Common Law vs. Civil Law Systems

General Concepts and Introduction to Criminal Law

This section provides an overview of foundational legal concepts, distinguishing common law from civil law, explaining sources of law, and introducing the basics of criminal law.

A. What is the Common Law?

• Definition Contrast: Common law is distinct from the civil law system.
• Historical Origin (UK):
  • Emerged after the Battle of Hastings in 1066.
  • Developed into a unique system under Henry II with the creation of:
    • The Court of Common Pleas
    • The Court of King's Bench
    • The Court of Exchequer
  • Characterized by a unique adversarial procedure where lawyers are highly active.
• Civil Law System Contrast:
  • Features an inquisitorial model where the judge is very active (handles the case).
  • Differs significantly from the common law's adversarial model.

B. Two Principal Sources of Law

• Primary Sources of Common Law:
  • Cases or court decisions (judge-made law).
  • Legislation, including Acts of Parliament / Statutes and secondary legislation.
• Parliamentary Sovereignty (UK):
  • The supreme legal authority in the UK.
  • Can create or end any law; courts cannot enforce laws not passed by Parliament.
• Doctrine of Precedent:
  • Crucial for legal certainty, clarity, and transparency.
  • Prevents erroneous decisions from continually influencing law and allows for adaptation.
  • Two meanings:
    1. The process of following previously decided cases.
    2. Reference to the decision case itself, which serves as authority for subsequent cases with similar facts/legal issues.
• Terminology Exercise:
  • Binding Precedent: A decided case a court must follow.
  • Persuasive Precedent: A decided case that may be applied but is not strictly binding (e.g., lower court decisions, decisions from other jurisdictions).
  • Reversing Precedent: A higher court overturns a lower court's decision on appeal in the same case.
  • Overruling: A higher court overturns a principle laid down by a lower court in a different, later case.
  • Distinguishing: Avoiding the consequences of an inconvenient decision due to a "material" factual distinction between cases.

C. Which Part of the Judgement Must Be Followed?

• All decisions have two parts:
  • Ratio Decidendi: The principal of law on which a decision is based. This is the binding part.
  • Obiter Dictum: "Something said by the way," the judge's opinion. This is not binding.
• Court Hierarchy: Decisions of the Supreme Court of UK are highly important and must be followed by lower courts. In conflicts, the higher court's decision prevails.

D. Precedent in US Law

• Foundation: Similar to the UK, but with greater flexibility.
• Grounds for Cancelling Precedents: American courts can cancel precedents based on three main reasons:
  1. Change in Circumstance: Precedents become obsolete.
  2. Substantively Erroneous: The precedent was badly conceived.
  3. Moral and Social Enlightenment: Precedents are no longer acceptable.
• Equity (Branch of Law):
  • A body of principles and a branch of law.
  • Adds value through more discretion and freedom, offering new evidence and solutions.
  • Aims to mitigate the strictness of common law rules (e.g., from the Court of Chancery).

Criminal Law Introduction

Criminal law concerns conduct deemed harmful by society, which is prohibited and punished. It stands in contrast to civil law.

1.1. Terminology

• Crimes / Offence: A general term for any prohibited action; can be statutory or common law.
• Criminal Liability: Being held legally responsible for a crime.
  • In England: Found in case law and statute.
  • In US: Generally defined by statute, based on common law traditions.
• Censure Rape: (Context specific example: highlights consent issues).
• Put on Parole: Release from prison with specific conditions.

