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Legal Methods > General Revision > Flashcards

General Revision Flashcards

1
Q

Name the 4 tribes in the post roman period

A

picts, scots, britons and angles

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2
Q

What happened between 1005- 1034

A

Malcolm II united the 4 tribes and extended the border to tweed

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3
Q

What happened between 1036- 1040

A

Duncan I took the throne by primogeniture

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4
Q

What happened between 1040-1057

A

Macbeth took the throne by Tannistry

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5
Q

Who ruled until 1290

A

Malcolm II Canmore and Queen Margaret (House of Dunkeld)

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6
Q

What happened within the period of the great cause

A

1286 Margaret the maid of Norway succeded the Scottish throne, she died in 1290. Balliol’s and Bruces laid claim to the Scottish throne, they lay their claim before Edward I. Demanded recognition of his superiority. Bruces Claim was based on the old tannist rule of the proximity of blood while Balliol claim was based on Norman rule of primogeniture. Edward chose Balliol. Edward then invaded Scotland, stole the Stone of Destiny and the wars of independence began.

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7
Q

What happened in 1314

A

Battle of Bannockburn

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8
Q

What happened in 1320

A

Declaration of Arbroath

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9
Q

Once the Bruces and Stewarts were established as monarchs, what influences harmonized to centralize the legal system

A

Church and Monarch

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10
Q

Romanization of Scots law

A

norman feudalisation of land law complete in Scotland by the time the Bruce line died out and the Dynasty took over in 1406

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11
Q

What is the regiam majestatem and when did it appear in Scotland

A

By authority of the king, the point during the 14th century

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12
Q

What is quoniam attachiamneta

A

procedure before the feudal courts and is the first work on land law in Scotland

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13
Q

What happened in the 15th century

A

It saw the commencement of Parliament, sitting regularly under Stewarts.

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14
Q

What year was the Court of Session established

A

1532

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15
Q

what is practicks

A

collection of procedures and some rules of laws for different types of cases

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16
Q

What 2 things happened in 1560

A

popes authority in Scotland was abolished and the return of Mary Queen of Scots

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17
Q

What happened in 1567

A

abdication of Mary Queen of Scots and the succession of James VI

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18
Q

What were the legal effects of the reformation

A

the dispute was whether to adopt an Episcopalian form of church government or a Presbyterian form. The physical absence of monarch left the kirk with a free hand to assert its relative independence via presbyterianism, the dispute rumbled through the English civil war. Major effect was that the canon law was abandoned, except insofar as it was consistent with tenets of the new reformed faith. The point of reformation was to read and believe in the bible itself.

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19
Q

What year was the union of the crowns

A

1603

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20
Q

What happened in 1689

A

the glorious revolution and bill of rights

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21
Q

What happened in 1700

A

The bankruptcy of Darien Scheme

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22
Q

What year was the Union of Parliament

A

1707

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23
Q

Who saved Scots law from being absorbed into the legal system

A

Stairs

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24
Q

When did the Jacobite Rebellion begin

A

1715

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25
Q

What happened in 1744-1745

A

Jacobite Rebellion and The Battle of Culloden

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26
Q

What century was the Scottish Enlightenment

A

late 18th century

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27
Q

What year was the defeat of Napolean

A

1815

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28
Q

What happened in 1973

A

The European Communities Act 1973

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29
Q

1978

A

Scotland Act 1978 established

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30
Q

1997

A

new labour elected with constitutional reform

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31
Q

1998

A

Human Rights Act, Scotland Act

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32
Q

1999

A

The Scottish Parliament reconvenes after 300 years of adjournment

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33
Q

2007

A

nationalist government elected

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34
Q

2011

A

nationalist gain overall majority

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35
Q

2014

A

Independence referendum

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36
Q

2015

A

SNP sweep Westminster election

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37
Q

2016

A

BREXIT

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38
Q

Name the constitutional provinces and the dates

A 
The Bill of Rights 1689
The Act of Settlement 1701
The Treaty of Union 1707
Treaty of Rome 1957 
European communities act 1975
European convention of human rights 1950( Human rights act 1998) 
The Scotland Act 1998 
European Union(Withdrawl) Act 2018
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39
Q

Primary Legislation

A

14th century - 1707 - Acts of the Parliament of Scotland (APS)
1707-1800- Acts of Parliament of Great Britain
1800- date - Acts of the Parliament of the UK
-public general acts
-local acts
-private acts
Legislation from European Union
-Regulations
-directives
-decisions
Acts of the Scottish Parliament (ASP)

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40
Q

what is secondary legislation

A

legislation that hasn’t been passed by parliament but passed by another source of authority, it deal with specific details. often used to bring acts in to force.

