Sources of Law Flashcards
Historical development of the common law?
- Post Norman Conquest (1066) there was a more centralised form of justice,with the King at the centre. The Curia Regis – the King’s Council – played the role of an itinerant court, allowing the monarch to exercise his personal power – ‘High Justice’ alongside Anglo Saxton Courts.
- The King was aided by a group of semi-professional, skilled clerics part of the royal entourage. They eventually started deciding disputes themselves - autonomous from the King and established themselves at Westminster. Maagnca Carta recognised (1215)
- 3 courts from KC (remained until the Judicature Act 1873):
1. Court of Exchequer, dealing with royal finances
2. Court of Common Pleas, dealing with the ownership and possession of land
3. Court of King’s Bench, dealing with serious criminal - ‘assizes‘ (or sittings) of the royal courts by justices outside london - continued until the enactment of the Courts Act 1971.
- King’s Courts became essential to the resolution of disputes. The law which the King’s judges applied was based upon the common customs of the country, hence the term ‘common’ law.
Why was there development of equity?
- Common law became hidebound by complex and restrictive procedures. To pursue a claim, the claimant had to purchase a writ from the Chancellor before an action could be brought before the courts. A writ was a document with a royal seal that constituted a royal demand for the defendant to appear before the Court. A writ was a document with a royal seal that constituted a royal demand for the defendant to appear before the Court.
- Damages were the only remedy.
Stare Decisis
- Stare decisis literally means ‘stand by what has been decided’.
- once a principle of law has been laid down, future cases with the same material facts must be decided in the same way.
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.
- may be unclear as many reasons for decisions or judges disagree
- width could be controvertial - judges in subsequent cases will also consider how wide. might decide that the ratio is very narrow, so that the earlier case can be distinguished. This is known as ‘confining the (earlier) case to its facts’.
Obiter dictum
- judge comments on area of law, on which it is not necessary to reach a decision in the case. Obiter comments are not regarded as binding, although they may be highly persuasive and influential in subsequent cases.
- dissent or what judge waants as law as obiter.
SC departing from ‘own’ precendent
- Until 1966 this was not formally recognised as being possible. Tthe former Appellate Committee of the House of Lords – the ‘law lords’ – recognised that this may be necessary in some situations with the Practice Statement (Judicial Precedent) 1 WLR 1234.
COA depart from precedent
Young v Bristol Aeroplane Co. Ltd [1944]
Lord Greene MR outlined three exceptions where the CA could depart from its own precedent:
1. If the CA came to previously conflicting decisions, ‘today’s’ CA can select the one to follow.
1. If the CA’s own previous decision has been overruled expressly or impliedly by the Supreme Court or House of Lords, it need not be followed.
1. If the CA’s previous decision was made per incuriam. (only applies when the previous court was not aware of a relevant authority which would have been binding on the court’ and that ignorance led to faulty reasoning by the court.)
Trace development of equity
- common law issues justice was not served in the King’s Courts, began to petition the King to do justice - petitions were dealt with through a more formal procedure by the Court of Chancery, presided over by the Lord Chancellor.
- Equity can be defined as the body of principles and rules administered by the Court of Chancery before the Judicature Acts 1873-1875.
- more FLEXIBLE - Less procedure based and guided on fairness
- Slowly more legal background and equitable precedents grew
Two systems of law - conflict
- James decided that, in cases of conflict, equity should prevail over common law.This rule was enshrined in s 25 of the Judicature Act 1873-1875 and is now to be found in s 49(1) of
the Senior Courts Act 1981. - The judgment also stressed, however, that the function of equity was to supplement the common law and not to supplant it.
- issue that two actions in two courts - Judicature Acts 1873- 1875 abolished the old division between the three common law courts and the Court of Chancery, and instead created a single High Court and Court of Appeal
Equitable remedies
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Specific performance - order by the court to compel a party to perform something they have promised to do under a contractual agreement. Thus:
1. must be valid enforcable contract
2. damages inadequate
*Injunction - order to do something (maandatory) or refrain (prohibitory)* - if damages inadequate.Although injunctions originated as an equitable remedy, the court’s jurisdiction to grant injunctive relief is now on a statutory footing. Under section 37 of the Senior Courts Act 1981, the court has jurisdiction to grant an injunction in ‘all cases in which it appears to the court to be just and convenient to do so’
Rescission- setting aside of a contract due to misrepresentaion, mistake, undue influence - only available where the parties can be put back to their pre-contractual position.
