The Nature of English Law Flashcards
The United Kingdom of Great Britain and Northern Ireland (UK) has three distinct legal systems and sets of laws:
- those relating to England and Wales
- those relating to Scotland
- those relating to Northern Ireland.
Public Law (3) vs Private Law (3)
Public Law involves:
- the relationship between individuals and the state
- is concerned with the decisions by, and control of, government bodies.
- is made up of Criminal Law, Constitutional Law, and Administrative Law
Private Law:
- is concerned with the rights and duties between individuals
- covers areas of law such as contract, tort, property, company, and family law.
- The individuals may be private persons, companies, or even a state body such as a local authority if, for example, a citizen has a contract with that local authority.
Differences between Civil and Criminal Law
Basic Terminology
Appellate jurisdiction
Civil jurisdiction
Criminal jurisdiction
Original jurisdiction
System of hierarchy
Appellate jurisdiction
- Courts which have the authority to hear cases that have previously been heard in a lower court.
Civil jurisdiction
- Cases which are concerned with disputes between private citizens or citizens and the state.
Criminal jurisdiction
- Cases concerned with accusations against persons who have broken the criminal law.
Original jurisdiction
- Courts which have the authority to hear cases for the first time where no previous decision in that particular case has been made.
System of hierarchy
- The higher courts have greater authority than those lower down the structure.
Basic Terminology
Bill
Common law
Convention/Treaty
Court of Justice of the European Union
Delegated legislation
European Court of Human Rights
Obiter dicta
Parliamentary sovereignty
Ratio decidendi
Bill
- A document of proposed law to be discussed by Parliament which if passed is called an Act.
Common law
- Generally means law developed by judges through decisions in courts as opposed to laws created by Parliament.
Convention/Treaty
- An international agreement between states.
Court of Justice of the European Union
- The Court of the European Union, dealing with interpretation and breaches of EU law.
Delegated legislation
- Laws made by a body other than Parliament, under powers given by Parliament.
European Court of Human Rights
- The Court set up as the guardian of the European Convention on Human Rights, dealing with breaches of fundamental human rights.
Obiter dicta
- Part of the judgment of a case giving comments on the law but not with reference to the actual facts of the case. Persuasive statements of the law.
Parliamentary sovereignty
- The doctrine which states that laws made by Parliament are the highest form of laws in the UK and must be obeyed by the courts. This has been modified by membership of the EU.
Ratio decidendi
- Part of the judgment of a case giving the legal reasons for the decision. These are binding statements of the law.
The characteristics of English Law (5)
- Long piecemeal development (small changes)
- Absence of codification in many areas
- Judges create, as well as interpret the law
- Adversarial system of trial (having or involving opposing parties or interests in a legal contest)
- Role of lay people
Classification of English Law
Private Law vs. Public Law
Public Law
- Constitutional and administrative law
- Criminal Law
Private (civil) Law (relationships between individuals)
- Tort
- Negligence - Nuisance - Damage to business interests
- Family law
- Probate
- Property
- Land - Chattels (personal possession) - Intellectual (intangible creations of the human intellect)
- Company and partnership law
- Contract
Classification of English Law
Common law vs statutorily law
Common law = Judge-made law as distinguished from legislation passed by Parliament.
Statutory law = law that is created by the legislature in written statutes, as opposed to the unwritten law or common law
Civil and Criminal Law Differences - Purpose
Criminal
- To regulate behaviour
- To promote public order
- To preserve national security
Civil
- To govern the relationships between individuals (or corporations)
- To enforce individual rights and duties
Civil and Criminal Law Differences - Who are the parties
Criminal
- Generally started by the police
- The State prosecutes the defendant
Civil
- Generally started by an individual/company (claimant)
- Sues another individual/company (defendant)
Civil and Criminal Law Differences - Where is the case heard
Criminal
- Proceed to trial in the Magistrates Court (summary offences (minor offences) and offences triable either way)
- Or the Crown Court (indictable offences (worst crimes) and offences triable either way)
Civil
- 90% of cases heard in the County Court
- Or High Court (if more serious)
- Or specialised Tribunals
- Or Alternative Dispute Resolution (ADR) eg. mediation
Civil and Criminal Law Differences - Burden of proof
Criminal
- “Beyond reasonable doubt”
- The burden of doubt falls to the prosecution who must prove “beyond reasonable doubt” that the defendant is guilty
Civil
- “On the balance of probabilities”
- The burden of proof is usually on the claimant who must prove his case “on the balance of probabilities”
Civil and Criminal Law Differences - Penalties
Criminal
- Purpose: punishment; protection; rehabilitation; deterrence
- Examples: fine, imprisonment, community service and probation
Civil
- Purpose: to correct the wrong: to compensate the person who has suffered a loss
- Examples: Damages, injunction, restitution; specific performance
Civil and Criminal Law Differences - Language
Criminal
- Prosecution/ the Crown v. the defendant;
Eg. R v Thomas - R meaning Rex or Regina meaning King or Queen in Latin
Civil
- Individual claimant v. the defendant
Eg. Harvey v Facey (1893)
Only Liability - Someone is liable for …
Common Law (5) vs Equity (5)
Common law
- Developed by Chancellors, In dealing with petitions addressed to the King from citizens complaining about the rigidity of the common law
- Complete system of law
- Does not recognise the existence of equity?
- Upholds rights irrespective of the motives or intentions of the parties
- Remedies available as of right
Equity
- Developed by circuit judges from English customary law applying the principle of stare decisis
- Complements the common law, but could not replace it
- Acknowledges the common law and tries to provide an alternative solution
- Originally, a court of conscience which ordered the parties to do what was just and fair. These principles are contained in equitable maxims, e.g. “He who seeks equity must do equity’ and ‘Delay defeats equity’
- Discretionary remedies