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41
Q

Examples of Secondary legislation

A
  • statutory instruments
  • acts of adjournal
  • acts of sederunt
  • order in council
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42
Q

Is Acts of the Scottish Parliament primary or secondary legislation

A

it is regarded as secondary legislation since the sovereign parliament at Westminster has delegated power to make law for Scotland. However it is politically classes as primary legislation.

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43
Q

What is the purpose of case law

A

Statute law does not give every legal rule. judges often have to decide cases according to the rules that have not been enacted by a legislative body. They do this according to common law, that is to say the unwritten laws that resolve every question not covered by statute.

  • enhances statutory law
  • develops legal understanding
  • recalibrating the law
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44
Q

Name several secondary sources of law

A 
Institutional writers
textbook and legal literature ( Roman Law, Early English Works, Institutional works, older legal literature, encyclopaedia, English textbook, journals)
Custom
Equity 
International Law 
 Customary International law
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45
Q

What is custom

A

it is what is accepted universally, it needs to be done or needs to be decided. Its what everyone accepts is proper for a long time.

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46
Q

What is equity

A

natural justice or fairness and remains a source of law in that the courts have the power to limit the application of a strict rule of law when to do so is fair and in England equity was historically a separate system from common law.

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47
Q

What is international law

A

a conglomeration of agreements and understandings between states by which they regulate relations between each other and with which they set out common standards and principles by which they deal with their citizens.

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48
Q

What is customary international law

A

practices and customs of states which they follow out of a sense of international obligation is part of scots law, treaty law requires to be enacted into Scots law before it is enforceable in courts. examples of this below

  • International criminal justice
  • war crimes and crimes against humanity
  • principle of interpretation of statutes
  • international law as an influence on law reform
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49
Q

What is etymology legislation

A

the law being created not by a court but by some other authority

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50
Q

Who can make legislation

A

sovereign parliament (Westminster)
devolved parliament (Holyrood)
EU institutions
Delegates

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51
Q

Making Legislation at Westminster

A

HC starts proceeding in HOC

  1. First reading - whole house, formal presentation of the bill, no vote.
  2. Second reading - wholes house, debate on general principles behind bill, vote.
  3. Committee Stage- detailed line by line scrutiny, amendments made and debated, vote.
  4. Report stage - whole house, more amendments and consideration of amendments, vote
  5. Third Reading - whole house, final consideration of bill, final vote on whether it passes.
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52
Q

Delegated legislation

A

Statutory Rules and orders
in council
by-laws
rules of court

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53
Q

Making legislation at Holyrood

A
  1. Committee consideration, sometimes legal adviser hears the bill and writes a report, considered by the whole parliament and there is a vote
  2. line by line scrutiny by committee, sometimes the whole parliament taking and voting on amendments
  3. bill is amended, considered by whole parliament and then amended again, voted on, complete voted on by the whole parliament
  4. Post-legislative scrutiny - advocate general and lord advocate can challenge the validity of the bill
  5. Royal assent
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54
Q

5 reasons why statutes require interpretation as well as application

A
  1. the English language is poetic, not precise
  2. Tiny errors, in statutory drafting with inherent ambiguities and mistakes
  3. Weasel words Demand that a judgment is made
  4. Law works at the margin of words
  5. Legislation has gaps and society develops
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55
Q

Name 5 approached to statutory interpretation

A

the parliamentary intention, mischief rule, literal rule, the golden rule, and purposive approach

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56
Q

What is parliamentary intention

A

Statute law consists of those words that Parliament has enacted. it is for courts to construe those words and its the court’s jobs is doing to find the intention of parliament
Lords Browne Wilkinson
Pepper v Hart
However, we are seeking not what Parliament meant but the true meaning of what they said.
Lord Reid
Black- Clawson v papierwerke

