ELS - sources of law Flashcards
what is stare decisis
the principle of precedent
what is the common law
body of case law decided by judges
Ratio & Obiter (binding?)
Ratio = binding
Obiter = not binding but highly persuasive
What is the common law
Law which has developed naturally over time. Made by judges and governed by precedent
what are the 6 ways courts can respond to earlier case law
- Following
- Applying
- Distinguishing
- Reversing
- Overruling
- Overturning
when should a judge ‘follow’ an earlier judgement
where the two cases are so similar the earlier case should be followed
when should a judge ‘apply’ an earlier judgement
if there are similarities with the facts of the earlier case
when should a judge ‘distinguish’ an earlier judgement
To avoid an otherwise binding precedent if there is a material difference on the facts
when should a judge ‘reverse’ an earlier judgement
when a case goes to appeal and the higher court disagrees with the lower
when should a judge ‘overrule’ an earlier judgement
when the higher court decides an earlier precedent is wrong and sets a new one
when should a judge ‘overturn’ an earlier judgement
same as overruling (higher court decides earlier precedent is wrong)
What courts are binding and on which other courts
- Supreme court = binds all inferior but can depart from its own decisions
- CoFA = binds all inferior courts and itself (subject to some exceptions)
- High Court = binds all inferior courts but not itself
- Upper tribunal = binds first tier, inferior and itself
- First tier tribunal = does not bind but persuasive
- Family, county, crown, mags = doesn’t bind other courts or itself
What are examples of equitable remedies
specific performance, injunction, declaration, rescission, rectification
What is not an equitable remedy
Damages (CL remedy)
What prevails between equity and common law
equity
what is primary legislation and its lifecycle
Acts of parliament
Lifecylcle:
1st reading, 2nd reading, committee stage, report stage & 3rd reading
Bill then requires royal assent - act of parliament takes effect from the day it receives royal assent
What is secondary legislation
created by ministers
Courts have no power to invalidate an act but they can quash it
Parliament can approve/reject it but not amend it
what are the 5 rules of statutory interpretation
- Literal rule
- Golden rule
- Mischief rule
- Purposive approach
- contemporary approach
what is the literal rule
Principally adopted by judges; gives words their ordinary, plan/natural meaning
Assisted with dictionary (and other extrinsic aids)
what is the golden rule
Giving words their ordinary meaning unless they produce an absurd outcome
what is the mischief rule
Consider what was the common law, what was the mischief/defect which the CL didn’t provide, what remedy did parliament intend, what was the reason for adopting that remedy
Mostly defunct now and absorbed into the purposive approach
what is the purposive approach
Looks at the purpose of the legislation
what is the contemporary approach
Looks at both the strict/superficial meaning of the words and the purpose of the legislation = more unified
what are the three linguistic presumptions
- Expressio Unius
- Ejusdem Generis
- Noscitur a Sociis
what is expressio unis
The mention of one thing excludes another (closed list)
what is ejusdem generis
‘Of the same kind’ = where general words follow a list of specific words, the general words are interpreted so as to restrict them to the same kind of objects
what is noscitur a sociis
A word is known by the company it keeps
Words of a statute are understood in the context of the statute itself
what are the main sources of EU law
Primary (Treaties)
Secondary (regulations; derivatives; decisions & case law)
when does a bill become an act?
on royal assent
how are EU regulations enforceable
directly applicable and direct effect
how are EU directives enforceable
legally binding to those addressed and can be enforced in national courts.
Member states must pass legislation to implement directives into their country
what if member states do not pass legislation to implement directives into their country
Then members can rely on the directive in the member state even if it hasn’t been implemented:
Direct effect (available if implementation date has passed)
Indirect effect (obligation on domestic courts to interpret domestic law compatability with EU law)
State liability (completely available for state’s failure as long as it has sufficiently serious consequences
