Origins of Common Law Flashcards
Define Law. What is the legal system in the uk composed of?
The system of rules which a particular country or community recognises as regulating the actions of its members, and which it may enforce by the imposition of penalties
The legal system in the UK is composed of several elements, including:
Common law: As mentioned earlier, the UK has a common law legal system which is based on judicial decisions, customs and traditions.
Statutory law: This refers to laws that have been passed by Parliament or the devolved legislatures in Scotland, Wales and Northern Ireland. Statutory laws are written laws that apply to everyone in the UK.
European Union law: Before the UK left the EU, EU law was an important part of the legal system in the UK. It included treaties, regulations, and directives that were binding on member states.
Human rights law: This includes the European Convention on Human Rights (ECHR) which was incorporated into UK law by the Human Rights Act 1998. It gives individuals certain rights and freedoms that are protected by law.
Equity law: This is a set of legal principles that developed alongside common law in order to provide remedies in cases where common law was insufficient or unfair. Equity law is now mostly used in cases involving trusts and property disputes.
Criminal law: This is a branch of law that deals with crimes and their punishments. It is primarily concerned with maintaining public order and protecting individuals from harm.
Together, these elements make up the legal system in the UK, and they work together to ensure that justice is served and the rule of law is upheld
What are the functions of law?
It maintains the peace and safety in society;
it regulates the relationships between individuals and other legal entities;
it protects human rights and liberties; and it ensures the smooth running of economic and political activities
PR REP
How does the law remain credible and enforceable?
The law must reflect the wishes or tolerance of the broad majority of the population
must develop in line with societal changes in order to remain relevant to those living under the ‘rule of law’.
What are the meanings of common law?
- In the historical sense, to distinguish the law as applied by the King’s judges as opposed to the law as applied by local customary courts
- To distinguish the law as applied by the King’s Courts as opposed to the rules of Equity, a system developed by the separate Court of Chancery
- To distinguish case law – that is, law as developed by judges through the system of precedent – from statute law
- To identify the law as applied by common law countries (such as Commonwealth jurisdictions to which the English legal system was exported) as opposed to the law applied by civil law countries where the law is based on Roman law (as, for instance, in most of mainland Europe)
KECC
What is case law?
The decisions of courts and tribunals as a source of law using precedent in England and Wales, sometimes referred to as ‘judge made’ law.
The common law is governed by the rules of precedent. What does this mean?
The decisions of judges higher up in the hierarchy of courts and tribunals are ‘binding’ on those lower down. In other words, judges in lower- level courts and tribunals have to decide cases in accordance with the principles laid down by the higher courts
What do judges do?
Judges decide cases that are brought by individuals
In order to decide a case, a judge will:
* Consider the evidence brought by the parties and decide which evidence they find credible.
* Consider the applicable law. This may be case law, or statute, or a combination of both. Although Parliament makes legislation, judges decide how it should be applied in any given case. They then give a judgment. *
* Apply the law to the facts of the case and reach a decision on which party should succeed.
* Decide what remedy the successful party is entitled to, e.g. damages, and make an order giving the successful party its remedy
DC; E Law (CA)R; before during and after
What is ‘stare decisis’ or binding precedent? How is this different to Civil Legal Systems?
Stare decisis literally means ‘stand by what has been decided’
once a principle of law has been laid down, future cases with the same material facts must be decided in the same way.
This is in contrast to civil legal systems, where courts concentrate on interpreting detailed written codes of the law rather than interpreting previous decisions applying those codes
For an English court to be compelled to follow what has been stated in an earlier case, it is necessary for it to be persuaded that:
- The earlier case was decided in a court which binds it, and
- The relevant part of the earlier case is binding, rather than merely ‘persuasive’
Bound by where and what.
A precedent may be:
- Binding, in which case it must be followed; or
- Persuasive, in which case it will be considered by the later court and may be followed.
BP
A judgment consists of:
(a) A summary of the facts.
(b) Statements of law, which will include the ratio decidendi and (often) obiter dicta.
(c) The court’s decision on remedy, which is binding only on the parties to the case
SSR
Define ‘Ratio decidendi’. Which part is binding? What is the Ratio?
‘Ratio decidendi’ means “reason for the decision”. The ‘ratio’ of a judgment is the part which is binding on other courts.
The ratio is the legal principle or rule on which the court’s decision is based, applied to the material facts of the case.
The material facts are those on which the decision of the court depends. If the material facts change, the court’s decision might also change.
Like rational decision.
Why is it difficult to identify a ratio?
The ratio may not be immediately obvious when you read the judgment of a case.
- This may be because the judges have given several reasons for their decision,
- because their reasons may not be entirely clear,
- because each judge may have given a different reason, though they have agreed on the final outcome.
DCA
It is important to point out that determining a ratio is an art.
A further problem is identifying the width or level of generality that a ratio is meant to have.
A ratio can be viewed as a narrow proposition of law or a wide proposition of law.
If it is the former, a ratio would (for example) apply only to very specific facts; on the latter view, it could be treated as establishing an entirely new, wider principle.
The judges in the case may state what the width of the ratio should be. Judges in subsequent cases will also consider how wide the ratio of a previous case.
What is ‘confining the (earlier) case to its facts’?
A ratio can be viewed as a narrow proposition of law or a wide proposition of law.
If it is the former, a ratio would (for example) apply only to very specific facts; on the latter view, it could be treated as establishing an entirely new, wider principle.
The judges in the case may state what the width of the ratio should be. Judges in subsequent cases will also consider how wide the ratio of a previous case is.
They might decide that the ratio is very narrow, so that the earlier case can be distinguished.
What is ‘Obiter dictum’?
A judge’s expression of opinion uttered in court or in a written judgment, but not essential to the decision and therefore not legally binding as a precedent.
Latin for “something said in passing” (obiter dicta in plural form). Orbiter: in passing dictum: like dictate
Obiter comments are not regarded as binding, although they may be highly persuasive and influential in subsequent cases.
They consist of:
- Statements of law not necessary to the decision, e.g. on hypothetical facts or on facts which are not material.
- Statements of the law as the judge would like it to be, but for the doctrine of precedent.
- Dissenting judgments, i.e. the view of a judge who disagrees with the majority of the court.
UWD (unnecessary statements, wishful thinking and differing opinions)
