F4​​

-​​
Essential​​Elements​​
of​​
the​​
Legal​​
System
Law​​and​​
the​​
legal​​
system

PUBLIC​​
LAW​​
AND​​
PRIVATE​​
LAW:

Public law refers to the relationship of the state with individual citizens and as a result it includes Constitutional,
Environmental,​​Administrative​​
and​​
Criminal​​law.

Private law relates to issues between one or more individuals or organisations that are affected by the issues
directly. The state will not intervene unless the public good is threatened. Private law includes Contract, Tort and
Land​​law.

There​​are​​five​​principal​​
sources​​of​​UK​​
law:

1) Legislation;
2) Common​​law;
3) European​​Union​​
law;
4) Custom;
5) The​​European​​Convention​​on​​
Human​​Rights.
6) Other​​sources:​​International​​
law,​​Regulatory​​Body​​rules​​and​​regulations.
 
 
LEGISLATION:

Legislation is law that is created by the legislature. Legislation is produced through the Parliamentary System,
which​​consists​​of​​three​​
elements:

1) The House of Commons, which is composed of 650 members, where each member of Parliament
represents a defined geographic constituency. In order to become a member of Parliament, one needs to
be​​elected​​in​​his/her​​constituency;
2) The House of Lords, which consists of around 800 peers. Around 600 members are formally appointed by
the Queen on the recommendation of the Prime Minister. The other members are people who have
inherited aristocratic titles such as Lord or Lady and Senior Bishops of the Church of England. Members of
the House of Lords can take positions as Government Ministers. Only a House of Commons and House of
Lords​​can​​introduce​​
a​​Bill​​
to​​
be​​enacted​​as​​an​​act​​by​​the​​Parliament​​as​​a​​whole.
Limitations​​of​​
the​​
House​​
of​​Lords:
Historically it had power to prevent Bills from becoming law. This power has been limited as a result of the
Parliament Acts of 1911 and 1949. As a result, it is now possible for the House of Lords to delay a bill for up
to one year apart from money Bills, which are those connected with the budget. These can be enacted after
a​​delay​​of​​one​​month;

3) The Queen has an important formal and ceremonial relationship with the Parliament. When a Prime
Minister wishes to dissolve the Parliament and call a general election, he or she is obliged to seek the
permission​​of​​
the​​Sovereign​​
to​​
do​​
so.

Facts​​about​​legislation:

1) Legislation​​is​​perhaps​​
the​​
most​​
important​​source​​of​​law​​​today​​for​​two​​reasons:
- The​​Parliament​​
produces​​
far​​more​​
legal​​
rules​​than​​any​​other​​source;
- The Doctrine of parliamentary sovereignty within the UK means that the Parliament is the ultimate source of
law and, at least in theory, it can make whatever laws it wishes. The courts can’t challenge either the
authority​​of​​the​​Parliament​​
or​​the​​laws​​it​​
makes;

2) Before joining the EU, Parliamentary Sovereignty meant that the law made by the UK Parliament could not
be challenged. The UK successfully joined the EU in 1973 after the passing of the European Communities
Act 1972. The European Communities Act 1972 ended Parliamentary Sovereignty so that EU law took
precedence​​over​​national​​
law;

3) Before any legislative proposal, known as a Bill, can become an act of Parliament, it must proceed through,
and​​be​​approved​​
by​​
both​​
Houses​​
of​​
Parliament​​and​​must​​receive​​the​​Royal​​Assent;

4) There is a huge amount of secondary legislation made under the Authority Act of the Parliament. The Act of
the Parliament gives authority to a person, for example the Secretary of State, to make the detail of the law
on the Parliament’s behalf. For this reason secondary legislation is known as ​Delegated Legislation​
. The
most used type of Delegated Legislation takes the form of regulations or orders known as Statutory
Instruments.
Advantages​​​of​​
Delegated​​Legislation:
- Parliament​​can​​
concentrate​​on​​pressing​​issues;
- It​​is​​faster​​if​​
legislation​​is​​
delegated;
- It​​allows​​faster​​amendments​​to​​the​​law;
- It​​allows​​consultation​​with​​experts​​on​​
technical​​topics​​and​​keeps​​the​​details​​of​​the​​law​​in​​simple​​
format;
 Disadvantages​of​​
​​ Delegated​​
Legislation:
- It​​is​​criticized​​for​​being​​undemocratic;
- It​​gives​​a​​lot​​
of​​
power​​to​​civil​​
servants.
 