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57
Q

What is the mischief rule

A

this approach presupposes that existing law such as common and statutory contains a gap that allows for social mischief. Every piece of legislation according to this rule is designed to fill in the gaps. So the role of the judge in interpreting the statute is to identify the mischief that the act was designed to resolve and to interpret the statute in the way that best addresses the mischief.
smith v Hughes - prostitution
Corkery v carpenter - drunk on a bicycle on the carriage, werent allowed to be drunk on carriage on the highway.
leadbetter v Hutchinson - poached salmon inside of car

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58
Q

Literal rule

A

apply the literal meaning to the words used, if words are clear you must follow them even if it leads to a manifest absurdity
Lord Esher
Whitely v Chappell - using dead man’s vote
London and North E railway - compensation for those who were injured on the railway by relaying or repairing
Fisher v Bell - offensive weapons act, flick knives, for sale in the window

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59
Q

Golden rule

A

This is when you start with the literal rule but don’t take it to the absurdity.
Lee v Knapp - road traffic act, stopped then drove off
Adler v George - obstruct HM forces
Federal steam navigation - ship discharged oli into sea

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60
Q

Purposive approach

A

This gives effect to the true purposes of legislation and is prepared to look at much extraneous material that bears upon the background against which legislation is enacted. it is a continuum with some judges much more willing than others to go beyond the strict meaning of the words parliament used.
Pepper v Hart
Royal college of nursing - abortion whether nurses could do it
Doogan v Greater Glasgow - ward supervisors participate in abortion
Re X ( A child) - parental order, must meant ought usually

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61
Q

Aids to interpretation

A

Presumptions

  • criminal and revenue statutes are to be interpreted restrictively
  • presumptions apply in ambiguity
  • common law is not overruled except explicitly
  • the legislation enhances common law
  • Parliament does not intend to act contrary to international law
  • Statutes are not to be interpreted to be retrospective
  • every word in legislation is there for a reason it has an effect
  • the statute uses words with internal inconsistency
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62
Q

Linguistic aids to construction

A

grammar and punctuation

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63
Q

Eiusdem generis rule

A

list of words followed by a much more generic word is restrained in its meaning by the list that precedes it.
powell v Kempton - a place for betting

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64
Q

Noscitur a sociis

A

words have to be interpreted with the words surrounding them and the context in which they are used.
statistics and registration service act 2007

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65
Q

Expressio unius est exclusio alterius

A

explicit inclusion of a thing is the implicit exclusion of everything else

66
Q

Internal aids to construction

A
  • whole statute
  • short title
  • long title
  • the preamble
  • heading and side-notes
  • interpretation section
67
Q

external aids to construction

A
  • dictionaries
  • technical journals
  • interpretation act 1978
  • interpretation and legislative reform
  • Hansard and other official reports
  • explanatory notes and policy memorandum
  • international treaties and convention
  • European union law
68
Q

The effect of the HR act 1998: law prior to 1998

A

european convention of human rights ratified by the UK in 1950.

69
Q

Incorporation of ECHR

A

Those articles of the ECHR enacted in schedule 1 to the 1998 act becomes domestic law as convention rights.
The acts UK parliament cannot be struck down because that parliament is sovereign can do what it wants. the acts of the Scottish Parliament can be struck down as it has limited powers and due to its competence being limited by the Scotland Act 1998 and Human rights act 1998

70
Q

section 2 of HR Act 1998

A

court or tribunal determining a question which has arisen in connection with a Convention right must take into account any -

a) judgement, decision, declaration or advisory opinion of ECHR
b) opinion of the commission
c) decision of the commission
d) decision of committee of Ministers whenever made or given, so far as in the opinion of court or tribunal it is relevant to the proceedings in which that question has arisen.

