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
AS LAW -JUDICIAL PRECEDENT
What is meant by judicial precedents and that judges "are not in liberty to reject them"? (a)Precedent is a law which has been created and is used to make decisions on cases. There are four types of precedent; judicial precedent is when past decisions made by judges are used to create law for future judges to follow. This part of the law is called case law and is used today. If a precedent is bound or binding then this means that a judge must use a previous case and are tied into it and cannot ignore the precedent. If a precedent is persuasive this means that a judge can ignore a past case but can choose to use the decision if they are persuaded that the principles are correct. Finally if you choose to follow a precedent then this is the process of using a past precedent in a future similar case. The Doctrine of Stare Decesis is when cases are treated alike. In order to achieve cases being treated alike, the system was in need of rules. These laws created the source of law known as precedent. In order to create a precedent a judge must make a judgement recorded for future judges. 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
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.
Lord Scarman stated in Magor and St Mellons v Newport Corporation (1950): "If Parliament says one thing and means another, it is not, under the historic principles of the common law, for the courts to correct it. The general principle must surely be acceptable in our society. We are to be governed not by Parliament's intentions but by Parliament's enactments". (a) With reference to the above source, explain the methods used by judges to interpret Parliamentary legislation. 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. But on which, depends on the particular judge, as is shown in the text above. Lord Scarman states "If Parliament says one thing and means another, it is not, under the historic principles of the common law, for the courts to correct it" and "We are to be governed not by Parliament's intentions but by Parliament's enactments". 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
Jury (Criminal & Civil Trials)
Jury Essay (a) Describe the role of Jury in Civil and Criminal trials. Juries have been used in our legal system for over 1000 years since the Magna Carta which recognized the right to trail by "the lawful judgment of his peers." Since 1215 juries became the usual method of trying criminal cases. The independence of the jury was recognized in Bushell's case (1670) when it was established that the judge could not challenge the decision made. A more modern day example demonstrating that judges must respect the independence of the Jury is R v McKenna (1960) where they threatened the jury that if they don't give their verdict within another 10 minutes they will be locked up for the whole night. Juries are used in both Criminal and Civil cases although the use of juries is very small. Juries are used in the Crown Court for criminal trials of indictment, High Court - Queen's Bench Division, County Court and in some cases the Coroners' Courts. Less than 1% of criminal cases are decided on by a jury this is because 97% of cases are dealt by the Magistrates' Court and from the cases that go to the Crown Court, about two out of three defendants plead Guilty. Juries are used in both criminal and civil cases and the law concerning juries is consolidated in the Juries Act 1974. A jury is defined as a body of persons convened by process of law to represent the public at a trial or
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
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.
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. For a person to commit a crime, he must have committed some kind of act. There are three ways in which a person can be tested on whether he has committed the crime. The first is that there must be a crime in the first place i.e. murder. The second is that he must have meant to cause it e.g. the result would not have happened if he had not caused it. The third is that he must have a duty of care. 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. He was employed by the railway company to look after a level crossing and to make sure that the gate was securely shut when there was a train due. He had left his post and this resulted in a person wondering onto the lines and being killed by an oncoming train. A
judges avoid following precedent
Outline how judges can avoid following precedent and discuss the advantages of their doing so. Judges can avoid following precedent is a number of ways. Distinguishing is one way, where the material facts of the case are different from a previous one and then the judge does not have to follow the earlier one. This is seen in Balfour v Balfour (1919), where the husband made a verbal agreement of giving his wife £30 a month, while he was away in Ceylon. However he stopped the payments and Mrs Balfour started legal action. It reached the Court of Appeal and they held that there was no enforceable agreement, as there was no evidence for a legally binding promise. So when the case of Merritt and Merritt (1970) came along, where Mr Merritt and Mrs Merritt signed an agreement that he would pay her a monthly sum. 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). In R v Smith
Examine the debate as to whether the law should reflect moral values, and discuss issues which show the continuing importance of that debate.
Consider the view that there is a close relationship between law and morality? Examine the debate as to whether the law should reflect moral values, and discuss issues which show the continuing importance of that debate. (30+5 marks) Morals are society's values and beliefs which distinguish from right and wrong. They are constantly changing to reflect society's attitudes ad current social circumstances. Morality can either be prescriptive or normative; which specifies what ought to be done and what is morally acceptable or unacceptable behaviour. This has mainly been influenced by religious beliefs which set the moral code of ones attitudes and beliefs. However, laws are a 'rule of a general norm mandating or guiding conduct,' state from Twining and Miers. Law and moral rules are similar in that they guide social conduct and behaviour, but the main difference is that only rules with legal statuses lead to sanctions and remedies which courts will enforce. Even though law develops from a shared morality, there are differences between the two. Morality develops over a long period of time, whilst the law can be introduced instantly. Morality cannot be changed deliberately; it is formed slowly, and changes according to the will of people and society's opinions and attitudes. For example, in the late 19th century, Oscar Wilde was ruined and imprisoned over his
Describe the law making procedure in Parliament.
Describe the law making procedure in parliament. There are three main types of Bills: Public Bills, Private Bills and Hybrid Bills. Public Bills affect the general public. There are two types of public Bills: Government Bills and Private Members Bills. Government Bills are introduced into parliament by Government Ministers whereas Private Members Bills are introduced by backbench MPs or peers. Private Bills affect a particular person or organisation or locality. Hybrid Bills is a cross between a Public Bill and a Private Bill which is introduced by a Government Minister but only affect a particular person, locality or organisation. The first step taken is the first reading. In the first reading the title and main aims of the bill are announced and copies of it are distributed. There is no debate taken at this stage but a verbal vote is taken to decide whether the bill should progress through to the second reading. If the vote is in favour of the Bill a date is then set for the second reading. 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
