Chapter 1: Law & Legal Systems
- D. Sources of English Law
- E. Precedent and Case Law
- F. Local Custom
- G. European Community Law
Response for : Social Changes, Technological Changes
Main Sources:
-Legislation: Acts of Parliament or statues
-Judicial Precedent (case law)
Minor Sources;
-Local Customs
-Legal books & treaties
-European Union Law
Sources of English Law
Response for : Social Changes, Technological Changes
Main Sources:
-Legislation: Acts of Parliament or statues
-Judicial Precedent (case law)
Minor Sources;
-Local Customs
-Legal books & treaties
-European Union Law
Sources of English Law
Now Parliament has all the power of legislation.
-How come?English Civil War (1647): Charles 1st vs Parliamentarians
Modern Parliament:
-House of Commons (elected) à lower chamber
-House of Lords (hereditary title and than appointed by the peers) à upper chamber
-The Monarch (Queen)
Sources of English Law
Legislative Process
-Green Paper à White Paper à Bill (Private/Public)
Procedure
- 1st Reading title of bill informed to all House members
- 2nd Reading general merits discusses in the House
- Committee stage Details bill discussed by a Standing Committe
- Report stage amended bill is reported to the House
- 3th Reading offering a final opportunity for debated,amendments
may be proposed but only minor change to be made
Step :
House of Common House of Lord Royal = Act
Sources of English Law
Codifying Act:
All the law on a particular topics including existing statute and case law is reduced to a single code.
Marine Insurance Act 1906 : consolidate previous legislation in marine insurance together with legal principles 2000 decided case
Consolidating Acts:
Repeals all previous legislation on a subject and re-enact it in one logically arrange statute
Law Commission
Responsible for the consolidation and revision of statute law, and also general role of reviewing English law as a whole and recomending ways in which it can be update, simplified, and developed in systematic way.
Sources of English Law
Delegated Legislation
Important Form :
1. Statutory instruments : Collectively
2. Order in Council : on Privy council
3. Bye- laws ; local authorities
Advantage : - Expertise
- Saving Parliamentary time
- Speed and flexibility
Disadvantage :
- Bulk and lack of publicity : probably inevitable
- Insufficient democratic control
- Parliamentary control
- Judicial control
Sources of English Law
lInterpretation of Statues.
-Statutory Aids:
The Interpretation act 1978
Interpretation section of the act
Title and preamble of the act
-Common law rules (do not apply to the European Community Legislation)
Literal rule : dictionary meaning
Golden rule : if literal leads to absurdity
Mischief rule : mischief in Act intended to correct and choose the interpretation will make effective in suppresing this.
Street Offences Act 1959 : Smith vs Hughes (1960)
-Hierarchy of the Civil and Criminal Courts
Precedent and Case Law
Court Systems: Civil Court & Criminal Court
Court Systems: Hierarchy
-Civil court
County Court High Court (Divisional Court: Chancery / Family / Queen’s Bench Division) House of Lords
-Criminal court
Magistrates Court à Crown Court à House of Lords
Civil Courts
-The Chancery Division: company matters, partnerships, trust, mortgage, revenue matters
-The Family Division: family property, will, adoption and guardianship
-The QB Division; commercial court and admiralty court (shipping matters), contract & torts
Precedent and Case Law
Nature of Precedent
-Ratio Decidendi
The basis of judge decision to follow particular precedent: (1) the material fact of the case, (2) the decision of the judge(s), (3) the reason(s) for the decisions
-Obiter Dicta:
statements made by the judge(s) which are not essential to the decision
Not part of the ratio decidenti, may be persuasicve for the future
Operation of Binding Precedent (Civil Court)
-House of Lord decisions are binding on all lower courts,
-A decision of the Court of Appeal is binding High Courts and County Courts
-A decision of the High Court is binding County courts
-Reversing & Overruling
-Disapproving & Distinguishing
Precedent and Case Law
Advantages of Precedent
-Certainty : introduce strong element of certainty into the law
-Possibility of development and growth
-A wealth of detailed decisions and rulings
-The decision deal with the practical matters : derive from real situation
Disadvantages of Precedent
-Rigidity : not easy to change even it the decision to be wrong
-The bulk and complexity of case law : makes the difficult to find
-Slow in development
-Some decisions is sometimes obscure
Local Custom
The Conditions must be satisfied before a local custom will be recognized by the court as legally binding:
-Immemorial existence
-Continuity
-Reasonableness
-Certainty :
-Peaceful user
-Compulsion
-Not contrary to statute
-
European Community Law
Sources:
-The treaties or the constitution of Europe
-Regulation: general application and automatically binding all member states
-Directives: not automatically binding
-Decisions: addressed to particular member state or organization
-Recommendation and opinions
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