PL1.1 Sources of the ELS Flashcards
Intro to Public Law
What is Law?
The System of rules which a particular country or community recognizes as regulating the actions of its members; and which may be enforced via penalties
Functions of Law
There are many, but this includes:
- Maintaining peace and safety
- regulating relationships
- Protecting rights and liberties
- Ensuring the smooth running of economic and political activity
Why must law evolve?
Law must reflect the wishes & tolerance of a broad majority of the population in order to be CREDIBLE and ENFORCEABLE.
Therefore, it must keep develop in line with societal changes
What are the broad periods of legal development
1) Pre 1066 and the Norman Conquest
2) 1066 - 1485
3) 1485 - 1870
4) 1870 to present
Pre - 1066
Before the Norman Conquest there was a locally based system, governed by customs of Anglo Saxon Society`
1066 - 1485
The formation of common law and its imposition over and above local systems and customs.
1485 - 1870
Development of equity; two separate legal
systems co-exist.
1870s to present
- Joint jurisdiction for common law and equity
- Massive development in statute law
- Growth of governmental and administrative
bodies - Influence of European Union law (post-1973)
The Monarch ad Common Law
After Norman invasion, it became possible to dispense more CENTRALISED justice with the KING as central figure.
Cura Regis
Cura Regis - The King’s Council were an itinerant court that allowed the monarch to exercise High Justice
Fixed Kings Court
The establishment of a fixed King’s Court, autonomous from the King was required by the Magna Carta in 1215.
The King’s Council gradually developed and different ‘branches’ of the court evolved to deal with different types of dispute.
The Three Courts from the King’s Council
Court of Exchequer - royal finances - (appeal court later emerged but this was abolished following 1875 and transferred to Court of Appeal)
Court of Common Pleas - ownership and possession of land.
Court of King’s Bench - serious criminal
matters.
These courts remained until the Judicature Act 1873.
Assize Courts
Assize Courts had jurisdiction only over criminal matters, but this was later extended to civil matters. Assize Courts continued until the enactment of the Courts Act 1971.
Expansion of the King’s Courts
- Ascended over local courts
- Resisted by local barons
- Recognized as supreme over local courts by the time of Edward 1 (1272 - 1307)
Meaning of Common Law
- Historically - King’s Judges’ Law as opposed to customary
- Distinguish law from KC as opposed to Equity developed by Court of Chancery
- To distinguish case law from statutes
- To identify common law countries as opposed to Roman Law
Which Court developed Equity
Court of Chancery
What is a writ
A writ was a document with a royal seal that constituted a royal demand for the defendant to appear before the Court.
It contained the foundation of the complaint, different form of writ being used for each ground of complaint (or ‘forms of action’).
Different types of Writ
Writ of Right
Debt
Detinue
Covenant
Account
Trespass
Case
Writ of Right
First form of ‘real action’” – developed from dispute ‘in battle’ to form of jury trial (in Petty Assizes)
Recovery of land
Debt
Recovery of fixed sum
Detinue
Return of Chattel
Remedy = Damages
Covenant
Breach of promise
Remedy = Damages
Account
Accounting for a payment
Remedy = Damages
Trespass
Against persons, goods or land - jury trial
Case
Remedy where no current action - later influential in development of tort law
Remedy = Damages
Problems with the Writ System
*Complex, restrictive and fixed procedures aimed to resolve writs.
*Not a system that developed from “rights” and “wrongs”.
*Only offered remedy of damages; not fulfillment of promise for instance
In Common Law decisions by higher courts are …
binding on those lower down
What do judges do
- Consider the evidence
*Consider the applicable law
*Apply the law to the facts of the case
*Decide what remedy and make an order
A judgment
This is the final outcome of a court hearing.
Note that there is no central “e”
Do judges make law
Traditional theory is that they declare what the law has always been. Relying on precedents is therefore retrospective
Stare Decisis
Binding Precedent - ‘stand by what
has been decided’.
Precedent
As soon as a “point of law” has been decided by a superior court it establishes a precedent and is binding.
