Legal Systems 1: Mapping the Law

Monday, October 1st 2012

-Mapping the LawIntro to Common Law:
pre 1066: Mass of oral customary rules used
each county had a court, arbitrary decisions, informal gatherings
guilt determined by performance on arbitrary tasks
if unsuccessful, sometimes ended in execution
english law not based on any texts
post 1154, henry II institutionalized common law
goal was to create a unified court system
incorporated local customs to a national level
wanted a common system of laws
past decisions would be cited in present cases as a persuasive tool
grounds for decisions found from past court cases
Developing Common Law
Stare Decisis & Doctrine of Precedent: Once a decision is made, it must be followed through in
future cases
Court Hierarchy:
1. House of Lords/Supreme Court: final court of appeal, receives appeals from court of appeal
and occasionally high court of justice
2. Court of Appeal (Criminal Division/Civil Division): also bound by precedents, some
exceptions
3. High Court of Justice (QBD-Queen's Bench Division/Chancery-money/Family): bound by
stare decisis, conflicts dealt with in higher court
4. Crown Court: Cannot create precedent
5. Magistrate's Court: 96% of criminal cases dealt with here
Binding Precedent:
Ratio Decidendi: The reason behind the decision, an abstraction from the facts of the case, as
the rule of law used to make a decision is not always related to the problem which is fashioned
as a legal issue
Obiter Dictum/Dicta: Something said along the way, persuasive but NOT binding
at times difficult to distinguish ratio decidendi from obiter dictum/dicta

conflicts make courts very careful in selecting which decisions actually become precedents

Avoiding Precedent:
Overruling: setting aside, retrospective, rarely used
Distinguishing: a significant difference in facts, main way of avoiding binding precedents *?

Advantages and Disadvantages of Avoiding Precedent:

Advantages: consistency/fairness, certainty, efficiency, flexibility

Disadvantages: uncertainty, fixity (law may become inflexible from an unjust precedent),
unconstitutional (making law, not just applying it), slowness, lack of clarity
precedents good as they keep the law updated without the need for parliament to make
decisions
the fixity of law under binding precedents is a disadvantage, as a ONCE JUST precedent could
be UNJUST in a different legal time or climate
why precedents used?: same legal issues, same reasoning
ratio decidendi: binding element if case
obiter dictum: persuasive in later cases but NOT binding

Law Reporting:
All relevant legal material to a case must be brought to court's attention EVEN if it is not being
used
Different types of reporting: old books written in law french, modern books (1865-present)
subject to judge revisions, most authoritative, All England Law reports
Many reports available electronically in the present
law reporting allows for legal principles to be collated, identified, and accessed
Statutory Interpretation:
many disputes arise from conflicting interpretations of words/phrases in a statute
task of court is to determine the exact meaning
Need for interpretation:
ambiguity, drafting errors, inadequate expression
new developments
changes in meaning of words
words impied but not used
situations not covered by legislation
Rules for interpretation:
The Literal Rule: intention of statute found in natural use of language (taken literally)
The Golden Rule: if the literal rule provides absurdity, find another
The Mischief Rule: look to what law was before statute find gap between and fill it
Purposive approach: making a decision as to what they feel parliament was intended to
achieve
other aids: intrinsic, extrinsic, ? (didnt copy last point)
Common Law, Equity and Statute Law:

Common Law:
No development despite need for change
strict procedural rules

damages
Equity:
Lord Chancellor not bound by precedents
flexible rules
new remedies (injunctions, specific performance)
King ruled that if there was a conflict between common law and equity, EQUITY must prevail
eventually combined the two
common law: substantive law and procedural rules created by judges
statute law: created through parliament legislation

Common Law and Civil Law:

Common:
based on historic english legal system (USA, Commonwealth countries)
case based, discretionary, pragmatic
Civil:
Euro continental system, ancient roman and germanic
codified, general principles
common law in uk used as opposed to civil law, common to the whole of a country

