Archive for April, 2010
The English Legal System: Why, How Laws are Made
THE ENGLISH LEGAL SYSTEM
Before one considers what laws are and how they are introduced into a society or a circumstance, it is necessary to consider…
WHY WE HAVE LAW
People’s behaviour, sometimes, may lead to generally undesirable outcomes, injurious to one or more others physically or as repugnant. People have sought to establish some rules, to enable the smooth functioning of the societies in which they live, of a kind that themselves can sanction to avoid chaos.
WHAT ARE LAWS
The set of rules that regulate behaviour are laws; and those that regulate human behavior in ways that they can be legally sanctioned if breached are men’s Legal Laws.
What the should be the basis of such rules, the extent of the limitations on man’s actions, who and how should decide and organize them, apply the sanctions -with what safeguards against injustice and as defined by whom and how, and the growth of society -necessitating variations of them, and other such considerations, are essentially, also part of Law.
There has been the Authoritarian View -that law’s intention should be to prevent wickedness, and the moral welfare of the society; and there has been the Libertarian View -that private morality and immorality is one’s own business and not of law: e.g., the Misrepresentations Act 1967.
THE AIM OF LAW
The Libertarian view has been mostly preferred, aiming to ensure two things:-
1. Primarily, with minimum conflict with natural law, rules for the survival of the society (e.g. regarding murder, theft -mostly criminal in nature), against human greed and aggression.
2. Secondarily, to make allowance for growth, and complex situations by way of…
a. A system of adjudication for the settling of e.g. mercantile disputes
b. A system of who and how to change the rules as and when necessary
c. A system of recognition of the primary rules themselves as legal rules.
In a non-complex society an elected body should make, and publicize, and sanction, above all, Criminal Law (rules intended primarily for a simple society with a unity of purpose which is, above all, survival -regarded as being best ensured by considering it most important that the norm should not be
deviated from, to enable cohesion and solidarity).
In a complex society there being no unity of purpose and the emphasis being on the interdependency of the members of the society, deviance would not be the most important consideration, and the purpose and the function of any law would be, chiefly, between conflicting individual interests, to maintain a reasonable balance, mostly by Civil Law -for which reason in e.g. European Law the interests of the individual are paramount to those of the state.
Classification of English Law is as being, both, affected by, and incorporating in part -and increasingly, international law; it comprises of…
INTERNATIONAL LAW and NATIONAL LAW
Britain must respect and meet the expectations of various international agreements in the application of its laws -whether binding on it or not, to maintain its political standing among other countries; and, often, such expectations are met by its own, voluntary, incorporating of such laws into English law. This is done, mostly, as a condition of its membership of the European Union, as and when it is directed by Europe -as in the case of the level of its water-purity and the European directive regarding a standard common to all member states of it, and as in the case of the requirement to treat as binding on itself e.g. the Single European Act 1986.
National Law, on the other hand, is that which is made by the state, for the state, and in Britain by its Parliament, intended, within the state, in this case within Britain alone -with variations for Scotland and Northern Ireland, to ensure the non-anarchic organizing and running of the society, in respects from less of consequence to those fundamental, increasingly as written-law, as:-
PRIVATE LAW and PUBLIC LAW
Private Law regulates the dealings of the individuals with each other within the state, under such headings as:-
Family Law, Tort, Property Law, Commercial Law
Family Law is a good example of the laws in this category; it deals with matters between individuals such as marriage, divorce, and matters arising as related rights -such as the custody of children, e.g. the Family Law Reform Act 1969.
Tort or Torts -as some prefer to call it (from the French word meaning wrong, or wrongs), is the private individual’s right -if without financial assistance from the state s/he can, not to be civilly wronged by another, sometimes by an organization, in respects not contractual, sometimes including such as, with a very fine distinguishing line, may fall short of being criminal ~e.g. negligence, or the Occupiers’ Liability Act 1957.
Property Law, also called Land Law, deals with matters of property, such as land that in practice is regarded as personal -although ‘all land belongs to the Crown’, and including matters of dispute over minerals under it and treasure trove, as well as dwellings on it and fittings, often dealt with by the Courts of Chancery -e.g., the Law of Property Act 1925.
