Legal System: Intro, Sources, Development Flashcards
What are the 3 aspects of a typical legal system
a. Constitution
b. Cultural and historical factors
c. Unofficial and popular elements
What is the rule of law
Every person should be governed by and benefit from the law of the land
What are the principles of the rule of law
- law must be clear and predictable
- Exercise of discretion should be subordinate to exercise of law
- Equality before the law
- State should provide essential safety net for settlement of matters which priv parties and individuals are unable to resolve
- State should adhere to international and national obligations
Relevance of 1066
William the conqueror re-allocated land to his supporters and created rules, customs, a chain of command
Relevance of Magna Carta
○ Taxation by consent
○ Importance of commercial interests such as city of london
○ Importance of Rule of Law
○Existence of courts and their officials
Relevance of Bill of Rights 1688
○ Restriction on power of monarchy-cant make laws without parliament
○ Mentions freedom of speech, existence of juries, free elections
Difference between civil and criminal law
- Civil-contracts, disputes, difference. Outcome measured in remedies
- Criminal-imposes restrictions and obligations, outcome measured in punishment, public invilced
What are the main sources of Law
- Acts of Parliament
- Case Law
- Common Law
- Equitable principles
What is the oldest statute
statute of Marlborough 1267
What is the process of the creation of a statute?
- Gov publishes Green Paper
- Gov publishes White Paper
- Bill drafted
- House of Commons (1st reading, 2nd reading, committee stage, report stage, 3rd reading)
- House of Lords (Same stages as HoC)
- HoC (Returned to commons on third reading for amendments to be approved)
- Royal assent (Bill becomes Act/law)
What is a green paper
- Consultation doc on possible new law
- Outlines proposals for, and discussion of, laws that are still at a formative stage
What is a white paper
- Govs firm proposal for new law
- More developed and nuanced document, issued by the Government as a statement of policy, setting out proposals for legislative change
What happens at the first reading
bill printed/published
What happens at the second reading
main HoC debate
What happens at the committee stage
whole house or specialist committees
What happens at the report stage
HoC vote on proposed amendments suggested by committee
When can the Commons bypass the lords
If they reject a bill twice (Parliament Act 1911 and 1949)
When does a bill become an act
on royal assent
When do statutes apply to the whole of the UK
in absence of statement to contrary
What is the purpose of equity
Find solution thats fair to all parties taking into account a range of considerations
What are examples of equitable maxims?
- Equity looks on that as ought to be done as done (will enforce intention of parties)
- He who comes to equity must come with clean hands
- Delay defeats equity
- Equity will not suffer a wrong to be without a remedy
Examples of equitable remedies
- Injunctions
- Specific performance
- Recission
- Rectification (correcting wrong word)
- An account of profits (innocent party gets appropriate share of wrongdoers gains)
What did the Supreme Court of Judicature Acts 1873/5 do?
Created single court structure, merging systems of equity and common law (so all courts consistent and give both common law/equitable remedies in same procedures)
What may judges consider in cases in developing law?
- Facts
- Other case law
- Statute
- Rule of Law
- Ethics
- Morality
- Society
What are the 6 areas of case law
- Individual freedom
- Entitlements
- Constitutionality
- Societal Change
- Business
- Perpetuation of injustice
What is Habeas corpus
Cannot be detained, and deprived of your freedom, unless the law allows it
Key case law relating to entitlements
Slade’s Case (1602): innocent party in any breach of contract is entitled to ‘an action on the case’, ie more than the simple basic act of repayment of a debt
What is the Relationship between legislation and case law
- Parliament amends/passes law
- Event/dispute
- Judges interpret law and make a ruling
- Case law
- Parliament fusses over case law
- Back to beginning
Key case law relating to business and the creation of wealth
Case of Monopolies (aka Darcy’s Case)
Significance today:
1. reinforced the limits of Crown prerogative
2. confirmed the law should protect mercantile endeavour as much as individual liberties (1st against the state then in favour of consumers, then against other entities that seek to abuse their powers)
What is Stare Decisis
determining points in litigation according to precedent
Different types of peers in the HoL
90 Hereditary peers=Vacancies filled via by-election amongst hereditary
660 Life peers=Gov makes regular appointmentS
When did trade unions come into existence
End of 19th century
