Additional Reading to Support Lecture One What is Law?

The Nature of Law Many books have been written and continue to be written about the nature of law; here we must be brief. All will agree that it is a set of rules which form the pattern of behaviour of a given society. And they will agree, too, that the laws with which we have to deal differ from the laws of nature which are rules derived from observation of the physical universe (e.g. the rule that the tides ebb and flow): for law in our sense is normative (pattern setting), a prescription rather than a description of behaviour. Go further than this, however, and there is general disagreement... P S James, Introduction to English Law, 10th Edition, page 4 Introduction The Nature of Law What do we mean when we say what is the nature of something? The nature of a thing is its essential qualities or characteristics and this question can be asked about our legal system. Our legal system in England and Wales is different from that of other countries (eg. Scotland). Firstly, we need to define what we mean by law. Abbott & Pendlebury define law as follows: The law of a particular state is the body of rules designed to regulate human conduct within that state. Broadly speaking there are three types of rule: Rules which forbid certain types of behaviour under threat of penalty, Rules which require people to compensate others whom they injure in certain ways e.g. break a contract Rules which specify what must be done to order certain types of human activity e.g. to form a company , to make a contract, or to make a will.

We are talking about a set of rules governing the inhabitants of a state. The first thing to notice is that those rules relate to a specific state, which in our case is defined by the boundaries of England and Wales. This is important as a state both creates the rules and enforces them. A state cannot impose rules upon another state e.g. France cannot impose rules upon the English or Welsh living in England or Wales. The French can however impose their laws ( rules) on other nationals while within France. A state is only able to enforce those rules upon people within its boundary - though agreements may exist with other states where by individuals are returned to the custody of a state to answer for actions in breach of its rules.

So the law can be said to be a set of rules, limited to a specific geographic area, with prescribed consequences following their breach. No more, no less. When embarking upon the study of law, many people consider the Law to be synonymous with fairness, morality and justice. To an extent this is true but not always and you have to be careful not to assume the law is fair or that justice will be done. What is meant by fairness or justice? Your understanding of these concepts may differ from others. Morality is concerned with the rights/wrongs or the goodness/badness of acts etc. In some instances the law will decide in sympathy with what is generally considered to be right and wrong in a society. An individual will be punished for murdering another. This is a clear example. But when you study contract and tort you will see that the law in many instances has to decide between two parties neither of whom are entirely right or wrong. In certain situations the result is not dictated by the dispute between the parties but by the wider policy implications arising from the decision. For example, in the law of tort economic loss is recoverable in limited situations. The Courts have been positively restrictive in how they defined these rules, being fearful that if the rules were too broad it would lead to voluminous claims from which the court system would grind to a halt. Also, another example, assume you take another to Court for breach of contract and you are successful in proving your case. In such circumstances you would expect all the costs you incurred through bringing the action to Court (eg. solicitors and barristers fees etc.) to be reimbursed to you by the losing party. Not so. You would only ever be reimbursed approximately 70% of your total costs - a consideration which has to be borne in mind when going to court. The Law does not always achieve justice or act fairly between individuals or the state and an individual. This does not mean the Law is not striving in that direction, only that it has not achieved that aim. A remedy exists in law only if a person is able to demonstrate his/her situation fulfils or meets the established rules. Not because it is just or fair to do so! This should not be forgotten! The rules existing are usually cumbersome and ill fitting for the many specific situations that arise. This is as a consequence of rules being drafted in general terms to cover many situations. A question you could ask yourself is why do people obey the law?

