Law 205 Study Guide PDF

Study Guide **[Definition]** **Parliamentary Democracy:** democratic form of government in which the party (or a coalition of parties) with the greatest representation in the parliament (legislature) forms the government **Scrutinize:** to examine something very carefully in order to discover inf...

Study Guide **[Definition]** **Parliamentary Democracy:** democratic form of government in which the party (or a coalition of parties) with the greatest representation in the parliament (legislature) forms the government **Scrutinize:** to examine something very carefully in order to discover information **Legislature:** lawmaking branch of a government **Written constitution**: it 1 document inflexible it difficult to change **Unwritten constitution:** Not found in 1 document flexible and easy to change **Convention**: Rule of good political behavior that has been developed over the year they are not laws. You can not be prosecuted for breaking a Convention. But they carry the force of all. One is expected to obey Convention **Vote of non-confidence:** a formal vote by which the members of a legislature or similar deliberative body indicate that they no longer support a leader government **Manifesto**: platform a contract from the government and the people **Modification**: the act or process of arranging something as laws or rules into a system **Lord Acton 1887**: "Power tends to corrupt and absolute power corrupts absolutely "=that an government shouldn't have all the power Separation of power **Custom**: An ancient rule of law, A law that based on the tradition, customs or norms of a community **Precedent:** A privource case or legal decisions that may be binding **Common law:** Year 1066(the battle of Hesting) **Time immemorial**: A time in the past that was so long ago that people have no knowledge or memory of -- year 1189 **Tort:** is a legal wrong. A claim based on a tort usually requires the claimant to establish that the defendant owed a 'duty of care' and that they broke that duty ex negligence, nuisance, defamation, misuse of private information **Stare decisis**: to stand by things decided **Ratio Decidendi:** A Latin phrase meaning the reason for a Judicial decision. It is used to refer to the legal grounds upon which the decision of a court is based. **Obiter Dicta:** A Latin term which means Things said by the way. The term refers to statements made by a judge on a point not directly relevant to the case before them. It will only be of persuasive authority. **Judicial Activism:** Judicial activism signifies the proactive role of the Judiciary in protecting the Rights of the citizens **Magna Carta**: The King is not above the law (The Rule of Law) - June 1213 **The Rule of law**: No one is above the law, everyone is object to the law **Jurisprudence:** The philosophy of law, the study that deals with the fundamental principles and various concepts of law. **Actus Reus**: action conduct, which is a constituent element of a crime, as opposed to the mental state of the accused (A physical action) **Mens Reas**: the intention or knowledge of wrongdoing that constitution part of a crime as opposed to the action or conduct of the accused. (A state of mind to commit a crime) **Eggshell Rule**: states a defendant in a person injury case will be responsible for the damage cause as -- is, even if the victim had a preexisting condition that made him or her predispose to serious injury **Maxims**: A set of general principles which are said to govern the way in which equity operates, illustrating the qualities of equity **Curia Regis:** kings court **Legislation** a law or set of laws suggested by a government and made official by a parliament: **White Paper**: are policy documents produced by the Government that set out their proposals for future legislation **Private Members bill** is a bill proposed introduced into a legislature by legislators who are not acting on behalf of the executive branch. **Money bills:** are public bills that in the opinion of the speaker deals with the in position, repeal, remission, alternative or regulation in taxation **Constrain**: compel or force (someone) to follow cause of action **Indicated**: to change with a crime by the finding or presentment of a jury **Preamble**: A preliminary or preparatory statement, an introduction **Bills**: State Laws **Bailiff**: is someone entrusted with the care and protection guardianship or justification of a person, land or individual property pending further in court action. **Restorative justice:** an approach to justice that seeks to repair harm by providing an oppunity for those harmed and those who take responsibility for the harm to communicate about and address their needs in the after math of the crime. **Due Process**: You have to give people the