1 - Law and Legal Systems Flashcards
What is Public Law? What does it include?
Public Law is concerned with the legal structure of the state and relationships between the state and individual members of the community. Also governs the relationship between one state and another.
Includes:
1. Constitutional law
2. Administrative law
3. Criminal law
What is Constitutional law?
Concerned with the main institutions of government and their relationship to each other, including the relationship between the two houses of Parliament in the UK and that between central & local government.
Also includes:
- the making of treaties with foreign states.
- the status, function and powers of the Monarch, members of Parliament, Government ministers, the Judiciary, the Civil Service and the Armed Forces.
What is Administrative law?
Regarded as a branch of constitutional law. Concerns the legal relationship between private citizens & the various agencies of local and central government, and the impact of their activities on ordinary individuals.
E.g.
- taxation
- the powers of local boards
- health & education
- granting of licenses for trades & professions
- questions of local rating
What is Criminal law?
Concerned with the control of behaviour which harms or threatens the peace and stability of the community.
Control is exercised by punishing persons who commit serious wrongs which are likely to damage the interests of society as a whole.
What is Private law? What is Private law also known as?
Governs the relationships between legal persons such as individuals, businesses and other organisations.
Private law is also known as Civil law.
i.e.
- the law of contract
- the law of torts
(above 2 most applicable to insurance)
- the law of trusts
- the law of property
- the law of succession
- family law
What are some characteristics of English law?
Age and continuity
- Long history of English law
Little codification
- Only certain parts of English law have been codified, i.e., criminal law, and in recent years parts of civil law.
Judge-made law
- The decisions of UK judges affect the growth & development of English law.
Independence of the judiciary
- Judiciary is effectively free from government control.
Adversarial system
- The court, consisting of judges, remains NEUTRAL. The role of the court is not to investigate but simply to listen to the evidence presented by the two sides and give judgement for one side or the other. This is known as the Adversarial system.
No written constitution
- English law differs from other countries in that it has not traditionally defined for its citizens any fundamental, unchangeable rights or freedoms (i.e. a constitution). In England there is freedom to do anything which is not specifically prohibited by law.
Rule of law
(Is regarded as embracing the following principles):
- the powers exercised by politicians & officials must be based on the authority given to them by law.
- law should be generally reasonable & predictable.
- people should be treated equally by the law.
- no one should be deprived of their property, status, or other rights unless they are given a fair hearing by an impartial court.
- every person should have a right of access to the courts.
What is the Adversarial System?
The court (consisting of judges) is neutral. The role of the court is not to investigate but simply to listen to the evidence presented by the two sides and give judgement for one side or the other. This is known as the Adversarial system. This system is used in the UK.
Guilt must be proven ‘beyond reasonable doubt’. i.e. court must be sure that the allegations are completely true before the defendant can be convicted.
The claimant must prove their case ‘on the balance of probabilities’, i.e. more likely to have happened than not.
What is the opposite system of court used commonly in Europe?
(opposite to the UK adversarial system)
The inquisitorial system.
The court does not remain neutral, but plays an active part in discovering the truth.
What happened after the conquest of 1066?
The Normans sought to establish a strong central government.
Before this justice was administered in local courts so law was not centralised.
What is Equity?
Being fair and impartial.
Literally means fairness.
Explain what Common Law and Statute Law are? And the difference between them?
Common Law = the body of laws created by judges or within the courts.
Statute Law = formal written legislation, i.e. acts of parliament.
What is the Law of Trusts?
A trust is a legal relationship created when assets are placed under the control of a trustee either for the benefit of a beneficiary or a specified purpose.
What is an order for Specific Performance?
A court order compelling a party to perform its promise it has given to another.
What is an injunction order?
A court order requiring a person to do or cease doing a specific action.
What are the 2 main sources of new law?
- legislation
- judicial precedent
What are the 2 minor sources of law?
- local custom
- legal books and treatises
What is Legislation?
Legislation is law which has been created in a formal way and set down in writing.
In the UK, Parliament is the only body that has power to make general rules.
What is parliament made of?
- the House of Commons
- the House of Lords
- (as a formality the Monarch)
In what form does Parliamentary legislation take?
The principal form is acts of Parliament or Statutes.
In theory, is there any limit to what Parliament can do?
There are no legal limits as to what Parliament can do.
In theory, they can:
- create entirely new law
- overrule existing law
- modify/extend existing principles of law
- repeal/modify existing statute law
In reality, who has the power to legislate UK?
Power to legislate rests almost completely with the government.
The government has effective command of a majority in the House of Commons, which is the focus of law-making power.
Before new legislation is introduced both houses of Parliament must approve it.
What are Green and White papers?
Before new legislation is introduced, the Government will often consult interested parties & the public generally.
‘Green papers’ are published to invite responses to proposed changes in the law.
‘White papers’ may be published giving advanced notice of more definite proposals.
What is a Bill? And what 2 forms do they come in?
A bill is a proposal for a new law, or a proposal to change an existing law that is presented for debate before parliament.
Bills may either be Public or Private. If they pass, they become known as Public or Private laws.
Describe a Public Bill.
A Public Act is one which contains law affecting the whole community.
e.g. theft acts are part of the general criminal law.