1.2. Criminal Liability

• Combination of Elements: Based on a combination of action and thought.
  • Actus Reus: The guilty act (or omission).
    • Also called the external or objective element.
    • Example for rape: penetration without consent.
  • Mens Rea: The guilty mind (intention or knowledge of wrongdoing).
    • Example for rape: penetration without being sure of victim's consent.
• Case Example (R v Bree): Illustrated complexities around consent and intoxication in rape cases.
  • Legal Issue: Can a heavily intoxicated person still consent to sexual activity?
  • Judgement: Yes, intoxication alone doesn't negate consent, but capacity to consent must be assessed.
• Burden of Proof: The prosecutor's duty to provide sufficient evidence to support an allegation.
• Standard of Proof: Amount of evidence needed, typically beyond reasonable doubt in criminal cases.
• Strict Liability Offences:
  • Do not require Mens Rea for all parts of the Actus Reus.
  • Defendant can be convicted even if unaware of essential matters (e.g., statutory rape, speeding).
  • Usually created by statute to enforce behavioral standards and protect the public.
• Inchoate Offence: Incomplete or unfinished crimes (e.g., attempt, conspiracy). Defendant takes steps but stops before completion.
• Criminal Liability Test Table:

  Actus Reus	Mens Rea
  Actions	Thoughts
  The guilty act (or omission)	The guilty mind

1.3. Categories of Crime & Defenses

• Crime Classification (US):
  • Felonies: Most serious crimes (e.g., intent to kill), punishable by execution, prison time, fines.
  • Misdemeanors: Less serious, lower intent or result; punishable by jail time (under one year), fines, or alternative sentencing.
  • Felony-Misdemeanors: Crimes that can fall into either category based on circumstances; judge's discretion.
  • Infractions: Least serious (e.g., jaywalking, traffic tickets).
• Crime Classification (UK):
  • Indictable Offences: Most serious (e.g., murder, rape), tried in Crown Court by jury.
  • Summary Offences: Lower severity (e.g., driving offences, common assault), tried in Magistrates' Court, max 6 months imprisonment.
  • Offences Triable Either Way: Wide range (e.g., theft, drug possession), can be tried in either court.

1.4. Defences

• Purpose: Allow a defendant to avoid criminal liability or reduce it, even if AR and MR are established.
• Types of Defences:
  • Complete: Leads to acquittal (e.g., Automatism).
  • Partial: Reduces liability (e.g., Diminished Responsibility reduces murder to manslaughter).
• Procedural Safeguards:
  • Miranda Warning: Rights read to suspects upon arrest (e.g., right to remain silent, right to an attorney).
  • Ensures confessions are admissible in court.

Key Takeaways

• Common law systems are built on precedent and an adversarial process, distinct from civil law's inquisitorial approach.
• Criminal liability requires both a guilty act (actus reus) and a guilty mind (mens rea) to coincide, though strict liability offenses are an exception.
• Crimes are categorized by severity in both the US and UK legal systems.
• Defendants can raise defences to negate or reduce criminal liability, even if the primary elements of the crime are present.
• Procedural safeguards like the Miranda Warning protect individual rights during criminal proceedings.

Constitutional Law: Cheatsheet

I. Introduction to Constitutional Law

• Definition: A Constitution is both a single document and a system of rules that govern:
  1. How power is divided among state organs (Legislature, Executive, Judiciary).
  2. The relationship between the state and the individual (including civil liberties and human rights).
• Types of Constitutions:
• Monarchical Constitution: Head of state is a monarch, in whose name power is exercised.
• Republican Constitution: Head of state is democratically elected and exercises power in the name of the state.
• Unitary Constitution: Power concentrated in a central government. Local government generally lacks constitutional status.
• Federal Constitution: Power divided between central and state governments.
• Unwritten/Uncodified Constitution: No single document; various sources regulate power.
• Written Constitution: Single, supreme document often produced after major political changes; balances stability and flexibility.

