Law In England Are: Common Law, Statute Essay

Length: 10 pages Sources: 3 Subject: Business - Law Type: Essay Paper: #31245299 Related Topics: Administrative Law, Civil Law, New England Colonies, Law
Excerpt from Essay :

¶ … law in England are: common law, statute law, subordinate legislation, custom, and European community law.

Common law: This is the cannon of law applying to the general swathes of law that are decided by the judges and adapted to changing times. Judges make its rules over the years that have relied on precedents of other cases and adapted preceding rulings to suit the circumstances of the present instance. Each new case, accordingly, develops the original principle a little further.

Examples of common law cases that moved the principle somewhat further was Ryland vs. Fletcher where it was decided that the neighbor could sue if water that escaped from a landowner's dam damaged his land. This principle was later used in succeeding cases.

Statute law (or Act of Parliament): This is law produced by Parliament whenever a new law is needed. Initially passing through various readings that debate and contest the law, it finally needs the Queen's approval for reinstating.

Acts emerge when Parliament (usually prompted by the wider society) considers an existing law to be wrong or whenever there is a gap in the law system to meet an existing need.

Subordinate legislation: legislation that is operationalized under the authority of an Act of parliament and emerges as a result of that Act. The Act serves as a mere skeleton of the body and laws are filled in (usually by the Secretary of State or by the minister in charge of administering the Act) to flesh out the Act.

Custom: Custom -- or traditional law - was more important at one time than now and produced many important legal rules that later became incorporated into common law. Nowadays, custom is primarily, if not almost exclusively, found in the law of Parliament meetings

European community law: Aggregated and pooled together by the courts of key European nations, EC law covers the establishment of a common European market (i.e. Of the European Union) dealing with all monetary and economic concerns.

EC law involves international agreements, treaties, case law, preparatory acts, and parliamentary questions.

Where EC law is applicable, it supercedes domestic / local law. Normally applied by the domestic courts, the most authoritative rulings are given by the European Court of Justice in Luxemburg.

What is the difference between primary and secondary legislation

Primary legislation describes laws that are passed by the legislative bodies of Britain, such as by Parliament. This type of legislation is generally known as statutes. Primary legislation, in other words, is a synonym for law produced by Parliament whenever a new law is needed. These sorts of laws emerge when Parliament (usually prompted by the wider society) considers an existing law to be wrong or whenever there is a gap in the law system to meet an existing need. Primary legislation in Britain is similar to Congressional acts, or statutes, of the United States.

Secondary legislation, otherwise and less frequently called "subordinate legislation," are laws that are made by a person or body that has been given the authority to formulate these laws by an individual in primary legislation. It is usually the ministers, the Queens or public bodies that are delegated this responsibility. In the UK, Statutory Instruments are the most common type of secondary legislation. In the United States, the corollary is regulations or administrative law.

Explain the term 'common law'

This is the cannon of law applying to the general swathes of law that are decided by the judges and adapted to changing times. Judges make its rules over the years that have relied on precedents of other cases and adapted preceding rulings to suit the circumstances of the present instance. Each new case, accordingly, develops the original principle a little further.

Literally speaking, it is the body of precedent that is called 'common law' and that is appealed to and used in order to formulate and bind future decisions. In cases where disagreement exists over the exact nuances of the common law, a specific common law court examines the past decisions of previous courts. The resolution of similar decisions is used in this case, too. If however the court finds that this case is distinct from previous cases (called a "matter of first impression") and that there is no distinct precedent to rely on, the judges create a new law called a 'precedent'. This new law then joins the body of common law to be applied to and bind future similar cases.

Examples of common law cases that moved the principle somewhat further was Ryland vs. Fletcher where it was decided that the neighbor could sue if water that escaped from a landowner's...

...

This principle was later used in succeeding cases.

Describe distinction between national and international law and explain role of each within English legal system

National law refers to domestic law that is pertinent solely to the United Kingdom. International law, however, refers to law that is binding between nations and concerns other nations rather than British citizens. The laws of the European Union may be considered international law.

National law may become international law when nations delegate their jurisdiction to supranational tribunals such as the European Court of Human Rights.

International law can refer to three distinct entities. These are:

Public international law that monitors the relationship between Britain (for instance) and other countries

Private international law (or conflict of laws) that deals with the exact matters of jurisdiction at hand, and,

Supranational law when the law is obligatorily turned over to a supra tribunal for resolution.

As refers to Britain, national law is that which is formulated by the British government and contingent on its people and on anyone living within the perimeters of the UK, whereas international law refers either to the instance when Britain is obligated to subsume itself to a supranational system, or when it is involved in judicial mediation with other countries.

What is the difference between a common law and civil law system?

Some countries employ the civil law system whereas others employ a common law system.

Countries, which follow the civil law procedures, base their legislation upon legal principles and codes that date back to the jurisprudence system of the Roman Empire. Updates to the Roman code system are made through legislation and other processes that are lengthy, tedious, and bureaucratic. Judges make rulings on the codes and statutes alone, as far as possible analyzing classical and previous judicial rulings for guidance in formulating precedents. Entrenched in the past, this system is generally seen as more traditional and less flexible than common law. Examples of countries that employ the civil law system are France, Germany, and Spain.

The common law system, on the other hand, is far more flexible in that although past judicial decisions are consulted for guidance, new statutes of law emerge whenever Parliament (usually prompted by the wider society) considers an existing law to be wrong or whenever there is a gap in the law system to meet an existing need. Thus common law systems consult the past for guidance but refuse to allow themselves to be tied down by seemingly fossilized or archaic legislation. The benefits too are that this process allows for a more flexible and expeditious system that is not bogged down by the minutiae and reluctant slowness of its counterpart civil process.

The common law system was developed by and is used in Britain and has, therefore naturally passed on to former British colonies such as India, Israel, Australia, Canada, and the United States.

Differences between both systems also include the fact that the common law institution possesses a number of elements that the civil law system lacks. The involvement of the jury is the most important distinction where, unlike in common law where the jury plays an integral part in deciding the outcome of a case, jury trials, in the civil law system are almost unknown. It is the judge's notes and findings of the fact that determine the proceedings of the case. The Judge examines the witnesses and actively investigates the case, documents play a more important role than they do in common courts, and the judge, in certain aspects, plays a weightier role than his counterpart in the common courts. Appeals may be heard on both law and the case itself, and the appeals court sometimes reopens the file for new evidence.

In the common court, on the other hand, trials are usually concentrated events with emphasis largely focused on the oral testimony of the witnesses and the judge delegating investigation of the case to the lawyer. Lawyers, too, question the witness whilst the judge acts as referee. The factual record is made in the trial court (namely "the court of first instance"), whilst appeal courts administer to errors noted in the law not in the case itself. No new evidence is presented when the case is appealed.

Provide an argument for / against each legal system

Entrenched in ancient Roman law, updated in the 6th century AD…

Sources Used in Documents:

References

Finch, E. & Fafinski, S. 2011. Legal Skills. OU Press: UK

Wilson, S., Mitcehll, R., Storey, T., & Wortely, N. 2011. English Legal System Directions. (2nd Ed) OU Press: UK


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