chance to do what is right **Ultra vives**: is Latin phrases meaning "beyond the process" Plainly means action by a computer or its agent that exceeds the legal scope of its authority **Habea Corpus**; An ancient common law writs issued by a court or judge directing one who hold another custody to produce the person before the court for some specific purpose **[Cases]** **Darcy Ryan** Wanted Bahamian citizen went through all the court even though winning wasn't granted citizenship **Perry Christe v Hubert Ingraham** About whom get the right to choose the independent senate **Donoghue v Stevenson** (the snail in the bottle case) Mrs. Donoghue went to a café with a friend who bought her ice cream and a bottle of ginger beer. The ginger beer contained a decomposed snail. Mrs. Donoghue suffered from personal injury due to this and proceeded to claim against the manufacturer which was successful and resulted in the establishment of the modern law of negligence and the neighbor test. **R v R (1991)** The defendant appeals his conviction for attempted rape on the grounds that a husband cannot rape his wife. The House of Lords overturned the old common law rule that marriage automatically gave consent for sexual intercourse and held that a husband could be convicted of rape or attempted rape of his wife where she withdrew her consent to intercourse. Divorce case **Belfast Corporation v. OD cars** **R v. Smith** Smith (S) stabbed B in a fight about B stealing his carpentry tools and killed him. He had a medical condition that made him react angrily to small provocations. The judge applied the Dip lock test, saying that the medical condition was relevant to deciding how serious the provocation was to him, but that it did not excuse him from exercising the self-control of a reasonable man. **Jersey v Holley** A man got drunk and had a row with his girlfriend who he killed. He pleaded provocation to be considered in light of his alcoholism. **R v Gotts** The appellant, a 16-year-old boy, was ordered by his father to kill his mother otherwise the father would shoot him. He stabbed his mother causing serious injuries, but she survived. He was charged with attempted murder and the trial judge ruled that the defense of duress was not available to him. He pleaded guilty and then appealed to the judge's ruling. The House of Lords followed the obiter dicta statement from R v Howe & Bannister and held that the defense of duress was not available for attempted murder. Hedley Bryne v Heller **Fitzpatrick v. Sterling** Mr. Martin Fitzpatrick, the appellant, lived with Mr. Thompson in a flat from 1976 until the latter's death in 1994. Mr. Fitzpatrick claimed that he was entitled to succeed the tenancy as a surviving spouse or a member of Mr. Thompson's family. However, the County Court judge and the Court of Appeal both held that he could not succeed under either claim. The House of Lords was then tasked with determining whether a same-sex partner could be considered a member of the other partner's family for the purposes of the Rent Act legislation **London Tramway v. London County Council** The House of Lords say that they cannot overrule an earlier decision of another House of Lords where the latter judgment was recent in time. "That is a principle which has been, I believe, without any real decision to the contrary, established now for some centuries, and I am therefore of opinion that in this case it is not competent for us to rehear and for counsel to reargue a question which has been recently decided **[West Minister Model of Parliamentary ]** Westminster system gets its name from the area in central London. It\'s a democratic system and it is used in Britain and its former colonies. The Colonial Law Validity Acts 1865 confirm the ability of the Westminster Parliament as the Superior power to make laws The commonwealth of the Bahamas is a parliamentary democracy. **[A typical Structure of the Westminster]** [Type] [Bicameral:] Senate, Legislative Council, House of Lords (upper House) House of Assembly (Lower House) Upper house is elected or appointed to approve or scrutinize law Lower house is elected to represent the people and initiate legislation [Head of state]: Monarch (sometime represented by governor general or ceremonial president.) appointed by the prime minister [Leadership] [Head of Government:] Prime minister in a sovereign state Chief minister in provinces, states or territories [General] [Government:] Executive ministers are chosen from members of the governing party or Coalition by the head of government [Opposition]: Led by the leader of the opposition. A shadow cabinet is formed out of the elected members of the largest party or coalition in the legislature not in government, chosen by the party leader (the leader of the opposition). After the election, the party with the most seat in parliament is invited by the Governor General to form a party 1964 Constitution, self-government Cabinet government: we are responsible for internal affair The Bahamas =Written constitution. Uk= Unwritten constitution 1967\. We had our first coalition party, so it was the same amount of seats. 