71
Q

section 3 of HR Act 1998

A

so far as it is possible to do so primary legislation and subordinate legislation must read and give effect to in a way which is compatible with the Convention rights
32a to primary legislation and subordinate legislation whenever enacted.
b) does not affect validity continuing operation or enforcement of any incompatible primary legislation
c) does not affect the validity continuing operation or enforcement of any incompatible subordinate legislation if primary legislation prevents removal of incompatibility

72
Q

Effect of section 3 of the HR act 1998

A

court must stretch the menaings of words and phrases to ensure consistency with the ECHR
this is so even if it goes against the obvious unambigious meaning of the words and even if it goes against the c;ear intention of parliament.
stretched meaning must be possible otherwise parliamentary sovereignty has gone

73
Q

section 4 of HR act 1998

A

declarations of incompatibility to preserve parliamentary sovereignty only available against Westminster legislation
court has power under s4 to declare incompatibility n

74
Q

What is the legal purpose of the legislation

A

confer a right or impose a duty
be amendable to judicial enforcement
specify consequences for failure

75
Q

Bad legislation and unclear policy

A

Anti- slavery Day Act 2010

76
Q

Bad legislation and bad policy

A

Local governemt act 1998 s28

77
Q

Bad legislation but good policy

A

Warm Homes-Energy conservation act 2000

78
Q

General rules for statutory drafting

A
  1. decide what want to say
  2. say it in a clear and concise language
  3. analyse it to ensure it stands up
  4. drafting art not science
  5. role is not to make policy but to offer a workable mechanism to achieve policy
  6. purpose is effect change of law
  7. all words should have an effect
  8. always test wording out on a disinterested party
79
Q

Describe the Sheriff court in Scotland

A

This is a local court. it was a hereditary office and lasts until the Jacobite Rebellion in 1745. At present, the sheriff court is divided into 6 sheriffdoms. within each sheriffdom, there is a sheriff principal.

80
Q

summary sheriff in civil cases

A

simple procedure, less than £5000

81
Q

sheriff in civil cases

A

civil claims worth £5000- £100,000

82
Q

All Scotland personal injury

A

this consists of 1 judge, often has a jury

claims for personal injury, causes bodily or mental loss to human persons, civil juries - 12 members

83
Q

Sheriff Appeal court

A

members include all sheriff principles and some sheriffs, occasionally senator. may sit as one judge, on minor issues or as a bench on substantive appeals. Single judges sit locally, but a bench sits at Edinburgh. Ordinary actions appealed from sheriff got to sheriff appeal court without permission then inner house with permission then the supreme court with permission

84
Q

Describe the Court of Session

A

been about since 1532.
court of first instance and appeal
sits edinbrugh
cannot hear cases worth less than £100,000
outer house- first instance, jury 12, lord ordinary sit alone with jury
inner house- appeal, split into 2 divisions of 5 judges
1st - lord president
2nd - lord justice-clerk
extra division- 3 judges, chaired by most senior
appeal to the UK supreme

85
Q

UK Supreme Court

A 
only true UK wide court 
final court of appeal for civil cases 
comprised of 12 justices 
headed by a president and deputy president
normally 5 justices, occasionally sit 3
86
Q

Scottish civil court order ( most authoritative first)

A

UK Supreme Court
Court of Session
Sheriff Appeal Court
Sheriff Court

87
Q

Justice of the Peace Court

A

this is administered by courts and tribunals
jurisdiction over minor offenses
penalties 60 days imprisonment and up to £2500 fine

88
Q

sheriff court - criminal cases

A

summary - fine up to £5000, 6 months imprisonment
solemn - unlimited fine, 5 years
remit to HCJ for sentencing

89
Q

HCJ

A

first instance and appeal
same judge who sits at Court of Session
always sits with a jury

90
Q

Tribunals First Tier

A 
has various chambers 
set up own administrative structure 
criminal injuries compensation 
immigration and asylum chamber 
mental health 
care standards 
tax chamber 
appeal to upper tribunal
91
Q

First Tier Tribunal social security and child support

A

part of social entitlement chamber
deals with complaints, rejection, job seekers allowance, child support, statutory sick pay, personal independence payment, vaccine damage payment, winter fuel payment
3 members with legally qualified chair
appeal to upper tribunal, from there to IH Scotland or COA England

92
Q

Employment Tribunal

A 
claims for unfair dismissal 
redundancy claims 
discrimination 
no appeals 
3 members, legally qualified chair, I background employer and I union background 
no legal aid 
fees declared unlawful
93
Q

