English legal system & sources Flashcards
Lecture 1
What are the macro functions of the law? (to maintain order)
- Examples: public, political, social, economic, international, moral
- Resolution of social problems
- Regulation of human relationships
- Educative or ideological function of law
What are the micro functions of the law? (law affecting us as individuals rather than society)
- Defining limits of acceptable behaviour
- Defining consequences of certain forms of behaviour
- Defining processes for transaction
- Regulatory frameworks
- Authority to agents + assisting public
- Preventing abuse of power
What does the Public Order Offences tell us? (Public Order Act 1986)
- Behaviours we cannot engage in
- Micro: not riotting, violent disorder, harass
- Macro: ensuring society is safe
What is the difference between common law and civil law?
- Common: based on case law
- Civil: judges as investigators
What is the difference between public and private law?
- Public: affecting society as a whole (relationship between individuals and public institutions) (e.g., Constitutional)
- Private: applies to relationships between individuals or private organisations (e.g., Contract)
What is the difference between criminal and civil law?
- Criminal: provides system for punishment of wrongdoers by the state to maintain social order (focus on wrongdoer)
- Civil: provide system for compensation of loss (focus on person who suffered loss)
How was common law developed?
- Pre-1066: no unified set of laws
- William the Conqueror: realised importance to control legal system to control the country
- Henry II: system formalised when he split country into circuits (areas) + judges shared experiences and adopt best decisions, forming ‘common law’
What issues are with the common law?
- Someone could only litigate if a writ was available
- Only remedy was damages
- As a result, common law became impractical and claimants petitioned king into this position
What changes were made?
- Lord Chancellor: role of “fountain of justice” before and now “Keeper of the King’s Conscience”
- No writ necessary
Conflict arose between common law and changes from the king. How was this resolved by James I?
- Claimed equity should prevail but had the same problems as common law
- As a result from the Judicature Acts 1873 and 1875, courts of common law and equity were merged
What is the function of the Magistrate’s court? - Criminal
- Exercise summary criminal jurisdiction (no need for jury)
- Decide on mode of trial (could fall under civil/criminal)
- Exercise some civil jurisdiction
- Most criminal offences dealt with here (e.g., paying fines)
What are Crown Courts and how significant are they? - Criminal
- Only 5% cases end up here
- More serious crimes dealt with (has different classes)
- Jury present
- Appeals and sentencing take place_
What are County Courts and how significant are they? - Civil
- Dealt with small civil cases at first instance
- Disputes between individuals that are less serious dealt with here (e.g., prohibiting orders, search orders)
- Jurisdiction limited financially
What is the High Court and how significant is it?
- Deals with a range of issues
- Split into courts of Chancery, Family & Kings Bench
- 1% ends up here
What is the Court of Appeal and how significant is it?
- Criminal: hears appeals from all 3 divisions of HC and county courts, usually 2 judges sit together
- Criminal: hears appeals in criminal cases from person convicted at Crown Court + Criminal appeal cases from hC go directly to the SC
What is the difference between Public General Acts and Local Personal Acts?
- Public: applying to public as a whole
- Local: niche and more specific (to a person, group etc.)
How do Acts come into being?
- Bills (Government, law reform, Consolidation, Private Members)
- Start either in HOC or HOL
- Go through lengthy series of steps before Royal Assent
Who is bound in each court?
- SC: not bound by its own decisions & free to create new law
- COA: Bound by its previous decisions & SC
- HC: Bound by SC & COA decisions but not by HC decisions
- Crown, Magistrates, County: decisions not binding on any court, bound by all above
What is the Judicial Committee of the Privy Council?
- Court hears appeals from 27 Commonwealth Countries
- Overlaps membership with UK SC
- Decisions made here are not binding on English courts + BUT are highly persuasive
What about sources of law outside the UK?
- Courts of Justice of the EU: most cases brought by member states and institutons; functions of judicial to settle cases of dispute and supervise universal application of EU Law
- ECHR: deals with alleged breaches of human rights by countries signed under here
