jeudi 11 février 2016

Sources of Law Summary

Sources of Law
Summary
A. Common Law
Ø  Before the Norman Conquest (1066), most rules and practices developed at a local level.
Ø  After the invasion of England by William the Conqueror in 1066 (Battl e of Hastings), the Norman kings set up a more centralised power:
o   Travelling justices:
·      Applied customary rules
·      Introduced their own decisions
ê This harmonised the legal system throughout the country

Ø  Under Henry II (Plantagenet 1154-1189) in the 12th century, the system became known as the common law.
·      Courts were set up under the authority of the king.
·      These court decisions prevailed over those of local courts.

Ø  Common law and the writ system
·      Plaintiffs / Claimants began legal actions in royal courts by paying for a court order called a writ.
·      Each writ recorded a particular claim.
·      Courts established a collection of acceptable claims.

o   By the 13th century, the system had become more rigid:
·      Rules were imposed making it difficult to create any new writs.
·      New situations would not be taken into account.
·      The only possible remedy at common law was damages.
NB: Damage ≠ Damages ≠ Prejudice



Ø  Development of Equity
o   Many parties started to turn to the King directly to obtain redress.
o   The King delegated his power to his closest advisor, the Lord Chancellor.
o   é In the 14th and 15th century, a new category of law was created:
Equity which provided new remedies:
-       Injunctions
-       Orders of specific performance

o   In 1615: if was decided that whenever there was a conflict between common law and equity, equity would prevail.

Ø  Judge-made law
o   Decisions at common law and in equity = judge-made law / case law.

o   Based on concrete cases, these decisions set precedents, which would be applied in later cases (raising the same legal point in similar circumstances).

o   End of 18th century, court records became available: precedents were applied more consistently.

B. Legislation
Ø  Origins of Parliament: barons of England that forced monarchs to hold regularly in meetings called parliaments (+ prelates and knights and burgesses) to obtain their approval of royal measures (especially taxation).

Ø  Alongside common law, Parliament enacted more and more legislation:
o   Acts of Parliament = Statutes = Statutory Law
o   Statutes prevail over common law.
o   Statutes alter, codify the law.
o   Court rulings (precedents) became interpretations of legislative acts.

Ø  By the middle of the 15th century, the House of Commons fully shared lawmaking power with the House of Lords (i.e. approval by the Commons was now needed for bills to become statutes).

Ø  In the 16th and 17th century though, The Tudors and The Stuarts ruled as absolute monarchs.
o   The English Civil War (1642-51) and the death of Charles I (beheaded) is the direct result of the conflict between the King and Parliament.
o   The Glorious revolution (1688) and the Bill of Rights (1689) marked the end of absolute monarchy in England and the assertion of Parliamentary Sovereignty.

Ø  Parliamentary Sovereignty:
o   As there is no entrenched Constitution to circumscribe the powers of Parliament, Parliament is said to be sovereign:
o   Parliament passes acts that constitute the highest law of the land.
o   New acts prevail over existing case law and replace former acts.

Primary Legislation passed by Parliament.
Power can be delegated by Parliament to the Government, enabling it to create secondary legislation.
Devolved legislation (Wales, Scotland, Northern Ireland)



C. European Law
Ø  The UK joined the European Economic Community in 1973, which became the European Union (Maastricht Treaty 1992).
Ø  The UK is bound by EU law in the form of:
-       Directives (that require UK parliament to pass legislation of its own)
-       Regulations
Ø  The UK obtained opt-outs:
-       To stay outside the Schengen Area,
-       Avoid adopting the euro,
-       Maintain sovereignty in certain areas of justice.
Ø  The European Court of Justice (ECJ) reviews, interprets and ensures the application of EU law, which prevails over UK law and results in a partial loss of sovereignty.

D. The European Convention on Human Rights
Ø  The Council of Europe (1949) signed the European Convention on Human Rights (ECHR), which went into effect in 1953.
Ø  The European Court of Human rights
o   It was set up in 1959
o   It hears cases against those states (usually brought by individuals) for violation of ECHR provisions.
o   Its decisions (awarding compensation to the claimant) must be executed by the states.
Ex: Louise O’Keeffe / Ireland  (child abuse) 2014.

Ø  To make the ECHR applicable directly in courts of the UK, the UK parliament passed the Human Rights Act in 1998 (which came into effect in 2000)
Ø  After his re-election in May 2015, the current Prime Minister, David Cameron, has announced that he would repeal the Human Rights Act and draft a British Bill of Rights.




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