Children’s Hearing

A 
the largest tribunal in Scotland
children who have offended
children who have been offended against 
school reusers 
children at risk of harm 
3 members 
decisions of hearings appealed tho Sheriff then to the sheriff appeal court and or court of session
94
Q

Mental Health Tribunal (Scotland)

A

deals with applications for compulsory treatment orders under the mental health care and treatment Scotland act 2003
appeal to sheriff principle then court of session

95
Q

Court of Justice of European Union facts

A

sits in Luxembourg
ensures that memeber satates apply EU law
relies general legal principles and new legal order to interpret and expand the scope of EU law
invented the doctrine of non-discrimination

96
Q

Operations of the CJEU

A 
28 judges, 1 from each member state
court of first instance 
chamber 3-5 judges 
sits with advocate general 
grand chamber of 13
97
Q

Difficulties of CJEU

A

the court sits with advocate general
advocate general sits in the well of the court and hears both sides of the argument and gives advisory opinion on how the judge should decide

98
Q

Taking a case to Luxembourg

A

article 267 TFEU Luxembourg
enforce EU law and give advice
think if member state is not fulfilling law can take them to Luxembourg
R v Transport Secretary ex p

99
Q

European Court of Human Rights

A

sits in Strasbourg
47 member states
oversee and applying European convention on HR
The UK has been applying to Strasbourg since 1963

100
Q

ECtHR jurisdiction

A

limited to declaring whether or not domestic law or its application is or is not consistent with ECHR.
since 2018 domestic courts can make a reference for an advisory opinion from Strasbourg under protocol 16
domestic remedies must be exhausted before going here
no enforcement powers
moral authority only
can declare a state cant enforce the law
tends to change law moves things forward
court adopts a conservative doctrine
not bound by previous decisions

101
Q

ECtHR structure

A

-47 judges
- chamber, 7 judges drawn from one of five sections
appeals to the grand chamber - 17 judges
- the single judge can dismiss case
- issues already decided
- no enforcement mechanism

102
Q

What is the concept of justiciability

A

this is to identify which questions and disputes are open to resolution by courts

103
Q

Typical legal disputes

A

injured body or wealth
claiming land/property
breach of contract
criminal
statutory obligation not been fulfilled
the public body makes decision that damages interests
challenged by judicial review of administrative decisions

104
Q

Technical Non- Justiciability

A

the court has no jurisdiction- got to go to correct court if don’t court will not hear the dispute
the action raised out of time - civil action, personal injuries time limit is 3 years
party does not have a title to raise the action

105
Q

Constitutional Non- Justiciability

A
  • proceeding in parliament, cant interdict Parliament passing legislation, cant sue defamation anything said in Parliament, cant breach interdicts and injunctions with impunity in Parliament
  • acts of a foreign state
  • crown Acts of state abroad, Rahmatullah no 2 v Ministry Defence
  • proceedings contrary to constitutional principles
  • political decisions, an appointment to cabinet positions
    acts done under the royal prerogative.
    supreme traced legal standards to the constitutional position that Parliament is sovereign and needs to be allowed to perform its role of reviewing the acts of executive, decision reduces scope of non- justiciability of political actions and legal landmark as well as politically crucially decision.
106
Q

Theoretical Questions

A

courts make decisions with a practical effect
dont issue advisory opinions or decisions
must be consequence to outcome of litigation

107
Q

Religious matter

A

courts cant resolve religious disputes
courts dont interfere with religious bodies in their application of spiritual doctrinal matters
so expelling a member from a church is not justiciable
but employing minister to provide spiritual services is governed by general employment law
no religious duty defence breaches of criminal law nor to acts discrimination

108
Q

Conceptual Non- Justiciability

A
  • cannot be resolved by normal judicial reasoning and evidence
  • the matter is one for an appropriately appointed decision-maker
109
Q

Avoiding Non- Justiciability

A
  • turning questions into legal questions
110
Q

Appellate Decision Making

A

role of the appeal court
- limited to ensuring that the law was applied correctly that due process was followed and that the judge at first instance decided rationally and reasonably

