Exam questions for second year students (winter)

Колотовкина Женя 1. What are the major/minor sources of English law?

The word source primarily describes the means by which the law comes into existence.

English law stems from 7 main sources, divided into 2 groups:

1.Major sources of law

- Case law- a mass of judge-made decisions which lays down rules to be followed in future cases. It is the basis of English law today.

- Statutes- Acts of Parliament- the source of most major changes in the law.

- Delegated legislation is a related source, laying down detailed rules made to implement the broader provisions of statutes.

- Before Brexit an increasingly important source of law was the legislation of the European Community, which was the only type of law that could take precedence over statutes in the UK and was increasingly influencing the decisions of the courts in interpreting statutes. But now it has no legal effect.

2. Minor sources of law

- Customs, equity, and obligations relating to international treaties.

Женя 2. How did common law originate? Speak about the main principles of common law (stare decisis, hierarchy of precedents, ratio decidendi, obiter dictum).

Before the Norman conquest, different areas of England were governed by different systems of laws. Each land was based largely on local customs, they varied from place to place. The king had a little control over the whole country.

When William the Conqueror gained the English throne in 1066, he established a strong central government and started to standardize the law. He sent out “Itinerant judges” to check local administration. When they returned to Westminster, they discussed local customs and started to form a consistent body of rules. During this process the principle of stare decisis grew up. The decision formed a rule to be followed in all similar cases.

The result of all this was that by about 1250, a “common law” had been produced that ruled the whole country.

The principles behind this “common law” are still used today in creating case law. From the basic idea of stare decisis-whenever a new problem of law came to be decided, the decision formed a rule to be followed in all similar cases, making the law more predictable-, a hierarchy of precedent grew up. A judge must follow decisions made in courts which are higher.

Case law comes from decisions made by judges in the case before them. In deciding a case, there are 2 basic tasks: (1) establishing what the facts are (2) how the law applies to those facts - it can make case law.

The explanation of the legal principles on which the decision is made is called the ratio decidendi – Latin for the 'reason for deciding'. It is this part of the judgment, known as binding precedent, which forms case law. All the parts of the judgment which do not form part of the ratio decidendi of the case are called obiter dicta – which is Latin for 'things said by the way'. It is a persuasive precedent.

Женя 3. Historical justification of Equity Law: what were the grounds for the establishment of the Court of Chancery and what was its further development?

Equity – set of legal principles, which were inspired by ideas of fairness and natural justice, law.

History.

A) Problems in common law.

• Writ. Litigants had to fit their circumstances to one of the available types of writ.

• Rigid – one remedy – damages. It was not always an adequate solution to every problem.

• Expensive.

B) Petitions to the King (fountain of justice). He had no time and desire to solve problems, so he sent petitions to the Chancellor.

C) Chancellor (clergy and documents). He started to make decisions on the cases.

D) Court of Chancery. He delivered a verdict based on his own moral view of the question. The Court could insist that relevant documents be disclosed. Provided new remedies.