The English Legal System Law General Essay

Published Date: 02 Nov 2017

Introduction----------------------------------------------------------------------------------------- (3)

LO3: Be able to evaluate the different sources of law.

Evaluate the current day importance of the sources of law -----------------------(3 - 5)

Analyse the application of the sources of law in live situations ---------------------(6)

Assess the effectiveness of the rules of interpretation -----------------------------(7 - 8)

LO4: Be able to select an appropriate legal entity.

Evaluate the legal principles -------------------------------------------------------------(9-10)

Justify your choice of legal entity ---------------------------------------------------------(10)

Conclusion-------------------------------------------------------------------------------------------(11)

Introduction:

This essay looks at the different ways in which Law is made, and it evaluates the importance of the sources of law in current days. Finally, the essay considers the legal formalities required for the formation of different business entities, their management and dissolution.

Evaluate the current day importance of the sources of law

The rule of judicial precedent stands upon the principle of stare decisis, which means

‘to stand by what has been decided’. Within judicial precedent, legal principle made by

judiciary in the superior courts and put a precedent to be followed by all courts it in

future cases that have similar fact. The system required court hierarchy, ratio

decidendi, Obiter dicta and law reports.

The European Courts of Justice (ECJ) is not a part of the English court hierarchy. See (Appendix1). The House of Lords is placed at the top of the English court hierarchy and its decisions are compulsory to all inferior courts. Since 1966, the HL considered itself as bound by its prior decisions, but the prior decision was made per incuriam. See (Appendix 2). In "London Tramways v London County Council (1898)" (Slapper and Kelly, 2011) a prior decision was made without a suggestion to an appropriate Act of Parliament and this was approach as stated by the HL. In the 1966 Practice Statement issued by the HL, Lord Chancellor said that in the future the HL would be free to leave its own prior decision, where it appeared right to do so. See (Appendix 3). The court of Appeal (CA) is below the HL in the courts hierarchy. It is limited by the decision of the HL. Decisions of the Civil Division are binding on all the courts below it in civil cases and decisions of the Criminal Division are binding on all the courts below it in criminal cases. As general rule the CA is bound by its own previous decisions.

However, in "Young v Bristol Aeroplane (1944)" (Twining and Miers, 2010), the CA listed the situation where it could reject to follow one of its own previous decisions: see (Appendix 4). The Criminal Division of CA considers the previous decision if it is wrong and will do injustice to the defendant. It is important because it is more flexible where the aim involves the freedom of the subject. The idea was first recognised in the case of "R v Taylor (1950)" (Twining and Miers, 2010).

The High Court is a court of first instance and an appeal court. Lower courts and High Court itself are bound by decisions made in appeal cases in the Divisional Courts of the High Court. The inferior courts do not set binding precedent, although the decisions of the Crown Court are persuasive because they are not recorded in the law reports.

The legal principle, which the decision of the court is found, is known as the ratio decidendi - ‘the reason for deciding’. In each case, the judge listens to the legal opinion put forward by the parties, comes to the decision and explains the legal reason for the decision. Also it will be followed in future cases of similar fact by the same court and all lower courts see (Appendix 5).

Obiter dicta are things said ‘by the way’. In the judgement the judge may discuss not only the ratio decidendi but other matters. see (Appendix 6). Obiter dicta are important because they are persuasive precedent. A persuasive precedent may be followed by judges in future cases of similar fact if they choose so. For example, decisions of the Court of Appeal may be followed by the HL in later cases of similar fact. Decisions of other countries such as commonwealth countries are convincing because these countries have legal systems based on the English legal system.

Law report is important to the operation of the doctrine of precedent that accurate records be kept of the decisions of the superior courts, because it must be made possible for the binding and persuasive precedent to be found. Law reports become more general when the ‘Incorporated Council of Law Reporting (1865)’ was established. Law reports are very important because by looking at previous cases judges can solve future cases.