Rectification - corrects a document to reflect the parties’ contractual intention.
Primary and Secondary legislation
- Primary legislation is passed by Parliament.
- Secondary legislation is made under powers granted by primary legislation – it may be put before Parliament depending on the requirements of the primary legislation.
- Public bills are draft legislation proposed by the government. Private bills can be proposed by Members of Parliament.
- Primary legislation starts life as a ‘bill’ in either the House of Commons or the House of Lords (except for money bills).
- Once passed through both Houses, a bill must acquire ‘royal assent’ to become law.
Legislation does not always come into force on the same day it was enacted. It is actually more usual for an Act to include a commencement section detailing when the Act is to come into force.Typically, the power is delegated to the Secretary of State with responsibility for the area with which the statute is concerned to issue a statutory instrument bringing the Act into force. - The courts can determine whether secondary legislation is made within the powers of the parent Act and may quash it if this is not the case.
- Secondary legislation is not scrutinised to the same degree as primary legislation.
Parliament can either approve or reject a statutory instrument (SI) but cannot amend it.
Parliament’s role in considering an SI varies depending on what is stated in its parent Act. The Joint Committee on Statutory Instruments checks SIs to make sure the law they contain is clear and follows the powers given by the parent Act.
Rules of statutory interpretation
- Literal - words used in a statute are to be given their ordinary, plain and natural meaning, assisted, if necessary, by such extrinsic aids as a dictionary. quire an in-depth consideration of the words and phrases of the statute and how they may fit in with neighbouring sections and the Act as a whole.
- Golden - avoid the unnatural and sometimes absurd outcome that can result from the over-literal rule.
1. * Adler v George - The defendant was charged with an offence under s 3 of the Official Secrets Act 1920 of obstructing a member of the armed forces ‘in the vicinity of any prohibited place’. Parker LJ stated that ‘it would be ‘absurd’ if it were an offence for an obstruction to take place just outside the RAF station but not where the obstruction took place in the RAF station’. - Mischief -This examines the original purpose of the particular provision under consideration. In Heydon’s Case (1584) 3 Co Rep 79, it was stated that courts must consider four questions when applying the mischief rule:
(a) What was the common law before the making of the Act?
(b) What was the mischief and defect for which the common law did not provide?
(c) What remedy for the mischief had Parliament intended to provide?
(d) What was the true reason for Parliament adopting that remedy? - Purposive - modern rule - R v Secretary of State for Health ex parte Quintavalle [2003] UKHL 13, Lord Steyn - The pendulum has swung towards purposive methods of construction.
Contemporary:
Judges construing legislation always have and always will instinctively look both at the strict and superficial meaning of the words used and at the underlying purpose of the legislation, normally as a single, and largely subliminal, mental process. It is only in the rare cases where there is a tension between the two that the court needs to turn its mind actively to which should prevail […] it is now possible to say that the purposive interpretation will generally prevail where it provides a clear answer, but that otherwise the strict meaning will have to prevail, even if the court is uncomfortable with the result. This unified, ‘contextual’ approach involves not so much a choice between alternative “rules” as a progressive analysis in which the judge first considers the ordinary meaning of the words in the general context of the statute […] and then moves on to consider other possibilities where the ordinary meaning leads to an absurd result.
Maxims:
Expressio unius est exclusio alterius
This phrase means that the express mention of one thing excludes its extension to others. This presumption may be used where there is a list of items with no general words that follow. The presumption is that, because this is a closed list, Parliament intended only to include those items that are stated.
In Tempest v Kilner (1846) 3 CB 249, the Statute of Frauds 1677 required that sale of ‘goods, wares and merchandise’ over £10 in value must be evidenced in writing. The question for the court was whether stocks and shares came within this definition. As only those three types of transaction were mentioned, the court held that only those three transactions were covered; shares were not.
Ejusdem generis
Ejusdem generis means ‘of the same kind’ or ‘genus’. It is employed when a statute includes a generic but non-exhaustive list of items, and the interpretive task is to work out whether a particular item would fall within the list.
