Chapter 1 Flashcards
Two important features of common law
Based on principles identified and expanded by the judiciary
In criminal law, the defendant has a right to be tried in front a jury who will dictate guilty or not guilty based on facts presented
Parliamentary sovereignty
Parliament is the supreme law maker. They can make laws which cannot be challenged in the courts and they are not bund by precedent
Explain House of Commons
Members of parliament elected for each constituency and following a general election the leader of the winning party is invited by the monarch to become a government and becomes prime minister
Explain House of Lords
Made up of archbishops, life peers and hereditary peers to hold the government to account,make and shape laws and debate big issues
Local councils
Locally elected councils that have power to make local rules on building policy, roads etc
Regional or National Assembly
Powers of central government have been devolved eg min of health and education
Define law
Set of rules applied by members of state and enforced through the courts
Elements of public law
Criminal law
Constitutional and admin law: rules of government and administration of justice
Private law
Concerned with relationships between people. It includes the law of obligations:
Contract law - law governing individuals who have entered into contracts
Company law - rules regulating the rights and obligations of corporations
Insolvency law - rules governing the management and distribution of assets of debtors who can’t meet their liabilities
Tort law - rules providing individuals with remedies against one another in circumstances where they have not voluntarily entered into an agreement
Examples of private law
Tort law
Insolvency law
Company law
Contract law
Three distinct functions of government
Legislative (parliament)
Executive (public servants who put the law into action)
Judiciary (decides on the law)
Main ranks of judges
District judge
Circuit judge
High court judge
Appeal judge
Supreme Court judge
Case law
Judicial decisions which serve as precedent in later cases
Statute
Laws enacted by parliament or indirectly under parliaments authority
Doctrine of precedent
When a judge follows principles expressed by predecessors of equal or higher rank in earlier cases
Common law
Governs basic principles of business law
Equity
A branch of case law that works on principles of fairness and good conscience rather than strict adherence to law. Equity recognizes fiduciary duties and responsibilities which arise out of positions of good faith
Trust
Relationship where a person manages the assets for the benefit of another person
Trustee
The person who manages the assets and owns them
Beneficiary
The person on whose behalf the trustee manages the assets
Examples of equitable remedies
Injunction - court order to stop doing something
Rescission - a declaration that a contract is void
Specific performance - an order to fulfill your duties in the contract
Estoppel - court order to stop a person from going back on something said or promised
When would equitable remedies be adequate
Only when monetary compensation would not be enough to solve the situation
How does parliament use statutes
To introduce new laws
Modify existing laws
Consolidate laws
Remove old laws that have become obsolete
Can statutes override case law
Yea
Act of parliament
Legislation that both parties have agreed to
Delegated legislation
Laws which are made indirectly under parliaments authority
Privy council
Council made up of senior government officials that have the power to issue orders in council
Orders in council
Orders that do not need further reference to parliament and are used for routine matters or in times of emergency
Does the privy council also deal with regulations of chartered bodies institutions and associations ?
Yea
Ratio decidendi
The specific legal reasoning behind a legal decision
Human rights
The fundamental rights to which a human being is entitled
What is the Human rights act
Binds public authorities not to breach an individuals rights
Which is the lowest court and who presides over it
Magistrates court - District judge
Explain the level of courts and the judges that preside over them
What is the main aim of human rights act 1998
Not to breach an individuals rights
What is common law
Based on legal decisions rather than statutes
What is European Union law
EU treaties and their secondary legislation and decisions of the European Court of Justice. Ever since brexit ecj no longer applies but is retained in UK law
Statutory instruments
Rules and regulations made by parliament or indirectly under parliaments authority
What is the cornerstone of common law
Judicial precedent
Obita decidendi
Other things said; statements which go beyond the ratio
Recission
A party can cancel the contract; declare the contract void. Bring the party to a precontractual position
Primary Sources of EU law
Treaties made between member states which set down the framework for future laws
Secondary sources of EU Law
Regulations
Directives
Decisions
Precedents set by higher courts ins judges in lower courts
True
Literal rule
Words are given their plan literal meaning
Golden rule
Requires to judges to avoid interpreting in such a way as to produce a repugnant result
Purposive rule
Words are interpreted according to the purpose of the legislation
In pari material
Two laws relating to the same subject matter must be construed together
Expression unius est exclusion alterius
The expression of one excludes others
Ejusdem generis
General words following particular words are of the same class
Noscitur a socis- known by the company it keeps
Words derive their meaning from other words around them
The crown
The monarchy in its constitutional function
Position of the crown
Apolitical
Standard of proof in civil cases
On the balance of probabilities
Equity recognizes fiduciary duties and responsibilities which arises out of positions of good faith (bona fides)
True
Principle common law remedy
Damages
Injunction
Court order to stop doing something
Specific performance
Court order to a party in a contract to carry out their obligation under the contract
Estoppel
Civil court power to stop a person from going back on something said or promised
Statutory instruments
Rules and regulations made by government departments under parliament authority
Wrong per incuriam
Lack of proper attention to facts
District judges
Sit on the lowest level courts. Have at least 7 years of experience as advocates before becoming a judge
12 justices of the Supreme Court
Appointed from each jurisdiction in the UK in recognition of their superior expertise as High court or court of appeal judges
Circuit Judges
Higher than district judge must have at least 10 years experience as an advocate together with experience as a district judge
