Chapter 1: English Legal System

Question 1

What do you understand from the term common law

How is common law split into 3 categories

Answer 1

Common law can be catergorised into 3:
* Common law & civil law (The legal System)
* Common & Equity (Historical source/tradition)
* Common law & statue (Source of law/case law)

Question 2

What are the 2 major legal traditions? Which does UK belong to?

Answer 2

Common law and civil tradition
UK - common law tradition

Question 3

What are customs in the UK, and what were the types of matters that it had rules over

Answer 3

Customs are an ancient rule of law for a particular locality, informal practices/traditions that were largely unwritten.

The customs formed laws regarding family rights, owenership, inheritance, contracts, and personal violence

Originated in the Anglo-Saxon period, which was later granted validility by the Norman Conquerors, which were then adapted

Question 4

What was the Norman Conquest?

Answer 4

The Norman Conquest was the militray conquest of England by King William in the victory of the Battle of Hastings

Where it caused immense political, administrative, and economical change

Question 5

When was the Norman Conquest

Answer 5

14, October, 1066

Question 6

What is the Curia Regis

Answer 6

The Curia Regis (King’s Court) was created by King William to centralise the legal system, to allow individuals to bring their grievances to him and where he would give judgement to

The King’s Court was a singular court where he and his advisors (landowners & religious people) that would travel around the UK to give judgement

This was the beginning of a legal system (common law)

Question 7

What were the difficulties the people had to face in obtaining, justice at the King’s Court

Answer 7

The King’s Court had many weaknesses as it was rigid and inflexible

Aditionally, the individuals would need a writ recognised by the king in order to get their judgement

No writ meant no remedy

Question 8

What is a writ

Answer 8

A writ is a document with a seal of the King.

They were problems/issues that were recognised by the King, and only with a writ would the King see individuals

If the writ didn’t recognise then they would not offer judgement

Question 9

Who manages the Chancery Court

Answer 9

The Lord Chancellor

Set up by the King. where the LC was delegated all of the tasks of the King, to dispute grievances

Question 10

What is the difference between common law and equity

Answer 10

Common law derived from customary laws that were created upon disputes and judgement from previous cases made by the advisors.It governed England and the royal court. Common law was rigid in a sense that it only recognised what laws/problems that were written before

Common law only provided remedies that were recognised, on the basis if you can prove you are right, you get remedies

Equity means fairness, it was created in the Chancery Court with the objective to overcome the rigidity and inflexibility that common law had. It utilised natural justice where it was more flexible in a sense that they were more discretionary with judgement, exercised by judges

Equity provided specific remedies/performances where some problems were not able to be solved with a monetary remedy, so they opened to different methods (it is not by right, but by discretion)

Question 11

What is the problem encountered in having 2 seperate courts

Answer 11

Caused conflict between both courts, duplicity. There was no unity in decision making.

Courts became expensive and increased cases became rampant.

Question 12

What Act combined common law and equity

Answer 12

Judicature Act 1873-1875

Question 13

State differences between the characteristics of common law and civil law system

Answer 13

The common law system goes by a case-by-case basis, case law/judicial precedent
* Unwritten
* Inductive form of legal reasoning
* Adversarial litigation system
* degree of independence

Civil law is based off statutes
* Codified
* Deductive form of legal reasoning
* Inquisitorial litigation system
* reliance on the state

Question 14

What are the 3 kinds of equity

Answer 14

equitable maxims (equality)
* remedy given according to the amount each party put into the activity. (ie. more effort - more remedy)
* ‘one must come with clean hands’

equitable remedies (discretionary)
* Specific performances: order by court to complete an action, or refrain them from doing something (form of injuction, contracts).
* Rescission - Purpose to put the party back to the position they were in originally

equitable rights (moral rights)
* remedies come according to what is morally right, discretion of the judges (i.e. divorced but lived in the house for 30 years)

Question 15

What are the 2 sources of law in the UK, which is best, why

Answer 15

Codified sources
* Statutes

Advantages
Statutes
* Are clear, concise, intelligible
* Lay man would be able to access/find the legislations