In addition, there are some ways which the judges in courts may use to depart from a precedent. Distinguishing is the key tool used by the judges in all courts to avoid a binding precedent. No two cases are exactly the same. It is important because judges may distinguish the case on its facts and it makes a second binding precedent and the pervious precedent remains binding in cases of similar fact. See (Appendix 7)

The advantages of judicial precedents are consistency, predictability and flexibility.

The disadvantages of judicial precedents are complexity, uncertainty, rigidity and they can be undemocratic. See (Appendix 8)

On the other hand, most law is now covered by legislation approved by Parliament. Case law has constantly been minor to Parliamentary law because of the rule of Parliamentary sovereignty. As a result Parliament is not limited by the courts or by its individual past decision. Most of legislation is secondary or delegated legislation which is approved by the executive under statutory power. However, after approval of the "European Communities Act 1972", European law has taken priority over domestic law. See (Appendix 9)

3.2 Analyse the application of the sources of law in live situations

Judges use sources of law to solve cases. For example, here is case about a man

who sexually abused a young girl, and threatened her with verbal violence, and after a

trial he was jailed for six years. See history of the case in (Appendix 10).

Referring to the above case, the judge decided that according to Sexual Offence Act 2003, the defendant was charged with sexual abuse and the judge used law reports and gave reason and applied to in case of "Mohan (1976)", according to this case Mr Goss committed an offence when he intentionally touched the child and the touching was sexual, see (Appendix 11).

In addition to it, the judge not only discussed the ratio decidendi but other matter (obiter dicta - persuasive precedent) and there was a similar solidarity of judicial precedent in excluding the evidence to prove that the victim was in fact sexually abused and the judge applied Mr Goss case to the case of "Commonwealth v Kenneth Joseph Hudson (1994)" because both cases had same fact. See (Appendix 12)

The defendant threatened the victim with verbal violence which is unlawful. The defendant assaulted the victim by verbal violence. An assault is not an actual touching, (that is battery). Also the defendant caused the victim to apprehend violence even though there was no physical contact between the defendant and the victim, but there was verbal violence and the victim was sufficiently frightened and again the judge referred Mr Goss case into the case of "Logdon (1976)". See (Appendix 13)

Finally, by looking at all the evidence, juries found that the defendant was guilty and by considering into Sexual Abused Act 2003 the punishment was given by the judge to the defendant.

3.3 Assess the effectiveness of the rules of interpretation

Judges also make law by means of Statutory Interpretation. "Statutory Interpretation is

the interpretation of Acts of Parliament by the judges" (E-Law Sources, 2012). Parliament creates law and judges apply that law in cases but sometimes it can cause problems for judges in the facts of the cases or when a drafting uncertainty exists in the act. The effectiveness of rules of interpretation is that it assists judges to interpret the Act in order to provide a correct outcome in the case. Three types of the rule of interpretation are as follow:

The Literal rule "is where words or phrases in an Act are given their ordinary or dictionary meaning" (BPP Personal Education, 2010). The advantages are that it respects the right of Parliament to make any laws; It also supports accuracy in drafting and promotes certainty. The disadvantages are that literal rule could unsuccessful to distinguish the language if it is unclear or if the words have different meanings in different contexts and it causes absurdities.

The Golden rule is "an extension of the literal rule" (BPP Personal Education, 2010). The advantages are that it avoids absurdities and lets the court look at the literal meaning of a word or phrase. The disadvantages are that it does not provide understandable means to test the existence of absurdity.

Under mischief rule the court looks at the gap in the law which parliament had felt it necessary to fill when passing the Act. It gives the court explanation for going behind the definite wording of the act in order to find the problem that the particular law was aimed at remedying.

There are certain materials both inside and outside the Act that judges can refer to which help them to interpret the words. These are known as aids to interpretation.

"Intrinsic aids are aids found within the Act" (E-Law Sources, 2012). See (Appendix 14). The effectiveness of intrinsic is that it may remind the court of what the Act is trying to achieve. However, it is useful as a guide to understand the provisions of the Act they refer to.