II. UK Constitutional Law

• UK Constitution: It is monarchical, unitary, and unwritten/uncodified.
• Monarchical: Monarch (e.g., King Charles) is Head of State.
• Unitary: Power concentrated in central government (Westminster), despite devolution (transfer of power to subnational authorities like Scotland, Wales, Northern Ireland, revocable by Parliament).
• Unwritten/Uncodified: No single document; regulated by various sources.
• Sources of the UK Constitution:
• Ordinary Sources (also apply in other law areas):
  • Constitutional Statute: Acts of Parliament impacting the constitution by regulating state power (granting, organizing, limiting) and individual protection.
  • Common Law: Judicial decisions influencing the constitution by limiting state powers and/or protecting individual rights.
• Special Sources (unique to constitutional law):
  • The Royal Prerogative: Powers recognized by common law and exercised by the Crown (government acting in the Monarch's name). Statutory power prevails if in conflict.
  • Constitutional Conventions: Non-legal rules (customs/historical practices) determining conduct in certain circumstances; not enforceable by courts, but dictate prerogative power exercise.
• Institutions of the UK:
• The Monarch: Head of State, Commonwealth, Church of England, and Commander-in-Chief. Powers (mostly symbolic): summoning/dissolving Parliament, appointing PM (following election results), appointing ministers (on PM's advice), declaring war, issuing Royal Assent.
• The Judiciary: Emphasizes independence. Judges cannot be sued, must be apolitical, ministers/MPs cannot criticize their decisions, senior judges removed only by both Houses of Parliament.
  • Supreme Court of UK: Created by Constitutional Reform Act 2005; 12 Justices. Third tier of appeal for important legal points/public importance.
  • Contempt of Court: Disobedience/disrespect toward judiciary, punished to ensure fair trial.
  • Rules of Construction: Court interprets statutes to be compatible with Convention rights (HRA 1998).
• The Executive: Formulates and implements policy.
  • Prime Minister: Leader, responsible for government conduct, appoints ministers.
  • Secretaries of State: Senior ministers heading major departments.
  • Cabinet: Team of ~20 senior ministers.
  • Ministerial Responsibility (Constitutional convention, non-legal): Ministers accountable to Parliament.
    • Collective: All ministers support Cabinet decisions publicly or resign.
    • Individual: Minister assumes responsibility for serious errors in their department; may resign.
• The Legislature (Parliament): Most powerful institution due to parliamentary sovereignty. Bicameral (two chambers).
  • House of Commons: Dominant, democratically elected (650 MPs), forms government ("First past the post" system).
  • House of Lords: Second chamber (764 unelected peers). Examines bills, questions government; can delay but not block legislation.
  • Functions:
    • Legislation: Aproves Bills (proposals for new laws) which become Acts of Parliament. Types: Public, Private, Private Member's Bills.
    • Scrutiny: Examines government policies/spending (e.g., PMQs, ministerial questions, debates, Select Committees).
    • Parliamentary Privilege: Legal immunities for members to perform duties without interference (e.g., freedom of speech, right to regulate their affairs).

III. US Constitutional Law

• US Constitution: It is republican, federal, and written/codified.
• Republican: Head of state (President) is democratically elected.
• Federal: Division of power between central (Federal Government) and state governments.
• Written: Single document (ratified 1789) with 7 Articles and 27 Amendments.
• Key Historical Context:
• Articles of Confederation: First constitution (weak central government).
• Philadelphia Convention of 1787: Led to the current Constitution, resolving debates like congressional representation (Great Compromise: House based on population, Senate equal).
• Federalists vs. Anti-Federalists: Debate over strong central government and need for a Bill of Rights.
• Articles of the Constitution:
• Articles 1-3: Establish the three branches of government: Legislative (Congress), Executive (President), Judicial (Federal courts).
• Articles 4-7: Describe state relations, Constitution as supreme law, amendment/ratification processes.
• Bill of Rights (Amendments 1-10): Adopted 1791 to limit central government powers and protect individual/state rights.
• E.g., 1st Amendment: Freedom of Speech, Religion, Press, Assembly, Petition.
• 5th Amendment: Protection against self-incrimination.
• 10th Amendment: Reserves powers not delegated to the federal government to the states or the people.
• Incorporation Doctrine: Applies Bill of Rights to states via the Due Process Clause of the 14th Amendment.
• Institutions of the US:
• Legislative Power (Congress): Bicameral (Senate, House of Representatives).
  • Senate: 2 senators per state (100 total), 6-year terms.
  • House of Representatives: Based on population (435 members), 2-year terms.
  • Competences: Make legislation, raise money, impeach federal officers, approve presidential appointments/treaties (Senate), oversight.
• Executive Power (President): Head of the Executive Branch; indirectly elected.
  • Constitutional Powers: Implement legislation, appoint cabinet/officials/judges, make treaties, veto bills (can be overridden by Congress 2/3 majority), Commander-in-Chief.
  • Impeachment: Exceptional procedure to remove President (or other federal officers) from office.
• Judicial Power: State and Federal systems.
  • State System: Own trial courts, appellate courts, state supreme court.
  • Federal System: U.S. District Courts, Circuit Courts of Appeals, U.S. Supreme Court (SCOTUS).
  • Federal Jurisdiction: Limited to cases involving Federal Question (US Constitution/statute) or Diversity of Citizenship (citizens of different states, over $75,000).
  • SCOTUS: Final appellate jurisdiction over federal issues. 9 Justices.
  • Judicial Review: SCOTUS holds ultimate authority to determine constitutionality of executive/legislative actions. (Established by Marbury v. Madison [1803]).
  • Writ of Certiorari: How SCOTUS reviews cases (discretionary grant, "Rule of Four").

