A Essential Elements of the Legal System Flashcards
Definition of law
The principles and regulations established in a community by some authority and applicable to its people whether in the form of legislation or of custom and policies recognised and enforced by judicial decision.
English legal system structure
Common law and equity
Common law:
developed from local customs
introduced the system of precedent
the only remedy is damages
may be rigid and inflexible.
Equity:
Developed as a petition by a party who felt the common law had led to injustice
It is more flexible than common law
It introduced new discretionary remedies e.g. injunctions and specific performance
It is concerned with fairness and therefore will not be granted if there is undue delay
Private and public law
Public law:
Different categories exist. these include criminal law, constitutional law, administrative law, social welfare law and all deal with matters relating to the whole country
Private law:
Concerned with the law enforced between individuals, this can include contract law, family law and other areas which deal with intellectual property rights, land law, probate, and company law which deals with the ways which companies are created and rules regulating them
Criminal and civil law
Criminal law:
Relates to conduct of which the state disapproves and seeks to control, is a form of public law
Purpose - the enforcement of particular forms of behavior by the state, which acts to ensure compliance
Standard of proof - guilt must be shown beyond reasonable doubt
Civil law:
Is a form of private law and involves the relationships between individual citizens
Purpose to settle disputes and provide remedies
Civil court will order the defendant to pay damages or order another remedy e.g. specific performance or injunction
English court system and which legal system they relate to
Magistrates court
Jurisdiction is mainly criminal, but does have civil jurisdiction in family matters such as contact orders, adoption, maintenance. Also powers of recovery of council tax, water, other utilities etc
County court
First instance civil claims in contract, tort, landlord and tenant, insolvency
One district judge hears small claims, hearing is informal and no costs are awarded
One circuit judge hears most fast track and multitrack cases
High court of justice
One high court judge in first instance
Queens bench division (qbd) hears first instance cases of contract and tort
Chancery division (chd) deals with land law, trusts, company law partnership law, insolvency etc - it hears appeals from county courts on probate and insolvency
Family division hears matrimonial cases
Each division of the high court also has a divisional court which hears appeals from other courts
Court of appeal
Three lords justices of appeal hear appeals from the high court and county courts
Supreme court
Five justices of supreme court hear appeals from the court of appeal and exceptionally from the high court
House of lords was replaced in 2009, assuming the same judicial functions
It was felt there needed to be a separation of powers between the judicial functions of the house of lords
3 track system
When a claim is received it will be allocated to 1 of 3 tracks for the hearing
1 small claims track no more than £10,000, an informal court
2 the fast track, moderately valued claims no more than £25,000 expected to last no more than a day
3 multitrack deals with claims over 25k and complex claims
Other courts
ECTHR
Final court of appeal in relation to human rights
Proceedings in english courts must have been exhausted before they will hear a case
No further appeal
JPC
Highest court of appeal for a number of commonwealth, crown dependencies and UK overseas territories
Hears both civil and criminal appeals
Right to appeal to JPC is regulated by that particular country
Proceedings take place in supreme court in UK
No further appeal
Court vs tribunals
Tribunals meaning:
Important part of english legal system and alternative to using the court system to settle a dispute
Employment tribunals are established to hear disputes between an employee and their employer on certain statutory employment matters e.g. unfair dismissal
Court v tribunal:
Court -
Case may not be heard by a specialist
A slower process
Legal aid maybe available but if not can be costly
Strict rules relating to evidence and procedure
Decisions bound by the doctrine of judicial precedent therefore consistent decisions
Tribunal -
Case will be heard by someone with specific expertise
Quicker process
Legal aid not available but can be cheaper
Much less formal and less intimidating
Not bound by the doctrine of judicial precedent therefore decisions can be inconsistent
Case law meaning
Case law
Case law can be subdivided into common law and equity
The doctrine of judicial precedent
Doctrine of judicial precedent:
The system adopted by judges of following decisions in previous cases
Some precedents are binding meaning they must be followed in later cases
Others are persuasive meaning a judge in a later case may choose to follow it but they are not bound to do so
Binding vs persuasive precedents
There are 3 factors to consider when deciding if a precedent is binding or persuasive:
The hierarchy of the courts -
As a general rule the precedents of higher courts bind lower courts but not vice versa
Supreme court binds all lower courts
Court of appeal binds lower courts and binds itself in civil cases unless earlier decision overrules or inconsistent with european law
High court not bound by its own decisions but strong persuasive authority
Ratio decidendi and obiter dicta -
The ratio decidendi is the legal reason for the decision
Capable of forming the binding precedent, it is a statement of law which is carried down to later decisions
Obiter dicta are statements which are not part of the ratio, they are other statements made by judges such as hypothetical situations or wide legal principles - persuasive rather than binding meaning judge can take the statement into account but do not have to follow it
The material facts of the case -
For precedent to be binding on a judge in a later case, the material facts of the 2 cases must be the same, if they are significantly different precedent will be persuasive rather than binding
Legislation types and advantages & disadvantages
Falls into 2 categories:
Acts of parliament -
Consists of The house of commons, House of lords, The monarch.
In order to become an act of parliament a bill must go through the following stages in both houses
First/second reading then voted upon
Report stage where the bill as amended is reported back to full house
Third reading the bill is read for final time
At the end of this process the bill must receive royal assent
Delegated legislation -
Parliament has delegated some of its legislative powers to other bodies
Usually parliament passes an enabling act setting out the policy involved and the objectives
advantages:
Saves parliamentary time
May benefit from access to specific expertise leaving parliament to debate underlying principles
Flexibility quick and easy to make change
disadvantages:
Volume and lack of publicity makes it difficult to keep up with change
Controlling delegated legislation
Courts can challenge validity of delegated legislation upon review
Meaning and purpose of interpretation of statutes
Interpretation of statutes:
Processes by which judges assign meaning to ambiguous words or phrases in statutes
Judges can use certain aids, rules and presumptions to help them assign a meaning to a word
The aids to interpretation
Aids to interpretation;
The legislation itself
Judicial precedents
The interpretation act 1978 - defines certain terms frequently found in legislation
The oxford english dictionary
Literal rule
Golden rule - when the literal rule gives more than one meaning or provides an absurd result, the golden rule is used.
Mischief rule - Used to interpret a statute in a way which provides a remedy for the act
Purposive rule - A modern approach it is making a decision as to what they felt parliament meant to achieve
Eiusdem generis - General words mean the same kind of thing as the specific words they follow
Expressio unius exclusio alterius - Where a statute seeks to establish a list of what is covered by its provisions, then anything not expressly included in that list is specifically excluded
Human rights law concept and impact
human rights:
Basic rights and freedoms that belong to every person
Purpose is to give individuals protection in their everyday life such as the right to freedom of religion and belief and the right to respect for private and family life
The human rights law:
These have developed over the years as a result of specific events such as the universal declaration of human rights which followed the second world war
In the UK the human rights act 1998 sets out rights and freedoms everyone in the UK is entitled to
