NATURE OF LAW AND THE ENGLISH LEGAL SYSTEM: Y12
ONLY
Y12 TOPICS:
1. The Nature of Law
2. The Rule of Law
3. Parliamentary Law-Making
4. Influences on Parliamentary Law-Making (Politics/ Media/ Pressure Groups/
Law Reform Bodies)
5. Parliamentary Supremacy
6. Delegated Legislation
7. Statutory Interpretation
8. Key Features of Judicial Precedent & Methods of Avoiding Precedent
(Hierarchy of the Courts, Ratio Decidendi, Obiter Dicta, Law Reports)
9. Law Making: The European Union
10. Civil Courts and other forms of dispute resolution (ADR, Tribunals)
11. Procedure to Trial
12. Criminal Courts and Lay People
13. Pre-Trial Procedure: Criminal
14. Sentencing
15. Appeals in Criminal Courts
16. Magistrates
17. Juries
18. Barristers
19. Solicitors
20. Legal Executives
21. Judges/ Judiciary (Independence of…)
22. Regulatory Bodies of Legal Personnel
23. Legal Advice (Criminal AND Civil)
1. THE NATURE OF LAW:
The Law is ‘a system of rules enforced by a country to regulate the actions of its
members and is enforced by penalties’
Criminal Law- aims to maintain law and order to protect society and punish offenders
Civil Law- upholds the rights of individuals with the courts offering compensation in
order to remedy a situation
The Character of Rule:
Rules stem from ‘norms of behaviour’ or morality (subjective)
Some rules are enforceable, yet some rules we submit ourselves to voluntarily
Rules are generally obeyed when- 1) It is reasonable 2) Morally obligated 3) Penalty
will be imposed if rule broken
Legal Rules-
1
, Can change instantly
MUST be obeyed
Enforced by penalties/ punishments
Involuntary and apply to everyone
Moral Rules-
Evolve over time
Ought to be obeyed
Not strictly enforceable, other than through social denunciation
Voluntary- only apply to those who accept them
Differences between Criminal and Civil Law:
Criminal:
Aim= enforce law and order
Verdict= Guilty or Not Guilty
Remedy= Sentence
Case started by= The State, via the Crown Prosecution Service
Types of Court= Magistrates, Crown
Standard of Proof: ‘beyond all reasonable doubt’
Civil:
Aim= uphold rights of individuals
Verdict= Liable or Not Liable
Remedy= Damages, usually compensation or injunctions
Case started by = Claimant
Types of Court= County, High
Standard of Proof= ‘on the balance of probabilities’
Sources of Law:
Custom Law:
Norms of behaviour that have become embedded in the law without being
deliberately invented
Common/ Case Law:
Based on judicial decisions when a judge ‘sets a new precedent’
Statute Law:
Gone through the formal legislative process in Parliament and has received
Royal Assent
2. THE RULE OF LAW:
Law-making process must be fair
The Rule of Law is a key component of democracy. It ensures that those in power can
be held accountable
‘Fusion of Powers’ = ensures that no one body has too much power. Each body can
hold each other accountable. PM’s power is distributed throughout e.g. They appoint
the Lord Chancellor who oversees the judiciary:
2
, -Executive: Government- enforces law
-Legislature: Parliament- makes law
-Judiciary: The Courts- interprets and applies laws
Constitutional Reform Act 2005:
- Transferred judicial authority away from the House of Lords, which had
previous acted as the highest court of appeal.
- Created the Supreme Court to take over this role made up of 12 judges.
- Also ensured the regulation of the appointment of judges.
