AS and A Level: Sources of Law
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Common Law and Equity
5 star(s)They were able to apply directly to the king, and William made himself available to them. The King's Justice was administered by the Curia Regis which was a body of advisors to the king, who would apply a system of rules, keeping customs the king thought were best and discarding those he felt were inappropriate. These rules applied to the whole of the country and soon became known as common law. Various central courts started to develop and the Royal Courts which were located at Westminster started to send itinerant justices into the provinces on assize.
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Three forms of Delegated Legislation and Control over it.
4 star(s)the Sale and Supply of Goods to Consumer Regulations 2002 were made in order to comply with the Sale of Consumer Goods Directive 1999. By-laws are made by local authorities and public corporations or companies. They must be confirmed by the relevant government minister and they are enforceable in the courts. Local authorities can make laws which apply just within their geographical area. These laws can deal with many issues, e.g. drinking alcohol in public places or the fouling of public areas by dogs. A parent Act in respect to dog fouling is the Dogs (Fouling of Land) Act 1996.
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There are four main ways, for judges to interpret Parliamentary legislation; they can use the literal rule, golden rule, mischief rule, or the purposive approach.
4 star(s)This implies that he approves of the literal rule, and strongly disapproves of the others. The literal rule, as it suggests means that the judge will interpret the words of the act literally, even if the result is an unfair or absurd one. As Lord Scarman states in Magor and St Mellons v Newport Corporation [1950] in the text above "We are to be governed not by Parliament's intentions but by Parliament's enactments" this fully reinforces what the literal rule is all about. The literal rule has been used in numerous cases, such as Whiteley v Chapell [1868], when the defendant was not found guilty for impersonating someone in order to vote, as it was found that a dead person is not entitled to vote, taking words from the act literally.
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AS LAW -JUDICIAL PRECEDENT
4 star(s)The judgement can be divided into two areas; Ratio Decidendi which is the reason behind the decision. This is part of the judgement that sets out the core of the decision and the reason behind it. It is part of a decision which a future case must be decided by. Secondly a case can be decided on by Obiter Dicta this is when judges are not bound to follow it. There are three types of precedent; Original Precedent, Binding Precedent and Persuasive Precedent. Original Precedent is that, if a point of law has never been decided before, then whatever the judge decides will form a new precedent for later cases to follow.
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Jury (Criminal & Civil Trials)
4 star(s)A jury is defined as a body of persons convened by process of law to represent the public at a trial or inquest and to discharge upon oath or affirmation defined public duties. The jury's duty is to return verdicts upon issues joined in courts of civil and criminal jurisdiction or findings of fact at coroners' courts. The role of the jury is four-fold: - to weigh up the evidence and decide what the true facts of the case are, to listen to the directions of the judge as to the relevant law and then apply the law to the facts before reaching a verdict.
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the english legal system unit1 assignment4
4 star(s)Solicitors for two years, complete a 20 day Professional Skills course during the training period and have satisfied the Law Society as to their good character and suitability to practice as a Solicitor. Whereas for a person to become qualified as a barrister, they must hold a 'qualifying' honors Degree and join one of the four Inns of Court. There is a requirement to take and pass the Bar Vocational Course ( a one year course similar in nature to the Legal Practices Course required for trainee Solicitors).
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Advantages and Disadvantages of Purposive Approach
3 star(s)In the Quintavalle case, the court used the approach to decide that word embryo in the HEFA 1990 could mean either a human embryo where fertilisation was complete or an embryo created by a new method that did not require fertilisation and had not been possible in 1990. This is much more forward-looking than the mischief rule which requires courts to look backwards at the gap in the common law before deciding what Parliament intended to do.
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Describe the sources of law in the UK
3 star(s)There were however, a few problems which were raised with implementing Common law. 1. Common law runs on the basis of ?Stare decisis? (binding precedent). This means that the court is bound and has to follow the decision that was previously given for a similar case, even if the Judge disagrees with the decision. Due to no development in the mechanisms of which the judge could use to avoid the precedent in the modern day, there was no option to follow the previous judgment. This caused many problems. 2. The only remedy that was available was ?Damages? (compensation).
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Describe the law making procedure in Parliament.
