Nature of law Flashcards
Norms of behaviour are…
Developed over time, enforced by community and voluntary
What are three features of the law?
Can change instantly, must apply to everyone and be enforced by courts
What did the law develop out of…
Customs —-> common law —-> statute
Criminal: purpose, person, legal name, court, standard of proof, decision maker, verdict and power of court
Maintain and protect society through the state and CPS, prosecutor, magistrate’s, beyond reasonable doubt, magistrate judge and jury, guilty or acquitted, prison/community order or driving ban
Civil: purpose, person, legal name, court, standard of proof, decision maker, verdict and power of court
Uphold rights, affected individual, claimant, county or high court, balance of possibilities, judge (rarely jury),liable/not liable, award of damages/injunction or/performance of contract
What are the two main sources of law?
Custom and common
How is custom law composed?
Rules of behaviour, basis of common and historical
How is common law composed?
Basis of statute, unwritten comes from cases and precedent
Characteristics of statute law
Acts of parliament, grouping or sweeping changes, subject to interpretation from precedent
Dicey’s Elements…
Absence of arbitrary power from state, equality before law, supremacy of law
What were Von Hayek’s views?
The rule of law is weakened by economic intervention by the state
What were the views of Joseph Raz?
Judicial ind. guaranteed, principles of natural justice, courts power to review principles and clear rules for law making
Problems with Dicey view
Abstract, difficult to implement, overrule EU law, real equality impossible and parliament can grant arbitrary power
House of Commons Elements
Elected, constituencies, MP, general election every 5 years
Elements of House of Lords
None elected, 92 hereditary, 700 life, 26 senior bishops
What is a green paper?
Consultative proposal for law reform
What is a white paper?
Firm proposal for consultation before mature consideration
Role of Commons in law making
Democratic, vote on bills, debate on specific issues and has the majority so if they support bills it will likely become law
Role of Lords in law making
Acts as check, vote against for commons to amend or drop but only has limited power in delaying for a year
Types of bills
Private/ private members, public or hybrid bills
Who starts a private members bill?
Brought forward by individual mp’s or “backbenchers e.g. Abortion Act 1967
Why is a private bill started?
For individual people or corporations e.g. Faversham Oysters Fisheries Bill 2006
Why are public bills started?
Matters of public policy e.g. Legal Services Act
Who or what do hybrid bills apply to?
Particular person, organisation or place e.g. Crossrail Bills
Parliamentary process order
First Reading (title) —-> second reading —-> committee stage —-> Report stage —-> House of Lords —-> Royal Assent
Second reading (parliamentary process)
debate main principles, vote, most fail
Committee stage (parliamentary process)
detailed exam with special knowledge/interest , 16-50 MP’s with proportional rep. from parliament
Report stage (parliamentary process)
amendments reported/debated, a “useful safeguard;” and “second thoughts”
Third stage (parliamentary process)
formality unlikely to fail
House of Lords (parliamentary process)
Repeats above stages “ping pong” with HOC
Royal Assent (parliamentary process)
Monarchs formal approval, formality
