Re: JLP lose court ruling on Portmore Toll Road
Btw, Yardie didn't say those things, I did. [img]/forums/images/graemlins/laugh.gif[/img]
The USA is NOT a common law country. Common law isn't simply following the law from time immemorial, it is a constitutional framework. In general, Constitutional governments are not common law governments. That doesn't mean that many common law concepts don't exist in constitutional law. I don't know if Jamaica is a hybred of the two, but that would be unusual for a former British colony.
In the USA, judges may NOT ignore precedent. Precedent is VERY important in American law. In the Russian Federation, precedent means almost nothing at all. Unlike the American system, judges generally ignore the decisions of other judges. I am not sure which system Jamaica has, but my understanding is that although judges may defer to precedent, they do so out of choice only. If anyone knows for sure, I would love some clarification on this one.
Homesteading laws (or whatever they are called in Jamaica) are very different from Habitual Use laws in Germany. Homesteading laws generally have many stipulations for rights of way and easements and habitual uses -- which are distinct from non-land property laws. This is true in every country, Jamaica included.
Whereas a German Habitual Use law might prevent the Government from charging a toll for what has habitually been a free road, Jamaica has no framework for Habitual Use protection, remembering that homesteading laws make exceptions that don't exist in non-land property law. (Habitual Use in the German system is a legacy of German disunity and had a different intention and function originally than the one it has evolved into in present day Germany.) To my knowledge, the Jamaican Government does not have to give way to habitual usage in non homesteading situations.
(I do not know Jamaican law very well. But I am well versed in American legal concepts.)
Originally posted by Wardob:
[qb] Just an observation
YARDIE: - “ Jamaica is not a common law state, it is a constitutional one. (Britain has no constitution.)
Not a common law state? I am not questioning your legal knowledge but from my understanding Jamaica is governed by both common and statute laws. And clearly by its definition (Common law is the law of the land from time immemorial) they do have the legal foundation for habitual use.
YARDIE: - “(I am not sure, but I think Jamaican law is like Russian law in that neither recognizes precedents -- each judge rules independently and is not held to a previous judge's precedent.)
Your legal knowledge may be far superior to mine, but all judge rule or should rule independently regardless of precedent. But that does not say reference or precedents are not used in our courts, on the contrary I believe our judges or often guided by and refer to precedents set by others.
YARDIE: - “Therefore, Jamaica has no legal foundation for habitual usage.”
Again I am not questioning your legal knowledge but as a friendy advice if you have a piece of property in Jamaica that is been used as a pathway constantly by the citizens for certain period, (I believe 5yrs and over) without they been disturbed you may loose it. At least once a year close it off, stop them by either written notification clearly posted or put up a gate and lock it for a day or two [/qb]
[qb] Just an observation
YARDIE: - “ Jamaica is not a common law state, it is a constitutional one. (Britain has no constitution.)
Not a common law state? I am not questioning your legal knowledge but from my understanding Jamaica is governed by both common and statute laws. And clearly by its definition (Common law is the law of the land from time immemorial) they do have the legal foundation for habitual use.
YARDIE: - “(I am not sure, but I think Jamaican law is like Russian law in that neither recognizes precedents -- each judge rules independently and is not held to a previous judge's precedent.)
Your legal knowledge may be far superior to mine, but all judge rule or should rule independently regardless of precedent. But that does not say reference or precedents are not used in our courts, on the contrary I believe our judges or often guided by and refer to precedents set by others.
YARDIE: - “Therefore, Jamaica has no legal foundation for habitual usage.”
Again I am not questioning your legal knowledge but as a friendy advice if you have a piece of property in Jamaica that is been used as a pathway constantly by the citizens for certain period, (I believe 5yrs and over) without they been disturbed you may loose it. At least once a year close it off, stop them by either written notification clearly posted or put up a gate and lock it for a day or two [/qb]
The USA is NOT a common law country. Common law isn't simply following the law from time immemorial, it is a constitutional framework. In general, Constitutional governments are not common law governments. That doesn't mean that many common law concepts don't exist in constitutional law. I don't know if Jamaica is a hybred of the two, but that would be unusual for a former British colony.
In the USA, judges may NOT ignore precedent. Precedent is VERY important in American law. In the Russian Federation, precedent means almost nothing at all. Unlike the American system, judges generally ignore the decisions of other judges. I am not sure which system Jamaica has, but my understanding is that although judges may defer to precedent, they do so out of choice only. If anyone knows for sure, I would love some clarification on this one.
Homesteading laws (or whatever they are called in Jamaica) are very different from Habitual Use laws in Germany. Homesteading laws generally have many stipulations for rights of way and easements and habitual uses -- which are distinct from non-land property laws. This is true in every country, Jamaica included.
Whereas a German Habitual Use law might prevent the Government from charging a toll for what has habitually been a free road, Jamaica has no framework for Habitual Use protection, remembering that homesteading laws make exceptions that don't exist in non-land property law. (Habitual Use in the German system is a legacy of German disunity and had a different intention and function originally than the one it has evolved into in present day Germany.) To my knowledge, the Jamaican Government does not have to give way to habitual usage in non homesteading situations.
(I do not know Jamaican law very well. But I am well versed in American legal concepts.)
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