Sources of law

Question 1

how did the common law emerge

Answer 1

as a part of the centralising influence of the monarchy

Question 2

why did the common law cause issues

Answer 2

due to its rigid nature, this contributed to the emergence of the law of equity

Question 3

what legal remedy evolved from relief

Answer 3

damages

Question 4

what is a writ

Answer 4

a document with a royal seal that constituted a royal demand for the D to appear before court

Question 5

what effect did writs have on the law

Answer 5

it stultified the growth of the substantive law

Question 6

what are the different forms of writs

Answer 6

writ of right
debt
detinue
covenant
account
trespass
case

Question 7

what 3 courts developed from the king’s court and what did they deal with

Answer 7

court of exchequer- royal finances
court of common pleas - ownership and possession of land
court of king’s bench - serious criminal matters

Question 8

when did these courts remain until

Answer 8

judicature act 1873

Question 9

what did assize courts have jurisdiction over

Answer 9

originally only criminal, was extended to civil too

Question 10

what were assizes

Answer 10

sittings - royal justices were dispatched to provinces outside London with a royal commission to hold assizes

Question 11

what is the function of law

Answer 11

to maintain peace and safety in society, regulates behaviours, protects human rights

Question 12

what is law

Answer 12

a system of rules a community recognises as regulating the actions of its members, it may enforce by penalties

Question 13

what is the common law system governed by

Answer 13

rules of precedents

Question 14

what does the rule of precedent mean

Answer 14

the decisions of higher courts are binding on those lower down

Question 15

what do judges do

Answer 15

consider evidence, consider applicable law, apply law to the facts of the case, decide what remedy and make an order

Question 16

do judges make law

Answer 16

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

Question 17

what is stare decisis

Answer 17

stand by what has been decided

Question 18

what happens when a superior court decides a ‘point of law’

Answer 18

it establishes a precedent

Question 19

what may a precedent be

Answer 19

binding or persuasive

Question 20

what does a judgment consist of

Answer 20

summary of the facts
statements of law - ratio and obiter
court’s decision on remedy

Question 21

what does ratio decidendi mean and is it binding

Answer 21

the reason for the decision, yes
it is the legal principle on which the court’s decision is based on

Question 22

what is the obiter dictum and is it binding

Answer 22

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

Question 23

what does following the decision mean

Answer 23

to be approving the earlier one (if done by a higher court)

Question 24

what other 2 options are part of a judge’s skillset

Answer 24

distinguishing - difference
similarities - apply similar law

Question 25

when is a judgment reversed

Answer 25

if a case foes to appeal and the HC disagrees with the LC.
means the HC has applied the law in a different way

Question 26

when is a precedent overruled / overturned

Answer 26

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

Question 27

under what can you depart from a precedent (SC)

Answer 27

Practice Statement

Question 28

when can a precedent be departed from (SC)

Answer 28

if it may lead to injustice
restrict the proper development of the law

Question 29

what exceptions did Young v Bristol Aeroplanes set out for the COA departing from a precedent

Answer 29

1. previously conflicting decisions
2. if prev. decision has been overruled expressly or impliedly
3. prev. decision was made per incuriam (error)

Question 30

what are the rules of precedent summarised

Answer 30

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 “”

Question 31

what is equity

Answer 31

body of principles and rules administered by the court of chancery

Question 32

what did equity provide

Answer 32

greater flexibility

Question 33

what did maitland say on equity

Answer 33

gloss on the common law

Question 34

what are the types of equitable remedies

Answer 34

specific performance, injunction (prohibatory and mandatory)

Question 35

what is primary leg

Answer 35

passed by P which starts in the HOL or HOC

Question 36

what is secondary leg

Answer 36

made ministers under powers granted by parent act

Question 37

what is lobbying

Answer 37

when an outside body pushes for an MP to share their views

Question 38

2 types of public bill

Answer 38

PMB, gov bill

Question 39

who proposes public and private bills

Answer 39

public - gov
private - MP

Question 40

what is statutory interpretation

Answer 40

process of determining what P intended when it enacted a piece of leg

Question 41

what did seldom reference in contemporary practice

Answer 41

that rules of SI are effectively are simply approaches to interpretation rather than strict rules

Question 42

what are the 5 types of SI

Answer 42

literal rule, golden rule, mischief rule, purposive approach, contemporary approach

Question 43

what are the 3 types of linguistic presumptions

Answer 43

expressio unius
ejsudem generis
noscitur a sociis