Legal Systems 2: Statutes and Statutory Interpretation

Thursday, October 4th 2012
-Reading Statutes aka acts of parliament
ex. Income and Corporation Taxes Act 1988 Chapter 1 (1500) sections
60 acts of parliament in most years
they sometimes repeal and amend existing acts
long or short (minimum 2 sections, maximum 1500)
vary in age: majority in effect relatively new
-Structure of a UK Act of Parliament contains short title, chapter # and arrangement of sections
long title and preamble
enacting formula
marginal notes
sections, sub sections, paragraphs, sub paragraphs
interpretation sections
geographical extent
schedules
repeals and amendments
-Short Title 19th century invention
non-common feature (short titles act 1896)
includes year of enactment
official title
chapter #: # of act in particular year
chapter # + year of enactment = citation
arrangement of sections
contents list, marginal notes
-Long Title and Preamble much older usage
long or short
indicates subject matter
an aid to interpretation
preamble precedes long title and outlines reason for act (whereas...)
-Enacting Formula immediately before substantive provisions
validates, records enactment
several forms

standard enacting formula: be in enacted by Queen's most excellent majesty...etc

other forms used in taxation

-Sections, Marginal notes and Marginal references sections: basic building blocks of uk acts
# sequentially
correctness of drafting over comprehensibility
logical structure: #s, letters, indentation
allows for precise ID of provisions
ex. Race Relations Act 1976, s1 (1)(B)(iii)
marginal notes: signposts, usage varies
points the way, relevant
helps structure sections
marginal references (distinct from marginal notes)
abbreviated citations of earlier amended act
-Headings used within text
ex. where sections grouped collectively as parts
capitalized, centred, roman numerals
parts: may be subdivided into titles or chapters
smaller groups of sections labelled by a cross heading, centred and italicized
ex. ss 4-9 of Race Relations Act 1976
Discrimination of Employers
last few sections sometimes labelled supplementary
-Interpretation Sections identified by marginal note
may appear anywhere, but usually at the end
specify meanings of words and phrases for purposes of act
NOT definitions: means, includes, does not include...etc
-Repeals and Amendments continue in force unless repealed or amended
exceptions, ex. Where a terminal date specified
uk acts commonly repeal or amend earlier acts
parliamentary supremacy: doctrine
no special process
2 methods of amendment
direct: contextual, a substitution, cut and paste, final form
indirect: leaves original text and describes how changed
preferred by parliament
commonly appear at end
usually detailed in a schedule

-Transitional Provisions where a uk act is repealed, amended but for example, litigation is in process
Eg. s 25(3) of the Prevention of Terrorism Act 1989: Any exclusion order in force
under [the legislation repealed] shall have effect as if made under .... this Act

old powers preserved to deal with matter in progress

often put in a schedule

-Commencement Provisions on date of royal assent unless specified otherwise

often in a commencement section found at end of act
simplest form: specific date
may specify a period after royal assent or
at the same tine as another act or
through delegated power, as a statutory instrument, known as a COMMENCEMENT
ORDER
sections brought into force on different days
mixture of commencement methods
more than one commencement order
-Short Title Provision, Extent Provisions, and Statutes short title given in provision at end
ex. act may be cited as
no chapter # given
not known until enactment
uk acts don't necessarily apply to whole of uk
extent provisions stipulate to which areas they apply
extreme example: Outer Space act 1986
schedules: appendices containing detailed, complicated matter
repeal and amendment schedules often in tabular form
-Interpreting Statutes need for interpretation arises as a result of ambiguity , error, inadequate expression
new developments
changes in word, phrase meanings
words implied, not used
situations not covered by legislation
-Rules for Interpretation literal, golde, mischief principles
purposive apporach
judges use this
other aids

rules of language
in/extrinsic aids
presumptions
rules of language:
ejusdem generis
nosciter a sociis
expressio unius, est exclusio alterius
extrinsic aids:
historical setting of provision
other statutes
official reports
treaties, international conventions, parliamentary materials, dictionaries
presumptions