3 star(s)In the second reading the House debates the whole Bill and is focused on the general principles of it. It is the Minister or other promoter of the Bill who starts the debate. At the end of the debate there is a vote for or against the Bill progressing further. If the Bill progresses to the next stage it is quite likely it will become an Act of Parliament. After the second reading the Bill then comes to the committee stage. During the committee stage the Bill is passed to the standing committee, which is made up of between 16 and 50 MPs, who are selected per party.
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Critically discuss different possible meanings of justice and explore the relationship between law and justice
3 star(s)One could oppose distributive justice by some wrongdoing. This could then be corrected by courts, prisons, injunctions etc. The main aim of this is to redistribute the assets, which then leads to a fair system. However, there are more varied theories on the relationship between law and justice. For instance, the theory of natural law and utilitarianism. The theory of natural law is an idea that all law is ultimately derived from a divine source which is higher than a man made law. Aristotle believed that this higher law was derived from nature.
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Examine the debate as to whether the law should reflect moral values, and discuss issues which show the continuing importance of that debate.
3 star(s)For example, in the late 19th century, Oscar Wilde was ruined and imprisoned over his homosexuality. However, now gay couples have equal rights to a sexual relationship as heterosexual couples. On the other hand, laws can be altered deliberately by legislation. In other words, behaviour which was lawful can be declared as unlawful. Another distinction being that law makes certain behaviour obligatory with legal sanctions to enforce it by the state. Whereas, breaching morals may lead to some sort of social condemnation, where state is not involved. As illustrated in the case of Gillicks. Both the law and morality can dictate the way in which people are expected to behave.
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Discuss the advantages and disadvantages of the mischief rule
3 star(s)An advantage of the mischief rule is that application of this rule avoids absurd and unjust outcomes because the judges are looking to remedy the law. This follows Parliaments intent and avoids an absurd result. A case which uses the mischief rule and shows that by applying this rule judges can avoid absurd outcomes is Smith V Hughes (1960). Under the street offences act it was an offence to solicit in the street or a public place.
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Briefly explain what is meant by the doctrine of judicial precedent.
3 star(s)It is often difficult to distinguish between ratio decidendi and obiter dicta as the judgement is usually in a continuous form, without any headings specifying what is ratio decidendi and what is not. Original precedent is a new legal rule established through a case decision. Binding precedent must be followed by the court and persuasive precedent does not have to be followed but can be followed if needed. An example of a past case where persuasive precedent is used is R v R (1991)
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Common Law and Equity - its history and development
3 star(s)He did not completely destroy the laws he found around the country. Instead he preserved them. Eventually they were used as a foundation for the common law. He started off by introducing what became known as the feudal system which he used to grant areas of land to those who are willing to help him and grant him services. In this way he slowly took over the country. He personally made himself available to any land holder who had a problem. This idea was known as the King's Justice and it was available to individuals, regardless of where they lived.
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How satisfactory is the current law of murder?
3 star(s)There are so many cases that can be used when a murder offence arises this is due to the fact that judges made different decisions when sentencing and also the fact that the needs of the modern or present day needed to be met. The law of murder also carries a mandatory life sentence, this may cause guilty verdicts to be lower as juries may think that this is too harsh of a sentence and let people get away. Again this makes it hard to fight in a murder case whether or not a person is the judge, the defence or even the prosecution.
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Judicial Precedent
3 star(s)However, judges do not always make it clear what the ratio decidendi of their decision is, judgements are not set out with clear headings. Therefore it is up to the person reading the judgement to determine what exactly the ratio decidendi is. Also in the appeal courts, the decision is made by more than one judge. Even if all the judges reach the same decision they may have arrived at it in different ways, therefore it will be even more unclear what the ratio decidendi is.
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The english legal system unit1 assignment3 three part question
3 star(s)Since Parliament is 'sovereign' it is the function of Parliament to make law. Historically, the judges merely tried to do justice in each individual case. i.e. decisions varied according to the whims or preferences of the current Chancellor. This system, therefore, lacked certainty and criticism was strong. From about 1700 onwards the court began to pay greater respect to its previous decisions. The doctrine of judicial precedent did not become firmly established until the 19th century as illustrated in the case of Mirehouse -v- Rennell (1833), where Baron Parke stated "notice must be taken of precedents and the court could not reject them and abandon all analogy to them".