A precedent may be:
* Binding, in which case it must be followed; or
* Persuasive, in which case it will be considered by the later court and may be followed.
A judgement consists of
(a) A summary of the facts
(b) Statements of law, which will include the ratio decidendi and (often) obiter dicta
(c) The court’s decision on remedy, which is binding only on the parties to the case
Ratio Decidendi
This means the ‘reason for the decision’. The ‘ratio’ of a judgment is the part which is binding on other courts.
The ratio is the legal principle or rule on which the court’s decision is based, applied to the material facts of the case
Material Facts
The facts on which the decision of the court depends.
If the material facts change, the court’s decision might also change
Width of a ratio
A ratio can be viewed as a narrow proposition of law or a wide proposition of law. If it is the former, a ratio would (for example) apply only to very specific facts; on the latter view, it could be treated as establishing an entirely new, wider principle.
Obiter Dictum definition
Judge comments on an area of law, on that are not necessary
to reach a decision in the case.
Not regarded as binding,
May be highly persuasive and influential in subsequent cases.
Obiter Dictum consists of
- Statements of law not necessary to the decision
*Statements of the law as the judge would like it to be,
*Dissenting judgments,
Following the Decision
Where a court considers the facts of a case to be so similar to those facts in an earlier case that the law in the earlier case should be followed
Approving
If the court doing the ‘following’ is a higher court, then the later decision is also said to be
approving the earlier one
Distinguish
A court may avoid following an otherwise binding precedent if it feels able to ‘distinguish‘ the earlier case – eg by finding a difference in the material facts between the two cases. A principle which applies on one set of facts may not apply on a slightly different set of facts.
Reversed
A court may avoid following an otherwise binding precedent if it feels able to ‘distinguish‘ the earlier case – eg by finding a difference in the material facts between the two cases. A principle which applies on one set of facts may not apply on a slightly different set of facts.
Overruled
A superior court in a later case decides the original precedent set in last case is wrong and sets a new ‘correct’ precedent instead.
The original precedent is no longer good law
For example, the Supreme Court may overrule a precedent from the Court of Appeal.
The word **overturn ** is also used for this.
Departing from own precedent
This was only formally recognised as possible from 1966
Practice Statement (Judicial Precedent) 1 WLR 1234.
Lord Gardiner L.C.
‘recognise[d] that too rigid adherence to
precedent may lead to injustice in a particular case and also unduly restrict the proper
development of the law’.
1966
Caution regarding retrospective principles especially
the danger of disturbing retrospectively the basis on which contracts, settlements of property and fiscal arrangements have been entered into and also the especial need for certainty as to the criminal law’.
Austin v Southwark LBC [2010] UKSC 28
Lord Hope
The (new) Supreme Court would maintain the same guarded but potentially flexible approach.
This is reflected in Practice Direction 4 of the Supreme Court
Young v Bristol Aeroplane Co. Ltd [1944] KB 718
Lord Greene MR outlined three exceptions where could depart from its own precedent:
(a) If the CA came to previously conflicting decisions, ‘today’s’ CA can select the one to follow.
(b) If the CA’s own previous decision has been overruled expressly or impliedly by the SC or HoL it need not be followed.
(c) If the CA’s previous decision was made per incuriam.
Per Incuriam
Per incuriam does not simply mean that the earlier CA made an error.
It applies when the previous court was not aware of a relevant authority (in case or statute) which would have been binding on the court’ and that ignorance led to faulty reasoning by the court.
Rules of Precedent
Supreme Court All inferior courts and itself (subject to* 1966 Practice Statement)*
**Court of Appeal **All inferior courts and itself (subject to Young v BA exceptions)
The High Court All inferior courts, and itself (unless there is a powerful reason to depart)
The Upper Tribunal The First Tier Tribunal, inferior courts, and itself.
The First Tier Tribunal Not binding but may be persuasive
The rest are not binding
Ratio
The part of a judgment which establishes a principle which can be applied to other cases