sources of law Flashcards
what is common law?
refers to the body of case law decided by judges. It is sometimes
referred to as ‘judge made’ law.
what do judges do?
- consider evidence
- consider applicable law
- apply law to facts
- decide remedy
define ‘stare decisis’
stand by what has been decided
what does it mean for a judgment to be reversed?
A judgment is reversed if a case goes to appeal, and the higher appeal court disagrees with the lower court. This does not negate a precedent; it simply means the higher court
has not applied the law in the same way.
what is the precedent hierarchy of courts
(going down)
1. Supreme Court - binds all lower courts but not itself
2. Court of Appeal- binds all lower courts, normally binds itself subject to Young v Bristol Aeroplane
3. High Court- binds all lower courts, for first-instance cases it does not bind itself
4. crown court, county court & magistrates court- binds no other court
when are equitable remedies awarded?
when it is not appropriate to award damages as a remedy.
what are some examples of equitable remedies?
- specific performance
- injunctions
- declaration
- rescission
- rectification (a document to reflect the parties’ contractual intention)
what is primary and secondary legislation?
primary = Acts of parliament
secondary = law created by ministers under powers given to them by Act of parliament
what are the rules of statutory interpretation courts can pick to use & their definition?
literal rule, golden rule, mischief rule, purposive approach
1. literal rule= Plain, ordinary, natural meaning of of statute words
- golden rule= avoid literal interpretation which would lead to (a) absurd/inconsistent result, (b) result that would be affront to public policy
- mischief rule= courts to look at reasons why statute was enacted, aim of legislation
- purposive approach= legislation is basic frame, precise meaning of law comes through over time through judgments.
what are the 3 categories of rights under ECHR?
1- absolute rights= cannot be lawfully interfered with in any way by the state
2- limited rights= can in some circumstances be lawfully interfered with
3- qualified rights= can be lawfully interfered with
which 3 circumstances must a state show to interfere with a qualified right?
~ The interference was prescribed by, or in accordance with, the law.
~ The interference was in pursuit of a legitimate aim.
~ The interference was necessary in a democratic society. (This effectively means that the interference must be a proportionate one.)
Do international treaties like the EEC have a direct effect on UK domestic law?
international treaties do not have direct effect in domestic law unless they have been incorporated by legislation (dualist state)
What are the primary and secondary sources of EU law?
primary= TEU and TFEU
secondary= directives, regulations, case law
What happens when a state fails to implement a directive?
the European Commission brings infringement proceedings against them to the CJEU
What are the three methods developed by the Court of Justice to enable directives to be enforced in national courts?
1- Direct effect (available if the implementation date has passed)
2- Indirect effect (an obligation on domestic courts to interpret domestic law compatibly with EU law, where possible)
3- State liability (a form of compensation available for a state’s failure as long as it has sufficiently serious consequences.)
