e2.1 - Sources and Types of Law Flashcards
Sources of law
Common law
Statute Law
Types of Law
Civil law
Criminal law
Common Law
‘Unwritten law’concerning conduct between people
Built up over centuries
Decisions based on:
-Acceptance of reasonable customs
-‘Judge made’ laws - Following doctrine of judicial precedent
Judicial Precedent
Judge follows decisions of previously decided cases
Two forms:
Binding precedent - Ratio Decidendi (a statement of legal principles)
Persuasive precedent - something a judge said ‘by the way’ known as ‘obiter dictum’ (discussion of legal principles raised in argument but not relevant to the decision)
Statute Law
A written law passed by the approved legislative process of the State
– i.e. Parliament
Drawn up in a definitive form in writing
Published and declared to be a law
Can override Common Law
Laws known as statutes (acts) or Statutory Instruments (regulations)
Origins of Statute law
European Directives:
- Need to be adopted by member states
European Regulations:
- Directly applicable law of the EU
Acts of Parliament
Regulations
Orders in Council
By-laws
Types of Legislation
Goal Setting
Prescriptive
Goal Setting
Sets a legal objective but allows the duty holder to determine the best way to achieve it - E.g. HASWA S2(1)
Prescriptive
Sets a legal objective which is explicitly stated - E.g. MHSWR r3
Goal setting advantages
Allows more flexibility for
compliance
Methods chosen actually
relate to the risks present
Less need for frequent
revision
Applies to a broader range
of workplaces
Goal setting disadvantages
More difficult to enforce
Legal requirements more
subjective
Duty holders need high levels of
competence
May need a judge to clarify
meaning of law
Prescriptive advantages
Legal requirements are
clearly defined
Does not need high level of
competence to interpret law
Uniform standard for all
duty holders
Prescriptive disadvantages
Inflexible; does not give duty
holders freedom to decide how
to control risks
Does not take into account the
circumstances of the work
Needs frequent revision to keep
law updated due to changes in
technology
Civil
Action between individuals/organisation
Claimant v Defendant
Defendant is sued
Remedies - comp
County court - high court- higher courts on appeal
Balance of probabilities
often (not always) based on common law
Insurance obtainable
There must be loss for action to be taken
Criminal
State v individual
Crown (regina) v accused
Accused is prosecuted
Penalties - Punitive
Magistrates court - crown court - higher courst on appeal
Beyond all reasonable doubt
often (not always) based on statute law
Insurance not obtainable
There does not have to be loss for action to be taken
