Chapter 1 - The Rule Of Law Flashcards
0
Q
Distinguish and differences between National and International law
A
International : disputes between countries; law comes from treaties
National law: law applied within a country; each country has it’s own law
1
Q
Draw the hierarchy of courts.
A
Ok, check
2
Q
Types of public law
A
Constitutional, Administrative, Criminal
3
Q
What’s the purpose of criminal law?
A
- Sets out behaviours that are punishable.
2. Person who has offended against the state; state has the right to prosecute them.
4
Q
How can prosecutions be made in a criminal case?
A
Prosecutions can be made by the state (CPS); and if ever the state does not take matter in its own hands, the victim can initiate a private prosecution.
5
Q
What can happens when there’s a private prosecution going on?
A
The state has the right to intervene and take matters in it’s own hand.
6
Q
Will a victim get compensation at the end of a criminal case?
A
It’s not necessary for the victim to get compensation as it is not a dispute between 2 individuals but the criminal court have the power to order the offender to offer compensation and can also punish the guilty.
7
Q
When does a tort occur?
A
A tort occur when even if there’s no contract between two individuals, one of them owes a sense of responsibility to the other in one or another and there has been a breach of that responsibility.
8
Q
How to we call the person starting the case in criminal cases?
A
Prosecutor (on behalf of the state; CPS)
9
Q
How dow we call the person starting a civil case?
A
Claimant
10
Q
What terminology is used in a criminal case?
A
Guilty; convicted
Not guilty; acquitted
11
Q
What terminology is used in a civil case?
A
Liable; ordered to put things in order (damages, injunction, specific performance)
Not liable
12
Q
Say something about the standard of proof in criminal and civil cases.
A
Criminal cases must be proved beyond reasonable doubt
;
Civil cases have only to be proved ‘on the balance of probabilities’
13
Q
What’s the purpose of law in criminal and civil cases?
A
In civil cases; to uphold the rights of individuals
In criminal cases; to maintain law & order, to protect society
14
Q
Who usually starts a case in a civil or a criminal case?
A
Civil; person whose rights has been affected,
Criminal; state through CPS/Police
15
Q
How do we call the person/s making decisions in civil/criminal case?
A
Civil: judge, very rarely a jury
Criminal: Magistrate or Jury
16
Q
Definition of law according to ‘Sir John Salmond’
A
The body of principles recognised and applied by the state in the administration of justice.
17
Q
Definition of law according to sociology?
A
A formal mechanism of social control.
18
Q
What can u say about law and rules?
A
Law applies throughout the country to people in general and rules applies to only a specific group or in limited situations.
There’s also unwritten rules; custom
19
Q
What can you say about ‘codes of law’
A
In some countries, an effort has been made to produce a complete set of rules designed to deal with every possible situation that might arise! Ex: Napoleonic Code in France
20
Q
Is a codified system of law OK?
A
No, laws need to be able to be changed and developed with the needs of society; a fully codified system will prevent change.
21
Q
What can you say about law and morality?
A
Moral values lays down a foundation for how people should behave, and concepts of morality differs from culture to culture. The law of a country will usually reflect the moral values accepted by the majority of a country.
22
Q
I’m what year was abortion legalized in UK?
A
1967
23
Q
Differences between law and morality?
A
- Morality can’t be changed deliberately; it evolves slowly, according to the needs of society and laws can be altered by legislation.
- Morality brings with it informal sanctions but laws make certain behaviours obligatory with legal sanctions to enforce it.
- Breaches of mortality will not usually subject to formal adjudication but breaches of law will be ruled on by a formal legal system
24
Does the law always provide justice?
Not always so, but it is the ultimate goal towards which the law should strive.
25
What can u say about rights and duties?
The law gives rights to people and methods of enforcing those rights and is involved in a balancing act, trying to ensure that one's person's right does not affects another person's rights. In order to keep the balance, the law also imposes duties on people.
26
How does the law impose duties on people?
Ex: in a contract, both people have certain rights and duties under the contract. Even where there is no contract/agreement between two individuals, the law can impose duties on those people.
27
How many elements were there that created the rule of law?
Three;
1. An absence of arbitrary power on the part of the state.
2. Equality before the law.
3. Supremacy of ordinary law.
28
In our English Legal System, how can the actions and decisions of government ministers be challenged?
Judicial review
29
What are the principles that Joseph raz set out?
1. There should be clear rules and procedures for making law.
2. The independence of the judiciary must be guaranteed.
3. The principles of natural justice should be observed; these require an open and fair hearing with all parties being given the opportunity to put their case.
4. The courts should have the power to review the way in which the other principles are implemented to ensure that they are being operated as demanded by the rule of law.
30
Under which act was the European convention of Human Rights incorporated in the English Legal System?
Human Rights Act 1998
31
What are some of the areas that Human Rights Act 1998 has affected?
1. Precedent
2. Statutory interpretation
3. Trials
4. Sentencing
5. Judicial appointment
32
What is international laws concerned with?
Disputes between nations
33
From where does much of international law comes from?
Treaties agreed by government of countries
34
What is national law?
