Part 4 - History & Constitutional Background Flashcards
What are 2 types of legal systems?
- Common law system
- Civil law system
What is the nature and development of the common law system?
Nature
- Largely uncodified - historically based on cases before the courts were made
- UK courts don’t consider hypothetical cases and don’t speculate on what the law should be in an abstract manner
- Develops slowly - case to case
Development
- England’s influence in the development in the law is by traditional legal practitioners
What is the nature and development of the civil law system?
What is the major influence of French legal system?
Nature
- Constructed more theoretically - uses codes that set out a complete legal principles that are universally applied to any case (in theory)
Development
- French development of the law is largely by legal scholars and teachers who taught laws more rationally and scientifically
- Which led to abstract legal principles
Influence - France
- French law has been largely influenced by Roman law (corpus juris civilis)
- Legal code instilled by Roman Emperor Justinian in 6th Century
- Because of the French revolution in 1789, led to the creation of the Code Civil in 1804
- To eradicate the law of the past and replace it
What the context of the development of UK common law?
very beggining
(1)
Context
- Development of English common law started since William the Conqueror invaded England in 1066
- Before the William Conquest there was no unitary national legal system
- Started with oral customary rules
- Each county/shire had their own local court that had its own customs that varied between communities
- Justice was enforced in an arbitrary fashion by local lords or landowners
- Courts were completely different at this time
What was the beggining of the development of the common law?
(2)
Focus
- William laid down the foundations of the legal system
- He knew that a central system of justice was required to exercise real power, where the King had control and laws were obeyed
Curia Regis
- Doing so he created the Curia Regis - King’s Court
- A court house and a royal household consisting of the King and his advisers (landowners and clergymen)
- King’s court travelled around the country citizens would bring grievances to him to get advice for their grievances
Who played the most pivotal role in the development of the UK common law?
(3)
Introduction
- Probably the most contributing factor was King Henry II in 1154 after a long period of disruption and civil war
Focus
- He wanted to reform land law and deal with rampant crime
- He focused on creating a single system of justice for the whole country
- At this point there were only 18 judges
- In 1166 he ordered 5 to remain in Westminster, London to deal with cases that were previously decided
- Remaining judges sent to travel to different parts of the country (‘travelling justices’)
- To decide grievances, complaints and accusations applying precedent from Westminster
Outcome
- This was how local laws were replaced by new national laws (start of common law)
Development
* Slowly decisions were written down
* This practice developed into following precedents cited in arguments before the courts which were regarded as ‘authority’ of pre-existing legal principles
How had social order developed in common law?
Beggining
- Laws at this point were to prevent bloodshed by recognised rights to property and personal freedom
- This era ended after the establishment of the King’s Court in the 12th Century
Development
- They began to create disputes over land and other property
- Courts offered service to public
- Instead of solving disputes by violence, judge would rule on rights and wrongs and offer remedies
- This resolution of disputes supported social order and tranquility of the state
What is the meaning of equity in the common law system sense?
Legal rules that were developed by the courts to overcome some of the inflexibility of the rules and procedures of common law courts
What was the development of Equity in the UK?
- By 15th Century procedures of common law became slow, expensive and technical, with lack of satisfactory remedies
- Citizens petitioned the King to ‘redress their grievances’, meaning to lead directly to him to hera their complaints and give remedies
- King did so but slowly cases were too much
- He then passed them to his senior legal adviser, the Chancellor (a cleric) as the ‘Keeper of the King’s Conscience’
- Eventually the special court, Court of Chancery was created to deal with petitions on the basis of what was morally right
How was equity carried out (function)?
- Chancellor would give judgement not according to precedent, but through his discretion of what was right and wrong by merits of a particular case
- In 1474 the Chancellor issued his first decree which began the independence of the Court of Chancery from the King’s Council which was how equity was created
What were the 2 changes that equity contributed?