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judges avoid following precedent
3 star(s)When the mortgage of the house was paid, Mr Merritt refused to hand over the house. The court accepted the case, as it was more than a domestic agreement as the agreement was signed after they had separated. This decision is from Balfour v Balfour (1919) as there was a signed contract with terms and conditions which both parties had signed. Therefore the judge was allowed to distinguish the case as the facts were different. Judges can also distinguish on a point of law and this is seen in the case R v Holley (2006), which overruled R v Smith (2000).
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Explain, using examples, what is meant by delegated legislation. Describe how delegated legislation is controlled by both judges and Parliament.
3 star(s)When parliament delegates legislation, the powers by the delegated authority are chosen by parliament when setting the enabling act. Before an individual, such as a government minister or another authority that possesses legislative powers, can make an act, they may have to undergo consultations with specified organisations or people. This allows them to point out any faults with the proposals. When ministers are delegated legislative power, parliament requires them to submit the statutory instrument or a draft of it so select committees from both houses can scrutinise it carefully. These committees report back to parliament with its investigations, paying particular attention to statutory instruments that impose taxes; makes a charge on the Revenue; appears to be immune from court
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In general, the criminal law prohibits the doing of harm, but it does not impose a liability for failure to do good. Assess the truth of statement by reference to the situations persons may incur.
3 star(s)In English criminal law, a person is prohibited from causing any kind of harm to another individual. The criminal system does not impose any liability for not doing anything i.e. if a person is drowning in a pool you are not ordered by law to save that person. The only reason you would have to do this is if u were contracted to have that duty. Although in some statues like the Road traffic act (1988) make it an offence to fail to do something. Contractual duty, in R v Pitwood (1902), a signalman was convicted of manslaughter.
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Delegated Legislation
3 star(s)Delegated Legislation far exceeds Acts of Parliament in terms of quantity, and its repercussions are felt by huge numbers of UK citizens every day with regards to things such as safety laws for industry, road traffic regulations and rules relating to state education, to name just a few. To prevent the misuse of delegated power by the non-elected representatives, a series of controls have been implemented by central government. Therefore, consultation is required between those who are responsible for creating delegated legislation, and experts within the relevant field, as well as those who are likely to be affected by it.
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Discuss the problem of causation in criminal law and what rules have evolved to deal with the problem.
3 star(s)White (1910). However, he may still be guilty of a different crime as with White. One question that has to be considered when looking at the question of causation is 'did the defendant actually commit the act?' If a criminal gets an innocent party to carry out the act of theft, does this exonerate him from prosecution? Surely if there is no actus reus then there is no crime. However, in R. v. Manley (1844) the courts felt otherwise and that a person will be guilty of the act even if an innocent agent performed the act.
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How effective are domestic and international legal measures in dealing with human trafficking?
Anti-trafficking laws are problematic to enforce because victims of trafficking are hesitant to identify traffickers for fear of repercussion. Furthermore, trafficking is a crime that transcends borders, and therefore jurisdictions. Applying international law to a person who resides in another state is a costly and complex endeavour. Additionally, human trafficking usually violates several laws, and is not a one-time event. Building a case against traffickers can take a great deal of time, resources, and energy. In countries where resources are limited, these complexities can hinder enforcement of anti-trafficking laws.
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Discuss the extent to which the courts insist that all crimes require both an actus reus and a mens rea
the pharmacist dispensed drugs from a forged prescription. They did not know it was forged but were still convicted, their appeal failed. All the above cases illustrate absolute liability which shows that the mens rea need not be present and the actus reus need not be voluntary. Strict Liability cases is where mens rea is not required, an example of this is in the case of Gammon (Hong Kong) V Attorney - General (1985), it was held that the starting point for the courts, is to presume that mens rea is always needed but that this presumption can be rebutted by considering four factors.
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For a behaviour or conduct to be deemed unlawful in the first instance it must first be placed in front of parliament and approved by them, without this we are unable to show any conduct has been unlawful.
The other side of this is the civil law and these too can have unlawful conducts involved in these disputes. This can vary from a personal or business level and from a divorce to child care. This shows that there are two types of fault, which are criminal and civil wrongs. Within the criminal fault there are two main fundamentals which need to be established to establish liability. The first part is known as the "actus reus", which is Latin for "guilty act".
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