T2 Legal Systems & Sources of Law

Question 1

5 major legal traditions around world are?

Answer 1

CCCSI

• Common law (main)
• Civil law (main)
• Customary law
• Socialist law
• Islamic law

Question 2

Two main sources of common law?

Answer 2

Legislation

Case law

Question 3

Difference between legal traditions and legal systems?

Answer 3

Traditions - how people think about law generally

Systems - the rules, institutions and procedures by which law is administered

Question 4

Difference between Parliament and Government?

Answer 4

Parliament - elected members of both parties

Gov - party with most seats (e.g. Conservatives)

Question 5

What sits at the top of the UK constitution?

Answer 5

Parliament

Question 6

If a conflict between legislation and case law, which prevails?

Answer 6

Legislation

Question 7

UK Parliament consists of which two chambers?

Answer 7

House of Commons (elected MP’s)

House of Lords (unelected based on knowledge, expertise and experience)

Note:
Both need to agree before a proposal becomes law

Question 8

What matters do Scottish Parliament have power to legislate on - reserved or devolved?

Answer 8

Devolved
(health and social, housing, education, police, etc)

Note:
Reserved matters where only UK Parliamnet may pass Bills

Question 9

What is primary legislation also known as?

Answer 9

Statute

Question 10

Once a draft statute (legislation) has been reviewed and passed by both Houses (chambers), what is the next step before becoming law?

Answer 10

Receives Royal Assent (monarch’s signature)

Note:
Monarch does not get involved in politics and policy and never refuses her Assent to legislation

Question 11

Once Act has been passed, the courts must uphold and apply it. When the meaning or scope is unclear, what rules must they follow to interpret?

Answer 11

Rules of statutory interpretation

Note:
Knowing these rules can help us understand and even anticipate the courts response to legislation

Question 12

Rules of statutory interpretation - what are the two approaches?

Answer 12

Literal - using the words of the Act literally

Purposive - considers the intent of Parliament (what was law before, what did it not provide)

Question 13

What is the meaning of soft law?

Answer 13

Agreements, principles and declarations, that are not legally binding

Note:

• drivers for harmonisation
• e.g. UN General Assembly resolutions
• Hard law refers generally to legal obligations that are binding and legally enforceable

Question 14

What do the Principles of European Contract Law strive for?

Answer 14

Better integration and harmonised ways of doing business

Note:
As EU has different legal systems and traditions (common/ civil) - the principles strive for..^

Question 15

What is common law?

Answer 15

Judge-made law

Created by judges’ decisions in cases

Question 16

What 3 areas of law are predominantly governed under common law?

Answer 16

Evidence T3

Contract T4

Tort (delict in Scotland) T10

Question 17

What is the disadvantage of common law?

Answer 17

Reactive - once cases taken to court

Note:
The court reacts to legal situations, unlike Parliament who can be proactive

Question 18

4 steps at a court of first instance?

Answer 18

• Pleadings
• Outline legal issues
• Hearing witnesses
• Adjudicating blame

Note:
If you disagree, right to appeal to an appeal court

Question 19

What 2 things does the appeal court review on (point of…)?

Answer 19

Point of law - adjudicated of what law states and how it should apply

Point of fact - reviewing the facts or interpretation of fact as decided by lower court of first instance

Question 20

UK Supreme Court was established in 2009 - what was the equivalent court cases prior to July 2009 known as?

Answer 20

House of Lords cases

Note:

• Appellate Committee of the House of Lords
• Almost the same court, renamed

Question 21

Court structure/ hierarchy in England & Wales?

Answer 21

• UK Supreme Court
• Court of Appeal
• High Court
• County Court
• Magistrates Court & Crown Court

Question 22

Where in the court structure, does the Technology and Construction Court (TCC) sit?

Answer 22

Within the Queen’s Bench Division (QBD)

QBD is a branch (of 3) within the High Court

Question 23

Disputes that have both commercial and construction elements may be dealt with in which 4 courts?

Answer 23

• TCC
• QBD (general contractual case)
• Commercial Court (complex commercial case)
• Chancery Division

Question 24

What disputes are within the jurisdiction of TCC? Name a few

Answer 24

T - tech and engineering disputes
C - construction/ building cases
C - changing arbitrators’ decisions

Also:

• Professional negligence
• Adjudication enforcement
• Nuisance

Question 25

2 circumstances for implementing a binding decision/ precedent?

Answer 25

1. Broadly similar in facts (but if important differences, court may 'distinguish' present case and not follow precedent) 2. Court hierarchy (e. g. Court of Appeal decisions will bind courts at first instance) Note: Only the ratio is binding (except the general pronouncements will be treated as binding)

Question 26

Example of persuasive judgment?

Answer 26

e.g. Supreme Court may refer ratio of lower hierarchy court such as high court, as persuasive judgment. (as lower hierarchy court decision, not binding on higher court) Note: Sometimes a decision of court of judgment not binding, but it may be followed

Question 27

4 reasons why parties opt for tribunals and ADR - as opposed to adversarial trials (litigation)?

