English Legal System - Sources of Law Flashcards
(34 cards)
What is meant by ‘case law’ in the English legal system?
Case law refers to the body of law developed by judges through decisions in individual cases. It is also called ‘judge-made’ law or ‘common law’, and it is governed by the doctrine of precedent, meaning decisions of higher courts bind lower courts.
What is the function of judges in the English legal system?
Judges do not initiate cases or investigate legal issues. They:
Consider the evidence presented by the parties.
Apply applicable law (statute, case law, or both).
Reach a decision on who should succeed.
Determine and order the appropriate remedy (e.g., damages).
Do judges ‘make’ law?
Traditionally, judges are seen as declaring rather than making law—identifying principles that have always existed but were not articulated until a suitable case arose. Precedent is retrospective and reactive, in contrast to statute law, which is prospective.
What does ‘stare decisis’ mean, and how does it apply in English law?
Stare decisis means ‘stand by what has been decided’. It mandates that courts follow legal principles established in earlier decisions when the facts are materially similar, promoting consistency and predictability.
What conditions must be met for a precedent to be binding?
The earlier case must be from a court that binds the present court.
The binding part of the earlier case must be followed (ratio decidendi).
What parts make up a judgment?
Summary of the facts
Legal reasoning (including ratio decidendi and obiter dicta)
The remedy ordered (binding only between the parties)
What is the ‘ratio decidendi’ of a judgment?
The ratio decidendi is the legal principle on which the court’s decision is based. It is binding in later cases. It must relate to the material facts of the case and is often identified through law reports.
What is meant by ‘obiter dictum’?
Obiter dicta are remarks made by a judge that are not necessary for the decision. These may be:
- Hypothetical legal reasoning
- Commentary on law reform
- Dissenting judgments
They are not binding but may be persuasive, especially when from superior courts.
What challenges arise in identifying the ratio decidendi?
Judges may give multiple reasons.
Different judges may reach the same outcome via different reasoning.
There is ambiguity in how wide or narrow the ratio should be.
How are precedents treated in court terminology?
Followed: the court applies the same reasoning.
Approved: a higher court endorses the decision.
Applied: the legal principle is extended to a similar fact pattern.
Distinguished: the facts differ materially, so the precedent doesn’t apply.
What is the difference between reversing and overruling?
Reversing: An appellate court disagrees with a lower court on the same case.
Overruling: A higher court in a later case decides that a previous precedent was incorrect and replaces it.
How can the Supreme Court depart from its own precedent?
Since the 1966 Practice Statement, the Supreme Court (and its predecessor, the House of Lords) may depart from its own previous decisions to avoid injustice or enable legal development.
When can the Court of Appeal depart from its own precedent?
If:
- There are conflicting earlier decisions.
- A previous decision is overruled by the Supreme Court.
- The earlier decision was made per incuriam (through lack of awareness of relevant law).
What are the binding effects of decisions by different courts?
Supreme Court = Binds all lower courts; may depart from itself
Court of Appeal = Binds lower courts and itself (subject to exceptions)
High Court = Binds lower courts; not bound by itself
Upper Tribunal = Binds First Tier Tribunal and itself
First Tier Tribunal = Not binding
Family, Crown, County, Magistrates Courts = Not binding
What is equity?
Equity is the body of rules and principles based on conscience, fairness, and discretion.
How did equity differ from common law in terms of remedies?
Equity offered discretionary remedies like injunctions and specific performance. Common law only offered damages as of right.
What principle governs the relationship between equity and common law?
Equity supplements, not supplants, the common law. If conflict arises, equity prevails
What are the main equitable remedies?
Specific performance: Enforcing contractual obligations (not for personal services; only where damages are inadequate).
Injunction: Orders to do (mandatory) or not do (prohibitory) something
Declaration: Statement of legal rights, facts, or law.
Rescission: Cancelling a contract due to misrepresentation, mistake, duress, or undue influence.
Rectification: Correcting a written contract to reflect true intention.
What is legislation and what are its two categories?
Legislation is law made with Parliament’s approval. The two categories are:
- Primary legislation: Acts of Parliament.
- Secondary legislation: Rules made by ministers under powers granted in primary legislation.
What is the difference between public and private Acts?
Public Acts relate to general public matters.
Private Acts concern specific individuals or organisations, e.g., local authorities.
How are Government Bills and Private Members’ Bills different?
Government Bills are based on official policy and drafted by parliamentary counsel.
Private Members’ Bills are introduced by individual MPs, usually with limited time and lower success rates.
What are the stages of the primary legislative process?
- First reading
- Second reading
- Committee stage
- Report stage
- Third reading
- Passed to the other House
- Royal Assent
When does an Act come into force?
On the day of Royal Assent, unless specified otherwise. Often a commencement section delegates power to the Secretary of State to bring provisions into force via a statutory instrument.
What is secondary legislation and how is it controlled?
Secondary legislation includes regulations, Orders in Council, and by-laws. It must comply with the powers granted in the parent Act. Courts can quash secondary legislation if it exceeds these powers.
