A) Sources of Law

Formal and Material Sources of Law

Material sources of law are the historical influences which account for the existence
of a given rule of law at a given time and place. Thus the 'material' or 'historical'
sources of Mauritian law are French law and English law.
Formal sources of law are rules of recognition, by which a legal system indicates
whether or not a rule is a legal rule (which processes are recognized by the legal
system as capable of generating legal norms). It is the criterion of legal validity
accepted by the system.
Sources1 of law are the materials and processes out of which law is developed. The
basic sources of law include the Constitution, statutes, and case-law.

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Sources2 of Mauritian law

1)

Constitution3 of the Republic of Mauritius supreme law of the country

2)

Statutes written law enacted by the legislative assembly

3)

Orders/Regulations - laws of local government bodies (municipal council,

village councils)

4)

Executive orders orders issued by a member of the executive branch of

government

5)

Judicial decisions decisions about an individual lawsuit issued by superiour

courts represent legal authority4

6)

Administrative agency regulations and ordersrules and regulations adopted

by agencies created by the legislative and executive branches of government

III

What is meant by Constitution?

When the word 'sources' of law is used without any adjective, it refers to formal sources of law.
Sources of French Law: (i) Loi & Rglements (lgislation); (ii) Coutume. Judicial dcisions, referred to in
French language as 'Jurisprudence' is not as such recognised as a source of law, but as an "autorit".
3
Constitution as source of law: Section 2 of the Constitution provides that the constitution is supreme law; any
law which is inconsistent with the Constitution shall to the extent of the inconsistency be void.
4
In French language "une autorit" is a group or institution which, though indirectly contributing to the
formation of a legal rule, does not per se constitute a source of law. As pointed out by F. Terr: "Par le mot
autorit, on dsigne prsentement des groupes ou des institutions dont la mission contribue indirectement la
formation du droit. Elles (ont) vocation influencer le droit (mais) elles n'ont, en elles-mmes, aucun pouvoir
normatif (Introduction gnrale au droit (1991) at p. 203).
2

Mauritius has a written constitution, whereas England has an unwritten constitution.

The Constitution of a country is a charter/document describing the whole system of
government of a country, the collection of rules and practices that determine the
composition and functions of the organs of government and how these are
regulated, as well as the relationship between the individual and the state in respect
of their rights and duties.
The rules are generally of a legal nature, ie courts will recognize and apply them. But
there are also non-legal or extra-legal rules, in the form of usages, understandings,
customs or conventions which courts do not recognize as law but which are not less
effective in regulating the government than rules of law strictly so called.
Most of the provisions of the Constitution may be amended in the same way as any
other statute. But a few others cannot be amended in this way. This is because they
belong to a special category of provisions in our constitution. These provisions, the
so called fundamental rights provisions enjoy a special status as Higher Law
under the our Constitution and for their amendment or repeal a special procedure
has to be followed5.

IV

Parliament

Parliament is an elected legislative body whose main purpose is to create laws. The
maximum duration as provided under our Constitution is five years, after which its
functions expire. In practice a Parliaments life always ends by its earlier dissolution
by the President. The date of dissolution is chosen by the PM. The life of a
Parliament is divided into sessions, normally of one year each. The sessions are
divided into sittings, normally of a days duration, which end when a motion for
adjournment is passed. The functions of Parliament are the enactment of legislation,
the sanctioning of taxation and public expenditure, the scrutiny and criticism of
government policy and administration.
Parliament (the Legislature) is the most important of the three pillars of a state, the
other two being the Executive and the Judicature. The laws made by Parliament are
of two kinds: primary legislation (statute law) and secondary legislation.
Primary legislation is legislation made by the legislative branch of government. This
contrasts with secondary legislation, made by the executive branch, usually within
boundaries laid down by the legislature.
Section 45(1) of the Constitution vests law-making power with Parliament; it may
pass laws for the peace, order and good government of Mauritius.
Acts of Parliament must, of course, be in conformity with the Constitution. Acts
passed by Parliament are referred to as primary legislation. By contrast, subsidiary
(secondary) legislation refers to those Rules or Regulations enacted by ministers,
local councils or public authorities to whom law-making powers has been delegated.
5

Parliament may, with the support of a qualified majority (the support of 2/3 or 3/4 of all the MPs), amend the
provisions of the Constitution (see section 47).

Section 118 of the Constitution empowers the Commissions and tribunals established
under the Constitution to make regulations for their proper functioning.
The subsidiary legislation must be in conformity (ie intra vires) with the enabling Act
(where this power has been conferred by an ordinary Act of Parliament) and the
Constitution.