Laws that applies within a country
35
Are all country's law the same?
No, each country has it's own national law
36
What is public law?
Laws involving the state/government
37
What's the difference between public and private law?
Public law involves state/government and private law is concerned with disputes between private individuals or businesses
38
List 3 main types of public law
Criminal law, administrative law and constitutional law
39
What does criminal law do?
Sets out the types of behaviour which are forbidden at risk of punishment
40
What can we say about a person who has committed a crime?
A person who has committed a crime is said to have offended against the state
41
What can the state do when a person has committed a crime?
The state has the rights to prosecute them
42
What can happen when the state does not prosecute a criminal?
The victim can bring a private prosecution if the state does not take proceedings
43
Does the state have the rights over a private prosecution?
Yes, the state can intervene and take over the matters
44
Is it possible for a victim to get compensation at the end of a criminal case?
Not always, but criminal courts have the powers to order an offender to pay the victim.
45
Other name of private law?
Private law is known as civil law
46
Branches of civil law?
Tort Law, Contract Law, family law
47
When does a tort occur?
A tort occurs where the civil law holds that even though there is no contract between 2 or more persons, one owes a legal responsibility of some kind to another and there has been a breach of that responsibility.
48
Differences between criminal and civil cases?
They are tried in different courts
49
In what courts can a criminal case be tried?
Magistrate's court, crown court
50
In what courts can a civil case be tried?
Hhh court or county court
51
How do we call the person starting a case in a criminal case?
Prosecutor: CPS or The State
52
How do we call the person starting a case in a civil case?
Claimant
53
What is the terminology used in a criminal case?
Guilty or not guilty and the defendent is either convicted or acquited
54
What is the terminology used in a civil case?
Found liable or not liable
55
What will happen to those who are found guilty at the end of a trial of a criminal case?
Punished
56
What will happen to those who are found guilty at the end of a trial of a civil case?
Those liable will have to provide the victim compensation.
| There can also be injunction, specific performance or rescission.
57
Purpose of law in criminal cases?
To maintain law and order
58
Purpose of law in civil cases
To uphold the rights of individuals
59
People who start a case in criminal law?
State, CPS
60
People who start a case in civil law?
Individuals whose rights have been affected.
61
How do we call the person making a decision in a criminal case?
Magistrate or jury
62
How do we call the person making a decision in a civil case?
Judge
63
What powers do the courts have in civil cases?
Damage, injunction, specific performance, rescission and rectification
64
What powers do the courts have in criminal cases?
Prison, fines, community order, discharge
65
What can you say about the standard of proofs in criminal cases?
In criminal cases, the standard of proofs must be proved beyond reasonable doubt.
66
What can you say about the standard of proofs in civil cases?
Civil cases can be proved on the balance of probabilities
67
Why should criminal cases be proved beyond reasonable doubt?
A high standard of proofs in necessary since a convinction could result in a long prison sentence
68
Can a civil case successfully be followed after a criminal case?
Yes; for ex in a road accident, where the defendant has been found guilty of a driving offence such as exceeding speed limit and anyone or any property which was damaged as a result of the incident could bring a civil action to claim compensation.
69
Is there a possibility for a civil case to be successful after a criminal case?
Yes, in circumstance when a defendant has already been convicted in a criminal case, it will make it easier to prove the civil case?
70
Definition of law according to JOHN AUSTIN?
"Law as being a command issued from a superior (the state) to an inferior (the individual) and enforced by sanctions."
71
Problems with JOHN AUSTIN's definition of law?
It does not cover the concept of judicial review where individuals may challenge the 'command' made by a minister of state.
72
Definition of law according to SIR JOHN SALMOND
"Law; being the body of principles recognised and applied by the state in the administration of justice"
73
Elaborate on SIR JOHN SALMOND's definition of the law
Law can a described as a formal mechanism of social control. It is formal because the rules set down in the law can be enforced through the courts and legal system; while in a broad sense, all law could be said to be involved in some area of social control
74
What can you say about law and rules?
Law applies throughout a country to the people generally but rules applies to a specific groups or to some specific areas.
75
types of rules are present in law?
Formal rules and informal (unwritten) rules.
76
Where are informal (unwritten) rules found?
Informal (unwritten) rules are found within the community
77
Where does informal (unwritten) rules comes from?
They do comes from local customs or practice or they may be connected to religious beliefs. They enforce what is regarded by the community as the norm for behaviour.
78
What happens if you do break informal(unwritten) rules?
Others may disapprove of such type of behaviour and criticisms might be faced.
79
Advantage of a codified system of law?
The law is more accessible so that everyone knows exactly what their rights and duties are.
80
Disadvantage of a codified system of law?
Law needs to be able to change and develop with the needs of society and a codified system will prevent such change.
81
What does the moral values of a community do?
The moral values of communities lay down a framework for how people should behave
82
What can you say about the concept of mortality?
They differ form culture to culture, although most will outlaw extreme behaviour such as murder
83
Most often, morality is based on what?
Morality is based on religious beliefs and ideas.
84
What will the law of a country reflect to?
It will reflect the moral values accepted by the majority of the country.
