legal order
body of legal writing and they establish. Inferred
opinions of jurists. through the process of
inductive reasoning from
legislation.
2. -Need expressed- Sir
H.Moollan. 2. -Mahbood v
GM(Separation of
powers).
-Lallah Report.
-Pandoo v State.
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17.  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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18. Thank You For Your Kind Attention 
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