Primary legislation (Statute Law)

A statute is a document which contains laws enacted by Parliament. They are also
referred to as Acts of Parliament. Each statute usually deals with a separate topic.
Examples are the Dangerous Drugs Act, Bail Act. Statutes are found in virtually all
fields of law and regulate all sorts of activities. This is the legislation most people are
familiar with. The Acts may be either general or personal and local. General Acts
apply to everybody, everywhere within the jurisdiction 6 of the country.
A legal rule in a statute7 can only be changed by another statute. Any statute and
as well as provisions of the Constitution may be amended in the same way as any
other statute. But, as has already been explained above, higher law provisions
contained in the Constitution cannot be altered or modified in this way.
Personal and local Acts apply either to particular individuals or (more usually) to
particular areas. But these are very rare.

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Delegated Legislation (Secondary Legislation)

This is legislation made under powers by an Act of Parliament (an enabling statute
also called the parent Act). Most legislation consists of a direct statement about how
people should behave or indicates the consequences of certain behaviour. For
example, a statute may define crime and say what the punishment will be for that
crime. Sometimes Parliament cannot decide exactly what the law should be on a
point. It may not have the necessary expertise or it may be that the area is one where
frequent changes are needed. In such cases Parliament may pass an Act giving
somebody else the power to make law in the appropriate area. Such power is often
given to government ministers or local authorities. This is called delegated or
secondary legislation. Parliaments power of delegation has in fact been widely
used for a long time, but because its exercise is much less visible than the act of
legislating, it is easy to lose sight of the importance of delegated legislation. Although
most people are unaware of this type of legislation it is very important, affecting most
peoples lives.

The territorial limits within which the power of court (to hear and decide a case or make a certain order) may
be exercised.
7
Act of Parliament, ie laws made by Parliament.

A person to whom legislative power is delegated cannot make law about

anything. Nor can he delegate to another the power delegated to him. Delegatus
non potest delegare.
Delegated legislation always requires the express authority of an Act of
Parliament (the parent or enabling Act). The parent Act will not only give authority to
the process of delegation, but also will set the parameters of the delegated power.
Sometimes these will be extremely wide and generalized, for eg. where an Act
provides that the Minister may make such regulations as he sees fit. Further, the
parent Act will determine the area in which law can be made, it may say something
about the content of the law, but the details of that law will be left to the person or
body to whom legislative power is delegated. They may also have the power to
change that law from time to time. Most delegated legislation is published as a
statutory instrument.

VII

Administrative agency regulations and orders

This is the range of directives, circulars and guidance notes produced by various
State agencies and bodies such as the MRA, the Environmental Police, the Municipal
Authority etc. Some of the documents bind the people to whom they are addressed
to behave in particular ways, although they do not compel people the way statutes or
statutory instruments do. Nevertheless such documents are very influential. In
practice officials receiving them may always act in the way they indicate. They
therefore constitute a form of legislation. But the way these laws are implemented
may be subject to review by the courts under the process known as judicial review,
whereby it will be decided whether the official has acted ultra vires or not.

VIII

Judicial Decisions

Not all legal rules are laid down in an Act of Parliament or some other piece of
legislation. A number of fundamental rules are found in the statements of judges
made in the course of deciding cases brought before them. A rule made in the course
of deciding cases, rather than legislation, is called a rule of common law. A common
law rule has as much force as a rule derived from statute. An example of a common
law rule is the famous neighbourhood principle developed by Lord Atkin in Donogue v
Stevenson(1932)8 .

B) Role of Law
I

Definition

The rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and the
lawyers question, Who is my neighbour? receives a restricted reply. You must take reasonable care to avoid acts
or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my
neighbour? The answer seems to be persons who are so closely and directly affected by my act that I ought
reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or
omissions which are called in question. per Lord Atkin in Donogue v Stevenson(1932) AC 562.

There are several functions of law, but only one role. The role of law in society (and
likewise in business) is to be the keeper of order and set rules that all individuals
are expected to follow, so that there can not only be a consensus on what is right
and wrong, but also so there can be a decision on when to punish someone and
how to determine whether they have broken the law (Strike, 1999). This is also
important in determining what the punishment should be for specific crimes.
Essentially, law is the gatekeeper between right and wrong, and those who are
charged to uphold it must take their jobs seriously, less they become corrupted by
power and find ways to break the law themselves.
Punishment is central in the definition of the role of law, because it is by punishing
offenders in accordance with the law that society is able to contribute to prevention
of offences, retribution, deterrence, incapacitation.
The concept of lex talionis refers to the idea that punishment for a misdeed should
be based upon some form of equivalence (lex talionis law of equivalent retaliation),
rather than simply unrestricted or random revenge. The simplest expression of lex
talionis is the biblical injunction of "life for life, eye for eye, tooth for tooth" 9
The lex talionis of the Old Testament marked a turning point in the evolution of lawful punishment. It
introduced a policy of restraint and it sanctified proportionality as a moral principle of punishment.
(Morris J Fish)
Modern Christian biblical scholarship has also opposed the view of the lex talionis as barbaric and
cruel.

