1 - Sources of Law Flashcards
What is law?
The system of rules which a particular country or community recognises as regulating the actions of its members, and which it may enforce by the imposition of penalties.
What is the purpose of law and how must it develop?
- It maintains peace and safety in society.
- It regulates the relationships between indiviuals and other legal entities.
- It protects human rights and liberties.
- It ensures the smooth running of economic and political activities.
Development -
As a body of rules designed to promote the orderly conduct of society, the law must reflect the wishes or tolerance of the broad majority of the population, in order to be credible and thus enforceable. It must develop in line with societal changes in order to remain relevant to those living under the ‘rule of law’.
What are the stages of legal development of the law of England and Wales?
- Pre-1066 (Norman Conquest): Locally based systems and customs from Anglo-Saxon society existed.
- 1066-1485: The formation of common law, which was imposed over local customs and systems.
- 1485-1870s: Development of equity, leading to two separate legal systems coexisting.
1870s to Present:
- Joint jurisdiction for common law and equity.
- Significant development in statute law.
- Growth of governmental and administrative bodies.
- Influence of European Union law post-1973.
How did the monarch serve as the source of justice?
- The legal system originates in the King’s (and Queen’s) Courts.
- After the Norman Conquest, centralised justice emerged with the King as a central figure.
- The Curia Regis (King’s Council) acted as an itinerant court, where the King’s clerics worked.
The King’s clerics became autonomous and established themselves at Westminster. - The Magna Carta in 1215 required a fixed King’s Court, leading to the evolution of various court branches.
What were the three main courts that developed from the King’s Council?
- Court of Exchequer: Dealt with royal finances.
- Court of Common Pleas: Handled land ownership and possession.
- Court of King’s Bench: Addressed serious criminal matters.
Royal justices held assizes in provinces, extending jurisdiction from criminal to civil matters until the Courts Act 1971.
What role did common law play in the legal system?
- The King’s Courts were essential for resolving disputes, applying laws based on common customs.
- King Henry II’s first assizes aimed to restore order after a civil war, promoting the law of the King’s Courts.
- The King’s Courts expanded, overcoming resistance from local barons and becoming supreme by Edward I’s reign.
What are the meanings of “common law”?
- Historical: Law applied by King’s judges vs. local customary courts.
- Equity Distinction: Law applied by King’s Courts vs. separate Equity rules developed in the Chancery Court.
- Case Law vs. Statute Law: Developed by judges (case law) vs. enacted by Parliament (statute law).
- Jurisdictional: Law in common law countries vs. civil law (most of Europe) countries based on Roman law.
How did the writ system function?
- The common law required claimants to purchase a writ to pursue a claim.
- A writ demanded the defendant’s appearance in court, outlining the complaint.
- The system became rigid, with fixed forms of writs requiring parliamentary approval for new types.
- Lack of suitable writs meant no claims could be pursued, hindering the growth of substantive law.
What are the different forms of writs and their functions?
- Writ of Right: Recovery of land (first real action).
- Debt: Recovery of a fixed sum.
- Detinue: Recovery of chattel (personal property).
- Covenant: Breach of promise.
- Account: Accounting for a payment.
- Trespass: Actions against persons or property.
- Case: Remedy for situations lacking an existing action, influencing tort law.
How did the writ system reflect a focus on procedure over substance?
- The writ system was complex and restrictive, emphasising procedure over rights.
- Incorrect selection of writs or failure to follow procedures could lead to case dismissal.
- The common law primarily aimed to resolve disputes, not to uphold justice or rights.
- Personal actions typically offered only damages, leading to the emergence of equity to address these limitations.
What is case law?
- Case law, also known as ‘common law,’ is the body of law decided by judges.
- It is sometimes referred to as ‘judge-made’ law.
- Governed by rules of precedent, where decisions of higher courts are binding on lower courts.
How do judges decide cases?
Judges decide cases brought by individuals or legal entities against another party.
They do not initiate cases or investigate issues on their own.
To decide a case, a judge:
- Considers credible evidence from the parties.