Legal Skills 1: Reading and Summarizing a Case

Thursday, October 4th 2012
courts interested on deciding on a point of law
to provide a legal ANSWER to a legal Dispute
_________ v __________ (parties)
Q: Legal Issue (s) -Based on factual circumstances court decides the material (relevant) facts
A: Decision, in form of a written judgement (ratio- reason, obiter- everything else)
need to determine sources of law, which are relevant/applicable
applied to facts in order to make a decsion
sources of law: statutes/materials, cases (precedents)
ratio decidendi, obiter dictum/ta

decision rests upon judge's interpretation of law

background justifications
principle of formal justice
like cases are treated alike
in order to distinguish a case, a judge must find a persuasive authority to support decision
distinguish (set apart from precedent)
identification of facts difficult
all facts not important
only relevant to legal issue (s)
pay attention to main cases: KNOW HOW TO SUMMARIZE
make a habit of SUMMARIZING EACH IMPORTANT CASE
look at problem based questions
I, L,A,C

Legal Theory 1: What is Law?

Friday, October 5th 2012

background justifications for decisions

theoretical traditions
Ontological Question: what is law?
Epistemological question: how can we know what law is?

-What is Law: ontological understanding the speluncean explorers

normative v descriptive
formal v substantial
moral v positive
rational v irrational
liberty v power
how would you have decided it?
Try to identify the above dichotomies within the case judgements
-Law as Normative about what OUGHT to happen, NOT what DOES happen (scientific)
based on PATTERNS of behaviour
provides a BASIS FOR EVALUATION
everything cannot happen in a scientific way
presupposes choice
provides REASONS to act/not act in certain ways
linked to sanctions (punishments) for law-breaking
-Normativity, Norms, and Rules key feature of law
law as divisible into bits (rules)
made up of a combination of these bits
consequences for rule breaking
-key questions what kind of norms/rules make up the law-breaking?
what makes a rule normative?
who decides which rules apply? Why do they decide?
to whom do they apply?

Legal Systems 3 and 4: The Criminal Justice Process 1 and 2

Monday, October 8th 2012
-Crime Control and Due Process Herbert Packer: Limits of criminal sanction 1968
america shifting from due process to crime control
crime control (assembly line)
due process (obstacle course)
the 2 compete with each other, polar opposites
repress crime --> increase security --> crime control
-Crime control model aims and objectives
purpose of criminal justice: ensure security and freedom for citizens
through repression of criminal conduct
efficiently producing high rate of detection, conviction, and punishment of offenders
efficient exoneration of factual innocent
though accepts that tolerable levels of efficiency will mean that mistakes happen
price you have to pay for efficiency
mechanisms:
trust in police to reliably determine factual innocence or guilt
trust in pretrial informal administrative procedures and decision making rather than courts
no necessary exclusion of evidence obtained through improper means
speedy, uniform, routine procedures
minimal opportunity for challenge
mass production of guilty pleas
resembles ASSEMBLY LINE CONVEYOR BELT
EX. JUDGE DREDD
-Due Process Model (obstacle course) aims and objectives:
maintaining skepticism about efficacy of the criminal sanction
the aim of the process at least as much to PROTECT the FACTUALLY INNOCENT as it is
to CONVICT the FACTUALLY GUILTY
upholding the primacy of the law
giving the priority to the protection of civil liberties as an end in itself
Kantean
placing limits upon use and abuse of official power

mechanisms:
distrust of reliability of police adjudication
demands finding of formalised legal guilt
presumption of innocence
exclusion of evidence obtained through improper means

right to legal advice and representation

many opportunities for appeal and redress
resembles obstacle course
EX. TO KILL A MOCKINGBIRD, A FEW GOOD MEN