111
Q

Appellate Deference

A
  • appeal judges will defer to discretionary judgemental decisions made at first instance
    but the extent to which deference is to be shown depends on what aspect of first instance decision is being challenged at appeal
    Re B - care order, adoption
    4 stages in deciding a case
112
Q

stage 1: challenging findings of fact

A
  • hear evidence on facts and make findings of fact
  • appeal very difficult to challenge findings of fact at appeal. Appellate deference is HIGH
  • the judge who hears witnesses hears verbal evidence that the judge is perceived to be in a far better position to judge the credibility.
113
Q

stage 2: challenging Findings of law

A

facts once found even on balance of probability are 100% facts for purpose of judicial decision making
law matter of interpretation
finding in law is right only cause higher authority says so
it is not naturally right or wrong in the way that facts are
therefore appeal to higher authority attracts no defences to decision of judge below

114
Q

stage 3: challenging evaluations

A

basically applying the law to the facts
re B - removing a child from parents child suffer harm
No BINARY choice to be made between a right or wrong answer as there is with both findings of fact and findings in law
follows generous ambit of reasonable disagreement need to be given to judge at first instance
an appellate court will not overrule the judge unless he or she goes beyond this ambit of reasonableness
a decision has to be shown to be plainly wrong one which no reasonable decision-maker would have made

115
Q

stage 4: Challenging Outcome Decision

A

once facts have been established the lae correctly identified and law correctly identified and the law applied to facts the outcome( final decision needs to be determined by the judge at first instance)
criminal - sentence
civil - damages awarded
practical justification for appellate deference
constitutional justification

116
Q

what is precedent

A

an earlier decision on the same matter which judges will follow

117
Q

stare decisis

A

doctrine of binding precedent

118
Q

horizontal stare decisis

A

courts on the same level will adhere to previous rulings

119
Q

vertical stare decisis

A

precedent from higher court

120
Q

ratio decidendi

A

the reason for the decision

121
Q

rule of law

A
  1. the government, officials, agents, individuals, and private entities are accountable under the law
  2. laws clear, publicized, stable, just are applied evenly and protect fundamental rights including the security of persons and property and certain core human rights
  3. requires process and die process by which laws enacted administered and enforced is accessible fair and efficient
  4. justice delivered a timely manner by competent ethical and independent representatives and neutral parties who are sufficient number have aqeduate resources and reflect the communities they serve.
122
Q

the underlying principle: stare decisis et non quieta movere

A

to stand by decisions and not to disturb settled matters

123
Q

benefits stare decisis

A
  • discourages litigation on settled law
  • promotes consistent development of legal principles
  • fosters reliance on judicial review
  • contributes to the integrity of the judicial process and judicial comity
  • natural equity, cases being treated alike
  • reduces vagaries of differing judicial values and therefore promotes certainty
124
Q

disadvantages of stare decisis

A

lord denning- out of date with modern living, applying existing rules don’t resolve problems of modern world. freezes law in a particular area.

125
Q

Basic rules for precedent in scottish courts

A

UK supreme court binds lower courts
IH court of session - binds lower courts ( OH, Sheriff court) but not itself
OH court of session binds no one
Sheriff Appeal binds all sheriffs can persuade the COS
sheriffs bind no one

126
Q

basic rules for precedent english court

A

UK supreme binds all lower courts
court of appeal- civil - binds all lower and itself
criminal - binds all lower and not itself
Divisional - part HCJ below coutr of appeal, first instance cases in the QB division, chancery and family division
binds lower courts but not themselves or each other
crown county family - bind no-one

127
Q

CJEU and ECtHR

A

dont fit in hierarchy since appeals not taken to them
neither accepts binding precedent
previous decisions not cited

128
Q

How persuasive depends on

A 
level of court 
English court of appeal are highly persuasive for Scottish courts 
commonwealth supreme courts 
reputation of judge 
strength of argument 
whether result being generally followed
129
Q

Applying precedent

A

1st - identify relevant facts
2nd identify ratio decidendi
Gillick v Northfolk and Wisbeck - 15 year old need permission for abortion and contraception

