sources of law Flashcards
what are the 3 POVs needed for the law?
- compliance
- preparation
- challenge
what does compliance refer to in the POV of the law?
essentially what the law says
when to / not to do things
being compliant prevents people from getting sued
what does preparation refer to in the POV of the law?
have to have active awareness about changing laws and staying ahead of it, in order to remain compliant
what does challenge refer to in the POV of the law?
reform the law and challenge the status quo to get it changed
what are the two types of law?
- international
- national / “domestic”
what is international law?
agreements between countries. eg. regarding corruption, trade, maritime, war, human rights
what is national / “domestic” law?
laws made in a country to apply to that country and to be enforced by that country
what are the three UK domestic sources of law?
- statutes
- delegated legislation
- case law
what are statutes?
legislation, acts of parliament. they remain in place until repealed
who makes statutes?
- law commission
- house of commons
- house of lords
- royal assent
what is the process of making a statute?
- green paper created by law commission where public made aware of new changes (public consultation)
- green republished as white paper following consultation
- bill created & sent to parliament
- 1st reading, 2nd reading, committee & report stage, 3rd reading all take place in house of commons
- goes to house of lords with same process as house of commons
- goes to royal assent, monarchy approve new statute
what is the interpretation act 1978?
an act guiding how to interpret a statute using five rules :
1. grammatical rule
2. literal rule
3. golden rule
4. mischief rule
5. contextual / purposive approach
what does the grammatical rule refer to when interpreting statutes?
for example, when dealing with lists “etc” has no meaning, so statutes need to be clearly defined and outlined
what does the literal rule refer to when interpreting statutes?
interpret the statute literally. use dictionary definitions of keywords in the statute
what does the golden rule refer to when interpreting statutes?
use the everyday meaning of the word when interpreting the statute
what does the mischief rule refer to when interpreting statutes?
interpret the word in the statute to solve the mischief. almost twist it to fit the offence and details of the offence
what does the contextual / purposive approach refer to when interpreting statutes?
consider the consequences of the offence when interpreting the statute
what is delegated legislation?
it allows gov to make changes to the law without needing to push a new act
who makes delegated legislation?
anyone who parliament has delegated authority to :
- local authorities (bye-laws)
- privy council (orders in council)
- government ministers (statutory instruments)
how is delegated legislation interpreted?
judges can interpret and “strike down” delegated legislation if it is :
- “mad” (irrational)
- “bad” (illegal)
- “badly done” (procedural impropriety)
what is case law?
precedent law based on precedents, which is judicial decisions from previous cases
who makes case law?
judges of the case make case law. there isn’t any acts but previous cases are used to base their decision off of. the interpretations set precedents.
when is a case precedent binding?
supreme court : can follow its own previous decisions or change its mind
court of appeal : must follow supreme court and its own precedents
high court : must follow supreme court and its own precedents
inferior courts : must follow all of the above
when is a precedent avoided?
precedent can be reversed on appeal :
- when court of appeal rules that judgement of a lower court was incorrect, then precedent reversed. eg. if ruling was not reasonable, if ruling was wrong in law, if ruling involved an error of law or principle
case might be disapproved :
- per incuriam (means that a previous court judgement has failed to pay attention to relevant precedents. lack of regard to the law)
case might be distinguished :
- case too different and unique to use precedent
who makes EU law?
- european commision
- european parliament
- council of ministers
what are the types of EU law?
- treaties
- regulations
- directives
- decisions
- case law
how is EU law interpreted?
- laws apply to all member states
- overrides national law in member states
