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Law of O&E > T2 Legal Systems & Sources of Law > Flashcards

T2 Legal Systems & Sources of Law Flashcards

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1
Q

5 major legal traditions around world are?

A

CCCSI

  • Common law (main)
  • Civil law (main)
  • Customary law
  • Socialist law
  • Islamic law
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2
Q

Two main sources of common law?

A

Legislation

Case law

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3
Q

Difference between legal traditions and legal systems?

A

Traditions - how people think about law generally

Systems - the rules, institutions and procedures by which law is administered

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4
Q

Difference between Parliament and Government?

A

Parliament - elected members of both parties

Gov - party with most seats (e.g. Conservatives)

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5
Q

What sits at the top of the UK constitution?

A

Parliament

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6
Q

If a conflict between legislation and case law, which prevails?

A

Legislation

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7
Q

UK Parliament consists of which two chambers?

A

House of Commons (elected MP’s)

House of Lords (unelected based on knowledge, expertise and experience)

Note:
Both need to agree before a proposal becomes law

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8
Q

What matters do Scottish Parliament have power to legislate on - reserved or devolved?

A

Devolved
(health and social, housing, education, police, etc)

Note:
Reserved matters where only UK Parliamnet may pass Bills

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9
Q

What is primary legislation also known as?

A

Statute

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10
Q

Once a draft statute (legislation) has been reviewed and passed by both Houses (chambers), what is the next step before becoming law?

A

Receives Royal Assent (monarch’s signature)

Note:
Monarch does not get involved in politics and policy and never refuses her Assent to legislation

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11
Q

Once Act has been passed, the courts must uphold and apply it. When the meaning or scope is unclear, what rules must they follow to interpret?

A

Rules of statutory interpretation

Note:
Knowing these rules can help us understand and even anticipate the courts response to legislation

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12
Q

Rules of statutory interpretation - what are the two approaches?

A

Literal - using the words of the Act literally

Purposive - considers the intent of Parliament (what was law before, what did it not provide)

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13
Q

What is the meaning of soft law?

A

Agreements, principles and declarations, that are not legally binding

Note:

  • drivers for harmonisation
  • e.g. UN General Assembly resolutions
  • Hard law refers generally to legal obligations that are binding and legally enforceable
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14
Q

What do the Principles of European Contract Law strive for?

A

Better integration and harmonised ways of doing business

Note:
As EU has different legal systems and traditions (common/ civil) - the principles strive for..^

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15
Q

What is common law?

A

Judge-made law

Created by judges’ decisions in cases

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16
Q

What 3 areas of law are predominantly governed under common law?

A

Evidence T3

Contract T4

Tort (delict in Scotland) T10

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17
Q

What is the disadvantage of common law?

A

Reactive - once cases taken to court

Note:
The court reacts to legal situations, unlike Parliament who can be proactive

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18
Q

4 steps at a court of first instance?

A
  • Pleadings
  • Outline legal issues
  • Hearing witnesses
  • Adjudicating blame

Note:
If you disagree, right to appeal to an appeal court

19
Q

What 2 things does the appeal court review on (point of…)?

A

Point of law - adjudicated of what law states and how it should apply

Point of fact - reviewing the facts or interpretation of fact as decided by lower court of first instance

20
Q

UK Supreme Court was established in 2009 - what was the equivalent court cases prior to July 2009 known as?

A

House of Lords cases

Note:

  • Appellate Committee of the House of Lords
  • Almost the same court, renamed
21
Q

Court structure/ hierarchy in England & Wales?

A
  • UK Supreme Court
  • Court of Appeal
  • High Court
  • County Court
  • Magistrates Court & Crown Court
22
Q

Where in the court structure, does the Technology and Construction Court (TCC) sit?

A

Within the Queen’s Bench Division (QBD)

QBD is a branch (of 3) within the High Court

23
Q

Disputes that have both commercial and construction elements may be dealt with in which 4 courts?

A
  • TCC
  • QBD (general contractual case)
  • Commercial Court (complex commercial case)
  • Chancery Division
24
Q

What disputes are within the jurisdiction of TCC? Name a few

A

T - tech and engineering disputes
C - construction/ building cases
C - changing arbitrators’ decisions

Also:

  • Professional negligence
  • Adjudication enforcement
  • Nuisance
25
Q

2 circumstances for implementing a binding decision/ precedent?

A
  1. Broadly similar in facts
    (but if important differences, court may ‘distinguish’ present case and not follow precedent)
  2. Court hierarchy
    (e. g. Court of Appeal decisions will bind courts at first instance)

Note:
Only the ratio is binding (except the general pronouncements will be treated as binding)

26
Q

Example of persuasive judgment?

A

e.g. Supreme Court may refer ratio of lower hierarchy court such as high court, as persuasive judgment.
(as lower hierarchy court decision, not binding on higher court)

Note:
Sometimes a decision of court of judgment not binding, but it may be followed

27
Q

4 reasons why parties opt for tribunals and ADR - as opposed to adversarial trials (litigation)?