18 18 seats. Two seat was independent labor and stand behind P.L.P **[Cabinet Government ]** Cabinet is a political convention, it's a secret, once it comes to agreement one cannot disagree. In a Cabinet government, if a government loses a vote of non-confidence in parliament, it must resign. **[Coalition Government ]** 1967 P.L.P -18. U.B.P -18 Independent party who one 1 seat: Ronald Fawkes (M. Labor) Alvin Bryne north Eleuthera (Speaker) they join the P.L.P so they could have the numbers 1968 -- General Election P.L.P win 29 seats U.B.P win 7 seats 2024 manifesto: Blueprint for change **[Members of Parliament that resign]** Hubert Ingraham. Brent Symonette Vaugh Miller Reece Chapman Andre Rollins. Tinnes Wells Greg Moss. Colton Francis Alfred Grey **Separation of Power** Senate Appointed Constitution: Article 39 (1)(2)(3)(4) \(1) Senate should consist of 16 members (2)9 seats (leading party) appointed by the G.G accordance w/ advice of the P.M \(3) 4 seats(opposition) appointed by the G.G accordance w/ advice of the l.O (4)3 seats(independence) appointed by the G.G accordance w/advice of the P.M after consultation with the L.O Perry Christe v. Hubert Ingraham **[The Nature of the Bahamian legal System ]** The laws started by custom by judges also known judge made laws **Sources of law** Laws may be defined as the rules that govern the behavior of human beings within a civilized society. Unlike scientific laws, which are discerned from observation of the material universe and are immutable. Two type of Source law is primary source and secondary Primary source of law are: - a. Legislation (Acts of Parliament or statutes, statutory instruments, Orders in Council etc.) 7 / 11 b. Case law (decisions of the higher courts, or "courts of record", which are binding on and must be followed and applied by less senior courts). Secondary sources of law are: - a\. textbooks and commentaries by legal writers, b\. the opinions of legal experts, and c\. decisions of the courts (of whatever seniority) of other (foreign) jurisdictions, **[Common law and statute]** Common law is the law declared by judges, derived from custom and precedent. It originated by king Henry the 2nd in the 12^th^ century. Common law is a system of law that is based on judicial decisions and precedent rather than on status or codes. Declared by judges on the basis of fundamental legal principles. 19^th^ century common law and equity system were merge into a single system **Problems in common law** - Obsession with procedural detail. A claim could - Fail because of a small mistake on the claim form - Limited remedies available damages - Bias - Set time limits Limitation Acts usually six years - Traditionally, the common law system was rigid and inflexible **[Equity (originated in court of chancellor)]** **1.A system of doctrine and procedures developed by the courts of chancery. Introduced the concept of fairness** **2.Flexible** **3.No strict time limits but delay defeats in**justice 4\. Equity is a legal system for obtaining a fair result when existing common law does not provide a solution. 5\. A set of legal principles that supplement strict rules of law where their application would operate harshly. 6\. It is primarily fairness or natural justice. Maxims of Equity **Benefits of Equity** Introduced the concept of fairness. Flexible Supplements the common law No strict time limits but delay defeats equity Remedies include rescission, specific performance And injunction If there is any conflict between the common law And equity, equity will prevail **Maxim in Equity** A set of general principles which are said to govern the way in which equity operates, illustrating the qualities of equity. ‣ In contrast to the common law, maxims are more flexible, responsive to the needs of the individual and more inclined to take account of the parties' conduct and worthiness.. None of the maxims is in the nature of a binding rule. Delays defeats equity **Steps in Equity** [Equity follows the law.] Equity operates within the framework of the existing legal system and seeks to supplement and assist the law rather than contradict it [He who seeks equity must do equity]. This Maxim emphasis that a party seeking equitable relief must come to the Court with "cleans hands " [Equity regards substances rather than forms.] Equity looks beyond technicalities and formalities to focus on the substances and merit of a case [Equity delights in equity]. Equity seeks to treat similarly situated individuals equally. These maxims of Equity serve as a guiding principle for judges in applying principles for judges in applying equitable remedies and ensuring fairness in the legal system. They help balance the rigid rules of common law with the flexibility and discretion of equity. Equity acts in persona Equity will not suffer a wrong to be without a remedy Equity does not punish Delay defeats Equity/ equity aids the vigilant not insolent Equity imputes an intention to fulfill an obligation Equity delights to do justice and do not by halves Equity will take jurisdiction to avoid multiplicity **[Civil law]** Civil law may be defined in opposition to three alternatives. 