Sources & Types of Law Flashcards
Name the two sources of Law
Common Law and Statute Law
Explain the origin of Common Law
Common Law originates from judicial decisions based on custom and practice, the principle on which a former decision was made is binding on all subsequent cases of a similar nature.
Advantage of common law
Decisions are based on practical experience
Disadvantage of common law
Until a case comes before a judge, the law is uncertain
Under common law each judgement which comprises a speech which contains the Judges enunciation of the facts and includes two important features. What are these features?
Ratio Decidendi - The reason for the decision
Obiter Dicta - Words said by the way
Briefly explain the application and use of Ratio Decidendi
A statement of law based on an examination of the facts and the legal issues surrounding them. This is important and contains the actual binding precedent.
Briefly explain the application and use of Obiter Dicta
This may contain a statement about the law which is NOT based on the facts of the case under review and which will not be part of the decision. This is often thought to be of persuasive authority.
Define ‘Judicial Precedent’
A decision of a court to which authority is attached
Define Authoritative Precedent
Decisions which judges are bound to follow - There is no choice in the matter
Define Persuasive Precedent
Decisions that are not binding upon a court, but to which the judge will attach some weight.
Explain the meaning of Statute Law
Statute Law is written law produced at a National level through the Parliamentary process. Statutes are Acts of Parliament that supersede all other forms of law, only Parliament can make, modify, revoke or amend statutes.
Briefly explain the process of creating an Act of Parliament
Acts of Parliament (Statutes) begin their life as Bills and go through several readings in the Houses of Parliament before finally becoming Acts. These cannot be challenged in court.
Briefly explain ‘Regulations’
Regulations are a class of statutory instrument, one of several types of delegated legislation made under the authority of an Act of Parliament. The validity of these can be challenged in court due to them being delegated.
Define ‘Prescriptive’ Legislation
Prescriptive Legislation details specifically what the duty holder should do in detailed terms.
i.e. Regulation 33(2), PUWER 1998, Every Employer shall ensure that a power press is not used after the expiration of the fourth hour of a working period unless its every guard and protection device has been inspected and tested while in position on the power press by a person appointed in writing by the Employer who is (a) competent; or (b) undergoing training for that purpose and acting under the immediate supervision of a competent person and who has signed a certificate which complies with Paragraph (3)
Define ‘Goal-Setting’ Legislation
Goal-Setting legislation specifies a broad objective to be achieved and leaves it to the duty holder to decide the best way to achieve the goal.
i.e. S.2(1), HSWA, It shall be the duty of every employer to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all his employees.
List 4 advantages of prescriptive legislation
Requirements need little interpretation
Relatively easier to enforce
Same standard is required for all
Does not require a high level of expertise to interpret the legislation
List 3 limitations of prescriptive legislation
Inflexible
May not be appropriate for the circumstances
Will need more frequent revision as technology advances
List 4 advantages of Goal-Setting Legislation
Gives more flexibility in interpretation
Can be related to the actual risk
Less likely to need revision
Applies to a broader range of workplaces
List 4 limitations of Goal-Setting Legislation
Standard required may not be clear until guidance is published
More difficult to enforce
Needs a higher level of expertise in interpretation
Will lead to differing standards due to differing interpretation
Explain the purpose of criminal law
A crime is an offence against the state and the aim of prosecution is to impose punishment.
List the main sanctions for crime
Fines and Imprisonment
Explain the purpose of civil law
A civil action is between individuals, with one party initiating proceedings against another. The aim is for the Claimant to seek restitution for a wrongdoing from the defendant.
List the main types of remedy for civil cases
Financial compensation for damages or an Injunction (court order) to prevent the defendant perpetrating the wrongdoing.
Who does the burden of proof for proving a criminal charge sit with? What is the burden of proof required?
The burden of proving a criminal charge is normally on the prosecution and it must be proved beyond reasonable doubt that a person committed an offence.
Who does the burden of proof for proving a civil case sit with? What is the burden of proof required?
A civil case must be proved on the balance of probabilities. In the opinion of the judge, the evidence favors either the defendant or the claimant.