1) Equity created new rights
- Recognising trust (holding a legal title on behalf of another - ‘beneficiary’)
- Giving beneficiaries rights against trustees (common law didn’t recognise this device regarding trustees as owners)
2) New remedies
- If Chancellor convinced a person suffered a wrong the court would grant a remedy (not available in common law courts)
- Ensure that something was done to put right the wrong that had been done to the person
3) More flexible remedies
- Specific performances - giving an order to a person to stop a particular act
After awhile, what was the problem that equity faced?
What was the solution to the problem?
Problem
- Later on, the Court of chancery became expensive and took a long time for cases to be heard
- By 19th Century, the court was subject to criticisms
Judicature Act 1873-75
- 1873, common law courts and equity combined in the Judicature Act 1973-75
- Before this, equity and common law coexisted uneasily in a parallel situation until Earl of Oxford’s Case (1615) where it was held that equity prevailed over common law in times of conflict
* Now al courts deal with common law and equity principles and remedies
* However high court is still called Chancery Division
What is the Act that provides a constitutional principle?
What was the effect of the Act?
Section 1 Constitutional Reform Act 2005
- a) the existing constitutional principle of the rule of law, or
- b) the Lord Chancellor’s existing constitutional role in relation to that principle
Effect
- Effect of CRA 2005
The Act altered the role of the LC and created the new UKSC (as a response to concerns that the previous arrangements contravened the SOP)
What is a written constitution?
What are examples of countries that adopt this?
Rules for governance of the country are laid down in a single document and are specifically protected so that changes to those rules are virtually impossible to make
Countries
- USA, Germany, India, South Africa, Malaysia
What is an unwritten constitution?
What are examples of countries that adopt this?
Introduction
- No single document that explains powers divided and exercised
- Constitutional rules & principles come from written and unwritten materials
- HRA 1998 is not written a written constitution but a set of written rules (a type of ‘constitutional statute’)
Example
- UK, New Zealand, Israe
What are the sources of rules/laws from an unwrriten constitution?
Statute, common law, customs, constitutional conventions
What is an advantage and disadvantage of an unwritten constitution?
Advantage
- Flexible compared to written constitutions - can adapt when necessary, but the downside is that it is easier for thee state to abuse its power by passing laws to breach this
Disadvantage
- More difficult to access and understand - citizens will find it hard to access and understand the fundamental laws that govern them
What are the 3 constitutional principles of the UK?
Parliamentary sovereignty
Separation of powers
Rule of law
What is Parliamentary Sovereingty?
- Fundamental & most important principle of UK’s unwritten constitution
- Parliament is the supreme legal authority in the UK - can make or unmake any law
- Generally courts can’t overrule legislation
What is a positive and a negative of PS?
Positive
- Parliament can make and unmake any law - no distinctions between ‘ordinary’ and ‘constitutional law’
Negative
- validity/legality of statute cannot be challenged in court
What are 2 cases that began to challenge the concept of PS - beginning to classify ‘constitutional statutes’
Thoburn v Sunderland CC [2002]
- Laws LJ - ‘We should recognise a hierarchy of Acts of Parliament: as it were “ordinary” statutes and “constitutional” statutes’
R (HS2 action Alliance Ltd) v Secretary of State for Transport [2014] UKSC
- Held - Accepted the concept of constitutional concepts in Thoburn
What are the 3 bodies of power under SOP?
- Legislature - makes new laws
- Executive - implementing laws and running the country
- Judiciary - determining legal disputes and interpreting legislation passed by legislature
What is Separation of Power?
The 3 branches of the state gives the idea that division of power prevents accumulation of too much power in the hands of one organ and provides ‘checks and balances’
What academic provides his view on SOP?
Montesquieu in 1748 – The Spirit of Laws
- When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty…there is no liberty if the power of judging is not separated from the legislative and executive…there would be an end to everything, if the same man or the same body…were to exercise those three powers.
What is the Act that strengthened formal SOP?
What were the 4 things that it changed?
