Sources of law Flashcards
what are the two sources of law
- legislation
- common law and equity
what are the two aspects of legislation
- statutes
- subordinate legislation
what are statutes
they are acts of parliament, that can declare and change the law
what is subordinate legislation
look at bills and pass them as acts
what is common law
judge made law, in the course of issuing decisions judges can make law (the way they interpret and define legislation can create law)
what is equitable jurisdiction
Judges can use discretion to do what is fair in a case if they don’t think common law can reach the appropriate outcome (the hole from common law)
what is the hierarchy of statutes
- supreme law
- subordinate legislation
- common law and equity
two aspects of parliamentary supremacy
- parliament can make any law although parliament cannot bind a future parliament (the next parliament will be able to change previous legislation)
- what is said and done in parliament cannot be questioned in any court or any place out of parliament
what is entrenchment
made more difficult to amend or appeal a piece of legislation
how is a statute made (7 things)
- bill proposed
- first reading
- select committee stage
- second reading
- committee stage
- third reading
- royal assent
what are the 3 types of subordinate legislation
- regulation and rules
- orders
- notices
what are the 4 types of rules
- literal rule
- golden rule
- mischief rule
- purposiveapproach
what is a golden rule
it allows judges to depart from the literal meaning of the rule
what is the mischief rule
judges need to decide what the whole act is trying to achieve
what is the purpose approach
Most common approach used by the courts because parliament in 2019 were sick of judges manipulating the definitions they sent a message to the judiciary on how to interpret legislation which is in section 10 of the legislation act 2019
what three things does the court have to ask when interpreting legislation
What the statutory provision appears to mean on an ordinary meaning
Consider how this reading will work in the context of the legislation and the effect on the community
Analyse whether this reading will give affect to the intention of the act
what are the three presumptions of interpretation of legislation
- act will not bind the crown unless it says otherwise
- common law will not be altered unless there is no other interpretation
- implied repeal
- clear wording required to restrict the liberty of the individual
- cannot take private property without compensation without clear words
- no retrospective effect without clear words
what is implied repeal
favif an act comes in any previous act has no effect (overturns previous legislation)
what can judges do in case law
interpret and make law
what is a doctrine of precedent
A higher court will bind a lower court on their statements of the law
what is Ratio decidendi
reason for the decision
what is Obiter dictum
by the way statement
