The English Legal System Flashcards
What is the symbolic idea of the rule of law?
No one is above the law
This concept emphasizes equality and accountability within a legal framework.
According to Dicey, what are the three key points of the rule of law?
- Absence of arbitrary power by the state
- Equality before the law
- Supremacy of ordinary law
These principles highlight the importance of legal frameworks in governance.
What is a criticism of Dicey’s views on the rule of law?
It conflicts with the fundamental idea of Parliamentary supremacy
This suggests that legislative authority can sometimes override legal principles.
Who agreed with Dicey that there must be an absence of arbitrary power?
Von Hayek
Hayek emphasized the importance of limiting government power in legal contexts.
What was Joseph Raz’s belief regarding the rule of law?
It is negative and requires clear procedures for law-making and judicial review
Raz focused on the procedural aspects of law to ensure fairness.
What is statutory interpretation?
When a law has a word with two possible meanings and the judge must decide its meaning
This process is crucial for the application of laws in legal cases.
From what sources is law developed?
- Custom law
- Common law
- Statute law
These sources represent different historical and procedural foundations of law.
What is custom law?
Law that stems from common customs established during the Norman invasion
Judges were appointed by the king to create laws based on local customs.
How is common law developed?
From judicial decisions
Common law evolves through case law and precedents set by judges.
What is statute law?
Law that is codified in parliamentary acts
This type of law is formally enacted by legislative bodies.
What does ‘stare decisis’ mean?
To stand by what has been established
This principle promotes consistency in judicial decisions.
What is ‘ratio decidendi’?
The reason for a decision
This refers to the legal principles that form the basis of a court’s ruling.
What does ‘obiter dicta’ refer to?
Other things said that judges do not have to follow in future cases
These remarks can provide insight but are not legally binding.
What is original precedent?
A point of law in a case that has never been decided before
This establishes new legal standards for future cases.
What is the case for precedenct
Schweppes Ltd Trading agreements- Automantic telephone and Electric Co. Ltd V restrictive trading agreements- the decision in the Schweppes case had become precedent that had to be followed in the next case
What is the case for precedenct
Schweppes Ltd Trading agreements- Automantic telephone and Electric Co. Ltd V restrictive trading agreements- the decision in the Schweppes case had become precedent that had to be followed in the next case
What is binding precedent
Made when a higher court has made a decision for a case with similar facts to the second case and must be followed even if the judge doesn’t agree
What is persuasive precedent
This precedent is not binding but if the courts may consider that it is correct principle he may be persuaded to follow it.
Where does persuasive precedent come from
Courts in lower heirachy- don’t have to be followed
Orbiter dicta- statements made in judgement
Judicial committee of the privy council- anything the committee says is not binding
What are the two appellate courts English courts are not bound by
European court of justice
European court of human rights
What is the practice statement
Means a previous decision can be changed is nessecary and is used to fix errors in the law when it appears right to do so
Why are the law lord reluctant to use the practice statement in criminal law
They want the law to remain consistent the first major use was in R V shiupuri
What did the constitutional reform act do
Gave the House of Lords powers to the Supreme Court and was confirmed in the case Austin V London Borough Southwark (2010)
Both divisions of the court of appeal are bound by the Supreme Court. Lord denning has argued that the court of appeal shouldn’t be bound by this. What cases is this reaffirmed by ?
Broome V castell and Co ltd- lord denning refused to follow the House of Lords decision in Rooked V Barnard
