Introduction
The Republic of Mauritius is a unique legal jurisdiction, often described as a 'hybrid' or 'mixed' legal system. This is a direct result of its colonial history, primarily under French and later British rule. This has created a legal framework that blends principles from both the French civil law tradition and the English common law tradition. For anyone operating within the Mauritian business and accounting environment, understanding the sources from which its laws are derived and how they are prioritised is essential. This essay will discuss the different sources of law in Mauritius and then explain the hierarchy that determines which source takes priority, often visualised as a pyramid. The central argument is that Mauritius has a clear and defined hierarchy of laws, with the Constitution established as the supreme law of the land.
The Principal Sources of Mauritian Law
The Mauritian legal system draws its authority from several distinct sources. The most significant are the Constitution, legislation, case law, and the historic French Codes.
The primary and most fundamental source of law is the Constitution of Mauritius. As the supreme law, it sets out the structure of the state, including the legislature, the executive, and the judiciary, and guarantees the fundamental rights and freedoms of individuals. Section 2 of the Constitution explicitly states its own supremacy: "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." This provision establishes the foundation for the legal hierarchy.
The next major source is legislation, which consists of laws passed by the democratically elected parliament, known as the National Assembly. These are referred to as Acts of Parliament. This is the main way that new laws are created or existing laws are amended to respond to social and economic changes. Below primary legislation, there is also delegated or subordinate legislation, which includes regulations, orders, and rules made by ministers or public bodies under the authority of a primary Act of Parliament (Mathur, 2011).
Case law, or judicial precedent, is another important source. This reflects the common law influence on Mauritius. Decisions made by the higher courts, particularly the Supreme Court of Mauritius, are binding on lower courts. This ensures consistency and predictability in the application of the law. However, the influence of the French tradition is seen in the concept of jurisprudence constante, where a consistent line of judicial decisions on a particular point is considered highly persuasive, rather than a single judgment being strictly binding in all circumstances (Giraud, 2018).
Finally, the French Codes, inherited from the period of French rule, remain a cornerstone of Mauritian private law. The most prominent are the Civil Code (based on the Napoleonic Code), the Code de Commerce, and the Code Pénal. These codes, originally introduced in the early 19th century, govern areas such as contract law, property law, and tort law ('delict'). Although they are technically a form of legislation that can be amended by the Mauritian Parliament, they form the bedrock of the country's substantive civil law.
The Hierarchy of Legal Sources
The various sources of law in Mauritius are organised into a clear hierarchy, often referred to as the 'pyramid of norms'. This hierarchy ensures that there is a clear rule to follow in the event of a conflict between different laws.
At the absolute apex of the pyramid is The Constitution. As established by Section 2, no law, act, or decision can legally contradict it. The Supreme Court has the power to review legislation and declare it unconstitutional and therefore void.
Directly below the Constitution is Legislation. This includes Acts of Parliament, which are the highest form of law-making outside of the Constitution itself. The historic French Codes have the status of Acts of Parliament and are therefore at this level, though they can be amended or repealed by subsequent Acts. Subordinate legislation, such as ministerial regulations, sits below Acts of Parliament because it must be made within the powers granted by those Acts.
Below legislation is Case Law (judicial precedent). The role of the judiciary is to interpret and apply the law as set out in the Constitution and in legislation. While judges can create law through their interpretations, particularly in areas not covered by statute, they cannot overrule a clear provision in an Act of Parliament unless that Act is found to be unconstitutional (Mathur, 2011). Therefore, judicial decisions are subordinate to statute law.
At the bottom of the hierarchy are minor sources such as custom, which is a long-standing practice that has become accepted as law. Its role in modern Mauritian law is very limited and it cannot override any written law.
Conclusion
In summary, the Mauritian legal system is a rich blend of different legal traditions. Its sources include the Constitution, primary and subordinate legislation, case law, and the foundational French Codes. These sources are not equal in authority but are organised into a strict pyramid of hierarchy. The Constitution stands alone at the top as the supreme law, followed by Acts of Parliament. Case law serves the vital function of interpreting these written laws. This clear structure provides legal certainty and stability, which are crucial for a well-functioning society and a predictable commercial environment.
References
Giraud, Y. (2018) The Mauritian Legal System. In: J. M. S. j. o. L. G. a. P. Science (ed.). University of Mauritius.
Mathur, R. (2011) An Introduction to the Legal System of Mauritius. Council for Vocational Legal Education.
The Constitution of Mauritius 1968.
