New Sources Of Law Flashcards
(27 cards)
What is the classification of civil law?
Claimant v Defendant,
Person claiming must have fully proven facts on balance of probabilities, an unsuccessful defendant will pay damages and sometimes legal fees
What is the classification of criminal law?
The state v Defendant,
Prosecution has to prove facts to a higher standard beyond reasonable doubt, if convicted the defendant will pay a fine or go to prison
What is the classification of administrative law?
Defendant v defendant, is the state as a regulator
3 main sources of English law
Parliament: makes most English law (create legislation and statutes)
The courts: common and case law (plugs gaps)
European law
What are the stages of an act of Parliament?
Green paper White paper Bill First reading Second reading Committee stage Report stage House of Lords Royal assent
What are the advantages of indirect legislation?
Saves parliamentary time, specialist knowledge, flexibility, still occurs if parliament is not sitting
What are the disadvantages of indirect legislation?
Loss of parliamentary control, volume and frequent change, law passed by bureaucrats
What is intrinsic statutory interpretation?
Aida found in the wording of the statute itself
What are external statutory aids?
Official and government reports, oxford dictionary, relevant textbooks and texts
The literal rule: whitely v chappel 1969
A dead mans vote was used, statute states that a man has to be alive to be able to vote, defendant was acquitted
The literal rule: north eastern railway v Berriman
Worker oiling the tracks was killed, compensation is only given for death whilst doing repairs, therefore no compensation for widow
The golden rule: R v Allen 1872
Bigamy is impossible under law, however marry was taken as to undergo a marital service, the golden was applied and defendant was convicted
The golden rule: Adler v George 1964
Illegal to obstruct a member of the armed forces in the vicinity of a palace, the man was actually in the palace, therefore golden rule was applied
The mischief rule: Smith v Hughes 1960
Prostitutes can’t solicit in public places, so they used windows, mischief rule was applied and the case was used as a remedy
What are the two types of court case?
First instance: new law making
Appeals: considering the first instance to apply change or new interpretation
First instance criminal court
Magistrate and crown
Appellate criminal court
High court, Supreme Court, court of appeal
What is the law of binding precedent?
Higher courts bind lower courts, Supreme Court binds all but not itself, court of appeal bound by SC, bound by itself, high court bound by SC and CoA and not by itself
What are the exceptions of binding precedent?
Sometimes CoA is not bound by itself when:
The previous case was made in ignorance of relevant laws, there are two conflicting decisions, where SC and HoL conflict each other, civil and criminal do not bind each other
What are the 4 main institutes of European law?
EU council, EU commission, EU parliament; EU court of justice
What is the EU council?
Heads of state and the president of the Eu commission meet 4 times a year to review and agree overall policies
What is the council of the EU?
Main decision making body, responsible for: passing Eu law, approving Eu budget, concluding international agreements
What is the Eu parliament?
751 members who are directly elected every 5 years,
What is the Eu commission?
One commissioner from each member state, responsible for administration of the Eu budget and policies, proposes legislation to the EU parliament and council
