LAW is a body of rules enacted by public officials in a legitimate manner and backed by the force of

the state. Rules and regulations provide predictability in the conduct of human affairs. Laws need to
be recognized by a governmental institution. The legitimate manner is what distinguishes legal
compulsion from terrorism or extortion. Lastly, failure to abide by the law leads to sanctions.

Newbauer Ch.2

Civil law
(also referred as to Roman law) is the oldest family of law, tracing its origins in the Roman Empire.
The starting point is the Code, the compilation of laws. It is a systematic collection of interrelated
articles written in a terse, it expresses rules of law as general principles phrased in abstract language.

It serves as source of law that provides answers for all disputes, rules will be interpreted broadly.
Therefore, judges and lawyers emphasize abstract concepts rather than concrete cases. In
interpreting the codes, judges reason deductively guided by the presumed intent of the drafters of
the code.

In contrast, the Common law approach emphasizes in precedent, previous court decisions are
considered to be sources of law.

In civil law, when searching for answers to a legal problem, lawyers and judges look to provisions of
the code rather than prior court decisions.

Distinctive features of civil law:

 Judges, not lawyers dominate court hearings. Thus, judges call witnesses and question them.
 Judges are career bureaucrats who have not been practicing lawyers.
 Juries are not used. Rether, mixed tribunals consisting of both judges and lay citizens are
used, but only for serious crimes.

Common law: also referred to as American law. Utilized in English-speaking nations like England,
Austria, New Zealand, Canada and the United States.

It traces its roots to medieval England. After the Norman Conquest of 1066, the new rules introduced
gradually a central governmental administration, including the establishment of courts of law. A
distinct body of national law began to develop during the reign of Henry II, who expanded the
jurisdiction of the royal courts, The king’s court applied the common custom of the entire realm
rather than the parochial traditions of a particular village.

Key characteristics of common law:

1. Judge-made law: it is judge made law rather than legislative enacted. Until the 19 th century
there wasn’t a body of statutory law, so it developed a system of law from judicial decision
on a case-by-case method. By the end of the 19th century, unofficial reports of cases were
published in annual year books and served as source of precedent. Judges formulated most
of the rules of law.

2. Precedent: it is a court decision that serves as authority for deciding a similar question of law
in later case with similar facts. Precedent is also referred to as stare decisis. They are
stablished in appellate court opinion, which discuss the legal questions in the case and
 examine previous court decisions. In other words, the court decides that a certain rule of law
applies to the given factual situation and renders a decision accordingly. The rule of law as
applied to the case constitutes precedent.
Sometimes, in their opinions, court make comments that go beyond what is necessary to
decide the case, those expressions are called orbiter dicta. They have no value as precedent,
but they are often good guides to how a court will decide future similar cases. Reliance on
precedent is central to the common law’s approach to problem solving.

Common law is inductive reasoning, while civil law is deductive reasoning. In

common law, broad rules and policy directives emerge through the accumulation
of court decisions.
3. Uncodified rules and regulations: the law emerges through precedent found in court
decisions.

*Templeman ch. 3:

The Doctrine of binding precedent or stare decisis is that any previous court decision, depending
upon its position in the hierarchy of courts, is binding on a subsequent judge who is dealing with a
case which is not reasonable distinguishable from that previous decision.

The doctrine arises out of the rule that it is not the function of a judge to make law but to decide
cases in accordance with the law as it exists. It is the statement of law made by the judge in his
judgement which may be binding. Such statements may be either “ratio dicidendi” or “orbiter dicta”.

1. Only pronouncements of law can be ratio.

2. Only those reasons which are necessary to reach the decision in the particular case can be
ratio.

Hierarchy of the courts:

1. House of Lords
2. Court of Appeals (Civil Division)
3. Court of Appeals (Criminal Division)
4. High Court
5. County Court
6. Magistrate’s courts and all others

2 kinds of precedent:

Binding precedent: where the judge is bound to apply the legal rule enunciated in the earlier case.

Persuasive precedent: it is not enforceable, the judge will follow the earlier decision but may refuse
to be persuaded if he chooses.
 For example: the High Court is bound to follow the House of Lords. The Court of Appeals (Criminal Division)
may choose to follow its own decision in an earlier case, though it will always give it serious consideration
as a persuasive precedent.

* The ratio dicidendi: under the doctrine of judicial precedent, a judge trying a case may be obliged
to apply a legal principle laid down in an earlier case.

1. The ratio dicidendi must be a legal principle.

 2. Only that principle of law which was applied by the judge in the case cab ne its ratio
dicidendi.

So, the ratio dicidendi in an earlier case may be binding or persuasive according to the status of the
court which tried the earlier case relative to that of the court trying the present case.

