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106 Cards in this Set
- Front
- Back
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What is Law?
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Pervasive, Nature, Rule, Clear, etc.
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Law is all Pervasive
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Law touches everything. Law is progressively imt. Commonly accepted as a means to solve social problems. Helps determine right and wrong.
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The Nature of Law
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Law controls people to guarantee a civilized society.
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The Rule of Law
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No man is above the law. Law maintains social order. Law is a mechanism of social control.
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Clear and Accessible Law
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Law should be something everyone can understand.
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What is Law?
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Pervasive, Nature, Rule, Clear, etc.
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Law as the Gold Standard of Behavior
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Law as the Golden metwand. Law as the universal standard of behavior. Law governs itself. Everything is measured by the law.
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Law is all Pervasive
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Law touches everything. Law is progressively imt. Commonly accepted as a means to solve social problems. Helps determine right and wrong.
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Law and Social Change
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Law develops are a reaction to social change. E.x.: Scientific use of DNA.
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The Nature of Law
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Law controls people to guarantee a civilized society.
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The Law and Democracy
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Law enables democracy to function (voting).
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The Rule of Law
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No man is above the law. Law maintains social order. Law is a mechanism of social control.
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Black Letter Approach (Approaches to Legal Study)
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Discrete legal universe is the object of study. Traditional and formalistic approach. Looks only at what the laws are.
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Clear and Accessible Law
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Law should be something everyone can understand.
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Contextualist Approach (Approaches to Legal Study)
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Law is a social phenomeon and operates within a social context..
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Law as the Gold Standard of Behavior
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Law as the Golden metwand. Law as the universal standard of behavior. Law governs itself. Everything is measured by the law.
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Law and Social Change
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Law develops are a reaction to social change. E.x.: Scientific use of DNA.
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The Law and Democracy
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Law enables democracy to function (voting).
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Black Letter Approach (Approaches to Legal Study)
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Discrete legal universe is the object of study. Traditional and formalistic approach. Looks only at what the laws are.
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Contextualist Approach (Approaches to Legal Study)
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Law is a social phenomeon and operates within a social context.
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Critical Legal Studies
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Not only is law in context an object of study, but also the context within which law functions is itself an object of study.
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Common Law
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Judge made law. Common to peoples of all regions.
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Civil Law
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A code. Kings law enunciated by judges. Originally regional.
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Equity
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Special decisions are taken that offset the sovereignty of common law. Originally declared by the Lord Chaneller's court.
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Statue
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Enacted by Parliament in the form of legislation.
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Public Law
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Regulates the relationship between ordinary citizens.
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Private Law
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Governs the public at large (traffic, criminal).
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Civil Law
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Remedies compensation ($) between citizens or organizations.
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Criminal Law
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Between 'the people' (the state) and citizen(s) (finance or jail sentence).
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Hybrid Wrongs-- Antisocial Behaviors
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Maintains civil-order (drunkness, shouting, etc).
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Justice
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Maintains balance.
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Bushel's Case (1670)
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Judge told jury what the right judgment was. Jury resisted. Won the right for an independent jury. Transfered the power to the people.
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Worthington v. DPP (1953)
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Judge told the jury they could presume malice. Innocent beyond a reasonable doubt.
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Dimes v. Grand Junction Canal (1852)
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Judge isn't allowed to have a stake in the case he's judging. No one can be a judge in his own case. He must recuse himself. Just be not only be done, but seem to be done.
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The Common Law System: Before 1066
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England was a patchwork of individual kingdoms.
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The Common Law System: After 1006
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Henry began the homognization of law. He had representatives that dissolved disputes in different regions.
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The Common Law System: 1154
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Henry II created a uniform court system, the common law system. He implemented traveling judges who were thought to be more objective because they were not subject to the pressures of the community.
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The Common Law System: 13th-19th c
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English law was made and refined by judges.
