Chp 1: Introduction to the Legal System of England and Wales and Sources of Law Flashcards
What is a legal system?
A body of institutions that: - make - execute - resolve disputes on the law of the jurisdiction, together with the law they deal with.
What are the aspects of a typical legal system?
1- Existence of a constitution
2- Cultural and historical factors
3- Unofficial & popular opinions
Define: Rule of Law
All people & authorities within a state are bound by and benefit from the laws of the land.
Those laws should be clearly stated, understood & administered.
What are the components of The Rule of Law?
Acc. to Lord Bingham, The Rule of Law must:
1- Be clear and predicable
2- Exercise the power of discretion (i.e right of power to make judgment) is subordinate to the law (judgment is lower to law)
3- Have equality
4- Settle matters, private parties and individuals are unable to solve
5- Adhere to its national and international obligations.
What happened in 1066?
The Battle of Hastings
- William the Conqueror defeated Harold of Hasting and laid the foundation of today’s legal system.
How some practices laid down by William the Conqueror used even today in the modern legal setup?
1- He set up rules and customs
2- Maintained a hierarchical structure
3- Maintained records of decisions for future reference called- Records
4- record the time and venue where the decision was made.
Magna Carta 1215
- Written during the time of King John
- Signed in Runnymede, Surrey
- Clauses 38, 39, 40 valid today.
What are some clauses in the Magna Carta that are valid even today?
Clause 38: No defendant can be put to trial on the basis of an unsupported statement alone
Clause 39: Punishment only within the law of the land. No one is above the law and punishment can only be given by the law, no one else.
- He should be judged by the judgment of his equal peers was the root of trial by jury
Clause 40: Justice cannot be sold, destroyed or denied.
What are some important concepts that still can be seen even today in society?
1- The involvement of the Monarch & other elite elements
2- Rule of Law is often accepted when faced with conflict
3- The importance of commercial bodies such as the City of London.
4- The existence of court and their officials
5- Dissatisfaction of key elements of society such as unrest among the lower population plays a role in shaping the legal system we have today.
Significance of Bill of Rights 1688
- Restriction on powers of the Monarch (gave more power to Parliament and courts)
- Declared rights and liberties of subjects, such as:
a. Freedom of speech,
b. The undesirability of cruel judgements,
c. The free election of Parliament - Law cannot be executed by the Monarch/Regal authority (i.e. government) without the consent of Parliament.
When did UK join the EU and other significant dates?
European Communities Act, 1972 anticipated UK’s membership in the EU (then known as EEC i.e European Economic Community)
UK joined EU on 1 Jan 1973
This is confirmed through a 67% referendum on 1 June 1975
Significance of:
R (Factorame Ltd) v Secretary of State Transport
Case:
A Spanish fisherman was against the UK govt. saying they breached the EU Law by requiring ships to have a majority of British owners to register in the UK.
Significance:
- 1st time the UK courts had the power to restrain the Act of Parliament by pending trial and ultimately disapply the act when it was contrary to EU Law.
- Shows supremacy of EU Law over UK Law.
Why is Wales included in the legal structure of England?
Wales: Due to geography, trade and culture.
- After Henry VII defeated Richard III at Bosworth Field.
- Though the Welsh were not compliant, it was legalised through Acts of Union was made in 1536 and 1543.
Why only England & Wales but not Scotland?
Scotland: Stuart King James I came to England in 1603 but refused to give up their customs.
- Acts of Union 1707 brought them to have the same Parliament but maintain their separate church and legal structure.
Civil Law v Criminal Law
Civil Law:
- Deals through agreements and private resolutions
- Outcome: Remedies or Payment of monies
- Proved on the basis of: Balance of Probabilities
i. e After weighing the evidence on both sides, the court decides which one is more probable.
Criminal Law:
- Deals through punishment
- Outcome: Punishment (ultimate punishment loss of freedom)
- Proved on the basis of: Beyond Reasonable Doubt
i. e the prosecution must convince the jury that no other explanation can come from the evidence presented. - Public takes interest in punishment and offence.