Disadvantages
* No room for error, inflexible, little room for interpretation
* Wording may be ambiguous
* can lead to absurd results when applied in certain circumstances

Uncodified sources
* judge made law
* Constitutional conventions
* Royal prerogatives

Common law
Advantages
* flexible, room for amendment/interpretation
* Logical, easy to understand, judge makes clear and detailed dispute

disadvantages
* Hard to access, too many case laws
* Difficult to understand by law persons, the legal principles and legnthy opinions
* Slow development

Question 16

Explain inductive and deductive legal reasoning

Answer 16

Form of legal reasoning - inductive
* case-to-case basis
* from statute to case law (specific > general)

Deductive
* general rule to determine the appropriate outcome of specific case (general > specific)

Question 17

Which form of legal reasoning does UK practice? What are the pros and cons of each?

Answer 17

UK at large, uses inductive legal reasoning. Though both are used for written laws.

Inductive
Advantage
* Able to predict what might happen in the future

Disadvantage
* Incomplete and may reach false conclusions even with accurate observations

Deductive
Advantages
* Conclusiveness (statutes are clear and concise)
* as long as each premise is true, and arguement is valid, it follows necessarily that the conclusion is ture as well (uses infromation that is already in staute)

Disadvantages
* works only in easy cases, cases that don’t challenge the terms of rule and unambiguous

Question 18

Explain judges as an author of a chain novel

Answer 18

Judges don’t create the story, they alter/interpret the storyline little by little

each novelist in the chain interprets the chapter he has been given in order to write a new chapter, then added to what the next novelist receives

Showing how judges both create and interpret law

Question 19

Do courts make law through judgements and decisions

Answer 19

Judges make law
* arguments such as novel cases where there are no laws to apply, nature of law is open textured, exercise of wide discretion indicates law making by judges

Judges don’t make law
* democratic deficit
* parliamentary supremacy
* weak discretion of judges

Question 20

What is parlaiment sovereignty

Answer 20

Parliament sovereignty means to say parliament is the supreme law making body, whereby every organ of the law are bound under Acts of Parliament.

Parliament can both make and end any law. Not even the Monarch is above or can supersede/override Parliamentary Sovereignty

Question 21

Does UK have a written constitution

Answer 21

UK does not have a written constitution. The constitution is largely uncodified although comprising of written and unwritten laws.

having a written constitution is having a legal written document

Question 22

Should the UK remain as pure as the common law system

Answer 22

No – as there are many defects of the common law tradition such as inefficiency of trials and high costs, need to adopt the civil law tradition to improve the legal system

Question 23

When did the UK leave the EU

Answer 23

31 January 2020

Question 24

What is the connection between the European Union Law and the UK

Answer 24

Whatever that has been passed before the UK left

UK only utilizes the laws passed by the EU since 23 June 2016

Question 25

What is the European Convention of Human Rights, how do the European countries recognise this act

Answer 25

An international treaty drafted in 1950 which came into effect in 1930, signed by European nations who were members of the Council of Europe

The act is only recognised after the country passes a bill that recognises the ECHR

UK passed Human Rights Act 1998

Question 26

What Act of Parliament did the UK pass to recognise ECHR

Answer 26

The Human Rights Act 1998

• directly incorporates ECHR in to English law

Question 27

What are the 3 international organistaions in Europe and its purpose

Answer 27

• Council of Europe (Majority of EU nations)

To promote demoracy and protect human rights and rule of law in Europe

• European Council (Part of the EU)

To plan Union policy

• European Union (The smallest group/bffs)

To make decisions on specific matters of joint interest, can be made democratically at European level

Question 28

What are the 3 internation courts in Europe and its role

Answer 28

International Court of Justice (Court for United Nations)

• Legal disputes submitted by the states and to give advisory opinions on lega lquestions
• Also prosecutes world leaders for serious matters

European Court of Human Rights (court for ECtHR)

• To make sure states don’t abuse thier powers against human rights

Court of Justice of the European Union (CJEU)

• ensures compliance of the law in the interpretation and application of the European Treaties of EU