Sources of Law Flashcards
What is the law?
A system of rules which a particular country or community recognises as regulating the actions of its members and which it may enforce by imposing penalties
What three courts developed from the King’s Council
- Court of Exchequer
- Court of Common Pleas
- Court of King’s Bench
What can common law mean?
- Historical (King v local courts)
- King’s Court v Equity
- Case law v Statute
- Common law countries v Civil law countries
How could someone bring a claim to the King’s Court
Purchase a writ
What types of Writ were there?
- Writ of right
- Debt
- Detinue
- Covenant
- Account
- Trespass
- Case
What were the three problems of the writ system?
- Too rigid
- Not resolving in a just way
- Remedy only damages
How do judges decide a case?
- Consider evidence/decide what’s credible
- Consider applicable law (case law/statute)
- Apply law to facts and decide
- Decide remedy
What does stare decisis mean?
Stand by what has been decided
What can a precedent be?
Binding or persuasive
What does a judgment consist of?
- Summary of facts
- Statement of law (ratio decidendi and obiter dicta)
- Remedy - only binding parties
What is ratio decidendi?
The legal principle/rule
What is it called when a judge decides the ratio in an earlier case was very narrow?
Distinguishing aka ‘confining the case to its facts’
What is obiter dictum?
Highly persuasive but not binding comments on law that is not necessary for the decision
What are three examples of obiter dicta?
- Hypotheticals
- What judge wants law to be but for precedent
- Dissenting judgment
What is approving?
A later decision that follows a decision from a previous higher court
What is applying?
A later court considers facts of an earlier case to have similarities so applies the law
What is distinguishing?
Finding a material difference in facts
What is reversing?
Case where higher appeal court disagrees with lower court
What is overruling?
A superior court decides precedent set in past case is wrong and sets a correct one
When can the Court of Appeal depart from its own decision?
- CoA came to previously conflicting decisions
- It was overruled by SC
- It was made per incuriam
What is the Court hierarchy in terms of precedence?
- Supreme Court
- Court of Appeal
- High Court
- Upper Tribunal
- First Tier Tribunal
- Family Court
- County Court
- Crown Court
- Magistrates Court
Which Court first administered Equity?
Court of Chancery
How did equity first develop?
The concept of unconscionability where landowners would leave land to trusted friends before going to fight
Complete: Equitable remedies remain … in modern law
Discretionary
What is the equitable maxim?
Equity follows the law
What did the Judicature Acts do for equity?
Abolished division between common law courts and court of chancery
Created single High Court and Court of Appeal
What equitable remedies are available?
- Specific performance
- Injunction
- Declaration
- Recission
- Rectification
What is primary legislation?
Acts of Parliament
What is secondary legislation?
Subordinate legislation made by ministers under a ‘parent’ act
What can Parliament do re Statutory Instruments?
Approve or reject but not amend
What is the literal rule?
Giving words their ordinary, plain and natural meaning
What is the golden rule?
Give words their ordinary signification unless it would produce inconsistency/absurdity/inconvenience
What four questions are considered for the mischief rule?
- What was the common law before the Act?
- What was the mischief and defect which common law didn’t provide for?
- What was the remedy for the mischief Parliament intended to provide?
- What was the true reason for the remedy?
What is the purposive approach?
Adding/ignoring words to support purpose of act
What is the contemporary approach?
Combining literal and purposive interpretations
What are the general rules of statutory interpretation?
- Literal rule
- Golden rule
- Mischief rule
- Purposive approach
- Contemporary approach
What are the three most common linguistic presumptions?
- Expressio unius
- Ejusdem Generis
- Noscitur a sociis
What categories of human rights are there?
- Absolute
- Limited
- Qualified
What incorporated the EEC into UK law?
European Communities Act 1972
What type of system is the UK?
Dualist
What established the EU?
Maastricht Treaty - TEU 1992
What is EU secondary legislation?
Regulations, directives and decisions
CJEU case law
What effect do regulations have?
Direct effect
What effect do decisions have?
Binding on the parties to whom they’re addressed
What effect do directives have?
Binding as to result but leave to national authorities the choice of form and method
What happens if a member state fails to implement a directive properly/on time?
Infringement proceedings
What methods have the court of justice developed to enable directives to be enforced in national courts?
Direct effect
Indirect effect
State liability