"Extrinsic aids are aids to interpretation found outside the Act" (E-Law Sources, 2012). The dictionary, Previous Act, report of law reform bodies, Hansard, international treaties, etc may be referred to find the accurate meaning of the words. They are useful aids when judges apply the mischief or purposive approach. For example, International Treaty is particularly useful when the judge is interpreting law made to give effect to the provisions of that International Treaty and seeking to apply the purposive approach.

In addition to the four main rules explained earlier, there are other rules of language which are Esjudem Generis, Expressio Unius and Noscitur a Sociis. See (Appendix 15). An advantage of ejusdem rule is that it does not require the draftsman to write an exhaustive list of everything that is included. An advantage of nosictur rule is that there is no need for the draftsmen to foresee every particular circumstance.

An advantage of expressio rule is that a finite list is provided, which makes the outcome of the cases more predictable.

Evaluate the legal principles which influence choice of business entity in a given situation

The correct choice of business entity is one of the crucial decisions facing people in

the world. There are plenty entities to choose from and these are sole trader, partnerships and companies.

"A sole trader is a person carrying on business with total legal responsibility for his//her actions, neither as a partnership nor as a company" (BPP Personal Education, 2010). The sole trader is that it is easy to form; the business is controlled by sole trader and revenues come to the sole trade, but the owner may find it difficult to borrow money from banks and he/she has unlimited liability.

"A Limited Liability Partnership is a business incorporated at Companies House consisting of two or more persons who share the profits of that entity" (BPP Personal Education, 2010). Partnership includes its simple configuration and a good chance of increasing investment from more than one person.

"A company is an organisation of individuals formed by law and existing as a single entity or individual, with authorities and liability independent of its stockholders" (BPP Personal Education, 2010). There two types of companies Private Limited Company (Ltd) and Public limited company (Plc), see (Appendix 16). Companies can increase capital by selling stock and they can reduce the cost of benefits for employees.

There is substantial regulation involved in forming a company and trading as one, and these are promoter, registration procedures, memorandum and articles. See (Appendix 17). A separate legal entity may be set up in the case of a company or a limited liability company, to separate the actions of the entity from those of the individual or another company. In this case the company is liable for its taxes - not the owner, may be sued, and their assets are tracked separately. If the company is complained then the owners will not have their own possessions in danger unless those possessions bought with illegal income from the company.

A company director performs as a representative and he/she has fiduciary duties towards the company. See director’s fiduciary duties in (Appendix 18). Directors also have legal duties which include: acting truthfully at all times and using sensible diligence in the secretions of duties. The directors are also in charge to ensure that all requirements are complied with holding of business meetings, recording minutes of all meetings, appointment of first assessor and restriction or ban of confidential company.

Justify your choice of legal entity

Referring to scenario Sean and Shauna should choose limited liability partnership and

the reason for it is that they can share responsibilities, they can develop the strength, and minimise each one’s weaknesses, and it provides owners with limited liability.

The reasons why they should not choose partnership are disagreement and argument between the partners, as well as taxation, where both partners must pay tax each year. They should form Public Limited Company because by forming Plc their shares can be advertised and it can be sold through the stock exchange, the shareholders have limited liability and it gives them the opportunity to make acquisitions. The reason why they should not form Plc is because it can be expansive and can be complex to manage it effectively.

The third recommendation for them is to form Private Limited Company because by forming Ltd, both can take benefit of tax in addition to bounded liability. They can also benefit from continual substitutionary because the company is a legal entity itself, but on the contrary, the disadvantages are as follow: they may lose control, it is expensive and financial information must be published.

Conclusion:

Sources of law are a legal term that refers to the authorities by which law is made. There are number of different sources that are used to define the creation and force of law, but not all used equally. Some examples include legislation, statuary interpretation, delegate legislation, EU law, judiciary precedent etc. Business entity is very significant and one of the first decisions that business owners must tackle is how their business should be planned and operated and this can be done by selection a business entity. There are different forms of business entities and those are sole trader, partnerships and companies.