Constitutional Reform Act 2005
- The Act created the UKSC
- LCJ replaced LC as head of Judiciary
- Placed statutory duty on ministers to uphold judicial independence
- Made provision for establishment of an independent Judicial Appointments Commision (JAC)
What is the scope of the principle of rule of law?
What is the definition for it?
Scope
- A critical constitutional concept used to describe the factors necessary for a well functioning or healthy state to constrain the exercise of arbitrary power
Definition
- A citizen should only be punished if it is proved in the court that they breach a law, so that people cannot be punished arbitrarily
- No person is above the law, and everyone is equal before the law
What are 2 academics views that provide their theories on ROL?
A.V Dicey
Lord Bingham
What are Dicey’s 3 concepts of ROL?
Dicey’s theory is about the form of the law - how its made and applied (procedural)
- People can only be punished for specific breach of law established by the ordinary courts following a proper procedure
- No-one is above the law. This includes equality between men and women but also among the hierarchical structures of society.
- Constitutional principles are a product of the common law
What are Lord Bingham’s 8 sub-rules for ROL?
- The law must be accessible, intelligible, clear and predictable.
- Questions of legal right and liability should normally be resolved by the application of law rather than the exercise of discretion.
- The laws of the land should apply equally to all, except where objective differences justify differentiation.
- The law must give adequate protection to human rights.
- Some means should be provided for the resolution of civil disputes that do not involve excessive cost or delay.
- Ministers and public officers must exercise their powers reasonably, in good faith, for the purpose for which the powers were conferred and without exceeding the limits of such powers.
- The adjudicative procedures provided by the state should be fair.
- The state must comply with its obligations in international law.
What authority statest the importance of ROL?
World Justice Project - Introduction to Rule of Law index 2014 (annual ROL index measures experiences & perceptions)
- ‘… it is the underlying framework of rules and rights that make prosperous and fair societies possible.The rule of law is a system in which no one, including government, is above the law; where laws protect fundamental rights; and where justice is accessible to all…Where the rule of law is weak,medicines fail to reach health facilities, criminal violence goes unchecked, laws are applied equally across societies, and foreign investments are held back. Effective rule of law helps reduce corruption,improve public health, enhance education, alleviate poverty, and protect people from injustices and dangers large and small. Strengthening the rule of law is a major goal of governments, donors, businesses, and civil society organizations around the world.’
What are 4 universal principles of ROL?
- All bodies under government are accountable by law
- Laws are clear, publicised, stable, and just; and applied evenly; and protect fundamental rights
- Process which laws are enacted, administered, and enforced are accessible, fair, and efficient
- Justice served in timely fashion - by competent, ethical, and independent representatives and neutrals of sufficient number, have adequate resources, and reflects the community
What authority set out a code for judicial conduct?
What was the principle?
The Bangalore Principles of judicial Conduct (adopted in 2002) set out a code of judicial conduct
- Drafted by Judicial Group on strengthening judicial integrity by chief justices and superior court judges around the world
Principle
- Judicial independence is a prerequisite to the rule of law and a fundamental guarantee of a fair trial. Judge shall therefore uphold and exemplify judicial independence in both its individual and institutional aspects
What is judicial indepdence?
- To allow judge to adjudicate honestly and impartially on the basis of the law and evidence without pressure or influence
- No outsider should interfere with the way in which judge conduct a case and makes a decision
- This is important for public confidence and the proper functioning of the justice system
- Judges are required to only use evidence of cases accordance to law
What Act put judicial indepdence under statutory protection?
What provision provides this?
Constitutional Reforms Act 2005
- Section 3 - The Lord Chancellor, other ministers of the Crown, and all with responsibility for matters relating to the judiciary or otherwise to the administration of justice must uphold the continued independence of the judiciary
What are the 2 duties imposed under Section 3 CRA 2005
- LC and other ministers can’t seek influence particular judicial decisions through special access to the judiciary
- LC must regard the need to defend JI and the need for judiciary to have enough support necessary to exercise their functions
