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Tuesday, 6 June 2017

What is law?

Definition: ‘The body of rules, whether proceeding from formal enactment or from custom, which a particular state or community recognizes as binding on its members or subjects.
(OED Online. December 2013)

          System of Rules:
        Enforced by courts
        Government of the State
        Relationship between State & citizens & between individuals
          It affects our every day life, e.g. In employment, buying a house, divorce, wills, driving a car
          Legal Rules may incur a penalty if not obeyed

Public Law
Matters related to the state
-          Constitutional Law (role of institutions within the state)
-          Administrative Law (regulates public authorities)
-          Criminal Law

Criminal Law
          Prosecution of offender on behalf of State
          Criminal courts:
        Magistrates & Crown Courts
          Burden of proof:  established beyond reasonable doubt
          Punishments:  fines, community service, prison

Private Law
Rights & duties of individuals toward each other:
        Contract
        Tort
        Property
        Trusts
        Family
         Employment

Civil Law
          Regulates rights & obligations of people dealing with each other
          Focus on protecting and compensating the Victim
          Civil courts: County Court
          Burden of proof:  balance of probabilities
          Remedies:  damages, injunctions
          Contract, tort, property, trusts, family, employment
          Tort – civil wrong, e.g. trespass, defamation, nuisance, negligence, trespass to the person, torts of: deceit, passing off, inducement of breach of contract, conspiracy
          Fault based
          Strict liability & vicarious liability

Sources of Law
Legislation
Types
          Acts of Parliament
          European Law – passed by the European Parliament and applied by the ECJ
          International treaties
          Case law – common law, equity

Difference between Ratio and Obiter
          Ratio Decidendi : the rationale for a decision.
          Obiter dicta: remarks of a judge which are not necessary to reaching a decision, but are made as comments, illustrations or thoughts.

Precedent – Why Have It?
          Consistency
          Certainty
          Efficiency  
          Flexibility

Court of Appeal
          Supreme Court decisions bind
          Court of Appeal decisions bind lower courts

High Court
          Non-Binding
          Treatment in Fact – Strongly Persuasive

          Overruling a case:           If a higher court considers a case wrongly decided it can overrule the decision.  That case is then no longer an ‘authority’.

          Reversing a case:             If a higher court reaches a different decision from the original court, then the decision is ‘reversed’.          

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