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What is the importance of public international law
Major Character of international law
Major Character of international law
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Where does law come from? Law has been defined in many ways by various leaders and thinkers but there is no universal definition. There are numerous sources and the English legal system adopts the rules derived from these various sources to form the English law. Sources of law include common law and equity, legislation, and international conventions such as the European Convention of Human Rights (ECHR). It must be noted that customs or constitutional conventions are not law. It is a common misconception that customs or conventions are law. The judiciary have repeatedly held that conventions are not law and thus are not binding. The case of Attorney General v Jonathan Cape Ltd aptly demonstrated this point as the court held that the convention of Parliamentary confidentiality is only a convention and does not carry any legal weight. Nevertheless, it is essential to understand what, and how, are sources of law created and what possible dangers may arise from these sources.
Common Law
Common law first came about during the reign of William the Conqueror who created a common set of laws which was binding on all in the land. In the 15th century, the Chancellor was given the responsibility of deciding cases and he subsequently created his own court, the Court of Chancery which decided cases based on equity. As a result of the Judicature Act 1873, common law and equity were merged into the same courts to ensure that one enhances, instead of opposing, the other. Consequently, the only distinction between common law and equity is the remedies available to litigants. Today, common law is regarded as case laws which are decisions made by judges in cases.
Common law is operated on two concepts of equal importance, namely the do...
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...e Human Rights Act 1998 Third Edition, 2006
Articles
T.H.Bingham ,’The European Convention on Human Rights: Time to Incorporate’ (1993) L.Q.R. 390
Table of cases
A-G v Jonathan Cape Ltd [1976] QB 752
Fitzpatrick v Sterling Housing Association Ltd [1999] 4 All ER 705
Miliangos v George Frank (Textiles) Ltd [1975] 3 WLR 758
R v Goldstein, R v Rimmington [2005] UKHL 63
R v R [1991] 4All ER 481
Royal College of Nursing v Department of Health and Social Security [1981] 2 WLR 279,CA
Table of statutes and other instruments
Statutes:
Abortion Act 1967 c87
European Communities Act c68
Human Rights Act 1998 c42
Interpretation Act 1978 c30
Judicature Act 1873 c66
Legislative and Regulatory Reform Act 2006 c51
Parliament Act 1949 c103
Public Interest Disclosure Act 1998 c23
European Legislation:
European Convention of Human Rights (1951)
Case law/Common law – body of law developed over time by higher courts. Laws are c...
Common law is the concept that some of the core principles that form the basis of the English legal system come from judges as opposed to Parliament, with rulings from case to case developing predicedent, which forces lower courts to follow princaples set by higher cores but allows higher courts to overrule the descisions of lower courts. This allows the courts, over time to refine law. The courts can even decide to ignore rulings when considering to set it as precident with enough justification, this allows rooms for special cases. As a drawback to common law, the courts are sometimes unwilling to overrule long standing precidents. Slapper,...
Parliamentary sovereignty, a core principle of the UK's constitution, essentially states that the Parliament is the ultimate legal authority, which possesses the power to create, modify or end any law. The judiciary cannot question its legislative competence, and a Parliament is not bound by former legislative provisions of earlier Parliaments. The ‘rule of law’ on the other hand, is a constitutional doctrine which primarily governs the operation of the legal system and the manner in which the powers of the state are exercised. However, since the Parliament is capable of making any law whatsoever, the concept of the rule of law poses a contradiction to the principle of parliamentary supremacy, entailing that Parliament is not bound by the Rule of Law, and it can exercise power arbitrarily.
Common law is “judge made-law” and “includes law by judges when they interpret law (lecture notes, 11/16)”. Common law authors trusted that “natural law was too abstract and theoretical for their pragmatic, concretely focused minds…simply out of touch with concrete human affairs (Coleman 593)”. Therefore, common law was developed.
Over the years, different jurisdictions had built their specific system of rules of conduct to govern behaviour. These legal systems, influenced by historical and cultural roots, can be distinguished in two families, the Civil law and the Common law legal systems. The distinctions lies in the process in which each decision is make by the judge and on the legal sources that shapes the law. Indeed, by contrast to the Common law system, which is largely based on Precedents, meaning the decisions that have already been made by judges in similar cases, the Civil law system is based on legislator’s decisions and legal codes with which judges have to justify their judgment . Consequently, instead of referencing to concepts and rules
The concept of ‘the rule of law’ has been discussed by many. Professor Geoffrey Walker in his 1988 paper wrote ‘…most of the content of the rule of law can be summed up in two points: (1) that the people (including, one should add, the government) should be ruled by the law and obey it and (2) that the law should be such that people will be able (and, one should add, willing) to be guided by it’.
