Our legal system today Flashcards
Who falls under the executive branch?
- Ministers
- Government agencies
- The Government
- Prime Minister
- Cabnet
- Beehive
Who falls under the legislature?
- MPs
- House of Representatives
- Parliament
Who falls under the judiciary?
- The courts
- The judges
- The bench
What does the legislature do?
- Commonly called “Parliament”
- 120 MPs that debate and vote on bills
- If a majority (50% +1) vote in favour, the bill becomes an Act
- Overall, they make laws
- Parliament’s laws are supreme?
Who elects parliament?
We the people
Does the government make laws?
No, parliament does
Who becomes the government?
The parties that hold a majority of seats in parliament come together to form the government
Who becomes the Ministers?
The MPs that are members of the majority party
What does the executive do?
- Executive made up of lots of different entities
- They “execute” the laws created by Parliament
- They also design policies that go before parliament to be debated
What does the judiciary do?
- Courts make law by resolving disputes
- This law is called common law
Structure of the courts:
- Supreme Court
- Court of Appeal
- High Court
- District Court
- Tribunals and Authorities
Why is judicial independence important? Quote
“Judicial independence is essential if the judiciary is to fulfil its constitutional roles of checking the exercise of public power and upholding the rule of law.” - CJ Dame Helen Winkelmann
What is law?
A system of institutions created by the state with those institutions creating and applying law.
What is King Charle’s role?
- usually fulfilled by the governor general
- Legislature - confirms laws
- Executive - has important functions in recieving advice from ministers
Can ministers be members of parliament?
Yes, in fact every minister must be a MP
Which two branches of Government have the most overlap?
The legislature and the executive
Why do we have three seperate entities in our legal system?
- Provides checks and balances
- Each branch should stay separate and independent
- We do not have full separation but we do try to keep the judiciary seperate
Which laws are supreme?
- Legislation
Where do the courts laws sit in relation to legislation?
They are inferior
What is the Doctrine of Parliamentary Sovereignty?
- Parliament has full powers to make laws
- Legislation is the highest source of laws
- No other person or body can put aside law that the parliament has made
What role do the courts have in the application of legislation?
- deciphering and interpreting the meaning of the statute and any ambiguities.
Example of the courts’ role in the application of legislation?
Fencing Act 1978 - “adequate fence” - what does this mean
According to the Constitution Act 1986, who form Parliament?
- The sovereign in right of New Zealand and the House of Representatives
When does a bill officially become law?
- When it receives the royal assent from the Governor General or Sovereign
What is the term of Parliament?
3 years
How is the government term protected?
It is an entrenched provision in the Constitution Act 1986
- needs a special majority to overturn
How many people globally live in a common law jurisdiction?
1 in 3
What is the other dominating legal system, particularly in Europe?
Civil law
What is the distinction between religious law and law of the people?
Whether the law comes from the people or a religious being
Example of religious law:
- Code of Hammurabi
What is the code of Hammurabi?
- Early legal code
- Created by the King of Babylon
- Code understood to come from God
- King has direct line to God
Example of Law of the People?
Roman law
- developed from the customs and traditions of the Roman People
- Came from the people
- No centralised institution
- Translated into a code
Where did civil law evolve from?
Roman law
How did Roman law end up in England?
- When Rome conquered England they bought their law with them - 43-426 AD
What happened to Roman law when Rome withdrew from England?
- it went away too
How did civil law countries have civil law develop?
- When Rome left countries they kept their legal system, this developed into civil law
What law filled the vacume in England when Roman Law left?
Anglo-saxon law
What is Anglo-saxon law?
- A legal system in which you could summon someone to a moot if they broke a law against you
- no police or centralised court
- moots had doomsmen who decided which party needed to prove their case
- used signs from God
- trial by water / trial by ordeal
- Doomsmen did not consider themselves to be making law, they were relying on signs from God
Was Anglo-Saxon law effective?
Not necessarily signs from god - healing fast/slow could be mis-interpreted
Did the Anglo-saxons write their laws down?
Some, but very limited to basic principles, but for the most part no
Was there variation in Anglo-Saxon Law?
YES! A lot!
When did William the conquerer arrive in England?
1066
Where was William the Conquerer from?
France
What law did France have pre William the Conquerer?
Roman law / civil law
Does William the Conquerer impose Roman Law in England?
No, he leaves them with Anglo-Saxon law but he could direct the courts to create consistency.
What did the consistency make the law?
Common
Where is the term common law from?
The consistency of the law - this made it common
When did Henry II come into power?
1154
What systems did Henry II introduce?
The writ system / trial by jury
What were writs?
- The writ is how you get someone to come to court
- Issued by the King (enforcement power)
How were writs an improvement on previous law?
It was now an enforcement to go to court, under Anglo-Saxon law you just had to hope they would come
What was trial by jury?
- Panel of 12 men
- Would determine accused’s guilt
- Law from the people
Did trial by jury exist before Henry II?
Yes, Henry II just systemised it
When in particular was the trial by jury system used?
For serious crimes / offences / disputes
What did the jury system give the English legal system?
A centralised body - centralised courts
How did precedent develop?
When the jury system was introduced judges started to look back at past decisions to see what had been done in similar cases
What was the downside of the writ system?
- It becomes really complex and can be unfair
- If you didn’t have a specific writ that your issue could fit into you were out of luck
What do we now have instead of writs?
Statements of claim
Why was the writ system unfair?
Had to squeeze claim into an already existing writ, if you couldn’t there was no remedy even where it was obvious that there should be one.
What body of law emerged from the unfairness of the writ system?
Equity