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INTRODUCTON TO LAW Flashcards

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1
Q

What is a rule?

A

Specifies certain conduct (how you act) or procedure (what you must do).

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2
Q

What is a principle?

A

The reason we have the rule.

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3
Q

What is a legal rule?

A

Tells us what we can and can’t do, but also creates rights.

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4
Q

What is a legal principle?

A

The reasons why we have the law.

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5
Q

What is a norm?

A

Customary way in which we behave. Not necessarily a rule but the way we act everyday. Created by society, religion, morality, family values… Voluntary and only apply to those that follow it (individual belief). Change over time.

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6
Q

What are Criminal terms?

A

Public law: Crimes are committed against the state.
Prosecuted: Defendants are by the CPS on behalf of the crown.
Punishment: Criminals are punished for wrongdoing.
Liability: An offender us found criminally liable.
Fine: Financial penalty- form of punishment.
Sentence: The choice of penalty given.
Guilty: Verdict where the crime has been proved.
Defendant: The person charged.

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7
Q

What are Civil terms?

A

Defendant: Person who claim is made against.
Private law: Disputes are between private individuals.
Dispute: A civil case tries to remedy the dispute between parties.
Sued: Person making claim sues defendant (other party).
Compensation: May be rewarded to claimant to restore any losses.
Claimant: Person making claim.

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8
Q

What are the distinctions between Civil and Criminal cases?

A

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9
Q

How are cases written?

A

Civil: Claimant v Defendant

Criminal: R v Defendant

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10
Q

What is the Case of Donohuge v Stevenson [1932] ?(Civil)

A

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11
Q

What is the case of R v Dudley &Stephens [1884]? (Criminal)

A

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12
Q

Name the sources of law with examples.

A

Judge made law: Custom, Common Law, Equity.

Parliamentary Law: Statutes, Delegated Legislation.

European Law: Treaties, Directives, Regulations, Decisions.

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13
Q

What is Customary Law?

A

Accepted practices that become part of a society’s laws through established rules.

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14
Q

What is Common Law?

A

A system of judges making laws that are ‘common’ to all. (through customs).

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15
Q

What is Equity?

A

A way of deciding legal disputes based on fairness rather than following the strict latter of the common law. Used in Chancery Court. Usually referred to when dealing with the law of trusts. It ran alongside the law, filling in gaps and providing new rights or procedures where CL was too harsh.

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16
Q

What is Statute Law?

A

Laws made by Parliament (Acts of Parliament).

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17
Q

What are Customs as a whole?

A 
Pre- Norman Conquest 1066
Local laws
Interpreted by Local Courts to resolve disputes.
Two types of Customs:
General Customs
Local Customs
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18
Q

What are General Customs?

A

Important: basis of Common Law
Built up common customs
Many Academics believe them to be invented by the judges.

19
Q

What are Local Customs?

A

Local right like the Right of Way
Exception to the ‘General Law of the Land’
Recognized to have a ‘binding force’.

20
Q

What is the Validity Test? (Name the case related too).

A

Egerton v Harding [1974]
To see if a custom should be upheld by local law.

  1. Custom has existed since time immemorial.
  2. Custom must have been exercised peaceably, openly and as of right.
  3. Must have continued without legal interruption.
  4. Must be definite to locality, nature and scope.
  5. Must be reasonable.
21
Q

Explain the development of the Common Law?

A

Prior 1066- no legal system.
Curia Regis (King’s Court)- set by William the Conqueror.
Henry II (1154-89) country was divided into areas for the judges to visit.
Judges would group at Westminster to discuss the laws and customs they had used and decide which was the best one to use.
King Richard (1189) established Common Law (Limit of Legal Memory) and completed by AD 1250 approx.

22
Q

What does Stare Decisis mean?

A

Let the decision stand.

Decisions binding on other judges
Doctrine of Judicial Precedent
Law became more certain and predictable
Gained character of a Legal System.

23
Q

What are the problems with Common Law?

A
  1. Operated on basis of Stare Decisis- limited scope for law to develop as now judges bound by previous decisions.
  2. Cases were started by a writ system- limited Writs once gone had to wait next year and limited amount of actionable areas could file for.
  3. Only remedy was damages- Did not suit all cases e.g. writ for trespass- injunction to prevent.
24
Q

Explain the development of Equity.

A

People began to petition directly to King over harshness of Common Law.
King would make decisions with the assistance of Curia Regis.
Eventually appointed Chief Secretary of State (Lord High Chancellor) to hear the issues.
Lord Chancellor issues first decree 1474.

25
Q

What is the Lord Chancellor?

A

Keeper of the King’s Conscience.
Administer the law based on principles of fairness and natural justice.
Deals with petitions in the (Court of) Chancery where he would preside set up in 15th century.
Not bound by writ system or technical forms of Common Law.
No longer needed to consult common law judges as created his own custom to summon the parties involved in order to answer specific questions relating to the issue.

26
Q

What is the Court of Chancery? (Name case related too).

A

Lord Ellesmere vs Sir Edward Coke- Earl of Oxford’s case [1615] ‘Where common law and Equity are in conflict, Equity shall prevail.’

The Lord Chancellors Court of Equity.
Proved popular.
Developed new remedies.
CL- remedies are ‘as of right’
Equitable remedies are discretionary. (justice, fairness).
Two parallel sets of laws, caused friction between common law courts and Court of Chancery.

27
Q

What are the Three Jurisdictions Equity developed?