- Applies the relevant law (case law or statute).
- Reaches a decision on which party should succeed.
- Determines the remedy for the successful party (e.g., damages).
Do judges ‘make law’?
- Traditional theory suggests judges declare existing law rather than create it.
- Judicial decisions are seen as retrospective, based on established legal principles.
- Judges are cautious about upsetting long-standing precedents due to potential consequences.
What is stare decisis?
- Stare decisis means “stand by what has been decided.” (precedent).
- Once a legal principle is established, future cases with similar facts must be decided similarly.
- For a court to follow an earlier case, it must be from a binding court, and the relevant part of the case must be binding on that lower court.
What part of a judgment is binding?
A ‘point of law’ established by a superior court creates a binding precedent.
Not every aspect of a judgment is binding; key elements include:
- Summary of facts.
- Statements of law (including ratio decidendi and obiter dicta).
- The decision on remedy, binding only on the parties involved.
What is ratio decidendi?
- ‘Ratio decidendi’ means “reason for the decision.”
- It is the binding legal principle on which the court’s decision is based.
How do you identify the ratio?
- The ratio may not be immediately obvious; identifying it is an art, not a science.
- It can be narrow (specific facts) or wide (general principle).
- Consult law reports for clarity on the ratio. These introduce the text of a judgment with a ‘headnote’, which gives essential information about the case including a section in which the law reporter explains what in his or her view the court has held as a matter of law, in reaching its judgment.
What is obiter dictum?
Obiter dictum refers to comments made by a judge that are not necessary for the case’s decision.
While not binding, they can be highly persuasive in later cases.
They consist of:
- Statements of law not necessary to the decision, e.g. on hypothetical facts or on facts which are not material.
- Statements of the law as the judge would like it to be, but for the doctrine of precedent.
- Dissenting judgments, i.e. the view of a judge who disagrees with the majority of the court.
What terminology is used regarding case law?
- Following: When a court applies the law from an earlier case.
- Approving: When a higher court endorses an earlier decision.
- Applying: When a court uses the law from an earlier case in a similar situation.
- Distinguishing: When a court finds differences in material facts to avoid following a binding precedent.
What do reversing, overruling, and overturning mean?
- Reversing: A higher appeal court disagrees with a lower court’s decision. This does not mean the old precedent is no longer good law, it is just applied by the higher court in a different way.
- Overruling: A superior court establishes a new precedent, declaring the old one wrong.
- Overturning: Used interchangeably with overruling.
How do courts depart from precedent?
- The Supreme Court can depart from its own decisions, as recognised in the 1966 Practice Statement.
- The Court of Appeal can also depart under certain exceptions, such as if a decision made conflicts with one made in the past, the CoA can choose which one to follow, or being overruled by a higher court (SC or HL) where the CoA’s decision is made per incuriam.
Note that per incuriam does not simply mean that the earlier CA made an error. It only applies when the previous court was not aware of a relevant authority (in case or statute) which would have been binding on the court’ and that ignorance led to faulty reasoning by the court
What are the rules of precedent?
- Supreme Court: Binds all inferior courts; can depart from its own decisions.
- Court of Appeal: Binds all inferior courts and itself; can depart under specific exceptions.
- High Court: Binds all inferior courts; does not bind itself unless convinced it was wrong.
- Tribunals (First Tier, Upper): Not binding but may be persuasive.
- Other Courts (Family, Crown, County, Magistrates): Not binding.
What is the history of equity?
- Aggrieved litigants petitioned the King when common law failed.
- The King passed petitions to the Chancellor, who managed these requests.
- By the late 13th century, this led to the establishment of the Court of Chancery.
- Equity is the body of principles that emerged from this court, still relevant today.
What is the discretionary nature of equity?
- The Lord Chancellor had flexibility beyond the strict rules of common law, guided by fairness.
- Early decisions were made from the Chancellor’s conscience, evolving into a system with equitable precedents.
- Equity developed as a separate set of rules, supplementing the common law.
- Equitable remedies are still discretionary in modern law