The Characteristics of English Law: The term English Law is used to refer to the law as applicable in England and Wales. The characteristics of English law in general terms are as follows: 1) Continual Development. English law is continually developing and has done so since 1066. This development will continue into the future. There has been an evolution which brought about changes to both adjectival (procedural) and substantive law. [Substantive law is concerned with peoples rights, duties, liberties and powers - adjectival law relates to the enforcement of those rights and powers, that is procedures and evidence.] The earliest methods of conducting a law suit involved the intervention of Almighty God. Here either the Plaintiff (now known as the Claimant) or Defendant, but usually the Defendant, would swear on oath that they were telling the truth. This would be put to the test by either compurgation, ordeal or battle. Compurgation. Here a person was required to supply a number of people (eventually 12) to swear that his story was true. Battle. Here a person might have to defend himself in a fight against an appointee of the court. The defendant may be able to appoint a champion to represent him in the fight. It was assumed that God would come to the aide and protect the righteous. Ordeal. A person who could carry a red hot iron or place his arm in boiling water would be deemed to be on the right side. Again they would be protected by God. These means of conducting a law suit fell out of favour in the thirteenth century. We have travelled a long way from what many would now consider as barbaric acts. However, it was from these beginnings that our current system has slowly evolved. Many might say that conducting a law suit is still a battle between the Claimant and the Defendant; each party selecting his champion (a lawyer) who fights the battle for them before a judge. The battle though is not physical but one of wit and intelligence, the weapon being the rule of law. The development though has been a reactive and not a proactive process. By this what is meant is that judicial decisions and Acts of Parliament flow from events which have occurred. Events which have happened, brought before a judge for adjudication after the event or an Act of Parliament, again passed in response to previous events such as a disaster which after the event is deemed to have been preventable given additional regulatory control.

2) Lack of Codification. Unlike many Continental countries a substantial amount of English law is not what is termed codified. By codified law is meant the written volumes setting out the rules governing the majority of the law. This is not to say no English law is codified; only that which is codified is in the minority. An example of English law which is codified is that covering the sale of goods - refer to the Sale of Goods Act 1979. The majority of English law emanates from judicial decisions and is termed unwritten law and is therefore not codified. It is important to realise that even the wording in statutes has to be interpreted and this is done by judges. 3) The system of Precedent. A judge is bound by the rule of law expounded in previous decisions reached in courts of equal or higher status. This is assuming the facts surrounding the case before him/her are similar to the previous case. 4) The Judiciary . English judges are generally not political in the sense that they are independent of the Government, Parliament and the Civil Service. This is important as judges often hear disputes which involve the Government, their agents, etc. As long as a judge acts honestly and with the belief the matter is within his jurisdiction then he/she will be immune from any liability. Judges play an important role in the development of the law as they interpret statutes and develop precedent case law. 5) Common law and Equity. These are two different systems of law which has developed within England and Wales. Once upon a time they were dispensed from different courts which brought them into conflict but following the Judicature Acts of 1873-75 they are now dispensed from the same courts by the same judges. If they now conflict then equity will prevail. Equity developed as a consequence of the harshness and limitations of the common law. Originally the King and then his Chancellors (who in the early days were Clergy) attempted to introduce fairness by means of equity. 6) Accusatorial Procedure. The accusatorial procedure is in contrast to the inquisitorial procedure used by many continental countries. With the accusatorial procedure (used in England & Wales for both civil and criminal cases) the judge/court remains neutral between the parties. The

judge is responsible for hearing the evidence and legal arguments presented by each side. A judge carries no responsibilities for collecting evidence on behalf of a party, only to ensure that a party has a fair opportunity to present his case and have his side of events heard. If a party fails in presenting crucial evidence then the responsibility rests with him or his representatives. Under this system the judge decides by applying the rules of law to the evidence presented before him/her. The inquisitorial procedure allows a judge to take a more active role e.g. a judge may question witnesses.

Classification of Law Law can be classified in various ways but there are two classifications in which we are interested. These are: Substantive and adjective law; Civil and criminal law. Substantive and adjective law. Substantive law covers the rights, duties, liabilities and obligations which exist within a specific area of law. These are the rules which exist and govern individuals. Such as the rules relating to contracts, nuisance or crimes like murder, rape, etc. Let us say that party A decides that another, party B, has broken a substantive rule of law. A breach of contract; in that B has paid 90 when A believes it should be 100. Party B considers he has not broken any rule and paid the contractually agreed amount. The matter is brought before the Courts to decide who is right to decide whether party B has broken a substantive rule of contract law. The Court will hear the case, allowing A to present his reasoning as to why B should have paid 100 and B to state reasons why he only needs to pay 90. However, in order to achieve fairness and economy, set rules exist governing how both A and B are allowed to present their cases. These procedural rules are what is referred to as adjective law and failure to comply with them could mean an individual either fails with their case or affects what they are allowed to present. This may be so even if a party has actually suffered a breach of substantive law.