-Police Stop and Search Background: The Confait Affar

Miscarriages of justice
Royal Commission on Criminal Procedure, 1981(The Royal Phillips Commision)
Police and Criminal Evidence Act (PACE) 1984
compromise between crime control and due process
associated codes of practice
more legal assistance to all, BUT more police power
stop and search
-PACE 1984, Section 1 (+code A) stop and search powers
reasonable suspicion
any person carrying stolen or other prohibited items
requires OBJECTIVE basis for reasonable suspicion
not personal factors alone
must inform reason
and record
****compromise between crime control and due process
-Stop and Search in Practice 10-12% stops result in arrest
disproportionate impact on minority ethnic groups
wide discretionary powers in low visibility settings
police working practices/working rules
McConuille, Sanders and Young: The case for the Prosecution
anti terrorist powers more DRACONIAN
terrorism act 200, section 44
Gillian and Quinton v UK
reasonable suspicion vague
police able to stop WITHOUT reasonable suspicion
kept act ongoing
was in violation of another act
reformed to only CERTAIN circumstances
-PACE 1984: Detention only authorized by specialist custody officer
in order to charge suspect
where there is insufficient evidence to charge suspect, in order to secure that extra evidence, but

only where necessary

anyone at a police station should either be free to leave at will or be under arrest
time limits: 24, 36 or with court order, 96 hours
contrast LAW IN BOOKS with LAW IN ACTION

-Access to Legal Advice- PACE 1984

s.58(1) A person arrested...shall be entitled to, if he so requests, to consult a solicitor privately at
any time...
s.58(4) If a person makes such a request, he must be permitted to consult a solicitor as soon as
is PRACTICABLE
sometimes abused
suspect must be informed and given written notice by the custody officer of his right to see a
lawyer and that this will be free of charge
contrast LAW IN BOOKS with LAW IN ACTION

Legal Systems 5 and 6: The Human Rights Act 1998

Thursday, October 11th 2012
-Human Rights involves individual's interaction with public authority
ECHR: European convention on human rights (treaty) 1950
after WW2, an attempt to rebuild europe after trauma
rights often termed first generation rights
civil/political rights
negative qualities: prevents state from doing certain things
individual enabled to be participant to state
rights needed authoritative body to govern it
European court of human rights
ECHR did not form part of british law immediately
only acts of parliament can be valid law in UK
only until 1960s could individuals appeal to court
-Why the need for HRA in 1998? parlieamentary sovereignity/common law best at protecting human rights
Locke: Rule of law protected by a certain type of
notion of residual liberty
free to do anything within law
wasn't state guaranteeing liberty, the individual did
suspicions arose toward rights being given out by someone else
HRA in 1998 made rights part of UK law
UK didn't protect human rights property
old notion of rule of law no longer applied
many petitioners started turning to HR appeals
-What does HRA do? seeks to incorporate the ECHR into domestic law
new statutory duty upon public authorities: it is unlawful to act in a way which is incompatible
with a convention right
new instructions to courts
primary and subordinate legislation must be read and given effect in a way compatible with
convention rights
if court satisfied that a provision is incompatible with a convention right: may make a
DECLARATION OF INCOMPATIBILITY
-HRA Today tension between courts and parliament/government
minorities (terror suspects,etc) take advantage of Hrs
Current controversies:
ART 3 ECHR: noone shall be subjected to torture or inhumane or degrading treatment or

punishments
interpretation of ART 3 by ECHR
Chahal v UK, 15NOV1996
violation of ART 3 if substantial grounds have been shown for believing that the
person in question, if expected would face a real risl of being subjected to treatment
contrary to ARTICLE 3 in the receiving country
Article 3 of Protocol 1 (ECHR)
should prisoners get the right to vote?
Right to vote for prisoners contravenes ART 3 of Protocol 1 (Hirst v UK)
UK government and parliament seem reluctant to grant vote to prisoners