Briefly explain what is meant by the doctrine of judicial precedent.
Briefly explain what is meant by the doctrine of judicial precedent. (10 Marks) Judicial precedent refers to the sources of law where past decisions made by judges create law for future judges to follow. The English system of precedent is based on stare decisis, which translated from Latin loosely means "To stand by what has been decided". Stare decisis provides fairness and certainty in the law. It is divided into two parts: ratio decidendi and obiter dicta. Ratio decidendi are the principles of law that a judge has used to come to the decision at the end of a case, which is outlined in his speech. Ratio decidendi loosely means "Any rule expressed or implied by the judge as a necessary step in reaching his conclusion". Obiter dicta refers to "the other things said" by the judges and does not have to be followed by future judges. An example of this may include what the judge's decision would have been if the facts were different but does not have to followed as it is not binding precedent. 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
How satisfactory is the current law of murder?
How satisfactory is the current law of murder? During this essay the law of murder will need to be analysed and assessed in order to answer the question of it's current state. Whilst analysing the law of murder the Actus Reus and the Mens Rea along with any other problems will need to be dealt with. However we need to realise what the law of murder is and how it came into affect. Murder is a special law as it is a common law offence or rather a judge made law. What this means is that the law has been made over the years when cases arise. Due to this the law has been improvised and changed through the years due to the circumstances. Most pieces of legislation are acts of parliament that are produced by the parliament (House of Lords, House of Commons and the Queen), however judges have made this piece of legislation. The law of murder first can be claimed to be unsatisfactory or misleading due to the very fact that it is judge made law. This causes problems, as there are no guidelines to stick to, this led to many different outcomes occurring when sentencing and the law being called overcomplicated. 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
Explain, using examples, what is meant by delegated legislation. Describe how delegated legislation is controlled by both judges and Parliament.
(a) Explain, using examples, what is meant by delegated legislation. Describe how delegated legislation is controlled by both judges and Parliament. An enabling Act of parliament authorises somebody else or another organisation other than parliament to make laws. This form of legislating is called 'delegated legislation'. These powers that have been granted to certain bodies are exercised through statutory instruments, orders in Council, or bye-laws. Examples of delegated legislation by a local authority are the legislating of a Bye-law, made by Bristol city council concerning the fouling of pavements by dogs. This delegated legislation by the council stemmed from the Local government Act 1972. An example of an individual possessing delegated legislative powers was where the secretary of State created Motor cycles (protective Helmets) Regulations 1980, stemming from the parent act - Road Traffic act 1988. 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
Discuss the advantages and disadvantages of the mischief rule
Discuss the advantages and disadvantages of the mischief rule (10 marks) The mischief rule is where judges look for as mischief or gap in the law that Parliament designed an Act to remedy. The judges must interpret the act as to fill the gap and to remedy the mischief that Parliament had been aiming to remedy. The mischief rule originates from Heydon's case (1584), here the judges said that the court should consider four things when attempting to interpret a statutory provision: common law before the act; what was the defect or mischief; what does the act try to do; what is the real reason for the act. 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. So prostitutes solicited men from their balconies. Lord Parker looked at the mischief that the Act came to remedy, this was to clean up the streets, so the court found the defendants guilty as it didn't matter where the soliciting originated from. Another advantage of the mischief rule is that it promotes flexibility because the judges decide what
Three forms of Delegated Legislation and Control over it.