* Orbiter dictum (dicta is the plural): (hypothetical examples: if A would have done X, and B would
have done Y, then I would have said…) anything said in this way is not part of the ratio dicidendi, it is
orbiter dicta. Legal reasons or pronouncements which are not necessary for the decision in the case,
and hence, ae not ratio and not binding. It can only be persuasive precedent.

Both, ratio dicidendi and orbiter dicta apply only to statements about legal principles and not to
matters as the amount of money to be awarded for a particular injury.

Persuasive authority:

1. Orbiter dicta
2. Recommendations of the Privy Council.
3. Decisions of courts of Commonwealth jurisdictions
4. Decisions of Scottish or Irish courts.
5. Decisions of courts inferior to that hearing the case.

WAYS OF AVOIDING PRECEDENT: A court may refuse to follow an earlier decision if applying the old
precedent in the new case is considered to cause an injustice. So they can:

 Reverse the decision of a lower court if the party who lost appeals to a higher court, and that
court says that the ratio dicidendi of the lower court’s decision was unsound. So, a higher
court overturns the decision of a lower court on appeal (in the same case) bc it disagrees
with it, and then reverses it.
 Overrule: when higher court trying an entirely different and separate case decides not to
follow a previous decision of a lower court because it thinks it has been wrongly decided, so
it is no longer good law and is no longer binding. (A higher court overturns and changes the
precedent).
 Distinguish: When court points differences between the facts in the earlier case and those in
the present case, and, in view of such difference, the precedent set earlier is not binding
(because its ratio dicidendi was based on different facts).
 The court may say that the earlier decision was made per incuriam (through lack of care).
Meaning that that something of relevance was not brought to the earlier judge’s attention.

Advantages and disadvantages of Precedent:

1. Certainty: as judges follow earlier decisions one can predict the outcome of the case. So,
people can find out what their rights and duties are without the expense of going to court.
2. Room for growth: by way of original precedent. In this way, the common law can evolve and
develop in line with changed social standards, economic and cultural developments.
3. Practical nature.
4. Scope for detail: if there were only a formal legal code, there would be great difficulty
caused by the arrival of unforeseen situations.

Disadvantages:

1. Rigidity: which fetters the judge’s discretion in individual cases.

 2. Sophistry: which allows a judge to magnify the smallest distinction between the facts of
2 cases so as to distinguish the precedents

Complexity: there are hundreds of volumes containing reports of individual cases.

SOURCES OF LAW:

How statutes are made: Every statute starts as a bill (a proposed new Act). Before being a statute, it
must be approved by both Houses of Parliament (the Commons and the Lords), and by the King. In
practice, once both Houses of Parliament have passed the bill the King’s approval (known as Royal
Assent) is automatic.

Delegated legislation: consist of bodies or local authorities which are given power and responsibility
by the Parliament to make regulations, as Parliament cannot find time to attend every minor detail.
In this way, Parliament is able in an Act to provide a framework and to leave the local authority or
other group to fill in the details.

Examples or this are: the Order in Council, which is an order of the Privy Council. Other forms of
delegated legislation are the statutory instrument, made by a minister, and bye-laws made by local
authorities and organizations.

Disadvantages of delegated legislation: in practice, most delegated legislation is prepared by civil

servants and then “rubber-stamped” by the elected representatives, it allows the non-elected civil
servants to legislate. Although Parliament retain some control over the making of delegated
legislation.

Another disadvantage is the sheer number of statutory instruments made each year. It is difficult for
the man in the street to ne aware of all of them.

Advantages of delegated legislation: It allows Parliament to devote itself to the major and nationally
important tasks of government. Moreover, it allows local authority to make detailed regulations
quickly and then, to keep those regulations under constant review.

Control over delegated legislation is exercised by the Parliament and by the courts.

Interpretation of statutes and delegated legislation: the Interpretation Act 1978 lays down many
rules for interpreting Acts of Parliament:

1. The Literal Rule

2. The Golden Rule
3. The Mischief Rule

COMMON LAW AN EQUITY:

Maxims of Equity:

1. Equity follows the law: if a case is covered by a common-law rule, equity will apply that rule.
2. Whoever seeks equity must do equity: anyone who wishes to be treated fairly must treat
others fairly.
3. Whoever comes to equity must come with clean hands : the plaintiff must have acted fairly
and honestly.
 4. Equality is equity: if property owned jointly is to be divided among rival claimants, equity
will favor equal shares.
5. Equity looks to the intent rather than the form: Equity will look to what the parties intended
rather than legal technicalities/the wording of any document they have signed.
6. Equity will noy suffer a wrong to be without a remedy: Equitable relief will be awarded
when there is no adequate remedy at law.

THE SEPARATION OF POWERS

The separation of powers, together with the rule of law and parliamentary sovereignty, runs like a
thread throughout the constitution of the United Kingdom. It is a doctrine which is fundamental to
the organization of a state – and to the concept of constitutionalism –as it prescribes the
appropriate allocation of powers, and the limits of those powers, to differing institutions.

In any state, three essential bodies exist: the executive, the le

gislature and the judiciary. It is the relationship between these bodies which must be evaluated
against the backcloth of the principle. The essence of the doctrine is that there should be a clear
demarcation of personnel and functions between the three of them in order that none should have
excessive power and that there should be a system of checks and balances between the institutions.

The following relationships will be examined:

 the executive and the legislature

 the legislature and the judiciary
 the executive and the judiciary.

The Contemporary Doctrine

The separation of powers doctrine does not insist that there should be three institutions of
government operating in isolation from each other. Such an arrangement would be unworkable,
particularly under a constitution dominated by the sovereignty of Parliament.

THE SEPARATION OF POWERS

The separation of powers, together with the rule of law and parliamentary sovereignty, runs like a
thread throughout the constitution of the United Kingdom. It is a doctrine which is fundamental to
the organization of a state – and to the concept of constitutionalism –as it prescribes the
appropriate allocation of powers, and the limits of those powers, to differing institutions.
In any state, three essential bodies exist: the executive, the legislature and the judiciary. It is the
relationship between these bodies which must be evaluated against the backcloth of the principle.
The essence of the doctrine is that there should be a clear demarcation of personnel and functions
between the three of them in order that none should have excessive power and that there should
be a system of checks and balances between the institutions.

The following relationships will be examined:

 the executive and the legislature

 the legislature and the judiciary
 the executive and the judiciary.

The Contemporary Doctrine

The separation of powers doctrine does not insist that there should be three institutions of
government operating in isolation. It would be unworkable, specially under a constitution dominated
by the sovereignty of Parliament. It is essential that there be a sufficient interplay between each
institution of the state. For example, it is for the executive to propose legislation for Parliament’s
approval. Once passed into law, Acts of Parliament are upheld by the judiciary. A complete
separation of the three institutions could result in legal and constitutional deadlock. Rather than a
pure separation of powers, the concept insists that the primary functions of the state should be
allocated clearly and that there should be checks to ensure that no institution encroaches upon the
functions of the other.
If constitutional arrangements within a state are considered, a range of possibilities exists:

(a) absolute power residing in one person or body exercising the three powers: no
separation of powers.
(b) power being diffused between three separate bodies exercising separate functions
with no overlaps: pure separation of powers.
(c) powers and personnel being largely separated with checks and balances in the
system to prevent abuse: mixed government and weak separation of powers.

The executive
The branch of the state which formulates policy and is responsible for its execution. In formal terms,
the sovereign is the head of the executive. The Prime Minister, Cabinet and other ministers, for the
most part, are elected Members of Parliament. In addition, the Civil Service, local authorities, police
and armed forces, constitute the executive in practical terms.

The legislature
The Queen in Parliament is the sovereign law- making body within the United Kingdom. Formally
expressed, Parliament comprises the Queen, House of Lords and House of Commons.

All Bills must be passed by each House and receive royal assent. Parliament is bicameral, that is to
say there are two chambers, each exercising a legislative role and ensuring the accountability of the
government.

The membership of the House of Lords is not secured by election and is not accountable in any
direct sense to the electorate.
The House of Commons is directly elected, and a parliamentary term is limited under the Parliament
Act 1911 to a maximum of five years. Under the Fixed- term Parliaments Act 2011, each Parliament
(with limited exceptions) lasts for five years.

The House is made up of the governing party:

 The political party which secures the highest number of seats at the election, and the
opposition parties.
 The opposition parties comprise the remainder of the now 650 Members of Parliament.
 The official Opposition is the party which represents the second largest party in terms of
elected members.

In principle, the role of the official Opposition is to act as a government in waiting, ready at any time
to take office should the government be forced out of office.

The judiciary
That branch of the state which adjudicates upon conflicts between state institutions, between state
and individual, and between individuals. The judiciary is independent of both Parliament and the
executive. Judicial independence is of prime importance both in relation to government according to
law and in the protection of the rights and freedoms of the citizen against the executive.

However, while a high degree of judicial independence is secured under the constitution, there are several
aspects of the judicial function which reveal an overlap between the judiciary, Parliament and the executive.