It was created with the idea that as the law was handed down from the King’s Courts, it represented the common custom of the people; Developing from three English Crown courts of the 12th and 13th centuries who started deciding in disputes were local or manorial courts had jurisdiction before: The Exchequer, The King’s Bench and the Common Pleas. Usually, there are no formal codes, texts or regulations that common law relies on
The rule of law, simply put, is a principle that no one is above the law. This means that there should be no leniency for a person because of peerage, sex, religion or financial standing. England and Wales do not have a written constitution therefore the Rule of Law, which along with the parliamentary Sovereignty was regarded by legal analyst A.C Dicey, as the pillars of the UK Constitution. The Rule of Law was said to be adopted as the “unwritten constitution of Great Britain”.
The meaning of English Legal System is stated out by Cownie and Bradley in the English Legal System book . There are many sources that build up the English Law as it is today. The main sources of English Law consist of Common Law, parliamentary legislation and delegated legislation. As stated in Gary Slapper & David Kelly’s English Legal System book , there are many different interpretations of the phrase ‘source of law’ where in this book the law is made up of three main sources; where in Martin Hunt’s “A” Level Law , though there are different sources that make up the English law, these sources are differentiated in two main categories with various minor sources.
There are three sources of the English legal system which are: European law, domestic legislation also known as acts of parliament and case law which is court made law. Out these three sources of the English legal system some are of greater importance than the others. As European law is a part of English law, there are bound to be conflicts between the two and I will go on to further discuss the manner in which the courts decide which law is superior, European or English law when a conflict does arise between the national law and European law.
It is derived from passed legislation. Common Law was first founded in England, and practiced mostly in english-speaking countries. A Common Law system is a system basically formed from old or precedent opinions and decisions of judges in higher courts rather than a parliament, which becomes law, or a role model for all other cases in other lower courts. Sometimes to much of restriction to precedent cases can result in a wrong or unjust decisions. The sources of law in public international law are not really different from judge made law in common law countries, because common law compared to the sources of public international law implements legislation, provides stability and consistency in the legal system, is flexible and allows changes in the law rules, and faster in response than law made by the parliament. However it is very strict, principle-based, not democratic as it is set by the judges in the court rather than the people, and legislation can easily override it anytime. So basically common law is very similar to the customary international law for example, since it is the law made by judges that take decisions through precedents, where lower courts refer to higher courts, and customary international law is an old set of rules and norms obligately enforced by a state on its individuals’ behaviour. So they are both flexible systems that depend on old and
The common law legal traditions emerged from Northern Europe during the middle ages. It was later spread throughout England (Kopp,2017), especially in areas settled and colonized by the English (UnNatrual Vids, 2017). Common law started when French invaders took over England in 1066, in hopes of having a centralized political system (Kopp, 2017). The French however, faced a series of
Legal philosophers have tried to provide a brief explanation for the meaning of law; however their definitions have been vague and ambiguous. John Austin explained law as ‘something which is man-made and separate from morality and justice, furthermore provided that law is compiled of series of commands of a political sovereignty and impose sanction on those who disobey them.’ Austin definition is one sided in a sense that it accommodate criminal law and exclude other forms of law. On the other hand the school of natural lawyers argues that law comes from the higher being and human laws must conform to higher standard of morality. Natural lawyers provide that law is valid if it has a certain moral content. We can explain law as set of rules that regulate human conduct and relationship between state and it also provide the manner in which state powers are constrained and exercised, However having said that we realise that law is normative and prescriptive; laws are enacted to facilitate different things in the society.
Societies need the help of rules to keep order and respect among its population. With the passing of years, the law, which was and is an indispensable tool to regulate peaceful coexistence within any country, has been changing for the purpose of adapting to the evolution of moral rules in the society. This fact enables all citizens of the same country to feel protected by same rules, most commonly known as laws. That is the reason why all people should be aware and understand how our society is regulated and what the rights and duties of ordinary citizens are. In this country, we find three principal sources of law: Statutes, which is legislation from the UK Parliament and devolved parliaments; common law, which is a law made based on the doctrine of judicial precedents and is the base of our legal system; and the European Union law. This latter one has the supremacy if it conflicts with the national law according to The European Communities Act, passed by Parliament in 1972. We will focus on Statutes and common law and will try to explain how common
Everyone know that Law is a system of rules which are developed in community with a aim to govern a society maintaining, justice, protect individuals and property. There are a lot of countries and they have own set of rules and norms including itself constitutional, criminal, contract, trust, international, tort, administrative and property. During the long time law improving and developing a lot and become more invulnerable and fair. Therefore, in a modern society and most of countries law has become similar with similar legal system. Nowadays there are several general types of legal system in the world and two main most popular of them, which had mostly spread through the world. They