Commercial Law comprises of laws of major importance in the dealings of individuals with others, such as:-
Mercantile Law, Consumer Law, and the Law of Contracts
Mercantile Law is the original body of laws that governed commercial dealings ~it was so called because it involved dealings of merchants with each other. As it developed, it concerned itself also with dealings between merchants and the consumer, and the occasional agreements between the individuals -which later grew into separate laws themselves. Almost exclusively, it deals with such matters as competition between traders, trademarks and patents, and e.g., bills of exchange under the Bills of Exchange Act 1982.
Consumer Law is from laws-merchant; it regulates the dealings of the individuals with merchants as to, e.g., the quality, and return, of goods purchased, deeming existent a collective contract between the consumers and any trader, as in the Sale of Goods Act 1977(as amended).
Contract Law is about the, not necessarily regular, agreements of individuals with others, on specific terms offered and accepted (unless under duress or by coercion), intending it to be legally binding, for consideration in return, e.g., under the Misrepresentations Act 1967.
This branch of the law governs the relationships between the state and other states, and between the individual and the state, under such major headings as:-
Constitutional Law, Administrative Law, Criminal Law
Constitutional Law is about the system, the framework, of who and how, and how come to, govern, by which laws how made and applied, as the state; e.g., the Parliaments Acts 1911, 1914.
Administrative Law defines and controls the limits of government, mostly protecting against absolute power, enabling complaints and appeals against the state -e.g., the Human Right Act 1998.
Criminal Law regulates such conduct of the individuals as are regarded to be against the society, actionably, punishably, by the state; e.g. Offences Against the Person Act 1861.
THE DIFFERENCE BETWEEN PUBLIC AND PRIVATE LAW
The differences are, mainly, these:-
Public Law are those categories of law, such as Administrative, Constitutional, Criminal, which involve the conduct of the state in relation to itself, or in relation to society generally, through one or more individuals, or the conduct of the individual against the society -mostly through one or more other individuals, in representing the society.
Private Law, i.e., Family, Tort, Property, Commercial -with its branches, chiefly, involves the state as only the arbitrator in personal or collective dealings between the individuals.
THE DIFFERENCE BETWEEN CRIMINAL LAW AND CIVIL LAW
IF IT IS CRIMINAL LAW…
1. It is Public Law
2. It is between the state and the individual or organization
3. The state (Crown Prosecution Service) complains, prosecutes)
4. It is registered as R –v- name of the accused (R = Rex/Regina –the monarch)
5. Proof is the states, beyond reasonable doubt
6. It is dealt with by Magistrates, or by Crown Court
7. It is Not Guilty or Guilty and a Sentence –imprisonment/community-service/fine and trial costs unless on legal assistance
IF IT IS CIVIL LAW…
1. It is Private Law
2. Its is between individual/s and/or organization/s
3. The individual/s or the organization sues
4. It is Complainant (plaintiff) –v- Defendant (their names)
5. Proof is on a balance of probabilities
6. It is dealt with by a County Court or the High Court
7. It is a Judgment and the winner is awarded a remedy and, normally, costs
THE LEGISLATIVE PROCESS IN ENGLAND
The Sources of English Law
Main sources of law in England are:-
1. Legislation -including Delegated Legislation…
2. Precedent (Judge-made law) -which mostly comprises of the Laws of England and Wales and as (differently) applied in Northern Ireland (the basis being same of the slightly differing Scottish Law -and of the laws of many countries of the British Commonwealth)…
3. European Union Law -which is increasingly becoming the major source of English Law (expecting compliance with also the European Convention on Human Rights -the enhanced version of the Universal Declaration of Human Rights) -e.g., the Human Rights Act 1998 (implemented in 2000) incorporated into English and all United Kingdom law.
The Legislator, is the Parliament.
The Parliament is the House of Commons, and, the House of Lords -with the Monarch.
The House of Commons are the elected representatives ~mostly from political parties -with committees and ‘whips’ (who deal, mostly, with the discipline of their members). By “the supremacy of Parliament”, in fact, is meant the ‘supremacy’ of this House -since the Parliament Acts 1911 & 1949 it can bypass the House of Lords, and, since Queen Anne, in 1707, conventionally, to every Act of it the Monarch always assents.
