Sources and divisions of law
Definition of Law[modifica]
There isn't a universally accepted definition of law because any state have different concept but it is often defined in terms of rules and guidelines created by the state to enforce by the function of the state. The sanction as a means of enforcing obedience to such rules and guidelines. The regulate the way people behave in society and therefore create and preserve social order. One simple way of defining law is to say that law is concerned with the regulation of social conduct by the state.
The Law of the United Kingdom[modifica]
All legal system are basic issue o f law, but distinct legal jurisdictions have their own legal and political systems. The United kingdom is a costitutional monarchy and parliamentary democracy. It has three legal systems:
- English Law operating in England and Wales.
- Northern Ireland Law operating in Northern Ireland.
- Scots Law operating in Scotland.
While English and Northern Ireland Law are based on Common Law Principles made by judges through the system of Precedent, Scots Law is a Hybrid System based on Civil Law and Common Law.
English Common Law developed from Norma and Anglo-Saxon Customary Law, further refined by Case Law and Legislation. English Common Law is so called because it was the ancient king's law applied uniformly (commonly) throughout the kingdom of England by the time of Edward I (1300). It replaced the (Anglo-Saxon) "Regional" Customs and Laws of the former kingdoms after the Norman Conquest (1066) and was Judg-Made.
The Sources of Law[modifica]
UK law originates from legislative sources and judicial sources.
Legislation is the prime source of law. and consists in the declaration of legal rules by a competent authority. Legislation can have many purposes: to regulate, to authorize, to enable, to proscribe, to provide funds, to sanction, to grant, to declare or to restrict. A parliamentary legislature frames new laws, such as Acts of Parliament (or Primary Legislation), and amends or repeals old laws. The legislature may delegate law-making powers to lower bodies (Secondary Legislation). In the UK, such delegated legislation includes Statutory Instruments, Orders in Council, & Bye-laws. Delegated legislation may be open to challenge for irregularity of process; and the legislature usually has the right to withdraw delegated powers if it sees fit. Until 2017 these sources of domestic law had to be added to the European Union law, but as a result of Brexit these sources will no longer have any revelation in the United Kingdom.
Judicial sources consist of:
- Judicial Precedent: is based on the doctrine of stare decisis, and mostly associated with jurisdictions based on the English common law, but the concept has been adopted in part by Civil Law systems. Precedent is the accumulated principles of law derived from centuries of decisions. Judgements passed by judges in important cases are recorded and become significant source of law. When there is no legislature on a particular point which arises in changing conditions, the judges depend on their own sense of right and wrong and decide the disputes from first principles. Authoritative precedent decisions become a guide in subsequent cases of a similar nature. The dictionary of English law defines a judicial precedent as a judgement or decision of a court of law cited as an authority for deciding a similar state of fact in the same manner or on the same principle or by analogy. Another definition declares precedent to be," a decision in a court of justice cited in support of a proposition for which it is desired to contend". Compared to other sources of law, precedent has the advantage of flexibility and adaptability, and may enable a judge to apply "justice" rather than "the law".
- Equity: is a source of law peculiar to England and Wales. Equity is the case law developed by the (now defunct) Court of Chancery. Equity prevails over common law, but its application is discretionary. Equity's main achievements are: trusts, charities, probate and equitable remedies. There are a number of equitable maxims, such as: “He who comes to equity must come with clean hands”.
The Judicial Precedent and the Equity are both subordinate to legislation, qhich means that if there is conflict, legislation will prevail. This unlimited power of Parliament results in the doctrine of parlimentary sovreignty, emphasising that Parliament has the supreme legal authority in the UK which can create or end any law, and the judges cannot challenge a parlament act but must interpret and enforce it.
The Creation of Statute Law[modifica]
Government proposals are set out in Green Papers or White Papers during the consulatatio period. A Green Paper is a tentative proposa issued by Governament Minister. Fallowing the Green Paper, the governament presents to Parliament a White Paper which is a definite proposal for legislation and signifies the governament's intention to enact new legislation.
The legislative proposal is set out in a draft legislation, known as a Bill, by lawyers called Parlamentary Counsels (Draftsmen).
Bills may start their passage in either the House of Commons or House of Lords, although bills which are mainly or entirely financial will start in the Commons. Each bill passes through the following stages:
Pre-legislative Scrutiny: Joint committee of both houses review the bill and vote on amendments that government can accept or reject. Reports are influential in later stages as rejected committee recommendations are revived to be voted on.
Committee Stage: A committee considers each clause of the bill, and may make amendments.
Report Stage: An opportunity to amend the bill. The House consider clauses to which amendments have been tabled.
Passage: The bill is then sent to the other House which may amend it.
Committee Stage: Same procedures
Report Stage: Same procedures
Passage: The bill is then returned to the original House.
Pre-legislative Scrutiny to consider all amendments.
The bill is then processed for Royal Assent from monarch, if accepted, the bill becomes an Act.
The Judicial Precedent (Case Law)[modifica]
In common law legal systems, a precedent, or authority, is a principle or rule established in a previous legal case that is either binding on or persuasive for a court or other tribunal when deciding subsequent cases with similar issues or facts. Common law legal systems place great value on deciding cases according to consistent principled rules so that similar facts will yield similar and predictable outcomes, and observance of precedent is the mechanism by which that goal is attained. The principle by which judges are bound to precedents is known as stare decisis. Black's Law Dictionary defines "precedent" as a "rule of law established for the first time by a court for a particular type of case and thereafter referred to in deciding similar cases". Common law precedent is a third kind of law, on equal footing with statutory law (statutes and codes enacted by legislative bodies), and delegated legislation (regulations promulgated by executive branch agencies).