130
Q

Obiter dicta

A

remark by the judge but is not essential

131
Q

effect of obiter dicta

A

sometimes crrate practice
Airedale NHS trust v bland
coma, Hillsborough

132
Q

how do you avoid precedents

A
  • distinguishing a case, facts not the same in the present case
    MRG v MD 2017- one parent change name of a child, in Scotland name doesn’t matter, the only precedent that exists is English, adult changing own name, the decision under earlier legislation, English decisions
  • Narrowing a case to its facts
  • per incuriam - previous case not argued fully or properly
    cessante ratione legis cessat ipsa lex - underpinning reason if due to passage of time if the reason of rule of law ceases the rule itself applies to case law
133
Q

Give cases which act like Ratio as a pendulum

A 
thake v Maurice 
Benarr 
Mcfarlane 
Parkinson 
Rees
134
Q

Re-interpreting Rationes

A

Re G - dispute between lesbian mother and ex-partner

court helf that child should go with a genetic parent

135
Q

overruling

A

supreme can overrule any decision from a lower court in same hierarchy
supreme overrule itself, convene larger bench to do so
an appeal does not overrule earlier decisions appealed against, rather appeal is allowed and earlier decision os reversed.

136
Q

common law system - countries

A

derived from English law
members are virtual all the British empire
NA, anglophone Africa, Australasia, the Indian subcontinent

137
Q

civil law system - countries

A

continental European legal systems
includes most European countries and most countries usd to be part of colonial empires
SA, francophone, Indochina, Japan, Thailand

138
Q

common law system facts

A 
judicial decision 
judge made 
strong system precedent 
little influence from Rome 
developed from practice in courts 
individual rules applying in individual circumstances 
distrust of grand statements and underlying principles 
distiniction between law and equity
139
Q

civil law systems

A

harmonising forces, the church, commerical interests of mercantile clasees and above rediscovery roman law taught in great mediaveil unis europe, padua, paris bologna and utrecht
turned to professor not judge interpretation roman law
19th century codifications
napolean invention codifying the law - reducing its basic rules into single re-statement of grand sweeping statements

140
Q

when was justinians death by Byzantine empire

A

1452

141
Q

what happened in 1804

A

code napolean - export to netherlands, portugal, germany, poland and egypt

142
Q

what happened in 1900

A

burgerlichesgesetzbuch - germany

143
Q

what happened in 1946

A

japanese civil code based on swiss code

144
Q

Mixed legal systems

A

systems that have been influenced by both traditions
no split between equity and law
but strong precedent rules

145
Q

What is religious law

A

its ruled by which you lead your life

You choose to follow this

146
Q

what is secular law

A

this is the law of the state, in which you owe allegiance

you have to follow this

147
Q

Mcfarlane v Relate

A

an employee at relate, relationship counseling service, same sex couple, refused to council them
ECHR not an infringement art 9

148
Q

R williamson v Secretary of state for education

A

what is unlawful does not become lawful for some people because of the beliefs they hold. here parents corporal punish at school challenged the legislation that prohibited children belting pupils

149
Q

countries religious doctrine currently applicable but subject to constitutional or parliamentary change

A

egyptm malaysia, indonesia, nigeria, pakistan and tunisia

150
Q

countries religious doctrine with no possibility of change by man

A

vatican city, iran, saudi arabia

151
Q

whats sharia

A

muslim
mainly secular
turkey, lebanon, kazakhstan, turkmen istan, northern cyprus, tunisia
judges strongly influenced by Koran, but claims that ultimate authority rests in constitution of country the rule of law. countries include indonesia, pakistan, egypt and malaysia

152
Q

sunni school

A

has five basis juristic principles traced from sunnah, the t trodden path or way of the prophet. how the prophet leads his life and takes guidance from that and turn into rules today

153
Q

shia muslims

A

far less inclined to accept figh because only God can choose religious leaders and set down beliefs.

154
Q

countries that limit sharia (family law )

A

Indonesia, Pakistan and Israel

155
Q

countries that limit sharia criminal law

A

north Nigeria, Alegria and gulf states

156
Q

countries that limit sharia to all the law

A

saudia Arabia

157
Q

Religious tribunals

A

sharia council
beth din
catholic tribunal

158
Q

what is bigamy

A

married again without secular divorce

159
Q

Shergill v Khaira

A

property rights, certain Sikh gurdwaras

holy saint

160
Q

R v Governors of Jewish Free School

A

admission preferred Jewish children

Legal Methods (1 decks)

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