The House of Lords are the unelected representatives, so knighted by the Monarch, some as Hereditary Lords (the eldest son inherits the title) and many increasingly as Life Peers -almost always upon the recommendation of the political parties themselves; the numbers were limited of them with voting rights by the government at the beginning of the 21st century and its members have been considered that should be selected by a panel appointed by government. Its Right to Veto the Commons has been, since 1911, inconsequential, and since 1949 within a year invalid -it serves in effect as a chamber of second opinion and its decisions are not binding on the House of Commons and occasionally have not been followed.
The Monarch, since 1707, may not veto Parliamentary Legislation; but, must formally assent to it -although she does not personally sign it, before it can become legislation.
Legislation is a law, in the form of a Statute. It is formally enacted -or made, by or by the authority of the Parliament, effective when assented to, as an Act of Parliament.
Acts of Parliament, ‘Statutes’ are laws, produced by the Parliament, and comprise also of less important law, with the authority of the Parliament, as Delegated Legislation.
Delegated Legislation enables the management of major Legislation by the Legislator -Health & Safety Act 1974, the COSSH Regulations 1988.
Statutory Instruments by the Executive’s ministers, through other bodies, make effective such Legislation as about health and safety, transport, and as about social-security and taxation.
Orders in Council are by the Monarch with the Privy Council, in cases of emergency -also on appeal from some Commonwealth countries.
By-Laws are made, mostly, by Local Councils (Town Halls as, or as part of, County Halls) -by locally and independently elected town or county mayors and councilors with knowledge of their individual districts.
The advantages of delegating legislation is that it enables saving time, expertise, and flexibility; the disadvantages are that it gives wide powers to make laws without debate and which may not be as much publicized as the Acts of Parliament themselves and as much known to the public.
A Bill is a proposed legislation normally producing an Act of Parliament -it normally begins with one or another type of Bill being introduced.
Types of Bills
The type of a Bill depends on who propose the legislation -as follows…
Public Bills by government, proposing legislation affecting the nation as a whole -were so introduced the Criminal Disorder Act 1998, and, the Access to Justice Act 1999.
Private Member’s Bills by members of Parliament, which may be of national effect -the Arbitration Act 1967, the Disability Discrimination Act 1996, both, began so.
Private Bills by individuals, through a member of Parliament, affecting fewer -such a bill proposed the University College London Act 1996.
A Bill, with slightly variations depending on its type, before becoming Law, goes through a number of stages.
Stages of a Bill
The Stages of a Bill are, sometimes strictly, with adherence to set procedures, Readings, at both the House of Commons and the House of Lords:-
The First Reading involves formally, mostly, Naming the Bill, with its date, and making available printed copies of it, normally, with no, or very little, debate on it…
The Second Reading involves Explaining the Bill -debating its general principles, and voting on it…
The Committee Stage involves the political parties, which are represented proportionately, putting forward their views -or expert opinion being obtained on it; and at the Report Stage the House being informed of these and the Bill being voted on.
‘Division’ sometimes takes place on how to vote on the Bill among the Members of Parliament, and when so, an Eight-Minute Break is allowed them and their Party Whips to discuss it and to decide how to vote on it.
The Third Reading, usually, is, with any verbal amendments to the Bill, the final vote.
This procedure is followed by both of the Houses of Parliament, except that Bills may begin not at the House of Lords if they are to do with such matters as taxation.
The Royal Assent involves the Signing of a Bill that has gone through all of its previous stages successfully, by the Monarch ~but the Monarch need not, and does not, personally sign it -conventionally, the Monarch does not refuse; and, unless stated that it will become so after a time interval, from then on a Bill becomes formally an Act of Parliament, Law which often authorizes delegated legislation too.
It is considered essential to inform the public of the laws proposed and of the laws made, and this is done, at different stages, by way of publishing a White Paper, a Green Paper, and a Statute -delegated legislation also being made in printed form publicly available.
These procedures may sometimes be confusing: e.g., section 6 of Employment Protection (Consolidation) Act 1985 was a Bill introduced as being intended to be of psychological effect only and not of any legal effect before passing all of its stages and becoming Law.
JUDGE MADE LAW
Precedent, briefly. Britain, unlike the USA and the European Union countries, not having a Written Constitution, Codes of Law enacted by the representatives of the people, English Law is based on Common Law -judge-made law ~judges interpret and (also in those criminal cases where that it is increasingly considered by the government that should not sit juries) apply the law.