A
  1. Exclusive Jurisdiction
  2. Concurrent Jurisdiction
  3. Auxiliary Jurisdiction
28
Q

What is Exclusive Jurisdiction?

A

When equity recognized rights not enforced at CL.

29
Q

What is Concurrent Jurisdiction?

A

Where CL provided a right but Equity provided a better remedy.

30
Q

What is Auxiliary Jurisdiction?

A

Where the right enforced and the remedy granted were recognized at law but Equity provided a better procedure.

31
Q

Explain the criticism of Equity.

A
  1. (In)flexibility- uncertainty in law.
  2. Impossible to estimate a probable outcome.
  3. Different LC have different opinions on what is ‘fair and just’.
  4. Started to become more rigid- Sir Thomas Moore favored a system of precedent.
  5. Lord Nottingham (1673-82)-only where no common law precedent existed should equity consider the matter- different opinions by nobility/ gentry.
  6. Started to look at what previous LC had decided on similar cases- precedent, rigid.
  7. Lord Hardwike (1736-56)- held a judge exercising Equity jurisdiction ‘should follow existing principles’- precedent. rigid.
    Overall: it became more predictable and intelligible.
32
Q

How did we over come the problems with Common Law?

A
  1. Abolished the need for writs- Court of Chancery hear any action regardless of availability of writs.
  2. Stopped procedures being harsh/unfair defenses- LC could command anyone for appearance in court. In eyes of law everyone treated equally.
  3. Sorted the issue of remedies not being suitable:
    Injunction: Order of court restraining defendant from carrying out an action or compel them to do something.
    Rescission: To bring a contract to an end and make the situation return to how it was before.
    Specific Performance: Requires defendant to carry out contractual obligations.
    Rectification: Part of the contract is changed to suit both parties without the original contract having to be dissolved.
  4. Tried to prevent court hearings from being corrupt- LC was seen as above corruption and pressures of work increased and so he appointed Chancery Masters, the Head being the Master of Rolls. Seen as above corruption to stop corruption as acting in the name of LC.
33
Q

What are the Judicature Acts 1873-1875?

A

They laid down the three main principles:
1. Where there is conflict between a rule of common law and a rule of Equity, with reference to the same matter, Equity shall prevail.

  1. The abolition of the common law courts and the court of Chancery and in their places the Supreme Court of Judicature was established. The three common law courts and the Chancery Court became the four divisions (then) of the newly created High Court.
  2. That Equity and Common Law should be administered side by side in all courts and by all judges as deemed appropriate in any particular case. Therefore, all courts could award a common law remedy of damages and/or grant discretional equitable remedies.
34
Q

What are the principle rights protected by Equity?

A

Trusts, Mortgages.

35
Q

Trusts.

A

Where one person holds something (usually land or money) in law, but ‘on trust’ in Equity for another person.
CL did not recognize this.
E recognized the enforced rights of the beneficiary.
Developed the concept of an ‘equitable interest’ in property.

36
Q

Mortgages.

A

Mortgagee (the lender) and mortgagor (the borrower).
At CL the right to ‘redeem the mortgage’ was lost if the mortgagor did not repay the loan in time.
E introduced the ‘equitable date of redemption’.
Gave mortgagor the right to redeem his property after the set date provided certain formalities are complied with.

37
Q

What were the new procedures with Equity?

A

To protect lower class litigants who were involved in disputes with upper class defendants.

Subpoena: Compelled defendant and/or witnesses to attend court and if failed they would be fined or imprisoned.

Discovery of Documents: Enabled either party to inspect any relevant documents in possession of the other party (still much practiced in Civil Litigation today).

38
Q

Name the 5 categories of Legal Systems.

A
  1. common law legal systems.
  2. civil law legal systems.
  3. religious law systems.
  4. customary law systems.
  5. mixed law systems.
39
Q

What is Common Law systems based on?

A

The decisions of judges in cases are granted a high authority and can also create and develop the law.

40
Q

What is Civil Law systems based on?

A

A written code whose principles are followed by the courts, the decisions of the judges in these systems don’t carry heavy importance.

41
Q

What are the features of a Common Law Legal System?

A

Source of law: Case law and Customs
Criminal trials: Adversarial- the two opposing sides of defense and prosecution.
Civil trials: Discovery- both parties are allowed to request evidence from each other before the trial starts.
Evidence: Formal rules that make some evidence inadmissible.
Role of judge: Active role in making the law.

42
Q

What are the features of a Civil Law Legal System?

A

Source of law: Statutes and Codes.
Criminal trials: Inquisitorial- the court investigates the facts if the case to find the truth.
Civil trials: Discovery of information is limited (can’t request all evidence they want).
Evidence: No rules of evidence- all evidence is used in a case.
Role of Judge: Passive role in a court case.

43
Q

What is The Rule of Law?

A

A idea created by Professor Dicey.

  1. No punishment is without law.
  2. No man is above the law.
  3. Judicial decisions of the courts protect the rights of citizens.
44
Q

Explain the case relating to The Rule of Law.

A

Entrick v Carrington [1765]

On orders of Lord Halifax, 4 of King’s messengers broke into house of author Enrick to look for any-monarchy writings.
£2000 worth of damage.
He claimed messengers were trespassers and had no legal authority to enter without permission. Messengers argued had permission.

No common law or statute that allowed messengers to enter. State (Lord Halifax and messengers) were not authorized by any law. Entrick won- trespassing.

Case relates as it shows state can only do what the law allows them to- limits power of state and means no one is above the law.

Law (34 decks)

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