Sources Of Law

Question 1

Historical: common law definition

Answer 1

Distinguish law as applied by king’s judges as opposed to vocal customary courts

Question 2

Modern: common law definition

Answer 2

Distinguish case law- law developed by judges through systems of precedent from statute

Question 3

Mainland Europe: common law definition

Answer 3

Identify laws as applied by common law countries as opposed to law applied by civil law countries

Question 4

Stare Decisis

Answer 4

To stand by what has been decided

Question 5

Ratio Decidendi

Answer 5

Reason for deciding (binding)
- if hard to determine use legal reports
- may be multiple

Question 6

Obiter Dictum

Answer 6

Statements regarding the law which is not the decision (not binding but may be persuasive)
May consist of:
- statements of the law as the judge would like it to be
- dissenting judgements

Question 7

Distinguish

Answer 7

Avoiding following binding precedent by;
- distinguishing the cases as too different based on the material facts to compare

Question 8

Reversing

Answer 8

Avoiding following binding precedent if:
- case appealed to a higher court and they disagree

Question 9

Overruling

Answer 9

Avoid following binding precedent by:
- superior court in a later case decides decision previously made is too in the past & wrong
- previous precedent no longer valid

Question 10

CoA departure from it’s own precedent

Answer 10

Young v BAC
- if there are previously conflicting decisions they can choose which to follow
- previous decision overruled expressly or impliedly by SC
- decision made per incuriam (faulty decision based on not being aware of correct authority)

Question 11

Equity History

Answer 11

Judicature Acts abolished old division between 3 common law courts & court of chancery (equity) and created a single high court and CoA which could apply both common law, and equitable remedies (discretionary not rights)

Question 12

Specific performance

Answer 12

Court order compelling a party to do something they had already promised to do (contract breach)

Question 13

Injunction

Answer 13

Order to do something (mandatory injunction)
Or stop doing something (prohibitory injunction)

Question 14

Declaration

Answer 14

A legally binding statement by a court regarding legal rights of parties, existence of facts or a principle of law

Question 15

Rescission

Answer 15

Setting aside of a contract
- available in common law & equity
- due to misrep/mistake/duress
- only available if parties can be put back into their pre-contractual positions

Question 16

Rectification

Answer 16

Corrects a pre-existing document to reflect parties’ contractual intention
- only used in written contracts

Question 17

Primary Legislation

Answer 17

Acts of Parliament

Question 18

Secondary Legislation

Answer 18

Subordinate/Delegated Legislation
- law created by ministers or bodies with powers given to them by a parent Act

Question 19

Public Acts

Answer 19

Acts of P which are of public concern
- debated in both houses of P

Question 20

Private/Personal Acts

Answer 20

Relate to specific places or people
- usually stem from proposal or large organisation

Question 21

Public Bills can be divided into

Answer 21

Government Bills & Private Member Bills

Question 22

Government Bills

Answer 22

Based on Government/Ministerial proposal and issued as a green paper then white paper

Question 23

Private Member Bills

Answer 23

Promoted by a particular member of P

Question 24

Process of a Bill into an Act for both Houses of P

Answer 24

First Reading, Second Reading, Committee Stage, report stage, third reading, royal assent

Question 25

What an Act contains

Answer 25

Short title, long title, date enacted, ‘parts’ different for subject matters, number sections, further breakdown into subsections

Question 26

Different types of secondary legislation

Answer 26

Statutory Instruments, Orders in Council, By-Laws

Question 27

What can courts do if secondary legislation is not made within powers of the parent act

Answer 27

Quash

Question 28

Literal Rule

Answer 28

Words interpreted in plain English - can use extrinsic and intrinsic aids

Question 29

Golden Rule

Answer 29

Where interpreting literally will lead to injustice, the court can put on them some other meaning - Adler v George

Question 30

Mischief Rule

Answer 30

Heydon’s Case: - what was the common law before the Act - what was the mischief/defect the previous law did not provide - what remedy for mischief had P intended to provide - what was reason for P adopting that remedy

Question 31

Purposive approach

Answer 31

Interprets laws to fulfil the current purpose

Question 32

Contemporary approach

Answer 32

Where it provides a clear answer purposive approach prevails but otherwise the literal rule should be used even where uncomfortable

Question 33

Linguistic presumptions: ejusdem generis

Answer 33

Of the same kind - when a generic but non-exhaustive list of items used - only includes specific terms that follow

Question 34

Linguistic presumptions: noscitur a sociis

Answer 34

Word known by it’s associates - words of a statute are understood within the context of the Act

Question 35

Linguistic presumptions: expressio unius est exclusio alterius

Answer 35

Expression of one thing is the exclusion of another