Chapter 1: English Legal System Flashcards
(28 cards)
What do you understand from the term common law
How is common law split into 3 categories
Common law can be catergorised into 3:
* Common law & civil law (The legal System)
* Common & Equity (Historical source/tradition)
* Common law & statue (Source of law/case law)
What are the 2 major legal traditions? Which does UK belong to?
Common law and civil tradition
UK - common law tradition
What are customs in the UK, and what were the types of matters that it had rules over
Customs are an ancient rule of law for a particular locality, informal practices/traditions that were largely unwritten.
The customs formed laws regarding family rights, owenership, inheritance, contracts, and personal violence
Originated in the Anglo-Saxon period, which was later granted validility by the Norman Conquerors, which were then adapted
What was the Norman Conquest?
The Norman Conquest was the militray conquest of England by King William in the victory of the Battle of Hastings
Where it caused immense political, administrative, and economical change
When was the Norman Conquest
14, October, 1066
What is the Curia Regis
The Curia Regis (King’s Court) was created by King William to centralise the legal system, to allow individuals to bring their grievances to him and where he would give judgement to
The King’s Court was a singular court where he and his advisors (landowners & religious people) that would travel around the UK to give judgement
This was the beginning of a legal system (common law)
What were the difficulties the people had to face in obtaining, justice at the King’s Court
The King’s Court had many weaknesses as it was rigid and inflexible
Aditionally, the individuals would need a writ recognised by the king in order to get their judgement
No writ meant no remedy
What is a writ
A writ is a document with a seal of the King.
They were problems/issues that were recognised by the King, and only with a writ would the King see individuals
If the writ didn’t recognise then they would not offer judgement
Who manages the Chancery Court
The Lord Chancellor
Set up by the King. where the LC was delegated all of the tasks of the King, to dispute grievances
What is the difference between common law and equity
Common law derived from customary laws that were created upon disputes and judgement from previous cases made by the advisors.It governed England and the royal court. Common law was rigid in a sense that it only recognised what laws/problems that were written before
Common law only provided remedies that were recognised, on the basis if you can prove you are right, you get remedies
Equity means fairness, it was created in the Chancery Court with the objective to overcome the rigidity and inflexibility that common law had. It utilised natural justice where it was more flexible in a sense that they were more discretionary with judgement, exercised by judges
Equity provided specific remedies/performances where some problems were not able to be solved with a monetary remedy, so they opened to different methods (it is not by right, but by discretion)
What is the problem encountered in having 2 seperate courts
Caused conflict between both courts, duplicity. There was no unity in decision making.
Courts became expensive and increased cases became rampant.
What Act combined common law and equity
Judicature Act 1873-1875
State differences between the characteristics of common law and civil law system
The common law system goes by a case-by-case basis, case law/judicial precedent
* Unwritten
* Inductive form of legal reasoning
* Adversarial litigation system
* degree of independence
Civil law is based off statutes
* Codified
* Deductive form of legal reasoning
* Inquisitorial litigation system
* reliance on the state
What are the 3 kinds of equity
equitable maxims (equality)
* remedy given according to the amount each party put into the activity. (ie. more effort - more remedy)
* ‘one must come with clean hands’
equitable remedies (discretionary)
* Specific performances: order by court to complete an action, or refrain them from doing something (form of injuction, contracts).
* Rescission - Purpose to put the party back to the position they were in originally
equitable rights (moral rights)
* remedies come according to what is morally right, discretion of the judges (i.e. divorced but lived in the house for 30 years)
What are the 2 sources of law in the UK, which is best, why
Codified sources
* Statutes
Advantages
Statutes
* Are clear, concise, intelligible
* Lay man would be able to access/find the legislations
Disadvantages
* No room for error, inflexible, little room for interpretation
* Wording may be ambiguous
* can lead to absurd results when applied in certain circumstances
Uncodified sources
* judge made law
* Constitutional conventions
* Royal prerogatives
Common law
Advantages
* flexible, room for amendment/interpretation
* Logical, easy to understand, judge makes clear and detailed dispute
disadvantages
* Hard to access, too many case laws
* Difficult to understand by law persons, the legal principles and legnthy opinions
* Slow development
Explain inductive and deductive legal reasoning
Form of legal reasoning - inductive
* case-to-case basis
* from statute to case law (specific > general)
Deductive
* general rule to determine the appropriate outcome of specific case (general > specific)
Which form of legal reasoning does UK practice? What are the pros and cons of each?
UK at large, uses inductive legal reasoning. Though both are used for written laws.
Inductive
Advantage
* Able to predict what might happen in the future
Disadvantage
* Incomplete and may reach false conclusions even with accurate observations
Deductive
Advantages
* Conclusiveness (statutes are clear and concise)
* as long as each premise is true, and arguement is valid, it follows necessarily that the conclusion is ture as well (uses infromation that is already in staute)
Disadvantages
* works only in easy cases, cases that don’t challenge the terms of rule and unambiguous
Explain judges as an author of a chain novel
Judges don’t create the story, they alter/interpret the storyline little by little
each novelist in the chain interprets the chapter he has been given in order to write a new chapter, then added to what the next novelist receives
Showing how judges both create and interpret law
Do courts make law through judgements and decisions
Judges make law
* arguments such as novel cases where there are no laws to apply, nature of law is open textured, exercise of wide discretion indicates law making by judges
Judges don’t make law
* democratic deficit
* parliamentary supremacy
* weak discretion of judges
What is parlaiment sovereignty
Parliament sovereignty means to say parliament is the supreme law making body, whereby every organ of the law are bound under Acts of Parliament.
Parliament can both make and end any law. Not even the Monarch is above or can supersede/override Parliamentary Sovereignty
Does UK have a written constitution
UK does not have a written constitution. The constitution is largely uncodified although comprising of written and unwritten laws.
having a written constitution is having a legal written document
Should the UK remain as pure as the common law system
No – as there are many defects of the common law tradition such as inefficiency of trials and high costs, need to adopt the civil law tradition to improve the legal system
When did the UK leave the EU
31 January 2020
What is the connection between the European Union Law and the UK
Whatever that has been passed before the UK left
UK only utilizes the laws passed by the EU since 23 June 2016