The presumption is that, where general words follow a list of specific words, the general words are interpreted so as to restrict them to the same kind of objects as the specific words. So, it is necessary to look at the specific words and see what characteristics they have in common. The general words must then include only words with these characteristics.
In Powell v Kempton Park Racecourse [1899] AC 143, a person was betting in Tattersall’s Ring, and the Betting Act 1853, in which the relevant provision contained the phrase; ‘house, office, room or other place’, arose for consideration.
The House of Lords held that the specific words, ‘house, office, room’ were all indoor spaces; and so, the general words ‘other place’ would be taken to refer only to indoor areas. As Tattersall’s Ring was an open area at Kempton Park Racecourse, the defendant did not commit an offence under the Act.
Noscitur a sociis
This maxim states that a word is known by the company it keeps. This means that words of a statute are understood in the context of the statute itself. This could be any part of the statute, not merely the provision (section) under consideration.
This technique is closely associated with ejusdem generis but has wider potential application, as ejusdem generis only applies when general words – usually introduced by the words ‘or other […]’ – come at the end of a list.
In Inland Revenue Commissioners v Frere [1965] AC 402, the House of Lords considered the phrase ‘interest, annuities and other annual payments’, contained in s 169 of the Income Tax Act 1952.
The word ‘other’ at the end of the phrase implied that the first two words (interest and annuities) were also annual. Therefore, the word ‘interest’ was held to mean ‘annual interest’. Noscitur a sociis was used here because it allowed the court to interpret the nature of one of the categories of things included in the legislation.
Human Rights development
- failure of the League of Nations, established as part of the post First World War peace settlement.
- In 1945, the United Nations (UN) was founded by the Allies to provide a mechanism for the resolution of international disputes, through both judicial and non-judicial mechanisms. the Universal Declaration of Human Rights (UDHR) was commissioned in 1946 and completed two years later. While receiving unanimous support, the UDHR is only a resolution of the General Assembly of the UN and as such is not ‘law’.
- In the aftermath of World War II, there was perceived to be a need for an international forum. This led to the establishment of the Council of Europe in 1949, headquartered in Strasbourg. The UK was one of the founding member states.
- In 1950, the member states adopted the Convention for the Protection of Human Rights and Fundamental Freedoms
- In 1966, the UK gave individuals the right to lodge ‘complaints’ under the ECHR to the European Court of Human Rights (ECtHR) in Strasbourg, if they had exhausted all domestic legal remedies.
- 47 Members and counts over 850 million people within direct jurisdiction. There has been an enormous growth in membership since the fall of communism in Europe from 1989 onwards.
Rights in ECHR
- Absolute - Rights which cannot be lawfully interfered with in any way by the state: freedom from torture and inhuman or degrading treatment (Art 3); prohibition of slavery and forced labour (Art 4); prohibition on retrospective criminal offences (Art 7).
- Limited - Rights which can in some circumstances be lawfully interfered with: right to life (Art 2); right to liberty and security (Art 5); right to a fair trial (Art 6).
- Qualified - Rights which can be lawfully interfered with provided certain legal tests are met: right to respect for private and family life, home and correspondence (Art 8); right to freedom of expression and information (Art 10); right to freedom of association and assembly (Art 11).
- Generally, for the state to interfere legitimately with a qualified Convention right, it must be shown that all three of the following circumstances apply.
- The interference was prescribed by, or in accordance with, the law.
- The interference was in pursuit of a legitimate aim.
- The interference was necessary in a democratic society. (This effectively means that the interference must be a proportionate one.)
Dualist state UK
n contrast, the UK legal system is dualist, treating the ‘two’ legal orders as wholly separate. The UK state may be bound by international law, and the UK government may be bound too in terms of its dealings with other states and governments, but the court system of the UK is not bound in the same way.
This means that international law can only be applicable in the UK in two distinct circumstances:
* Where the UK itself is a party to proceedings before an international court, to which jurisdiction it has agreed to submit (eg the European Court of Human Rights, the International Criminal Court)
* Where the UK has incorporated international legal rules into its domestic legal system through an enabling Act of Parliament
* ECHR into UK domestic law - HRA
