Legal systems and sources of law Flashcards
What is a legal system?
The set of laws of a country and the ways in which these laws are interpreted and enforced. Synonymous with legal jurisdiction
How many legal systems are there in the UK?
Three: England and Wales, Scotland, and Northern Irish
What is meant by devolution?
A process of delegation by which, among other things, a power to legislate in areas that have not been reserved to the UK Parliament may be exercised by the devolved legislatures. The UK system of devolution is asymmetric, in that different parts of the UK have different forms of devolution and varying degrees of power. E.g., Welsh Gov can make some laws etc. Parliamentary sovereignty still exists.
Identify the features of a common law system, and where is it used?
*The English and Welsh Legal System is described as a common law system.
*A system of rules determined by binding judicial precedent - which generates a body of case law.
*Precedent essentially means that like cases must be decided alike.
*Judges have the power to evolve and develop the law.
Identify the features of a civil law system
*France and Germany are civil law systems (also known as ‘continental’ systems).
*Civil law systems are characterized by a codified written body of laws that attempt to set out the entire law in a certain area.
What is an adversarial system, and where does it operate?
*This is the system which operates in England and Wales
*Based on a ‘contest’ between 2 or more opposing sides with an independent judge acting as an umpire
*The judge’s role is to ensure that both sides follow the procedural rules.
*Parties can call, examine, and challenge witnesses
What is an inquisitorial system?
*System used in countries such as France and Germany
*Investigation conducted by an independent judge
*Judge will ask questions of witnesses in the hope of finding the truth
*Roles of lawyers and the judge are essentially reversed - lawyers act as umpire, ensuring that the judge follows the correct procedural rules
What is the differences between criminal and civil law?
Criminal law provides a system for the punishment of wrongdoers by the state and on behalf of society and/or the wider community. Whereas, the aim of civil law is not to punish the unsuccessful party, but instead put successful party in the position they would have been in, if the wrong had not occurred.
Public v Private
Public: Between the state and the individual. E.g. Criminal and constitutional law
Private: Rights and duties of individuals towards each other. Minimal involvement from state. E.g. Personal Injury, Contract law
What is substantive law?
*Concerns the actual law itself
*The offence of murder is a matter of substantive law
*The substantive law informs us that to be guilty of murder there has to be an ‘unlawful killing’.
What is procedural law?
*Concerns the practical application and operation of the substantive law
*Examples include the powers of the police in arresting a suspect accused of murder or
*The admissibility of witness testimony to support a defence of loss of self-control.
Who are the key lawmakers in the UK?
Parliament, the courts, devolved legislatures
Give an example of primary sources of law
Legislation and case law
What are secondary sources of law?
They help us make sense of primary sources, such as Gov policy papers, journal articles, leading textbooks, legal dictionaries etc.
What is legislation?
Broad term for all the law made by, or under powers granted by the UK parliament. Primary legislation: Acts of parliament. Impossible for parliament to create all legislation so they delegate powers to other bodies e.g. councils, government bodies (Welsh gov etc.)