Stare decisis is a legal principle by which judges are obligated to respect the precedent established by prior decisions. The words originate from the phrasing of the principle in the Latin maxim Stare decisis et non quieta movere: "to stand by decisions and not disturb the undisturbed" In a legal context, this means that courts should abide by precedent and not disturb settled matters. The principle can be divided into two components:
- A decision made by a superior court, or by the same court in an earlier decision, is binding precedent that the court itself and all its inferior courts must follow.
- A court may overturn its own precedent, but should do so only if there is a strong reason to do so, and even in that case, should be guided by principles from superior, lateral and inferior courts.
The second principle, regarding persuasive precedent, reflects the broad precedent guidance a court may draw upon in reaching all of its decisions.
Cause law is published by the most authoritative All England Law Reports, or by the Law Reports produced by the Incorporated Council of Law Reporting for England and Wales (ICLR). These include electronic resources, such as Westlaw, Lexis-Nexis, BAILII, and add to a variety of resources which support other modes of enquary into disputes heard by the courts, such as Academic Editions, Papers of Baristers and Judges, Newspaper Reporting, as well as Intedisciplinary Studies of Cases.
There are three main methods used by a judge to avoid a binding precedent that is difficult in the case being decided. They are:
- Distinguish: the judge finds that the material facts of the case for decision are sufficiently different from the previous precedent, and therefore departs from the precedent.
- Reversing: a court higher in the hierarchy overturns the decision of a lower court during the couse of the same case.
- Overruling: a court higher in the hierarchy reverses the decision of a lower court in a different case, and therefore creates a different decision on the same material facts in later cases.
Classification of Law[modifica]
In the United Kingdom, a distinction is made between:
- Public Law (lawyers: Criminal Law): is that part of law which governs relationships between individuals and the government, and those relationships between individuals which are of direct concern to society. Public law comprises:
- Costitutional Law: In modern states, constitutional law lays out the foundations of the state. Above all, it postulates the supremacy of law in the functioning of the state – the rule of law. Secondly, it sets out the form of government – how its different branches work, how they are elected or appointed, and the division of powers and responsibilities between them. Traditionally, the basic elements of government are the executive, the legislature and the judiciary. And thirdly, in describing what are the basic human rights, which must be protected for every person, and what further civil and political rights citizens have, it sets the fundamental borders to what any government must and must not do. In most jurisdictions, constitutional law is enshrined in a written document, the Constitution, sometimes together with amendments or other constitutional laws. In some countries, however, such a supreme entrenched written document does not exist for historical and political reasons – the Constitution of the United Kingdom is an unwritten one.
- Administrative Law: refers to the body of law which regulates bureaucratic managerial procedures and defines the powers of administrative agencies. These laws are enforced by the executive branch of a government rather than the judicial or legislative branches (if they are different in that particular jurisdiction). This body of law regulates international trade, manufacturing, pollution, taxation, and the like. This is sometimes seen as a subcategory of civil law and sometimes seen as public law as it deals with regulation and public institutions.
- Criminal Law (or Penal Law): involves the state imposing sanctions for defined crimes committed by individuals or businesses, so that society can achieve its brand of justice and a peaceable social order. This differs from civil law in that civil actions are disputes between two parties that are not of significant public concern.
- Civil Law (lawyers: Civil Law): is that part of a civil law legal system which is part of the jus commune that involves relationships between individuals, such as the law of contracts or torts (as it is called in the common law), and the law of obligations (as it is called in civil legal systems). It is to be distinguished from public law, which deals with relationships between both natural and artificial persons (i.e., organizations) and the state, including regulatory statutes, penal law and other law that affects the public order. In general terms, private law involves interactions between private citizens, whereas public law involves interrelations between the state and the general population. Civil law includes several areas such as:
- Contract Law: deals with the enforcement of legally binding agreements, the nature of the obligations undertaken by the parties, and the legal consequences of breaking contractual promises.
- Tort Law: provides remedy for a wrong done to a person, usually by payment of money.
- Property Law: deals with the rights which may arise in relation to the various form of ownership.
An area of law (such as the Law of Contract) have two main categories:
- Substantive Law: deals with the rules which govern individual rights andduties under the law.
- Procedural Law (or Adjective Law): defines the practice and procedure by which those rules are to be enforced when bringing a civil or criminal case to court.
According to the place of realization or application of the source of the law one can still distinguish:
- National (or Municipal) Law: is the law operative within a country. National (or Municipal) Law consisting of english public and private law.
- International Law: is the law operative outside a country. International law is usually subdivided into:
- Public International Law: regulate relationship between states.
- Private International Law: regulate relationship between individualls outside a country where there is a foreign element.
International Law is created in two main ways:
- Treaty: is political agreement between two or more states, and is binding on the nation states involved (called contracting states) if they have given their consent to be bound under international law.
- Custom: the coustom-derived term, customary law, describes the situation whereby states have adopted consistent practices towards a specific matter and have acted in this way outside of legal obligation.