Three forms of delegated legislation Delegated legislation is law made by a person or body that parliament has delegated law-making power to. The three types of delegated legislation are orders in council, statutory instruments and by-laws. Orders in council are drafted by the Government and given formal approval by the Queen and the Privy Council. Orders in Council are generally used where it would be inappropriate for the order to be made by a Minister, for example where the matter is of constitutional significance (such as transferring powers and functions from one Minister to another, or bringing into force emergency powers to be exercised by Ministers e.g. emergency powers Act 1920). Statutory instruments are laws made by a government minister under the authority of a parent/enabling Act within the area of their ministerial responsibility. Statutory instruments are often used to update law, for example to increase in the amount of the national minimum wage under the National minimum wage Act 1998. Law that is made to comply with directives from the European Union is usually made in the form of a statutory instrument e.g. 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
the english legal system unit1 assignment4
(a) Describe the present organisation of the legal profession (Solicitors, Barristers and Judges). To what extent is this form of organisation capable of satisfying the legitimate expectations of those using or involved with the legal profession? In order to address this question I endeavour describing the present organization of the legal profession namely the roles of Solicitors, Barristers and Judges, and the ways in which they interlink with one another within the legal system. In turn I will assess whether the present organisation is capable of satisfying the legitimate expectations of those using or involved with the legal profession. There are many differences between the English Legal System which derives from the common law, and law operating in other countries. For example with that of Roman law which is the system adopted by the majority of countries in Europe. Primarily it is imperative to appreciate that the legal profession can be divided up under two main headings namely, Solicitors and Barristers. Each group has its own duties and functions and its own controlling body. The two professions are separate and distinct, different governing bodies control them, their qualification requirements are different and their traditions are different. One cannot be both a Solicitor and a Barrister. Out of the two, the Barrister is the 'senior' profession, although many
Common Law and Equity - its history and development
a) Briefly explain what William I found when he arrived in 1066 and what law he began to develop. William I was born in 1027 in Chateau Falaise in Falaise Normandy, France He was crowned Duke of Normandy at the age of 7. He was the first Norman King of England. When the Edward the Confessor passed away, there were three claimants-William, Harold Godwinson and Harald Hardrada. Edward had promised William the throne in London when he visited him there in 1052 but by vote of Witnagemot along with Edward's will Harold Godwinson was crowned King by Archbishop Aldred in January 1066. William was not happy so he submitted a claim to the English throne to Pope Alexander II, who sent him a consecrated banner in support. William then organised a council of war at Lillebone and in January began to assemble an army in Normandy. He defeated Harold's army on 25th September 1066 and arrived in England on 28th September 1066. When William I invaded England in 1066, he found out that in England there was no legal system or what is now called 'English law'. The law around the country was different with every area having their own laws. The legal system consisted of local courts known as the borough, shire and hundred courts. 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
The english legal system unit1 assignment3 three part question
(a) The HofL has declared that the system of precedent is an indispensable foundation providing certainty in the law. Explain how the system of precedent operates to pursue the goal of certainty whilst ensuring that certainty does not result in rigidity This essay seeks to consider the system of precedent being 'an indispensable foundation providing certainty in law.' In doing so it will also assess associated advantages and disadvantages with the current system. Finally, discussing whether or not 'certainty' has the effect of rigidity in the law. In essence, the Judicial Precedent doctrine refers to the fact that a decision of a higher court will be binding on an equal or lower court. The House of Lords stands at the summit of this hierarchy and its decisions are binding on all courts. The next court in the hierarchy is the Court of Appeal, and further down are the Divisional Courts, High Courts, Crown Courts, County Courts and Magistrate Courts. Our system of precedent (case law) means, in its simplest form, that Judges can adapt the law to suit changing circumstances and that a lower Court must follow Judgments issued by higher Courts. Also, binding precedent is based on the view that it is not the function of a judge to make law, but to decide cases in accordance with existing rules. Since Parliament is 'sovereign' it is the function of Parliament to make law.
Delegated Legislation
Delegated Legislation A) Describe how the system of delegated legislation operates B) Discuss the advantages and disadvantages of such legislation, and consider whether or not the controls are effective. Delegated Legislation is used to create the detailed rules of many statutes created by parliament. When statutes are passed, they only lay down a basic framework for the law - so they often need to be delegated to government departments, local authorities, or public or nationalized bodies, which oversee the day to day operation of the legislation. When the legislation is delegated to these institutions, the statute is known as an enabling act, and the delegated legislation has the same legal force and effect as the Act of Parliament under which it is enacted. There are three types of delegated legislation - Statutory instruments are made by government departments, Bye-laws are created by local authorities and public or nationalized bodies such as British Rail, which still need to be agreed by central government, and Orders in Council, which are made by the government in times of crisis (eg: the commandeering of the QE2 as a Hospital ship during the Falklands War in 1982) 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,
Common Law and Equity
Outline the development of common law and equity. A The Law in England didn't come about all at once, but has developed over the centuries. There are 5 different sources of law: Customs, Judicial decision, Acts of Parliament, Delegated Legislation and, most recently, European Law. However, new law is still being created today. The law as we know it today all started in 1066, when William the Conqueror invaded England. He found a country with no single system of law, just sets of customary rules which differed from area to area. This was due to the different invaders who had settled in different parts of England, bringing their laws with them. William decided to set events into motion that helped bring about the system we have at present. William introduced the feudal system, in which all land belongs to the king, and he slowly started to gain control of England. He then split the land up and granted parts of the land to people who supported him and who were willing to grant him services, e.g. barons. He then made them pay taxes to him yearly. They in turn granted land to their followers and then them to theirs. This meant that the king had gained control of the whole country. The King's Justice was introduced for any landholder who had a problem that could not be sorted with their landowner. They were able to apply directly to the king, and William made himself available