Answer 27

Time: - Quicker than courts Cost: - Expensive court costs - Losing party pays winners legal fees (civil cases. except in Scotland) - Winner may not get full cost claim (at court) Note: - Judge can also refer case to ADR, and even stop it coming to court - More private

Question 28

3 most common forms of ADR?

Answer 28

- Mediation - Conciliation - Arbitration Note: Mediation with no opinion - conciliation with opinion/solution

Question 29

Some key differences between arb and court?

Answer 29

- Arb is private/ confidential (not public info) - Arb private funded (court by public) - Appealing arbiter's award is more restricted than court Also: - Arb by agreement (court can be forced on one party) - Arbitrator (judge) chosen by parties

Question 30

Contract and tort are predominantly governed by which type of legal tradition..?

Answer 30

Common law

Question 31

Legislation (statute) and common law are two separate sources of law - which overrules?

Answer 31

Legislation

Question 32

Is there a difference between the "purposive" and "mischief" approaches to statutory interpretation?

Answer 32

No, they are the same thing

Question 33

Court structure/ hierarchy in Scotland?

Answer 33

- UK Supreme Court - Inner House of the Court of Session (Scottish Supreme Court) - Outer House of the Court of Session (Scottish Supreme Court) - Sheriff Appeal Court - Sheriff Court

Question 34

In democracy, the doctrine of the separation of powers requires that the 3 branches of government have separate roles - name the branches? (note: separation of powers, as required by common law, basically keeps 3 branches independent from one another. This acts as a check and balance on power)

Answer 34

The Legislature - law making body in country (Parliament) The Executive - body responsible for the administration of country (Gov) The Judiciary - body that implements and upholds law. (Courts)

Question 35

What does the stare decisis mean/translate to?

Answer 35

Stand by (previous) decisions

Question 36

Example of vertical stare decisis?

Answer 36

e.g. Supreme Court decision is binding on all courts beneath it Note: Judicial Precedent/ Stare decisis (stand by decisions)

Question 37

Example of horizontal stare decisis?

Answer 37

The Court of Appeal is bound by its previous decisions Note: Except in 3 instances: - Own previous decisions conflict - Vertical stare decisis (decision by higher court) - Previous decision per incuriam (wrongly decided without due care to the relevant law)

Question 38

A Bill is a draft proposal of?

Answer 38

Legislation

Question 39

Delegated/subordinate legislation is detailed regulations and technical rules, that Parliament has authorised to be drafted by..? (The purpose of delegated/subordinate legislation is to 'flesh out’ the detail required)

Answer 39

Government departments Note: - Enable smooth implementation of laws in parent Act - The Legislator has authorised The Executive (Gov) - Acts of Parliament and ASP often create just main framework for the law and central elements. These Acts cannot contain the detail necessary to regulate all aspects of targeted activities. The power to draft these detailed regulations is often delegated by main legislation (sometimes known as the ‘parent Act’)

Question 40

Examples of Treaties and Soft Law, as sources of Contract law - CISG (UN Convention on Contracts for the Int'l Sale of Goods 1980) - PICC (The UNIDROIT Principles of Int'l Commercial Contracts 2016) - PECL (Principles of European Contract Law) (no question)

Answer 40

-

Question 41

The Sheriff Principal is a senior judge in that sheriffdom. Has a mix of judicial and administrative duties. Responsible for administration of business within sheriffdom and has very important role in hearing appeals from Sheriffs on matters of civil law only. (no question)

Answer 41

-

Question 42

Options: 1. Court 2. Tribunal 3. ADR Tribunals have become more and more formal over the years. However, what was the original intentions for tribunals?

Answer 42

- Specialist forum for resolve disputes (without going to court) - Be cheaper, faster, more accessible, less formal - Self representation Note: These aspirations are not all, if at all, currently apparent in the current tribunal system, particularly within the Employment Tribunal system. In Employment Tribunals legal counsel is increasingly used as the law becomes more and more complex

Question 43

Domestic legislation is dominant form of law making in the English legal system and is created by authority of Parliament. It exists in two main forms, primary and secondary legislation. What is primary legislation? What is secondary legislation? [2021 Learning Legal Skills]

Answer 43

Primary legislation is statutes (e.g. Act of Parliament, Royal Charter for RICS) Secondary legislation is delegated legislation (e.g. RICS Bylaws, regulations) Note: - Primary legislation applies to whole of English legal system and is created by Parliament directly. It can deal with any subject matter that Parliament wishes. - Secondary legislation is created by others acting on powers delegated to them in primary legislation, which in these circumstances can be described as ‘enabling’ or ‘parent’ legislation

Question 44

What is ‘the statute book’? [2021 Learning Legal Skills]

Answer 44

All the enacted legislation in the English legal system | arranged chronologically