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Hierarchy of courts
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1. House of lords/ Supreme Court
2. Court of Appeal—Civil Division and Criminal Division 3. High Court—Appellate Division Courts 4. High Court—Queen’s Bench/ Family Chancery 5. Crown Court/ County Court 6. Magistrate Courts/ Crooners Courts |
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European Court of Human Rights
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Can't directly change the law, but points its finger.
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Case Law: Precedent
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High courts bind lower courts. Like cases decided alike to avoid arbitrariness. Does law ossify? Radio decidendi is the precedent, not the actual decision.
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Case Law: Reporting
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Law records allow for precedence, which allows the system to grow.
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Parliament
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2 legislatures: House of C (646) & House of L (74). Party w/ most members choose P.M.
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Drafting Legislation
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House of C --> 1st reading --> 2nd reading --> Committe stage --> Report stage --> third reading --> House of L --> House of C --> Monarch
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Statutory Interpretation: Literal Approach
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Judges look at the words of legislation in order to constitute its meaning.
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Statutory Interpretation: Purposive Approach
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Judges can look beyond the statue.
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Rules of Interpretation: Literal Rule
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Look at the words of the statue, the dictionary definitions.
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Rules of Interpretation: Golden Rule
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If the literal rule will result in the absurd or nonsensical, use this.
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Rules of Interpretation:Mischief Rule
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What was the common law before it? What did it deal with? What remedy did Parliament indent?
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Aids to Construction: Instrinsic Evidence
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Other pats of the act.
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Aids to Construction: Extrinsic Evidence
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Reference to sources outside the Act: dictionaries, textbooks, and earlier statues.
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Rules of Interpretation: Presumption
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1. Against the alteration of common law
2. A mental element is required for criminal offense. 3. Against the retrospective affect of new law. 4. Against deprivation of liberty. 5. Against application to the Crown. |
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Delegated Legislation
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Law made by some person or body to whom Parliament has delegated its law-making power. Timesaving, expertise, flexible. Less scrutiny.
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What is History?
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Answer.
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David Lewis v. Director of the Public Prosecutions (2004)
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A pub car park was ruled to be a public place during business hours and thus applied to the drunk-driving law.
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Cooper and others v Shield (1971)
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The court ruled that a station platform was not a public place because it was an integral part of the building and buildings were beyond that scope of legislation.
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Branna v. Peek (1947)
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A pub was no more a public place than a draper's shop becuase the public did not have a right to access it. Taking bets in a pub.
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Keown v. Coventry Healthcare NHS Trust (2006)
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1. 11 yr old feel off fire escape.
2. Since he was a trespassor, there must be a DANGER due to the state of the premises. 3. Aruged there was a danger becuase an 11 yr old would be attracted to this. 4. Keown lost 5. Has to be something inehrently dangerous to make owner's liable. |
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Fisher v. Bell (1961)
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1. Kinfe in window.
2. Had not offered for sale, but made an invitation to treat. LITERAL RULE |
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Literal Rule
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Judges as robots use dictionary definitions.
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Golden Rule
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If Literal rule will be nonsensical
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Adler v. George (1964)
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1. Offence to obstruct forces IN THE VICINITY of a prohibited place.
2. Adler arrested WITHIN the prohibited place. GOLDEN RULE |
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Crokery v. Carpenter (1951)
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1. Crokery arrested for being drunk in charge of a biciyle in public.
2. Sentecend under act that said 'in charge of a carriage.' -Meant to prevent people from using transport drunk. He was charged. MISCHEF RULE |
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Mischef Rule
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Im so lazy
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s.3 H.R.A.
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Judges must interpret the law in line with the H.R.A.
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s.4 H.R.A.
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Degree of incomability.
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R.V. A Sub nom RvY (2001)
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Cannot ask about sexual past. Did he rape her? Have to balance the right to privacy with a fair trial. S.4-- judge thought there was a strong reason so he could ask about sexual past.
HUMAN RIGTS |
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Tenancy Case
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When one gay partner dies, homosexuals get treated and one gets the others stuff.