Academic Views about The Rule of Law:
A.V DICEY:
Believed there were 3 key elements to The Rule of Law:
There should be an absence of arbitrary power on behalf of the State
Equality before the law- no one is above it, all have access to legal
assistance/advice
The Law must be supreme- must be respected
Introduced idea of Parliamentary Supremacy
Parliament cannot be overruled by any other body (Church, Monarch)
Parliament cannot bind any of its successors
Criticisms of Dicey’s views:
- Sometimes the State does act arbitrarily- passes laws that may be to the
detriment of people’s lives
- Equality before law merely theoretical- money buys best legal representations
- Parliament can be overruled by EU Law (up until Brexit)
- Under Parliamentary Supremacy, Parliament has right to make any law it
wants to
FRIEDRICH HAYEK:
A legal positivist who believed ‘the law is the law is the law’. Should be respected if
it is endorsed by the State. Agreed with Dicey that there should be an absence of
arbitrary power on behalf of the state
JOSEPH RAZ:
A natural law theorist- law doesn’t have to be respected. Believed that there should be
clear laws and procedures for making laws and that the independence of the judiciary
should be guaranteed
1. The Rule of Law and Law-Making:
In order to become law, bills must be gain a majority vote in both Houses
of Parliament
Process of judicial review (the power of a court to decide whether a law or
decision by the government is constitutional) ensures that the rule of law is
upheld
3
, 2. The Rule of Law and The Legal System:
Every D in a criminal court must have a fair trial
Civil Justice System should be affordable/accessible/free from
discrimination
3. The Rule of Law and Substantive Law:
Substantive Law us the law as it is and relates to each different area of the
law
E.g. Tort Law and its definition- relates to what rights and responsibilities
should owe each other
3. PARLIAMENTARY LAW-MAKING
House of Commons:
Lower House
650 MPs sit who are democratically elected
Broadly represent the will of the electorate (8% MPs are ethnic minorities
alike 12% of the population) yet (30% MPs are privately educated, compared
to only 7% of population)
Has a legislature and debating function
Combative, forthright exchanges, interruptions
Constituency issues raised
National issues raised
Scrutinises the work of the Gov and holds them to account
House of Lords:
Upper House
746 Peers eligible to sit here- most are appointed
92 are hereditary peers
Largely not representative of the population (only 199 peers are female,
despite 50% of population)
Less partisan
Measured, calmer tone
Seemingly more cooperative
Revising chamber to check on the power of the HoCommons
Function to refine the law rather than oppose the HoC
HoL should not block a bill that is in the manifesto of the party in power, as this
would be seen a blocking the will of the electorate (undemocratic)
Parliamentary Acts 1911 and 1949:
House of Lords cannot delay the passing of a Bill by the HoC for more than 1 year (or
6 months for a finance bill). If this time has lapsed, then the HoC has the authority to
pass it e.g. The Hunting Act 2004
4
ONLY
Y12 TOPICS:
1. The Nature of Law
2. The Rule of Law
3. Parliamentary Law-Making
4. Influences on Parliamentary Law-Making (Politics/ Media/ Pressure Groups/
Law Reform Bodies)
5. Parliamentary Supremacy
6. Delegated Legislation
7. Statutory Interpretation
8. Key Features of Judicial Precedent & Methods of Avoiding Precedent
(Hierarchy of the Courts, Ratio Decidendi, Obiter Dicta, Law Reports)
9. Law Making: The European Union
10. Civil Courts and other forms of dispute resolution (ADR, Tribunals)
11. Procedure to Trial
12. Criminal Courts and Lay People
13. Pre-Trial Procedure: Criminal
14. Sentencing
15. Appeals in Criminal Courts
16. Magistrates
17. Juries
18. Barristers
19. Solicitors
20. Legal Executives
21. Judges/ Judiciary (Independence of…)
22. Regulatory Bodies of Legal Personnel
23. Legal Advice (Criminal AND Civil)
1. THE NATURE OF LAW:
The Law is ‘a system of rules enforced by a country to regulate the actions of its
members and is enforced by penalties’
Criminal Law- aims to maintain law and order to protect society and punish offenders
Civil Law- upholds the rights of individuals with the courts offering compensation in
order to remedy a situation
The Character of Rule:
Rules stem from ‘norms of behaviour’ or morality (subjective)
Some rules are enforceable, yet some rules we submit ourselves to voluntarily
Rules are generally obeyed when- 1) It is reasonable 2) Morally obligated 3) Penalty
will be imposed if rule broken
Legal Rules-
1
, Can change instantly
MUST be obeyed
Enforced by penalties/ punishments
Involuntary and apply to everyone
Moral Rules-
Evolve over time
Ought to be obeyed
Not strictly enforceable, other than through social denunciation
Voluntary- only apply to those who accept them
Differences between Criminal and Civil Law:
Criminal:
Aim= enforce law and order
Verdict= Guilty or Not Guilty
Remedy= Sentence
Case started by= The State, via the Crown Prosecution Service
Types of Court= Magistrates, Crown
Standard of Proof: ‘beyond all reasonable doubt’
Civil:
Aim= uphold rights of individuals
Verdict= Liable or Not Liable
Remedy= Damages, usually compensation or injunctions
Case started by = Claimant
Types of Court= County, High
Standard of Proof= ‘on the balance of probabilities’
Sources of Law:
Custom Law:
Norms of behaviour that have become embedded in the law without being
deliberately invented
Common/ Case Law:
Based on judicial decisions when a judge ‘sets a new precedent’
Statute Law:
Gone through the formal legislative process in Parliament and has received
Royal Assent
2. THE RULE OF LAW:
Law-making process must be fair
The Rule of Law is a key component of democracy. It ensures that those in power can
be held accountable
‘Fusion of Powers’ = ensures that no one body has too much power. Each body can
hold each other accountable. PM’s power is distributed throughout e.g. They appoint
the Lord Chancellor who oversees the judiciary:
2
, -Executive: Government- enforces law
-Legislature: Parliament- makes law
-Judiciary: The Courts- interprets and applies laws
Constitutional Reform Act 2005:
- Transferred judicial authority away from the House of Lords, which had
previous acted as the highest court of appeal.
