Sources of Law Flashcards
Explain the sources of law in the English legal system
Sources of Law in England & Wales:
English legal tradition places emphasis on the ‘source’ of law. Its key is to find which institution ‘made/recognised’ a legal rule and to identify exactly when it was made so you can decide which rule takes precedence.
The varied combination of sources of English Law:
Legislation: Legislation can be divided into primary legislation made by parliament and secondary legislation made by authority of parliament but not by it.
Statues: S. An Act of Parliament (also called a statute) is a law made by the UK Parliament.
Case law:The courts consist of independent, non-elected judges and senior judges create case law by reaching decisions on cases before them. Thus forming the concept of precedent.
Explain the legal jurisdictions within the British Isles
The legal jurisdictions within British Isles:
- Within the United Kingdom; you have England, Wales, Scotland and Northern Ireland.
- Within Great Britain; you have England, Wales, Scotland
- Within the British isles; you have England, Wales, Scotland and Northern Ireland, the Republic of Ireland, the Channel Islands and the Isle of Man.
The British Isles is a geographical, rather than legal or political term. It comprises sovereign states; the Republic of Ireland and the United Kingdom whereby the monarch is head of these states except the Republic of Ireland. The republic gained independence in 1922. The ROI is therefore a separate entity from the UK and the UK’’s political and legal terms. Guernsey, Jersey and the Isle of Man are crown dependencies however they are independent from the UK and have their own governments, legislatures and court systems.
The United Kingdom is the state for which British people live and which acts on the international stage. The default position for any legislation produced by parliament is that its jurisdiction is the whole of the UK.
Great Britain does not include northern Ireland and is not a term commonly used except in international sports. Northern Ireland and Scotland are said to have separate legal systems in the sense of the forum in which legal disputes are settled. Although the northern Irish legal system resembles that of England & Wales it is common law in nature and the court system is particular to Scotland and the law itself is an amalgam of civil, common and customary law.
Explain the key distinctions between the English legal system of common law vs other systems
Civil Law: Ecclesiastical and military law both have their own forums for litigation with their own procedures. In this context any law not within the relevant specialist area of law is referred to as Civil Law.
Common Law vs Civil Law; The Common law jurisdiction has a system of binding judicial precedent which generates a body of case law.
The key difference between the English legal system and other legal systems across Europe is that the English legal system is a common law adversarial system. A common law jurisdiction has a system of binding judicial precedent which generates a body of case law.
By contrast a Civil law jurisdiction or ‘inquisitorial’ method is where Ecclesiastical and military law both have their own forums for litigation with their own procedures. **Civil law jurisdictions tend not to have binding case law. They do, of course, have litigation but cases do not coalesce into a self-standing system of legal principles. The foundation of many codified civil law is Roman law.