Where ‘Written Law’ -an Act of Parliament, does exists, they do so under Rules formulated by the English Courts, such as:-
The Literal Rule -where the Court does not consider the written law to require judicial interpretation, literally taking the words of the Statute…
The Golden Rule -if they consider the literary meaning to be, e.g., absurd of any Written Law, interpreting it as they would consider not perverse.
The Mischief Rule -if the Court considers it must interpret the purpose of the written law -the Intentions of Parliament, which they do under the Interpretations Act 1889 -barring reference to the Hansard (the official transcript of all words spoken in the Parliament -placed in its library).
These Rules are sometimes confusingly stated, and in relation to appeals, e.g. from cases under the Sex Discrimination Act 1975, its is stated that “no issue of law arises if the Tribunal simply misunderstood or misapplied the facts” -following reference to precedent that an issue of law arises if a decision is “inconsistent with the evidence”.
A Decision, in English Law, consists of two parts, the ‘Ratio Decidendi’, and the ‘Obiter Dicta’ -the former being Precedent, the binding part, which sets out what the Principle is ~the latter being things said by the way -which are not binding but may be persuasive.
Until the late 1990′s English courts and tribunals did not have to give reasons for their decisions, including in civil cases in which juries do not normally sit in Britain -European Law now requires them to do so, often if within a specific period of time ask to do so.
The Principle, unless ‘distinguished’ becomes ‘Precedent’ binding on all lower courts, and in the case of the Court of Appeal also on itself.
Precedent are reported by the Incorporated Council of Law Reporting in the Weekly Law Reports (WLR) officially, and privately in e.g., the All England Law Reports (AELR).
Precedent, to all intents and purposes, is Law until it is reversed by a higher national Court or by the European Court, or becomes obsolete by an Act of Parliament, or by European Union Law.
Judge-made Law is regarded mainly to have the advantage of being not rigid and enabling for changes more quickly than it may take parliament to make them -its disadvantage is considered to be that unlike as in the case of Codes it is law which is not by elected representatives of people.
The Presumption of the Supremacy of the British Parliament in respect of English Law is, briefly, based on the Monarch no longer refusing to give assent to a Bill passed by the Parliament, coupled with that of Precedent being in line with the Intentions of Parliament.
The Inconsistency of that presumption has been proposed on the fact of the European Law (including the decisions of the European Court and of its ‘national branches’ which are empowered to declare any law made by the British Parliament ‘not law’ and of no legal effect where it is the view of Europe that Britain ought not to have such a law -e.g., for the reason that it contravenes the Articles of the European Convention on Human Rights) being binding on the United Kingdom Government and on its Courts -as on all other member states of it.
Laws in the European Union states continue increasingly and rapidly to change in the course of commonization of various laws, and in Britain, within a short time of a Department of Constitutional Affairs being created in addition to the Lord Chancellor’s Department, also a Ministry of Justice was added –it is wise when it may otherwise be of consequence to always ascertain what current laws are.
About the Author
The author’s favourite site is the Teacher of Teachers
What is the best way to study french for a final?
Ok, my teacher really slures her words and I can barely understand her so it would be nice if there is some book or computer program that really works so I can actually learn french! : )
Try studying with a buddy …alwayyys fun.
How to Find a Good English as a Second Language School in Auckland, New Zealand
If you want to find a good English as a second language school in Auckland, New Zealand there are some important things to consider. It can be difficult to know whether you are selecting a suitable place when you are from overseas. However, there are some important questions you should ask any school you are thinking of attending.
1. Ask them what sort of qualifications they have.
A fully accredited learning institution will not only have teachers who are specially trained in teaching students such as you, but it will also run courses that are internationally recognised. The courses will have also been approved by the New Zealand Qualifications Authority (NZQA) which assesses the school and makes sure it is delivering courses to the correct standard.
2. Is the school in a central location?
You want somewhere that is easy to get to. While you’ll be spending a lot of time learning in a classroom, it’s good to be around other things to entertain you such as shops, cafes and nice places to go walking. A central location is easy to get to no matter where you are living in the city. An English as a second language school in Auckland, New Zealand needs to be in the central city rather than in one of the suburbs.
