Key Definitions Flashcards
Explain case law
Case law - The courts consist of independent judges and these senior judges in the superior courts create case law by reaching decisions on cases before them i.e. through the doctrine of precedent, thus forming new case law.
Explain the concept of equity in a legal sense
Equity - Equity has several meanings day to day for instance equity in a property or equity meaning fairness or shareholding in a company. Both are legal meanings. Equity began as an alternative system of legal rules which morphed over time to become a body of rules supplementing the common law with rights based on fairness.
Explain what executive powers are
Executive Powers - Executive power broadly consists of the power to manage public affairs and to implement the law i.e. His Majesty’s Government is carried on by Ministers of the Crown, led by the Prime Minister and Cabinet.
What is meant by the judiciary?
Judiciary - The part of a country’s government that is responsible for its legal system and that consists of all the judges in its courts of law.
Define Jurisdiction
Jurisdiction - Most commonly used to refer to a political entity where a particular law has application. It is also used in terms of a body or court having ‘jurisdiction’ or lacking it over a particular issue.
Define Legislation
Legislation -
Legislation is essentially a statute or a law. Legislation can be divided into primary and secondary legislation. Legislation is said to be the ‘source of law’ in the English legal system.
Explain the concept of Parliamentary Sovereignity
Legislative Powers/parliamentary sovereignty -
Similar to the concept of ‘parliamentary sovereignty’ - Parliament is the supreme law making body in the English legal system. Parliament has a legally unchallengeable right to make whatever laws it thinks right. The courts cannot challenge this legislation.
Define a Statute
Statute - A piece of law which was previously a ‘bill’ which has been enacted by parliament to become a statute or a piece of legislation.
What is the ECHR?
(ECHR): The European Convention of Human Rights is incorporated into UK law via the Human Rights Act 1998
What is the HRA 1998?
(HRA 1998): The Human Rights Act 1998
Define what is meant by Equity in the legal sense
Equity: Equity has several meanings day to day for instance equity in a property or equity meaning fairness or shareholding in a company. Both are legal meanings. Equity began as an alternative system of legal rules which morphed over time to become a body of rules supplementing the common law with rights based on fairness
Define an Injunction
An Injunction: this is where the court orders someone to perform or action or to refrain from an action, i.e stop using a claimants trademark. Injunctions can be issued in a matter of hours if they are equitable
What is a degree of specific importance
A decree of specific importance: Here the court orders someone to perform there obligations under a contract or trust.
Explain a Civil Law system
Civil law (UK) - A legislative system, commonly used in Europe, which has core principles codified into a referable system, which serves as the primary source of law. Civil law is an inquisitorial system and, in contrast to the English adversarial system, does not have a binding system of case law.
Explain the distinction between a Civil law system vs a common law system within the UK
Common Law vs Civil Law;
The main distinctions between Common law and civil law systems are (1) Common law is an adversarial system and civil law is an inquisitorial system(2) Common law has a system of binding judicial precedent which generates a body of case law whereas civil law systems do not have this. Civil law is codified and its core principles are written into a referable system, which serves as the primary source of law. Whereas in the English adversarial system parliamentary sovereignty means legislation is our primary source of law.
Define Private vs Public law
Private law - duties owed to or by individuals (including corporate entities like companies) are generally matters of private law which includes tort, contract, land and equity. Company law is considered private as it concerns the relations between private people rather than the state
Public law - duties owed to or by state are matters of public law. Public law is often said to include things like administrative law, constitutional law, human rights and also criminal.
Define Primary legislation including examples
Primary legislation - ‘Primary legislation’ is the term used to describe the main laws passed by the legislative bodies of the UK e.g. Acts of the UK Parliament. Key types of primary legislation include Acts, such as Consolidating acts, Private Bills etc.
Define Secondary legislation including examples
Secondary legislation - Delegated legislation or secondary legislation in the United Kingdom is law that is not enacted by a legislative assembly such as the UK Parliament, but made by a government minister, a delegated person or an authorised body under powers given to them by an Act of Parliament. Delegated legislation includes Statutory instruments.
Define a statutory instrument including examples
Statutory instrument - Statutory instruments are the most significant form of delegated legislation and it is a separate type of legislation in itself. Numerically they are those made by government ministers (occasionally by other bodies). Typically 3-4000 SIs are produced every year and all statutory instruments are regulated by the Statutory Instruments Act 1946 which lays down certain procedural requirements for their making,
Define the Rule of Law
Rule of Law - The rule of law is a political ideal that all citizens and institutions within a country, state, or community are accountable to the same laws, including lawmakers and leaders.
Define International law and Public International law vs Private international law
International Law: comprises governing relations between different states or people within them. Intentional law typically refers to public international law as opposed to private international law
Public International Law: comprises a system of rules and principles which govern the international relations between sovereign states in addition to some other instructions such as United Nations (UN). With only a few isolated exceptions it does not concern individuals, organisations or lower levels of government.
Private International Law: comprises legal relations between private individuals and organisations. It usually relates to commercial endeavours and how to determine which rules apply to transnational trade.