 
COMMON​​
LAW:

Common law is generally uncodified, which means that there is no comprehensive compilation of legal rules
and statutes. The decisions of the higher courts become part of the law. It is also referred to as ​ Case law​ .
Common law functions as an adversarial system - a contest between two opposing parties before a judge who
moderates. A jury of ordinary people without legal training decide on the facts of the case in certain matters. The
judge​​then​​determines​​
the​​appropriate​​
sentence​​based​​on​​the​​jury's​​verdict.

Common law is largely based on ​Precedent​ , meaning that the judiciary decisions that have already been made
in similar cases are binding on subsequent cases with similar facts. These precedents are maintained over time
through the records of the courts as well as historically documented in collections of case law known as
yearbooks and reports. Case law operates within the pyramid structure of the court system, where the decisions
of the higher courts binding those courts lower than them. Courts at the same level are bound to the same
precedents.

Every​​precedent​​consists​​
of​​two​​parts:

1) Ratio Decidendi ​- means “the reason for the decision”. It is the rationale for reaching the decision of a
case. The Ratio Decidendi is the legal rule of a particular judicial decision. It is binding on lower courts
through​​the​​principle​​
of​​
Stare​​
decisis​​(“to​​
stand​​by​​things​​decided”);
2) Obiter Dicta. Another commonly used term for obiter dicta is ​persuasive authority​. With respect to court
opinions, obiter dicta are the thoughts or observations stated in a case that are not directly relevant to the
outcome of the case. While these thoughts may not pertain to the case at hand, they do have the potential
to inform or guide future court decisions. Obiter dicta are not binding, which means that a future court does
not​​have​​to​​follow​​any​​
rule​​
or​​observation​​
made​​as​​obiter​​dicta​​in​​a​​previous​​court​​case.

Advantages​​of​​Precedents:

- Consistency. This refers to the fact that “like” cases are decided on a “like” basis. It proves that a particular
decision​​was​​not​​apparently​​subject​​
to​​the​​
whim​​of​​the​​individual​​judge​​deciding​​the​​case;
- Certainty. Lawyers and their clients are able to predict the likely outcome of a particular legal question in
the light of previous judicial decisions. Additionally, once the legal rule has been established in one case,
individuals can orient their behaviour with regard to what that rule provides for. Thus, it can increase
compliance​​to​​certain​​legal​​
principles;
- Efficiency. This refers to the fact that it saves the resources of the legal system and its clients because
cases​​do​​not​​have​​to​​
be​​reargued.

There are a number of approaches used by judges in ensuring that statutory interpretation is correct and fair.
The​​approaches​​used​​
by​​
the​​
judiciary​​
are:
1) The Literal approach. Words are given their plain, dictionary meaning. The judges are required to consider
what the legislation actually says rather than considering what it might mean. This is the dominant approach
used​​by​​the​​English​​courts;
2) The Golden rule. This rule allows a judge to depart from a word's normal meaning in order to avoid an
absurd​​result;
3) The Purposive approach. ​
This approach allows judges to interpret what they think Parliament was trying
to​​achieve.​​This​​
approach​​is​​
used​​
predominantly​​in​​Civil​​Law​​systems;
4) The Mischief rule. ​This principle is used by the courts to determine the intention of the legislators. This
principle​​aims​​
at​​finding​​out​​the​​mischief​​
and​​defect​​in​​a​​statute​​and​​to​​implement​​a​​remedy​​for​​the​​
same.