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Term
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Definition
Where legal practices come from. what influences law etc..
Typically there are four, Precedents, Customs, Legislation, Statutory interpretaion |
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| What are the four common sources of law |
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Definition
| Precedents, Customs, Legislation and Statutory Interpretation |
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| In common law, decisions made that can be considered as precedents |
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| What is the basis of common law? |
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| Comes from King Henry II who decided to make law national and elevanting local customs to national levels, so that everyone was fairly adjudicated. Judges would decide cases, and through stare decisis, case law was made |
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| Refers to meticuously recording all enacted law in the history |
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| Doctrine that higher courts decisions are leglaly binding precedents to lower courst |
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| Substantive law is the statutory or written law that defines rights and duties, such as crimes and punishments (in the criminal law), civil rights and responsibilities in civil law. It is codified in legislated statutes or can be enacted through the initiative proces |
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| The machinery for enforcing substantive law, but just as important. Rules by which court hears case and by what method substantive law is made |
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| What comprises public law? |
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| Criminal law, adminstrative law, constitutional law |
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| what makes up private law? |
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| Centrally, contract law, tort law and property law |
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| what is a delict or tort? |
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Definition
| a behavior that has caused damages to another. However, though damages might be also incurred in criminal law, damages are not tried against in those courts, rather only criminal offenses |
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| What is the most common tort liability? |
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Definition
| Negligence, where tort law will allow compensation if agiven party acted without reason |
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| What is the difference between possesion and ownership? |
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| Possession entails intetion to possess an entity, and is a right in itself. It gives way to ownership, without evidence otherwise. Doesn't prove ownership. Ownership is defined as the person who has the best long term right to an entity. |
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| What is restitution? difference with compensation |
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| Restiution deals with gains based recovery, while compensation is loss based recoveries. The plaintiff will receive back whatever the defendant gained during contract. This differs from compensation where plaintiff is seeking to get back value from his losses |
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| What defines jurisdiction? |
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| Control in terms of geography and legal right |
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| Court's determination of a matter of law based on the issue presented in that particular case |
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| What is ration decidendi? |
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Definition
| means the rationale for the decision. Meant to counteract stare decisis to prove that not all similar cases are inherently binding but if the reasoning for both cases are the same, the precedent is binding. |
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| What is deontology?utilitarianims |
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Definition
| The morality of the action is based on its adherence to a rule, either social or legal. This differs from utlitarianism that posits that the most moral action is the one that gives the most benefit to the most people. |
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| What is the expediency principle? |
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Definition
| that the public prosecutor can choose to not prosecute because it is not in the benefit of the public, or in the benefit of the courts to prosecute, though someone may have commtted a criminal wrong. |
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| Montiesquie's three level political ssytem that stresses separation of power into judicial, legislative and executive. each have checks on each other, and the trust based or suscpicious system can derive from the trias politica |
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| A constitutional state where government power is constrained by the rule of law. Aimed to protect citizens by abritariness of certain laws |
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| A higer law, so basic that everyone shoud follow it. Non arbitrary, should be certain and predicatable. Based on moral principles, Committment to equality, upholding human rights, good governance, independent bodies that evaluate if rule of law is enforced, and the non retroactivity of law or punishment. |
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| What is strict liability? what situations is it enforced |
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Definition
| a person is legally responsible for the damage he/she has caused, regardless of fault, either negligence or tortuous intent. This is enforced in situations that are inherently dangerous, such as dealing with children. It causes deterrence from reckless behavior and tries to force possible defendants to take every possible precaution |
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| determination of causilty between damages and defendants actions. Use of legal test, "but for". I.e but for defendant's action, would damage have occurred. |
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| What is the role of mensrea in criminal cases? |
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Definition
| If the party has mensrea, or intention to murder, then is immediately seen as most serious state of mind an individual can take. |
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| What is subjective recklessness? |
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Definition
| Defendent did not cause the actions, but was reckless enough to have known the possibilties. |
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| What is gross negligence? |
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| serious carelessness, as compared to the reasonable person. However, functionally, seen as nothing more than a descriptive epithet. |
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| What is gross negligence? |
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Definition
| serious carelessness, as compared to the reasonable person. However, functionally, seen as nothing more than a descriptive epithet. |
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What is judicial review? What is its purpose?
What system would it be found in? |
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Definition
Legisaltive and executive actions are subject to review and invalidation by the judiciary. They must annul the acts of the state when it finds them incompatible with a higher authority, like the constitution. Example of the separation of power.
Mainly seen in sceptical systems, typically Common law of the US. |
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| Does the UK have judicial review? |
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| No, they rather believe in the supremacy of legislation |
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| IF a country doesn't believe in the supremacy of legislation, they likely use |
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| What is Internal Sovereignty? |
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| Relationship between a sovereign power and its own subjects. A central concern is legitimacy, i.e. by what right does a government exert its power. Presence of strong internal authority within a sovereign nation is crucial to maintain peace and order and minimization of violation of law. |
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