Define the latin concept of ‘stare decisis’
‘stare decisis’ - the latin translates ‘to stand by (previous) decisions’
Define the ratio decidendi
ratio decidendi - the ratio decidendi is “the point in a case that determines the judgement” or “the principle that the case establishes”.
Define the obiter dicta
obiter dicta - A judicial statement can be ratio decidendi only if it refers to the crucial facts and law of the case. A judge’s expression of opinion uttered in court or in a written judgement, but not essential to the decision and therefore not legally binding as a precedent.
Define the concept of legal precedent
Precedent (doctrine of stare decisis) - the latin translates ‘to stand by (previous) decisions’ and the doctrine of precedent is legally binding case law created and enforced by the courts. The precedent in a case is the ratio (the principle that the case establishes) which becomes binding in case law.
Define what is meant by ‘material facts’ of a case
Material facts - Facts of the case which are not either the Ratio or the Obiter of the case i.e. general facts such as who the case is concerning, who the parties are, whether the case is heard in a first instance court or has been appealed etc.
Define the concept of legally ‘binding’ vs the concept of case law being ‘persuasive’
Binding - Something being binding means it is legally enforceable and binds people as opposed to a recommendation for example.
Persuasive - Persuasive means it is not legally binding but is a persuasive recommendation or insight which often does influence and play a role in case law i.e. the ECHR is not legally binding but it is highly persuasive and where possible the UK courts side with its recommendations/rulings.
Explain the distinction between applying vs distinguishing a case
Applying a case - A court may apply the reasoning of a previous case in a current case, where the facts are different from those of the new case.
Distinguishing a case - A court will part from the reasoning for ruling of a previous case and essentially depart from precedent.
What is the Literal Rule of statutory interpretation?
Literal Rule - The literal meaning of the words used in the statute i.e. a dictionary definition and then there is giving words their ordinary everyday meaning.
What is the Golden Rule of statutory interpretation?
The Golden Rule of statutory interpretation allows the courts to assume that Parliament intended that its legislative provision have a wider definition than its literal meaning, and so the grammatical and ordinary sense of a word can be modified to avoid the inconsistency or absurdity created by an literal rule application then some other interpretation should be used instead.
What is the Mischief Rule of statutory interpretation?
Mischief Rule - Provides that in order to uphold the will of parliment the judges should consider the mischeif that was intended to be avoided through the statute. Thus judges should consider three factors: - what the law was before the statute was passed; what problem, or ‘mischief’, the statute was trying to remedy; - what remedy Parliament was trying to provide.
What is the Purposive Approach to statutory interpretation?
Purposive Approach - The purposive approach is focused on asertaining the legislative intent of parliment at the time of enactment.
Thus looking beyond the words of the legislation and instead at the purpose behind it i.e. what parliament was trying to achieve when passing the law and taking that into primary consideration as opposed to wording in the statute.
Define the latin ‘Noscitur a Sociis’ in terms of an aid to statutory interpretation
Noscitur a Sociis -
Translates to: Known by the company it keeps.
The meaning can be derived from the surrounding words and concept. It is a principle used to interpret the meaning of unclear words or phrases. It means that if a word or phrase is unclear, you should look at the words around it for context. In other words, the meaning of an ambiguous word can be determined by its associates or surrounding words.
Define the latin ‘Ejusdem Generis’ in terms of an aid to statutory interpretation
Ejusdem Generis -
Translates to: Of the same type.
Used where general words require interpretation. If a list mentions specific items of the same type, followed by more general terms, the general terms should be interpreted to only include items of the same type as the specific items listed. For example, in the phrase “cats, dogs, and other animals,” “other animals” would only include other domestic animals similar to cats and dogs.
Define the latin ‘Expressio unius est exclusio alterius’ in terms of an aid to statutory interpretation
Expressio unius est exclusio alterius -
Translates to: To say one thing is to exclude the others.
If a list mentions specific items without following up with more general terms, it’s assumed that the list is exhaustive. So anything that’s not specifically listed was not intended to be taken into account essentially. For example, in the phrase “weekends and public holidays,” weekdays are excluded because they aren’t listed.
Define the latin ‘In pari materia’ in terms of an aid to statutory interpretation
In pari materia -
Translates to: Upon the same matter or subject.
This rule suggests that if there’s a previous law that deals with similar matters as the law in question, it can be used to help understand and interpret the current law. The meaning of an ambiguity in a state can be determined in light of other statutes on the same subject matter, provided the ambiguous statute concerned does not expressly mention another statute
Define an Intrinsic aid to statutory interpretation
Intrinsic Aid - Anything in the same act is ‘intrinsic’ therefore the first point of call is always the relevant statutory provision
Define an Extrinsic Aid to statutory interpretation
Extrinsic Aid - Where the courts look beyond the statute using an almost limitless array of extrinsic aids in particular; The interpretation Acts, Explanatory notes, Hansard and Previous cases; doctrine of precedent.
What are the material facts of a case?
The material facts of a case are those upon which the legal decision was made.
They are facts which are a key part of a defence or a claim.
i.e. In the case of Corkery v Carpenter, it was seen that the material facts were that the defendant was drunk, that he was on a public road and that he was in charge of a bicycle. These facts all fit into the statutory definition of the crime and without knowledge of all of them, the answer to the case would not have been possible
