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<p>1 In relation to the English legal system explain the following sources of law:<br/>(a) Common law; (6 marks)<br/>(b) Legislation. (4 marks)<br/>(10 marks)</p><p>1 (a) The Common Law<br/>This term refers to the substantive law and procedural rules that have been created by the judiciary through the decisions in<br/>the cases they have heard, thus it is also referred to as case law.<br/>Central to the concept of the common law is the doctrine of precedent, which means that when a court has to decide an<br/>issue, it looks to the previous decisions contained in earlier cases for guidance on how to deal with the present case. Case<br/>law operates within the hierarchical structure of the courts system; with the decisions of higher courts binding those courts<br/>lower than them in the structure. Courts at the same level are also usually bound, although since 1966 that is no longer the<br/>case with the House of Lords, which can now overrule its previous rulings.<br/>The actual part of the previous decision that is binding is the ratio decidendi of the case; that is the legal rule, which led to<br/>the decision in the earlier case. The ratio is an abstraction from the facts of the case. Everything else is termed obiter dictum<br/>and although of persuasive authority, does not have to be followed by the later court. As the ratio decidendi of any case is<br/>an abstraction from, and is based upon, the material facts of the case, this opens up the possibility that a later court may<br/>regard the facts of the case before it as significantly different from the facts of a cited precedent and thus consequentially it<br/>will not find itself bound to follow that precedent. Judges use this device of distinguishing cases on their facts where, for some<br/>reason, they are unwilling to follow a particular precedent.<br/>Various law reports contain details of cases and decisions and it is to those books and cases that lawyers go to find out what<br/>the case law is on any particular issue.<br/>There are numerous perceived advantages of the doctrine of precedent, amongst which are:<br/>– Consistency. This refers to the fact that like cases are decided on a like basis and are not apparently subject to the whim<br/>of the individual judge deciding the case in question. This aspect of formal justice is important in justifying the decisions<br/>taken in particular cases.<br/>– Certainty. This follows from, and indeed is presupposed by, the previous item. Lawyers and their clients are able to<br/>predict what the likely outcome of a particular legal question is likely to be in the light of previous judicial decisions.<br/>Also, once the legal rule has been established in one case, individuals can orient their behaviour with regard to that rule<br/>relatively secure in the knowledge that it will not be changed by some later court.<br/>– Efficiency. This refers to the fact that it saves the time of the judiciary, lawyers and their clients for the reason that cases<br/>do not have to be re-argued. In respect of potential litigants, it saves them money in court expenses because they can<br/>apply to their solicitor/barrister for guidance as to how their particular case is likely to be decided in the light of previous<br/>cases on the same or similar points. (It should of course be recognised that the vast bulk of cases are argued and decided<br/>on their facts rather than on principles of law, but that does not detract from the relevance of this issue).<br/>– Flexibility. This refers to the fact that the various mechanisms by means of which the judges can manipulate the common<br/>law provide them with an opportunity to develop law in particular areas without waiting for Parliament to enact<br/>legislation.<br/>In practice, flexibility is achieved through the possibility of previous decisions being either overruled, or distinguished, or the<br/>possibility of a later court extending or modifying the effective ambit of a precedent.<br/>It is sometimes claimed that judges exceed their constitutional role by making such law, but others would counter that it is<br/>both legitimate and necessary that judges should take an active part in developing the law.<br/>(b) Legislation<br/>Legislation, on the other hand, refers to law that has been created by the legislative body within a constitution. In the United<br/>Kingdom that body is Parliament, constituted by both the House of Commons and the House of Lords and Bills have to be<br/>considered in, and approved by, both houses before it becomes law subsequent to the formality of its receiving royal approval.<br/>Since the Parliament Acts of 1911 and 1949, the blocking power of the House of Lords has been restricted as follows:<br/>– a ‘Money Bill’, that is, one containing only financial provisions, can be enacted without the approval of the House of<br/>Lords after a delay of one month;<br/>– any other Bill can be delayed by one year by the House of Lords.<br/>Statutes take the form of Acts of Parliament or delegated legislation. Delegated legislation is of particular importance. Generally<br/>speaking, delegated legislation is law made by some person or body to whom Parliament has delegated its general law making<br/>power. A validly enacted piece of delegated legislation has the same legal force and effect as the Act of Parliament under<br/>which it is enacted but, equally, it only has effect to the extent that its enabling Act authorises it and anything done in excess<br/>of, or contrary to, that authority may be challenged in the courts as ultra vires through an action for judicial review.<br/>Within countries with written constitutions there is usually a limitation placed on the power of the legislature to make law, in<br/>that it cannot make laws which are contrary to, or in conflict with, the fundamental provisions of the constitution. In the<br/>United Kingdom, due to the doctrine of Parliamentary Sovereignty, legislation is superior to the common law, and the courts<br/>cannot strike down primary legislation, although, under the Human Rights Act 1998, they can declare that such law is<br/>incompatible with the rights contained in the European Convention on Human Rights. Legislation is published in the form of<br/>individual Acts and collectively in annual volumes.<br/>The courts exercise the essential task of interpreting statutes in such a way as to give them effect. In so doing the courts make<br/>use of the three main rules of interpretation:<br/>– the literal rule, (see R v Maginnis (1987) and AG’s Reference (No 1 of 1988) (1989))<br/>– the golden rule (see Re Sigsworth (1935))<br/>– the mischief rule (see Heydon’s case (1584) and Corkery v Carpenter (1950)).</p><p></p> 多谢~~~ TKS 3ks 谢谢 iayou zz 333 谢谢页:
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