The Colour of the Law.

AuthorBowal, Peter

Gray, C.B., "The Colour of Law: Law is Constituted from the Colour of Right," (2008) Les Cahiers De Droit, 49:3 at p. 393

Law is infused with colour. Indeed, colour gives law its character. This article describes several ways colour appears in the law, namely concepts of colour and colourability, blackmail, legal blacklining, blue-pencil severance and red circling.

Colour and Colourability

Under the common law, the term colour of law refers to the mere semblance of a legal right. That is to say that one's action taken under the colour of law adjusts, or colours, the law to the circumstance although the action may technically contravene the law. To 'colour' one's actions is to characterize or bend them toward legality.

For example, for a legislature to act 'colourably' is to essentially act outside its legal jurisdiction but to seek to paint its actions as legal. Variations of the colour and colourability theme include colour of office, colour of title, and colour of right. Technical legal propriety is in question under each of these categories. Persons assert 'colour' as an explanation or defence when the legality of their action is in issue or is on the margins.

Where a public official acts beyond her power, she may have honestly believed or was told that her actions were within her power. She acted under the pretense or colour of office. The merits of her official position and her belief that she was acting within her power colour her actions as legitimate within the scope of her office.

Colour of title occurs where someone with an informal or tenuous claim to legal title (ownership) to land asserts ownership rights in the land. For example, a squatter on land for a long, continuous period makes a claim to the property in adverse possession. One holding mere colour of title holds the appearance or semblance of a legally enforceable right of possession or ownership. Documentation plays a critical role in land ownership. Defective or incomplete documentation usually means one enjoys only colour of title to the land.

Colour of right is the most common colour category. It is a way of saying, "I honestly thought I had the right to...." It can be used defensively as an explanation or excuse to avoid a legal penalty. One's action, although wrongful, was due to an honest but mistaken belief that one had the right to act in that way.

The most common definition of colour of right is "an honest belief in a state of facts which, if it existed, would...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT