The Nature of Law Papers 1, 2 and 3

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  • Created by: chloefyf3
  • Created on: 21-06-22 18:28
What is law?
a set of standards that enforce agreements and act as a way to sanction unacceptable behaviour
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What is the purpose of civil law?
to regulate private disputes between individuals
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What is the purpose of criminal law?
so the state can regulate the behaviour of individuals
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Who are the parties involved with civil law, include a case example?
claimant v defendant

Donoghue v Stevenson
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Who are the parties involved with criminal law, include a case example?
prosecution (the crown) v defence

R v Woollin
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Who is a civil case heard by?
a judge
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Who is a criminal case heard by?
magistrates, judge and jury
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What two courts are civil cases tried in?
county court
&
high court
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.What two courts are criminal cases tried in?
magistrates court
or
crown court (for more serious offences)
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What is the burden of proof in a civil case?
the claimant must prove their case
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What is the burden of proof in a criminal case?
the prosecution must prove its case
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What is the standard of proof required for a civil case?
on the balance of probabilities
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What is the standard of proof required for a criminal case?
beyond reasonable doubt
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What are the remedies involved with civil law?
damages (compensation)
or
an injunction
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What are the sanctions involved with criminal law?
prison

community sentence

fines

absolute discharge
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What areas of study are related to civil law?
tort law

human rights
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What areas of study are related to criminal law?
fatal & non fatal offences against the person

property offences
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What are the three principles of law?
1 - the rule of law

2 - the separation of powers

3 - parliamentary sovereignty
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What is the concept of the rule of law?
both citizens and their rulers e.g government, know the law and obey it
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What does the concept of the rule of law prevent?
anarchy or arbitrary government
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What are the six key aspects of the rule of law?
- nobody should be punished unless they have broken the law
- everybody is equal before the law
- the law must be ascertainable
- the law must be certain
- the law must guarantee civil liberties
- hearings must be impartial because everyone has the right
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Who proposed the theory of the separation of powers and in what book?
Montesquieu in 'the spirit of the law'
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What does the separation of powers mean?
the state's three branches should remain separate and the power distributed rather than being concentrated in one area
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What does the separation of powers prevent?
any single person / group of persons from becoming too powerful
&
branches interfering with the roles of other branches
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What are the three branches of the state and what is each of their role?
executive (prime minister + cabinet)
- propose law

judiciary (judges)
- apply law

legislature (parliament)
- pass law
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What case could be used as an example for separation of powers?
R v Miller (2017)
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What was the decision in R v Miller (2017)?
the Supreme Court ruled that the Government could not trigger Article 50 to start the process of leaving the European Union without an Act of Parliament
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What did the decision in R v Miller (2017) uphold and show the importance of?
upheld the separation of powers and the supremacy of parliament

shows the importance of an independent judiciary
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What is the idea of parliamentary sovereignty?
parliament is the supreme law making body and that parliament alone can make, amend, suspend or repeal the law
parliamentary law is superior to other types of law
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What constitutional historian outlined the sovereignty of Parliament and when?
A.V. Dicey
19th Century
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What three things did A.V. Dicey outline about parliamentary sovereignty?
1 - parliament can make / unmake any laws on any subject matter

2 - no parliament can be bound by any previous parliament, and can't pass any act that will bind a future parliament

3 - no other body has the right to override / set aside an act of parlia
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What are the four limits on parliamentary sovereignty?
- public opinion
- entrenched laws
- European Union law (brought into English law by European Communities Act 1972)
- European Convention on Human Rights incorporated by Human Rights Act 1998
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How can public opinion be expanded upon as a limit on parliamentary sovereignty?
parliament cannot create laws that the public will not tolerate

practical limit to law making power
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How can entrenched laws be expanded upon as a limit on parliamentary sovereignty?
some parliamentary laws clearly do bind successor parliaments

e.g difficult to repeal Scotland Act 1998 which devolved some powers to the Scottish Parliament
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How can European Union law (brought into English law by European Communities Act 1972) be expanded upon as a limit on parliamentary sovereignty?
parliament has been subject to EU laws for 40 years : means it has not be the dominant law maker since 1972
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How can European Convention on Human Rights incorporated by Human Rights Act 1998 be expanded upon as a limit on parliamentary sovereignty?
laws made since 2000 must be compatible with this convention

parliament must declare if making a law that is inconsistent with this convention

judges can declare acts to be incompatible with the convention
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What are the two types of sources of law?
statute law
&
common law
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What are the three types of statute law?
acts of parliament

delegated legislation

EU law
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What is an Act of Parliament?
laws made by parliament (house of commons, house of lords and the queen)

also known as primary legislation
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What is delegated legislation?
laws made by bodies other than parliament

parliament gives power to others

e.g local councils can make by-laws relating to their local area
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What is EU law?
law made by the European Union and applied in the UK

e.g Regulations and Directives

mostly relate to work and trade
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What are the three types of common law?
judicial precedent

custom

equity
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What is judicial precedent?
decisions made by judges in court cases that set a legal principle

judges interpret existing case law, common law and statute law
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What is custom?
laws derived from local customs and adopted into the common law
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What is equity?
a set of special rules based on fairness developed in the ancient court of chancery
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Other cards in this set

Card 2

Front

What is the purpose of civil law?

Back

to regulate private disputes between individuals

Card 3

Front

What is the purpose of criminal law?

Back

Preview of the front of card 3

Card 4

Front

Who are the parties involved with civil law, include a case example?

Back

Preview of the front of card 4

Card 5

Front

Who are the parties involved with criminal law, include a case example?

Back

Preview of the front of card 5
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