Nature And Rule Of Law Flashcards
The term rule was defined by academics, twinning, and Miers as:
General norm mandating or guiding conduct.
Why are rules obeyed?
- They carry a sense of moral obligation
- The rule is reasonable and relevant
- A penalty may be imposed if the rule is broken
Key differences between norms of behaviour and Law
Norms of behaviour:
- Develop overtime.
- Ought to be obeyed.
- Enforced by disapproval of the community.
- Voluntary and apply only to those who accept it.
Law:
- Can change instantly.
- Must be obeyed.
- Enforced by courts.
- Obligated and apply to everyone.
Different categories of laws and legal rules
- Procedural
- Substantive
- Public
- Private
Procedural: prescribe the framework in which other laws are made and enforced.
Substantive: create and define legal rights and obligations.
Public: govern the relationship between the state and its citizens.
Private: create rights enforceable between individuals; they are mainly substantive laws.
Court structure
The Supreme Court
The Court of Appeal: Criminal Division. Civil Division
Hight Court:
Queen’s Chancery Family
Bench Division Division
Division
Crown Court County Court
Magistrates Court
Classification of criminal offences:
Summary
Triable either way
Indictable
Summary: start and finish in the magistrates court (assault, battery, some driving offences).
Triable either way: start in magistrates and can be sent to the Crown Court (S47, S20 and theft).
Indictable: started magistrates and always sent to the Crown Court (S18, murder).
Law of tort
There are many different types of tort.
For example :
- A child passenger in a car is injured in a collision
- Family complain that their health has been affected by the noise and just my factory built near their house.
A tort occurs when civil law holds that one person owes a responsibility to another and breaches it. The affected person to make a claim, and if successful, the court can award damages.
Law of contract
For example:
- A woman buys a car and discovers it’s faulty.
A contract is where the parties have made an agreement and each side has put something into the agreement. If one party does not keep to the side of the bargain the other can bring a claim against them.
Human rights
For example:
A man is arrested and held in a police station for longer than the law allows.
Compensation can be awarded where there is a breach. Other remedies can also be given such as injunction to prevent the future publication of photographs.
Difference between criminal and civil law: standard of proof
Criminal cases must be proved “beyond all reasonable doubt”. This is a very high standard of proof, and it’s necessary, because a conviction could result in the defendant serving a long prison sentence.
Civil cases have to be approved on the balance of probabilities. This is a much lower standard of proof where a judge decides who is most likely to be right. This different means that is possible for defendant to be acquitted in a criminal case, but to be found liable in a civil case based on the same facts.
Sources of law:
Custom
Common
Statute
Custom: A custom is a real of behaviour which develops in a community without being deliberately invented.
Common: This is Law, the basis of our Law today. It is unwritten and Law developed from customs and judicial decisions.
Statute: This Law is created in parliament. Creates major new law known as statutory law or Act of Parliament.
Concept of the rule of law
The main principle of the rule of law is that “all people are subject to and accountable to the law that is fairly applied and enforced”.
Academic view: Professor A.V Dicey
Dicey thought that the rule of law was an important feature that distinguished English law from Law in other countries in Europe.
He held that there were three elements are created the rule of law :
- An absence of arbitrary power on the part of the state: the state power must be controlled by the law. The law must limit on what the state can and cannot do.
- Everyone must be equal before the law: no person must be above the law. Everyone should be treated the same.
- Supremacy of ordinary Law: today, most laws are through legislation.
The rule of law and law making.
- The process, by which laws are made, must be open, and fair.
- Acts of Parliament have to be passed by both Houses of Parliament.
- The government of the day usually has the majority in the House of Commons so proposed new laws will be passed by the House of Commons.
- The house of lords exercises a check on the law-making process as all new laws have to be passed by them.
- The government can also make regulation of statutory instruments. As these regulations do not always have to be considered by Parliament, there are checks on this method of the law making:
1) parliament must pass an Act granting power to make regulations
2) parliament has various powers to check the regulations.
3) regulations can be challenged in court through the process of judicial review to make sure that they have not gone beyond the powers granted by Parliament.
The rule of law and the legal system
The way in which our legal system works is also covered by the rule of law. One important point is that every defendant in a criminal case must have a fair trial. Trial by jury is seen as an important factor in maintaining fairness and protecting citizens rights.
In the civil justice system, people need to be able to resolve their dispute effectively. The system should therefore be free from discrimination. It must also be free from corruption and not improperly influence by public officials.
The civil justice system should be accessible and affordable. Although, there have been cuts of public funding in the past 20 years and cost of taking cases to court has increased. However, there has been an increase in alternative ways of resolving disputes which are cheaper to use.