1\. Civil as opposed to criminal law. 2\. Civil in the sense of secular law, as opposed to ecclesiastical or other forms of religious law. 3\. Civil law as a legal system, based on a code of laws (such as the Code Napoleon developed in France), as opposed to the common law system, based on the doctrine of precedent **Type of civil law** - Contract. Revenue law - Tort. Intellectual property law - Company law Media and communication law - Family Law and the Court of Protection Three Type of Precedent - Original precedent- Ratio decidendi - Binding precedent - Persuasive precedent -- obiter dicta **Original Precedent** Referring to the initial, new precedent to be set as there is no previous decision the judge to follow until that point in time. It means that there will be new set of the ratio decidendi to follow in the similar future Cases. Example Donoghue v. Stevenson (1932) RvR Fitzpatrick v. Sterling Housing Association **The binding precedent** Refers where the present case has to follow the previous decision when there is a sufficient similarity of the facts in the latter case and the previous decision was from the higher positioned court or the court in the same level. In other words, the inferior court is bound to follow the superior courts' decision when dealing with a similar case. Example: R v. Smith overruled by Jersey v Holley London v. London **Persuasive precedent** is more flexible about its sources. Although it is not binding to the Court hierarchy, judges can use precedent if necessary for the case or Sufficient reasoning. Persuasive precedent can be from treaties, decisions from the privy council and even law review articles within the right extent of reputation of the author and the relevance to the case. Example: R v. Gotts Belfast Corporation v. OD cars, Medley Bryne v Heller & Partners **Advantages and disadvantages of Precedent** Consistency Flexibility Clarity Certainty Practicality Disadvantages Can force judges to distinguish cases on Illogical grounds Limits courts overall discretion Difficulties in understanding hard to apply **Judges can avoid ruling in several ways.** Distinguishing Reversing Over-Ruling **Meaning of law** Term law has been derived from the Latin term 'Legam' which means the body of rules Generally, the term law is used to mean three things: **Legal Order**: Firstly, it is used to mean 'legal order'. It represents the regime of adjusting relations, and ordering conduct by the systematic application of the force of organized political society. **Legal Precepts:** Secondly, law means the whole body of legal precepts which exist in an organized political society. **Official Control**: Thirdly, law is used to mean all official control in an organized political society. **Definition of Law** **Idealistic Definitions**: Romans and other ancient jurists defined law in its idealistic nature. [John Salmond], "the law may be defined as body of principles, recognized and applied by the State in the administration of justice". [According to Gray]-, "the law of the state or of any organized body of men is composed of the rules which the courts, that is the judicial organ of the body lays down for the determination of le gal rights and duties." Laws made by legislators are "dead words" of statute, and courts put life into them through judicial interpretation **Definitions of Positivists view of law** [Austin]: Austin defined law as a command of sovereign backed by sanction. According to him there are three elements of law, i.e. · Command, · Duty · Sanction. Thus, every law has a command and due to this command, we have a duty to obey this command and if we don't obey this command, then there is a sanction. **Definition of Historical School of Law:** The chief exponent of the Historical school is Van Savigny. Historical jurisprudence (the study, knowledge, or science of law) examines the manner or growth of a legal system. He says that the law is not the product of direct legislation but is due to the silent growth of customs i.e., Common law. He says that law **Definition of Sociological School of Law:** This school defines the law on the basis of its