HUMAN RIGTS |
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Bellinger v. Bellinger (2003)
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Request for transgender female to be treated as female by the law. No.
HUMAN RIGTS |
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Leeds Teaching Hospital Case
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How do you interpret a statue when an act doesn't forsee issues that could arise? Invitor, black and white couple, mr. B is biolgical father. Mr. A had to apply for residency.
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Precedent
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Lower courts must abide by higher courts decisions. Like cases are decided alike.
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Ratio Dicendi
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Reason for deciding.
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Obiter Dicta
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Statement made along the way.
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Distinguishing
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Someone appears to be bound. Finds a difference that unbinds them.
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Owfen Case
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Noramlly, II strikes and you get a life sentence. He committed robberies with a toy gun, not a real threat to society. Didn't get life.
HUMAN RIGTS |
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Legal Positivists
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Law has no necessary basis in morality and that is it is impossible to asssess the law in moral terms.
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Natural Law
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Law must be moral in order to be law. Use religious beliefs and texts.
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R. v. R (1991)
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Declared martial rape illegal. Woman originally had no right to complain because they not divide the sacred unity of marriage. Justification: time had come, old law had been outdated.
MORAL |
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R. v. Human Fertilization and Embryology Authority ex parte Blood (1997)
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Whether the applicant could use her husband's sperm to create a child after his death.
MORAL |
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Gillick v. West Norfolk AH (1986)
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Can a doctor give contraceptive advice to someone under 16? Does this do more harm than good? Yes, if there's good reason.
MORAL |
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Fuller
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Legal systems should conform to 8 moral principles.
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Bentham
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Law is moral if it is utilitairan-- does the greatest amount of good for the greatest amount of people.
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Wolfenden Committe Report
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Look into homosexuality and prostitution.
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Consent and Morality-- Devlin
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Most things that are ciminal are sinful and vice versa.
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Changing Morality- Devlin
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It's important to have a coherent soceity, one that agrees on morality.
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Mr. Jsutice Ashurt's point-- Devlin
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It's bad to do something that divides the bonds of society.
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Societies distintegrate from within
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Societies disintegrate form within more often than from external forces. This break up is often due to a lack of shared morality
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Private morality v. prviate subverisve activity
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The suppression of vice is as much the laws business as the suppression of subverisve activity.
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Clapham omnibus man-- Devlin
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Society should enforce morality. Religion brings morals into soceity. Morals are common to society.
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Hart's views- JSM
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There should be an area of social life that should be outside the eyes of the law. If there isn't, then the legal system is immoral
J.S.M. To prevent harm from others is the only reason to exercise power. |
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Shawn v. DPP
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Shaw had a prostitues directory and was prosectued for conspiracy to corrupt public morals. They sighted precedent from 200 years ago.
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The Nature of Law: Lloyd
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Some form of rules are necessary.
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The Nature of Law: Devlin
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Law has a moral purpose, which helps give society social coherence.
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The Nature of Law: Moore
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Utopia
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Engels
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Law protects people of different classes.
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Simpson
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Law furthers social goals and reduces conflict.
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Law and Morality: Devlin
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Most things that are criminal are sinful and vice versa. Society should enforce morals.
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Law and Morality: Hart
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A legal system without an area of private life beyond criminal law is an immoral legal system.
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Engels
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Law protects people of different classes.
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Simpson
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Law furthers social goals and reduces conflict.
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Law and Morality: Devlin
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Most things that are criminal are sinful and vice versa. Society should enforce morals.
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Law and Morality: Hart
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A legal system without an area of private life beyond criminal law is an immoral legal system.
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Engels
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Law protects people of different classes.
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Simpson
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Law furthers social goals and reduces conflict.
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Law and Morality: Devlin
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Most things that are criminal are sinful and vice versa. Society should enforce morals.
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Law and Morality: Hart
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A legal system without an area of private life beyond criminal law is an immoral legal system.
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