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Discovering the law and its sources - Coggle Diagram
Discovering the law and its sources
Ubi societas, ibi jus
- where there is society, there is law - meanings
The law is a human construct
Inevitable connection between societies and humans which underlines the inevitability of the law wherever these two elements exist
THE LAW
Capable of regulating behaviour - law’s aim is to shape, reshape, and standardises our behaviours
Rule -
regula
-
standard
of
conduct
and
evaluation
Rule -
regere
-
reg
- to
direct in a straight line
,
following
the
law means being in line
Established and regulated connections
Can give origin to connections, legal connections are created and maintained by the law (marriage)
Fundamental rights and freedoms are legal connections and relationships, created and regulated by the law
- example: Colombian Case of 2018
Binds us together
Unifying force
Lex
and
jus
- to tie together
Law: a
set of rules sharing distinguishing features laid down and accepted by society
Legal rules can be
Positive
Features of legal rules
Laid down -
positum
by those
entitled to legislate within a legal system - we need legitimate rule making powers and rule makers
Must be obeyed - the
law is prescriptive
General in character -
addressed to abstract categories creating a uniform set of standards of conduct and evaluation
If A (crime), then B (punishment) -
application of the law id a matter of interpretation
Case study - Bostock v. Clayton County 2020
Laws aren't self-effective -
strength of the law depends on non-legal factors
, this is why the law is fragile,
and on the regulatory process
(legi, exe and juri branches)
Hard
Rules other than legal ones
HARD
law
:
system of right or justice held to be common to all humans and derived from nature rather than from the rules of society
or positive law - pre-existing
Locke's natural law theory: there is a
moral law that is discoverable by the combined work of reason and sense experience, and binding on human beings in virtue of being decreed by God
SOFT
law
:
standards of behaviour having no legal or binding force
LAW MAKERS AND SOURCES
UK legal system law makers
Westminster parliament
Devolved parliaments - Scotland, Wales and north Ireland
Executive - government, ministers, treaties
EU, prior Brexit
American legal system law makers
ARTICLE 1, SECTION 8 - All
legislative power
shall be
vested
in a
Congress of the United States
ARTICLE 2 - The
executive power
shall be
vested in a President of the United States of America
. He
shall hold his office during the term of four years
, and, together with the Vice President, chosen for the same term, be elected
ARTICLE 3 - The
judicial power
of the United States, shall be
vested in one Supreme Court
, and in such
inferior courts
as the Congress
may from time to time ordain and establish
.
Sources of the law: refer to the
set of written and unwritten resources from which binding legal norms
are ’drawn’; the
sources do not contain information about the law, they constitute the law as they decide what counts as law
Can be divided into
ACT SOURCES
The
sources which are laid down in a deliberate way by a specific legal enactment
- material
Example: codified constitution, act of Parliament, law decrees, international treaties
FACT SOURCES
The
existence of sources emerges from the observation of practices and customs among lawyers
- immaterial
Examples: customs and the principle of supremacy
Organisation of sources of the law
SECONDARY source -
laws passed by public authorities, government itself
TERTIARY source -
customary law
PRIMARY source - statues or acts passed by parliament
HIGHEST - sources of
constitutional relevance
IMPORTANT: this
system is not set once and for all, it may change over time
Constitution's role
Identify law-makers and limits the legislative
Identify the sources of the law
To
limit
the
delegation of legislative powers/conferral of the regulatory power to other bodies by law-makers
SOURCES OF THE UK CONSTITUTION
Constitutional statues
Form the backbone of the UK's constitutional laws and have existed as long as there'd been parliament ->
Thorn v Sunderland City Council 2002
Judicial decisions - constitutional decisions include
Decisions about the respective powers of different institutions within the constitution
Legal questions about the exercise of power by the devolved bodies
Protection of rights under the Human Rights Act 1998
Judicial review of actions of the executive
Royal prerogative
Classed as a source of the constitution as it is an unwritten source of executive legal power, like the power to make treaties
PREROGATIVE POWER is
recognised by the common law but doesn’t derive from an Act of Parliament, rather, it stems from the historic powers of the monarch
(restricted through time and most are exercised by government ministers).
