Sources Of Law Flashcards
Historical: common law definition
Distinguish law as applied by king’s judges as opposed to vocal customary courts
Modern: common law definition
Distinguish case law- law developed by judges through systems of precedent from statute
Mainland Europe: common law definition
Identify laws as applied by common law countries as opposed to law applied by civil law countries
Stare Decisis
To stand by what has been decided
Ratio Decidendi
Reason for deciding (binding)
- if hard to determine use legal reports
- may be multiple
Obiter Dictum
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
Distinguish
Avoiding following binding precedent by;
- distinguishing the cases as too different based on the material facts to compare
Reversing
Avoiding following binding precedent if:
- case appealed to a higher court and they disagree
Overruling
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- previous precedent no longer valid
CoA departure from it’s own precedent
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)
Equity History
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)
Specific performance
Court order compelling a party to do something they had already promised to do (contract breach)
Injunction
Order to do something (mandatory injunction)
Or stop doing something (prohibitory injunction)
Declaration
A legally binding statement by a court regarding legal rights of parties, existence of facts or a principle of law
Rescission
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
Rectification
Corrects a pre-existing document to reflect parties’ contractual intention
- only used in written contracts
Primary Legislation
Acts of Parliament
Secondary Legislation
Subordinate/Delegated Legislation
- law created by ministers or bodies with powers given to them by a parent Act
Public Acts
Acts of P which are of public concern
- debated in both houses of P
Private/Personal Acts
Relate to specific places or people
- usually stem from proposal or large organisation
Public Bills can be divided into
Government Bills & Private Member Bills
Government Bills
Based on Government/Ministerial proposal and issued as a green paper then white paper
Private Member Bills
Promoted by a particular member of P
Process of a Bill into an Act for both Houses of P
First Reading, Second Reading, Committee Stage, report stage, third reading, royal assent
What an Act contains
Short title, long title, date enacted, ‘parts’ different for subject matters, number sections, further breakdown into subsections
Different types of secondary legislation
Statutory Instruments, Orders in Council, By-Laws
What can courts do if secondary legislation is not made within powers of the parent act
Quash
Literal Rule
Words interpreted in plain English
- can use extrinsic and intrinsic aids
Golden Rule
Where interpreting literally will lead to injustice, the court can put on them some other meaning
- Adler v George
Mischief Rule
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
Purposive approach
Interprets laws to fulfil the current purpose
Contemporary approach
Where it provides a clear answer purposive approach prevails but otherwise the literal rule should be used even where uncomfortable
Linguistic presumptions: ejusdem generis
Of the same kind
- when a generic but non-exhaustive list of items used
- only includes specific terms that follow
Linguistic presumptions: noscitur a sociis
Word known by it’s associates
- words of a statute are understood within the context of the Act
Linguistic presumptions: expressio unius est exclusio alterius
Expression of one thing is the exclusion of another