For Kant, guilt is a necessary condition for punishment. In a famous passage he

writes: << Judicial punishment can never be used merely as a means to promote
some other good for the criminal himself or civil society, but instead it must in all
cases be imposed on him only on the ground that he has committed a crime ; for a
human being can never be manipulated merely as a means to the purposes of
someone else He must first of all be found to be deserving of punishment before
any consideration is given of the utility of this punishment for himself or his fellow
citizens>>10
Principal aims of punishment are the prevention of offences, retribution,
deterrence, incapacitation.
Punishment may in this context be seen as an incentive to reform:
-

II

for convicted offenders, therapeutic reform, by inducing a consciousness of guilt that might
motivate them to mend their ways;
for potential offenders, punishment of the guilty provides an incentive to pre-emptive or
prophylactic reform, by inducing an awareness that crime is punished because it is wrong,
causing those who might otherwise not do so to abandon their mischievous inclinations, to
rehabilitate themselves, as it were, even before they have committed a crime.

Principles reinforcing the role of law

Exodus 21:23.
Emmanuel Kant, The Metaphysical Elements of Justice, cited by A.E. Bottoms and R.H. Preston (eds), The
Coming of the Penal Crisis: a criminological and theological exploration (Edinburgh: Scottish Academic Press,
1980) 62.
10

The role of law and the legal system in the theory and practice of common law
democracies were underpinned by the following principles:
1) The supremacy of law, which means that all persons (individuals and
governments) are subject to the law;
2) A conception of justice that emphasises interpersonal adjudication, law based
on faults, and the importance of procedures:
3) Restrictions on the extent of discretionary power and the manner of its
exercise.
4) Prospective, not retrospective, legislation;
5) An independent judiciary;
6) The exercise by Parliament of legislative power and restrictions on the
exercise of legislative power by the executive.

III

Functions of Law

In todays society it is often the long arm of the law that maintains the order needed
to go about our lives. Many people often dismiss the law as unimportant as they will
never have to be involved with a day in court. These people, however, are missing
entirely the fact that, while law is handled most officially and with far more structure in
the court room itself, the main functions it provides everyone with, are understood
and take place in ones day to day life. These functions are: the providing of
remedies, the setting of rights and obligations, the direction of making laws
themselves, and the set up of a government structure
Basically, the main functions of law are:
1) To foster and maintain social cohesion and to provide for social progress,
2) To maintain public order and provide protection
3) To resolve disputes
4) To protect certainty & durability of systems
5) To facilitates orderly change
6) To brings out justice in society
Social Cohesion is achieved by:

preserving principle values

outlining acceptable standards of behaviour

providing institutions to settle disputes

providing institutions to promote change

6

Social Progress is achieved by: making laws for future generations.

Supplementary notes:

Delegated (or secondary) legislation

Delegated (or secondary) legislation is law made by ministers under powers given to
them by parliamentary acts (primary legislation) in order to implement and administer
the requirements of the Acts. It has equal effect in law although ministers can be
challenged in the courts on the grounds that specific pieces of delegated legislation
are not properly based on powers given by acts, ie are ultra vires the Acts. In the UK,
delegated legislation, typically, is made through the force of statutory instruments in
the form of ministerial regulations, orders in council, and codes of practice. The
amount and scope of delegated legislation has grown as a result of the increasing
pressure on parliamentary time. Advocates suggest that it represents an efficient way
of relieving Parliament, that much of its subject-matter is uncontroversial, and that
Parliament voluntarily gave up power in such irksome business. Critics object to the
growing legislative autonomy of the executive from Parliament, and point out that
deeply controversial matters, such as immigration rules, have been treated as
delegated legislation. Increasing political concern was reflected in the House of
Lords' successful defeat in February 2000 of an affirmative instrument by which
government sought to deny candidates a free mailshot in the 2000 London Mayor
election. Devolution to Northern Ireland (1998) and Scotland (1999) means that the
assembly and parliament respectively make their own arrangements for primary and
delegated legislation. The creation of the National Assembly for Wales 1999
established an elected institution that is unique in being solely responsible for the
creation, scrutiny, and implementation of delegated legislation from primary
legislation still drawn up by the UK Parliament.
Jonathan Bradbury