A

Time:
- Quicker than courts
Cost:
- Expensive court costs
- Losing party pays winners legal fees (civil cases. except in Scotland)
- Winner may not get full cost claim (at court)

Note:

  • Judge can also refer case to ADR, and even stop it coming to court
  • More private
28
Q

3 most common forms of ADR?

A
  • Mediation
  • Conciliation
  • Arbitration

Note:
Mediation with no opinion - conciliation with opinion/solution

29
Q

Some key differences between arb and court?

A
  • Arb is private/ confidential (not public info)
  • Arb private funded (court by public)
  • Appealing arbiter’s award is more restricted than court

Also:

  • Arb by agreement (court can be forced on one party)
  • Arbitrator (judge) chosen by parties
30
Q

Contract and tort are predominantly governed by which type of legal tradition..?

A

Common law

31
Q

Legislation (statute) and common law are two separate sources of law - which overrules?

A

Legislation

32
Q

Is there a difference between the “purposive” and “mischief” approaches to statutory interpretation?

A

No, they are the same thing

33
Q

Court structure/ hierarchy in Scotland?

A
  • UK Supreme Court
  • Inner House of the Court of Session (Scottish Supreme Court)
  • Outer House of the Court of Session (Scottish Supreme Court)
  • Sheriff Appeal Court
  • Sheriff Court
34
Q

In democracy, the doctrine of the separation of powers requires that the 3 branches of government have separate roles - name the branches?

(note: separation of powers, as required by common law, basically keeps 3 branches independent from one another. This acts as a check and balance on power)

A

The Legislature - law making body in country (Parliament)

The Executive - body responsible for the administration of country (Gov)

The Judiciary - body that implements and upholds law. (Courts)

35
Q

What does the stare decisis mean/translate to?

A

Stand by (previous) decisions

36
Q

Example of vertical stare decisis?

A

e.g. Supreme Court decision is binding on all courts beneath it

Note:
Judicial Precedent/ Stare decisis (stand by decisions)

37
Q

Example of horizontal stare decisis?

A

The Court of Appeal is bound by its previous decisions

Note:
Except in 3 instances:
- Own previous decisions conflict
- Vertical stare decisis (decision by higher court)
- Previous decision per incuriam (wrongly decided without due care to the relevant law)

38
Q

A Bill is a draft proposal of?

A

Legislation

39
Q

Delegated/subordinate legislation is detailed regulations and technical rules, that Parliament has authorised to be drafted by..?

(The purpose of delegated/subordinate legislation is to ‘flesh out’ the detail required)

A

Government departments

Note:

  • Enable smooth implementation of laws in parent Act
  • The Legislator has authorised The Executive (Gov)
  • Acts of Parliament and ASP often create just main framework for the law and central elements. These Acts cannot contain the detail necessary to regulate all aspects of targeted activities. The power to draft these detailed regulations is often delegated by main legislation (sometimes known as the ‘parent Act’)
40
Q

Examples of Treaties and Soft Law, as sources of Contract law

  • CISG (UN Convention on Contracts for the Int’l Sale of Goods 1980)
  • PICC (The UNIDROIT Principles of Int’l Commercial Contracts 2016)
  • PECL (Principles of European Contract Law)

(no question)

A

-

41
Q

The Sheriff Principal is a senior judge in that sheriffdom.

Has a mix of judicial and administrative duties. Responsible for administration of business within sheriffdom and has very important role in hearing appeals from Sheriffs on matters of civil law only.

(no question)

A

-

42
Q

Options:

  1. Court
  2. Tribunal
  3. ADR

Tribunals have become more and more formal over the years. However, what was the original intentions for tribunals?

A
  • Specialist forum for resolve disputes (without going to court)
  • Be cheaper, faster, more accessible, less formal
  • Self representation

Note:
These aspirations are not all, if at all, currently apparent in the current tribunal system, particularly within the Employment Tribunal system. In Employment Tribunals legal counsel is increasingly used as the law becomes more and more complex

43
Q

Domestic legislation is dominant form of law making in the English legal system and is created by authority of Parliament. It exists in two main forms, primary and secondary legislation.

What is primary legislation?
What is secondary legislation?

[2021 Learning Legal Skills]

A

Primary legislation is statutes (e.g. Act of Parliament, Royal Charter for RICS)

Secondary legislation is delegated legislation (e.g. RICS Bylaws, regulations)

Note:

  • Primary legislation applies to whole of English legal system and is created by Parliament directly. It can deal with any subject matter that Parliament wishes.
  • Secondary legislation is created by others acting on powers delegated to them in primary legislation, which in these circumstances can be described as ‘enabling’ or ‘parent’ legislation
44
Q

What is ‘the statute book’?

[2021 Learning Legal Skills]

A

All the enacted legislation in the English legal system

arranged chronologically

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