3. Will they help you find a place to live?
Trying to locate a new place to live on top of everything else can increase your stress levels. If the school is prepared to help you find a place, you’ll have more time and energy to focus on your learning. Most establishments will have good contacts with homestay families and can even find one for you. It means you’ll be staying somewhere that has already been checked out and is clean and safe. If you are staying for a longer period and want to get an apartment it is probably still best to begin with a homestay.
4. Do you feel they listen to your requests?
If you email or phone them to find out information do they offer to send you a pack with everything you need and then give you advice or reassurance over the phone to support you? A competent English as a second language school in Auckland, New Zealand will understand the big decisions involved in selecting an education provider to learn and prepare for English exams. They’ll have your best interests at heart.
About the Author
Kris is responsible for the day to day running of the school and for student enquiries & enrolments. She is also in charge of local marketing. Kris is a qualified teacher and has taught at language schools in Sydney and Auckland. Eurocentres – English as a Second Language School Auckland New Zealand
How is a Japanese birthday party for kids?
I am in Japan right now and it’ll be my kid’s birthday soon. We wanted to have a little party, but I don’t really know what to do………. What do they do? Do they have soft-drinks and pizza and cake? Do they watch movies or play catch? Do parents usually come to stay with their kids?
Birthday parties in Japan are not so different from the one you have in your country. Maybe, we just have some Japanese foods.
So you can have a party any way you like.
Could u plz help me translate this list of courses (Chinese to English)?
Try not to use online translators.
Road traffic management
Governance of households
Situation and the tasks of education
Is it too much for a baby to hear THREE languages around him?
I have a 22 months old kid and we speak to him in Romanian and very less in English (the country’s national language). There are many many day cares around us that have teachers who speak Russian (a language we don’t know). Is it ok to put him in one of this Russian day cares? I am very scared we’ll confuse him too much with 3 languages around him. What do you think?
Small children suck up information like sponges, even when they are older like up to 6 years old they can learn entire languages in a few weeks.
speaking 2 languages at home will have no adverse effect on him/her , but the Russian could be odd since you don’t speak Russian yourself so you might hear some Russian words from the kid later on, but imo it shouldn’t be a problem.
am I a bad muslim (girl – 13)?
I’m 13. I go to a catholic school where you have to wear a skirt with tights (during winter) and socks during summer. I don’t wear a hijab. I wear t-shirts and jeans and tanks and leggings and them stuff.
But I’m learning arabic, 2hours a week I go to arabic lessons and I’m learning the surah’s and kalima’s and I want to start praying 5x a day once I know the surah’s. and I wear a hijab during arabic lessons and I always put a scarf on my head during praying time in ramadan. I haven’t fasted yet – I tried once when I was 11 – and I got pretty sick so I haven’t fasted since, but I’m planning too this ramadan.
Oh and am I bad muslim for wanting to be an actress?
I really do want to be an actress. I just love acting so much and am willing to work hard for it.
Except in acting you have to do thing such as kiss and stuff (which is forbidden) but when I asked if before on yahoo people said it was just a stage kiss.
Am I bad muslim?
If you have hit puberty, than wear the hijab full time. If your teachers or classmates have an issue with that than there are people you can talk to to resolve that situation. Maybe you wearing hijab will get other people to look into Islam and maybe revert.
As for fasting. You are new at that and it does take a lot of getting used to. But you can’t get used to it if you don’t allow yourself too. I know you will have a hard time at first, but just fast every day in ramadan…when you don’t have your period that is….if you have gotten your period. I have a niece who is 8 years old. We wanted to get her used to fasting and it was really hard for her. But then her Arabic teacher was able to convince her to do it for a full day everyday and that she would get used to it eventually. Her arabic teacher also said that in her home country, kids her age fasted every day in ramadan without breaking their fast early with food nor water and that those kids who didn’t do so were teased.
Be strong, work on fasting and wearing hijab regularly. Inshallah you will get used to both of these.
Note: do not get involved with acting. It is haram for you to touch a boy you are not married to, even if it is just acting. There can be a lot of sin involved in acting. Please try to find something more Islamically acceptable.
As for you being a bad muslim, I cannot just. That is up to Allah Subhanahu wa ta’alla