Sources of law Flashcards
how did the common law emerge
as a part of the centralising influence of the monarchy
why did the common law cause issues
due to its rigid nature, this contributed to the emergence of the law of equity
what legal remedy evolved from relief
damages
what is a writ
a document with a royal seal that constituted a royal demand for the D to appear before court
what effect did writs have on the law
it stultified the growth of the substantive law
what are the different forms of writs
writ of right
debt
detinue
covenant
account
trespass
case
what 3 courts developed from the king’s court and what did they deal with
court of exchequer- royal finances
court of common pleas - ownership and possession of land
court of king’s bench - serious criminal matters
when did these courts remain until
judicature act 1873
what did assize courts have jurisdiction over
originally only criminal, was extended to civil too
what were assizes
sittings - royal justices were dispatched to provinces outside London with a royal commission to hold assizes
what is the function of law
to maintain peace and safety in society, regulates behaviours, protects human rights
what is law
a system of rules a community recognises as regulating the actions of its members, it may enforce by penalties
what is the common law system governed by
rules of precedents
what does the rule of precedent mean
the decisions of higher courts are binding on those lower down
what do judges do
consider evidence, consider applicable law, apply law to the facts of the case, decide what remedy and make an order
do judges make law
traditionally no, they declare what the law has always been
judicial decisions are based on statements of legal principle which are existing, they aren’t fully expressed until and appropriate case it brought to court
what is stare decisis
stand by what has been decided
what happens when a superior court decides a ‘point of law’
it establishes a precedent
what may a precedent be
binding or persuasive
what does a judgment consist of
summary of the facts
statements of law - ratio and obiter
court’s decision on remedy
what does ratio decidendi mean and is it binding
the reason for the decision, yes
it is the legal principle on which the court’s decision is based on
what is the obiter dictum and is it binding
other comments made by judges on a case, no
consists of :
statements of law not necessary to the decision
dissenting judgements
statements of law as the judge would like it to be
what does following the decision mean
to be approving the earlier one (if done by a higher court)
what other 2 options are part of a judge’s skillset
distinguishing - difference
similarities - apply similar law
when is a judgment reversed
if a case foes to appeal and the HC disagrees with the LC.
means the HC has applied the law in a different way
when is a precedent overruled / overturned
if a SC in a later case decides that the original precedent is wrong and sets a new one instead, it is no longer a good law
under what can you depart from a precedent (SC)
Practice Statement
when can a precedent be departed from (SC)
if it may lead to injustice
restrict the proper development of the law
what exceptions did Young v Bristol Aeroplanes set out for the COA departing from a precedent
- previously conflicting decisions
- if prev. decision has been overruled expressly or impliedly
- prev. decision was made per incuriam (error)
what are the rules of precedent summarised
SC binds all inferior crts, can depart from own decisions
COA binds itself and inferior crts
HC binds inferior crts, not itself
UT binds 1st TT, inferior crts and itself
1st TT doesnt bind other crts, may be persuasive
FC doesnt bind
County C “”
Crown C “”
MC “”
what is equity
body of principles and rules administered by the court of chancery
what did equity provide
greater flexibility
what did maitland say on equity
gloss on the common law
what are the types of equitable remedies
specific performance, injunction (prohibatory and mandatory)
what is primary leg
passed by P which starts in the HOL or HOC
what is secondary leg
made ministers under powers granted by parent act
what is lobbying
when an outside body pushes for an MP to share their views
2 types of public bill
PMB, gov bill
who proposes public and private bills
public - gov
private - MP
what is statutory interpretation
process of determining what P intended when it enacted a piece of leg
what did seldom reference in contemporary practice
that rules of SI are effectively are simply approaches to interpretation rather than strict rules
what are the 5 types of SI
literal rule, golden rule, mischief rule, purposive approach, contemporary approach
what are the 3 types of linguistic presumptions
expressio unius
ejsudem generis
noscitur a sociis
