paper 1 Flashcards
how are laws made?
norms of behaviour
what is criminal law?
types of behaviour which are forbidden at risk of punishment a person who commits a crime is said to have offended against the state and so the state has the right to prosecute them
what is civil law?
private disputes between individuals and/or businesses some examples are employment and family law
differences between criminal and civil
criminal law is aimed at trying to maintain law and order so when a person is found guilty of an offence the offender will be punished
civil law upholds the rights of individuals courts can order compensation
claimant
legal term for person or organisation starting a civil claim in the courts
prosecutor
legal term for person or organisation bringing a criminal charge against a defendant
standard of proof
criminal cases must be proved beyond reasonable doubt
civil cases have to be proved on the balance of probabilities
custom law
historically important
common law
law made by judges
statute law
law made by parliament
dicey rule of law
absence of arbitrary power on part of the state
equality before the law
supremacy of ordinary law
problems with diceys views
conflicts with another fundamental principle, that of parliamentary supremacy means that act of parliament can overrule law also no body has right to override or set aside an act of parliament so under rule of law no arbitrary power
need for statutory interpretation
a broad term
ambiguity
a drafting error
new developments
changes in use of language
literal rule
take direct meaning of the word from dictionary
literal rule cases
whiteley v chappell (1868)
london and north eastern railway (1946)
golden rule
modification of the literal rule and avoids an interpretation that is absurd
golden rule cases
Adler v George (1964)
re Sigsworth (1935)
mischief rule
looks back to gap in the previous law and interprets the act so as to cover the gap
mischief rule cases
smith v Hughes (1960)
Eastbourne borough council v Stirling (2000)
purposive approach
courts look to see what is the purpose of the law
quintavalle v human fertilisation and embryology authority
advantages of literal approach
leaves law making to parliament
makes laws more certain
disadvantages of literal approach
assumes that every act is perfectly crafted
words have more than one meaning
can lead to absurd results
can lead to unjust decisions
advantages of purposive approach
leads to justice in individual cases
broad approach covering more situations
allows for new technology
disadvantages of purposive approach
leads to judicial law making
can make law uncertain
difficult to discover the intention of parliament
internal aids
preamble
interpretation section
headings
external aids
previous acts of parliament on same topic
the historical setting
earlier case law
dictionaries of the time
what is hansard
official report of what was said in parliament when the act was debated
effect of human rights act (1998) cases
mendoza v Ghaidan (2002)
doctrine of precedent
following the decisions of previous cases especially of higher courts
original precedent
a decision on a point of law that has never been decided before
binding precedent
a decision in a earlier case which must be followed in later cases
persuasive precedent
a decision which does not have to be followed by later cases but which a judge may decide to follow
dissenting judgement
a judgement given by a judge who disagrees with the reasoning of majority of judges in the case
supreme court
most senior court and its decisions bind all other courts in the English legal system
stare decisis
stand by what has been decided and dont unsettle the established
ratio decidendi
reason for decision
obiter dicta
other things said
overruling
court in a later case states the legal rule decided in an earlier case is wrong
distinguishing
a method by which judge would avoid having to follow what would otherwise be a binding precedent
distinguishing cases
Balfour v Balfour
advantages of precedent
certainty-courts follow past decisions
consistency and fairness in the law
precision
flexibility
time saving