Refers to the
the remaining rights and powers of the Crown which they can exercise without the need for Parliament’s authority or approval
DICEY on royal prerogative power:
the residue of discretionary and arbitrary authority, which at any given time is legally left in the hands of the Crown
There is
no definite list of prerogative powers
and it is
unclear whether some still exist. Prerogative powers are residual, and as such, cannot be extended or created
Categories
PREROGATIVE POWERS EXERCISED BY THE QUEEN
Royal assent
- formality signifying monarch’s consent to new law
Queen’s consent
- where a Bill affects the monarchy’s interest (hereditary revenues), the Queen must consent the Bill being debated in Parliament otherwise the bill can’t proceed
Appointment of the PM and other ministers
- it is by convention rather than by actively doing so
Patronage
(the
granting of honours
) - Queen always awards the Order of the Garter and the Royal Victoria Order
The
summoning and prorogation of Parliament
Legal prerogatives of the Crown include the principle that the Crown can do no wrong, and that the crown is not bound by statues
save by express words or necessary implication. The Crown has the rights to access gold and silver across the UK
PREROGATIVE POWERS EXERCISED BY GOVERNMENT MINISTERS
Exercised by government ministers on behalf of the Crown
Prerogative
remains an important source of discretionary government power, enabling government to function efficiently
Its exercise can be reviewed by the courts and is regulated by constitutional conventions
Include:
foreign affairs, declaring war, defence of the realm (UK)
, recommending honours, administration of justice
Constitutional conventions
Political source of the constitution
They are
non-legal rules of political practice -> they aren't laws but they are binding on people who operate the constitution
The law and custom of Parliament
Referred to Parliament’s unique internal rules and procedures that regulate the conduct of its members and proceedings
(court can’t interfere with Parliament’s self-regulation)
International treaties
Oblique source of the constitution
Two theories about the relationship between domestic and international law
DUALISM - regards
international law and a state’s domestic law
as
two separate distinct legal systems
MONISM - international and national law systems
have an equal effect, both regulating the conduct of individuals in a state
IMPORTANT:
Due to Parliamentary sovereignty, an Act of Parliament is needed as a bridge between an international treaty and the UK’s domestic law before the treaty can have an effect within the UK
Authoritative works
In
absence of a codified set of constitutional rules judges must turn to written works of authoritative commentators on the constitution for guidance
, although they are
not a legal source of the constitution
EXECUTIVE POWER
Ministers' legal authority can derive from
ROYAL PREROGATIVE -
enables government to function efficiently and at speed
.
Issues with unwritten prerogative power
: where their
limits
lie,
potential to slip through the accountability net
COMMON LAW -
common law powers may authorise government action where the is no statutory or prerogative power
, extent and nature of powers -> matter of debate
STATUTE -
most government power is conferred by statute, including power to make secondary legislation
. Here we see
parliamentary sovereignty by granting powers to ministers through primary legislation
(parliament explicitly authorises ministerial action)
Restricting royal prerogative power
Prerogative power is
limited by: constitutional principles
(especially
parliamentary sovereignty
), and
common law principles developed in case law by courts
Prerogative power and parliamentary sovereignty -
courts have been keen to protect parliamentary sovereignty from encroachment by the royal prerogative and maintain the limits that parliamentary sovereignty places on it
Essential that royal prerogative power is inferior to statute and is a source of power which is only available for a case not covered by statute
-> two points flow: (1) parliament can abolish, change or limit prerogative power, and (2) minister can't alter UK domestic laws unless Parliament allows it
Bill of Right 1689, Parliament restricted royal power
prohibiting the monarch to raise taxes or making law.
Where a statute and prerogative power cover the same subject matter, and the statute has not expressly abolished the prerogative, the statute takes priority and the prerogative is suspended
(abeyance).
Before statute applies over prerogative power, it must do so in express words
Royal prerogative doesn't allow ministers to change statute law or common law unless an Act of Parliament allows it.
While ministers have the
prerogative power to enter and withdraw from treaties, they can't alter rights of individuals in domestic law.
Exercise of ministers prerogative powers must be consistent with the common law
Ministers don't have the right to use a treaty-making power to remove an important source of domestic law and rights
Ministers can't use prerogative power to give notice to withdraw from the EU without the prior authority of an Act of Parliament
Courts' control of prerogative power
Early
17th century
- COKE CJ -
King's prerogative powers -> limited. Held that the king couldn't dispense justice personally, only through judges. King could not longer change common law, statute, or custom by royal proclamation