IV. Key Principles of Constitutional Law (UK and US)

• Separation of Powers: Division of state powers (Legislature, Executive, Judiciary) to prevent dominance by one branch.
• UK: Soft separation with overlapping personnel (e.g., ministers in cabinet and parliament). Monarch in all three symbolic roles.
• US: Clearer separation with checks and balances to prevent any branch from becoming too powerful.
• Rule of Law: Guiding principles for the legal system; nobody, including government, is above the law. Law must be accessible, clear, predictable, and apply equally.
• Parliamentary Sovereignty (UK specific): Parliament is the supreme legal authority. It can make or unmake any law, cannot bind its successors, and its laws cannot be questioned by courts.
  • Impact of Human Rights Act 1998: Incorporated ECHR rights into UK domestic law.
    • Statements of Compatibility: Minister declares Bill's compatibility with Convention rights.
    • Rules of Construction: Courts interpret UK statutes to be ECHR-compatible where possible.
    • Declaration of Incompatibility: Court declares a statutory provision incompatible; Parliament decides whether to change the law (not forced).
• Judicial Review: Court proceeding to review the lawfulness of public body decisions.
• UK: Challenges the way a decision was made by a public body under secondary legislation (Acts of Parliament excluded). Requires permission (prima facie case, locus standi).
  • Grounds: Illegality (ultra vires), Irrationality (unreasonable), Procedural Impropriety (incorrect procedure).
  • Remedies: Quashing order, Mandatory order, Prohibiting order, Injunction, Declaration.
• US: SCOTUS's power to determine if executive/legislative actions are constitutional (e.g., Marbury v. Madison). Key to checks and balances.
• 14th Amendment (US specific): Adopted 1868, applies to states.
  • Equal Protection Clause: States must treat individuals equally in similar situations; protection against discrimination (e.g., race in Brown v. Board of Education, gender, sexual orientation).
  • Due Process Clause: No one deprived of life, liberty, property without due process; ensures fair procedures and protects fundamental (enumerated and unenumerated) rights (e.g., originally encompassed right to abortion in Roe v. Wade, now overturned by Dobbs v. Jackson Women's Health Organization, returning abortion regulation to states).

V. Freedom of Speech

• US Protection (1st Amendment): "Congress shall make no law... abridging the freedom of speech, or of the press..."
• Grants 5 freedoms: religion, speech, press, peaceful assembly, petition.
• Initially only applied to Congress; incorporated to apply to states via 14th Amendment's Due Process Clause.
• Broad protection: marketplace of ideas; protects spoken words and symbolic speech (e.g., flag burning).
• Limits: May be restricted for broad reasons (e.g., incitement to violence, true threats, obscenity, defamation).
• UK Protection (Article 10 ECHR): "Everyone has the right to freedom of expression..." (Incorporated into UK law by HRA 1998).
• Limits: Can be restricted if "prescribed by law and necessary in a democratic society" for reasons like national security, public safety, preventing crime, protecting reputation/rights of others (e.g., hate speech laws).
• Balancing Act: Often involves balancing freedom of speech (Art. 10) against other rights like privacy (Art. 8).