85
Is there a problem with law and and morality?
The law is unlikely to be the same as the common religious moral code. Ex: adultery is against the moral code for both Christians and Muslims but is not considered as a crime in Christian countries.
86
Does the moral standard of a community have any effect?
Yes, it does have a profound influence on the development of the law.
87
Does the moral standard of a complex society have any effect?
No, morality and law are never likely to be co-extensive
88
Why in complex societies, law and morality might not be cp-extensive?
Some major breaches of the moral codes such as robbery might be against the law but in other matters, there may not be consensus.
89
In what year was abortion legalized in England and Wales?
In 1967
90
Case where a limited form of euthanasia has been accepted?
Airedale NHS Trust v Bland
91
Give a summary of the case: Airedale NHS Trust v Bland
Rule passed that medical staffs could withdraw life support from a client who could breathe unaided, but who was in a persistent vegetative state.
92
A case where morality and the law conflicts?
Airedale NHS Trust v Bland
93
3 differences between morality and the law?
1. Morality can't be deliberately changed but law can be altered deliberately changed by legislation.
2. Morality is voluntary with consequences but law makes certain behaviour obligatory with legal sanctions.
3. Breaches of morality are not subjected to formal adjudication.
94
Can morality be deliberately changed?
No, it evolves slowly and changes according to the will of the people.
95
Can the law be deliberately changed? Justify your answer
Yes, law. An be deliberately changed by legislation.
96
Are breaches of morality subjected to formal adjudication? Justify your answer.
No, breaches of morality are not subjected to formal adjudication but breaches of the law will be ruled in by a formal legal system.
97
What can you say about rights and duties?
The law gives rights to individuals and methods of enforcing those rights.
98
How the law is involved in a balancing act?
By ensuring that one person's rights do not affect another person's rights
99
What does the law do in using a balancing act?
The law imposes duties on people
100
A case where the balancing act can be seen?
Revill v Newberry
101
Give a sumarry of the case: Revill v Newberry
Mr. Revill with another tried man attempted to break into Mr. Newberry's apartment. Mr. Newberry fired through the door and Mr. Revill got hurt.
Criminal proceeding: Mr. Revill found guilty due to previous offences and was sentenced but Mr. Newberry was found not guilty by the jury at the crown court.
Civil proceeding: Mr. Revill was awarded damages but the amount was reduced as Mr. Revill was to be blamed for what happened.
102
The 3 elements that created the rule of law according to Dicey?
1. An absence of arbitrary power on the part of the state
2. Equality before the law
3. Supremacy of the ordinary law
103
How can the state's power be controlled?
It must be controlled by the law.
104
How can the state' slower be controlled by the law?
The law must set limits on what the state can or cannot do.
105
In the English Legal System, how can the actions of and decisions of government ministers be challenged?
By judicial review
106
The 4 principles that JOSEPH RAZ set out concerning the law.
1. There should be clear rules and procedures for making laws.
2. The independence of the judiciary must be guaranteed.
3. The principles of natural justice should be observed.
4. The courts should have the power to review the way in which other principles are implemented to ensure they are being operated as demanded by the rule of law.
107
Under which Act was the European Convention of Human Rights incorporated into the English Legal System?
Human Rights Act 1998
108
Which act has affected many areas of the English Legal System?
Human Rights Act 1998
109
5 areas where the Human Rights act 1998 has affected the English Legal System?
1. Precedent
2. Statutory Interoretation
3. Trials
4. Sentencing
5. Judicial appointment
110
How has the Human Rights Act 1998 affected precedent?
Section 2(1)(a) of the Human Rights Act 1998 states that the English Legal Courts must take into account any judgement or decision of the European Courts of Human Rights. This means that judges when deciding a case must look at human rights cases as well as the English law.
111
How has the Human Rights Act 1998 affected the Statutory Interpretation?
Section 3 of the Human Rights Act 1998 states that as far as it is possible, all legislation must be given effect so that it is compatible with the European Convention. If the possible wording of an Act of Parliament has 2 meanings, then the meaning which fits with the European Convention is the one that must be used.
112
How has the Human Rights Act 1998 affected trials?
Article 6 of the European Convention gives the rights to a fair trial; all aspects of the trial must be fair.
113
Give a sumarry of the case: T v United Kingdom, V v United Kingdom
Juvenile offenders were tried for murder in the crown court. The European Court of Human Rights held the formality of a crown court trial would make it difficult for the boys to understand what was happening; this was unfair and breached the European Convention.
114
Cases where reforms was brought in the English Legal System in trials after incorporating the European Convention?
T v United Kingdom and V v United Kingdom
115
How has The European Court of Human Rights affected sentencing?
Whenever an offender used to be sentenced to prison for life, the minimum sentence period used to be set by the Home Secretary ( a government minister) before an offender can be considered for parole. The European Court of Human Rights held that it was a breach of the European Convention and was amended; now judges can set a minimum period.
116
How has the Human Rights Act 1998 affected judicial appointments?
Part time judges used to be appointed for a period of 3 years by The Lord Chancellor and as this breached the European Convention, it was changed to 5 years.
