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Public Law > Sources of Law > Flashcards

Sources of Law Flashcards

1
Q

What is the law?

A

A system of rules which a particular country or community recognises as regulating the actions of its members and which it may enforce by imposing penalties

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2
Q

What three courts developed from the King’s Council

A
  • Court of Exchequer
  • Court of Common Pleas
  • Court of King’s Bench
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3
Q

What can common law mean?

A
  • Historical (King v local courts)
  • King’s Court v Equity
  • Case law v Statute
  • Common law countries v Civil law countries
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4
Q

How could someone bring a claim to the King’s Court

A

Purchase a writ

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5
Q

What types of Writ were there?

A
  • Writ of right
  • Debt
  • Detinue
  • Covenant
  • Account
  • Trespass
  • Case
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6
Q

What were the three problems of the writ system?

A
  • Too rigid
  • Not resolving in a just way
  • Remedy only damages
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7
Q

How do judges decide a case?

A
  1. Consider evidence/decide what’s credible
  2. Consider applicable law (case law/statute)
  3. Apply law to facts and decide
  4. Decide remedy
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8
Q

What does stare decisis mean?

A

Stand by what has been decided

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9
Q

What can a precedent be?

A

Binding or persuasive

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10
Q

What does a judgment consist of?

A
  1. Summary of facts
  2. Statement of law (ratio decidendi and obiter dicta)
  3. Remedy - only binding parties
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11
Q

What is ratio decidendi?

A

The legal principle/rule

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12
Q

What is it called when a judge decides the ratio in an earlier case was very narrow?

A

Distinguishing aka ‘confining the case to its facts’

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13
Q

What is obiter dictum?

A

Highly persuasive but not binding comments on law that is not necessary for the decision

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14
Q

What are three examples of obiter dicta?

A
  1. Hypotheticals
  2. What judge wants law to be but for precedent
  3. Dissenting judgment
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15
Q

What is approving?

A

A later decision that follows a decision from a previous higher court

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16
Q

What is applying?

A

A later court considers facts of an earlier case to have similarities so applies the law

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17
Q

What is distinguishing?

A

Finding a material difference in facts

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18
Q

What is reversing?

A

Case where higher appeal court disagrees with lower court

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19
Q

What is overruling?

A

A superior court decides precedent set in past case is wrong and sets a correct one

20
Q

When can the Court of Appeal depart from its own decision?

A
  • CoA came to previously conflicting decisions
  • It was overruled by SC
  • It was made per incuriam
21
Q

What is the Court hierarchy in terms of precedence?

A
  1. Supreme Court
  2. Court of Appeal
  3. High Court
  4. Upper Tribunal
  5. First Tier Tribunal
  6. Family Court
  7. County Court
  8. Crown Court
  9. Magistrates Court
22
Q

Which Court first administered Equity?

A

Court of Chancery

23
Q

How did equity first develop?

A

The concept of unconscionability where landowners would leave land to trusted friends before going to fight

24
Q

Complete: Equitable remedies remain … in modern law

A

Discretionary

25
Q

What is the equitable maxim?

A

Equity follows the law

26
Q

What did the Judicature Acts do for equity?

A

Abolished division between common law courts and court of chancery
Created single High Court and Court of Appeal

27
Q

What equitable remedies are available?

A
  • Specific performance
  • Injunction
  • Declaration
  • Recission
  • Rectification
28
Q

What is primary legislation?

A

Acts of Parliament

29
Q

What is secondary legislation?

A

Subordinate legislation made by ministers under a ‘parent’ act

30
Q

What can Parliament do re Statutory Instruments?

A

Approve or reject but not amend

31
Q

What is the literal rule?

A

Giving words their ordinary, plain and natural meaning

32
Q

What is the golden rule?

A

Give words their ordinary signification unless it would produce inconsistency/absurdity/inconvenience

33
Q

What four questions are considered for the mischief rule?

A
  1. What was the common law before the Act?
  2. What was the mischief and defect which common law didn’t provide for?
  3. What was the remedy for the mischief Parliament intended to provide?
  4. What was the true reason for the remedy?
34
Q

What is the purposive approach?

A

Adding/ignoring words to support purpose of act

35
Q

What is the contemporary approach?

A

Combining literal and purposive interpretations

36
Q

What are the general rules of statutory interpretation?

A
  1. Literal rule
  2. Golden rule
  3. Mischief rule
  4. Purposive approach
  5. Contemporary approach
37
Q

What are the three most common linguistic presumptions?

A
  1. Expressio unius
  2. Ejusdem Generis
  3. Noscitur a sociis
38
Q

What categories of human rights are there?

A
  • Absolute
  • Limited
  • Qualified
39
Q

What incorporated the EEC into UK law?

A

European Communities Act 1972

40
Q

What type of system is the UK?

A

Dualist

41
Q

What established the EU?

A

Maastricht Treaty - TEU 1992

42
Q

What is EU secondary legislation?

A

Regulations, directives and decisions
CJEU case law

43
Q

What effect do regulations have?

A

Direct effect

43
Q

What effect do decisions have?

A

Binding on the parties to whom they’re addressed

44
Q

What effect do directives have?

A

Binding as to result but leave to national authorities the choice of form and method

45
Q

What happens if a member state fails to implement a directive properly/on time?

A

Infringement proceedings

46
Q

What methods have the court of justice developed to enable directives to be enforced in national courts?

A

Direct effect
Indirect effect
State liability

Public Law (8 decks)

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