- Created the Supreme Court to take over this role made up of 12 judges.
- Also ensured the regulation of the appointment of judges.
Academic Views about The Rule of Law:
A.V DICEY:
Believed there were 3 key elements to The Rule of Law:
There should be an absence of arbitrary power on behalf of the State
Equality before the law- no one is above it, all have access to legal
assistance/advice
The Law must be supreme- must be respected
Introduced idea of Parliamentary Supremacy
Parliament cannot be overruled by any other body (Church, Monarch)
Parliament cannot bind any of its successors
Criticisms of Dicey’s views:
- Sometimes the State does act arbitrarily- passes laws that may be to the
detriment of people’s lives
- Equality before law merely theoretical- money buys best legal representations
- Parliament can be overruled by EU Law (up until Brexit)
- Under Parliamentary Supremacy, Parliament has right to make any law it
wants to
FRIEDRICH HAYEK:
A legal positivist who believed ‘the law is the law is the law’. Should be respected if
it is endorsed by the State. Agreed with Dicey that there should be an absence of
arbitrary power on behalf of the state
JOSEPH RAZ:
A natural law theorist- law doesn’t have to be respected. Believed that there should be
clear laws and procedures for making laws and that the independence of the judiciary
should be guaranteed
1. The Rule of Law and Law-Making:
In order to become law, bills must be gain a majority vote in both Houses
of Parliament
Process of judicial review (the power of a court to decide whether a law or
decision by the government is constitutional) ensures that the rule of law is
upheld
3
, 2. The Rule of Law and The Legal System:
Every D in a criminal court must have a fair trial
Civil Justice System should be affordable/accessible/free from
discrimination
3. The Rule of Law and Substantive Law:
Substantive Law us the law as it is and relates to each different area of the
law
E.g. Tort Law and its definition- relates to what rights and responsibilities
should owe each other
3. PARLIAMENTARY LAW-MAKING
House of Commons:
Lower House
650 MPs sit who are democratically elected
Broadly represent the will of the electorate (8% MPs are ethnic minorities
alike 12% of the population) yet (30% MPs are privately educated, compared
to only 7% of population)
Has a legislature and debating function
Combative, forthright exchanges, interruptions
Constituency issues raised
National issues raised
Scrutinises the work of the Gov and holds them to account
House of Lords:
Upper House
746 Peers eligible to sit here- most are appointed
92 are hereditary peers
Largely not representative of the population (only 199 peers are female,
despite 50% of population)
Less partisan
Measured, calmer tone
Seemingly more cooperative
Revising chamber to check on the power of the HoCommons
Function to refine the law rather than oppose the HoC
HoL should not block a bill that is in the manifesto of the party in power, as this
would be seen a blocking the will of the electorate (undemocratic)
Parliamentary Acts 1911 and 1949:
House of Lords cannot delay the passing of a Bill by the HoC for more than 1 year (or
6 months for a finance bill). If this time has lapsed, then the HoC has the authority to
pass it e.g. The Hunting Act 2004
4