Civil and criminal law: a) Criminal Law A crime is a wrong against the STATE. Prosecutions are brought by the State or an authorised body. Individuals guilty of crimes are punished. Crimes may be victimless eg. speeding, breach of health and safety regulations. Victims have little or no say in whether a prosecution is brought. Courts and procedures differ from those for civil cases. Fines are paid to the state and the state implements custodial sentences. The burden of proof in deciding a case is beyond reasonable doubt. Trial by jury plays a more significant role in criminal cases. A breach of the health & safety at work act 1974 is a crime which could lead to a fine or prison sentence. b) Civil Law Action can be commenced by any individual seeking compensation for a wrong/loss they have suffered. The successful Claimant is usually awarded damages though other remedies do exist. These damages are paid by the Defendant. Courts and procedures differ from those for criminal cases. Burden of proof in deciding a case is on the balance of probabilities. The distinction between a civil and criminal wrong is not the act itself but the legal consequences which flow from the act. It is feasible for an act to raise both actions under civil law and criminal law. The areas of law we will be looking at are generally substantive civil law i.e. contract and tort.

Title of Cases Cases are printed accounts of law suits (eg. claims for damages) and trials of individuals accused of committing crimes. Cases are normally referred to by the names of the parties engaged in the law suit or trial eg. Donoghue v Stevenson or R v Jones. Civil cases. The names of the parties involved in the law suit are used. For example let us assume that there is a dispute between Ellis and Dunn. Ellis believes that the building built by Dunn & Sons Ltd is defective. It is smaller than that agreed when the contract was made and Ellis refuses to pay the agreed price. Dunn files a law suit against Ellis. As Dunn is the person bringing the action he is referred to as the Claimant (being the person claiming that he has suffered a wrong) and Ellis in having to defend the action brought against him is called the Defendant. The case reference would be Dunn v Ellis. Note that the

Claimants name appears first. This citation is spoken as Dunn and Ellis, not Dunn versus Ellis. In certain situations there is not a Claimant and/or a Defendant. For instance when the Court has been asked to interpret an individuals will. In such a case the citation is different. Assume that Ellis has died and there is a dispute between Dunn, Wood and Keel as to how his estate should be divided. The Courts would hear and decide this dispute; such a case reference would Re Ellis. Our legal system includes the possibility for appeals (in specified circumstances) against a decision of lower courts. Take the example above, the dispute between Dunn and Ellis. Assuming that Dunn was successful with the Court deciding in his favour but Ellis did not wish to let the matter rest there, Ellis could appeal against the decision. Ellis would then be known as the Appellant, the person appealing against the previous decision and Dunn would be known as the Respondent. The names would change around in the citation of the case heard on appeal to Ellis v Dunn. If Ellis had been successful when the case was first heard and Dunn was unhappy with the result then he could appeal. Dunn would then be the Appellant and Ellis the Respondent. Note the case Citation would remain as Dunn v Ellis - the appellants name appearing first. Criminal cases. Prosecutions are brought either by the state or representatives of the state. For serious crimes such as murder, rape, etc. an action will be brought on behalf of the Crown; in the name of the Queen. The citation for such a case would be R v Dunn or R v Ellis. R being the abbreviation for Regina the Queen! In certain circumstances the Director of Public Prosecution may bring the prosecution in the name of the office they hold. The citation for such a case would then be DPP v Dunn. Prosecution for less serious offences are in the name of the actual prosecutor. This could for summary offences be a police officer; the citation for such a case would be P C Bill v Dunn, where P C Bill is the name of the police officer. Alternatively the prosecution could be brought by a Local Authority or a body such as the Health and Safety Executive whose names would be cited in the case reference.