effect on law and society and vice versa Rudolf Ihering definition of law: He says that law is a means to an end and the end of law is to serve its purpose which is social and not individual. Social Utilitarianism for the welfare of the state. **Realistic definition of Law:** It studies law as it is in its actual working and effects. ·Holmes J. considered the law to be part of judicial process. He says, "the Prophesies of what the courts will do, in fact and nothing more pretentions, are what I mean by law". It would thus be seen that no single definition of law can be treated as satisfactory because law is ever changing in the dynamic fiber of its inherent element. **[Nature or Basic Features of Law]** **Generality: -** Law is a general rule of conduct **Normativity: -** Law does not simply describe or express the human conduct it is made to control - Permissive Law - Directive Law - Prohibitive Law **Sanction: -** Each and every member of society is required to follow the laws **[Rule of law introduction]** The rule of law is widely accepted to be a critical part of an effective constitution. Preamble main function: Is principle\'s function being to constraint government action in respect to the Separation of Power; ensure that no one is above the law (look in book for more information) Fundamental Right is Act 15 in the constitution **Under our Parliamentary Westminster the rule of law function in two ways** 1. The courts should interpert legislation in a way that gives effect to the rule of law 2. That the rule of law determines the validity of government action and some legislation **[Magana Carta ]** - No bailiff should prosecute without providing witness in evidence - Lawful imprisonment or exist requires judgement by one's peers in accordance with the law of the land - Rights of justice cannot be denied or delayed - Knowledge of the law must exist before it is enforced - Restorative justice should exist where one\'s land or liberties are removed without legal sentence of one's peer - Unjust illegal that the king had imposed should be repaid **Petition of Rights Act 1628** was a petition from the barons to the king to remind him of the principles of the rule of law **The Right of Habeas Corpus** is an essential feature of the rule of law and is not explicitly mentioned n Manga Carta but subject to much future legislation **The habeas Corpus Rights 1689** specifically legislated for the fact that\'s a detained was entitled to be brought before a court to subject his or her detention to judicial and hence legal scrutiny **The bill of Rights Act 1689** That law could not be made, repealed or suspended without the will of the parliament The crown could not manipulate the court system and subject were able to bring an action against the Monarch The Monarch and courts could not subvert the requirement of Hebeas corpus. The bills also set out the basic and Fundamental principals that determines the operation of the rule of law The scope of the rule of law remained vaguely defined during this period. Although procedures were delegated questions remained **D. Dicey and the Rule of Law** A.V. Dicey, Introduction to the Study of Law of the Constitution (1885; 10^th^ edn., Macmillan & Co., 1959) pp.187- 95. Dicey writing about the rule of law in the 19^th^ century still has significance in today's debates. For Dicey, the rule of law was a particularly British achievement, marking out the United Kingdom as superior to other countries. For Dicey the supremacy of the rule of law has three distinct though related conceptions. No individual can be punished except through the process of law and the courts. No one is above the law; this includes the Prime Minister who is subject to the ordinary law in the same way that other citizens are, The constitution is pervaded by the rule of law, since general principles of the constitution are the results of judicial decisions which determine the rights of private citizens. **Lord Bingham** The core of the existing principles is That all persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of laws publicly and prospectively promulgated and publicly administered in the courts'. Lord Bingham subsequently defined 7 sub-rules: 1. Law should be accessible, clear and predictable; 2.The law of the land should apply equally to all, except when objective difference requires differentiation; Public officials should exercise their powers in good faith, and not exceed their powers; The law must protect fundamental rights; A method should be provided, at reasonable cost, to resolve civil disputes; Adjudicative procedures must be provided by the state should be fair, The rule of law requires the state to comply with its obligations in international law. This list was adopted by the European Commission on Democracy Through Law in 201