Law can affect many aspects of our lives, yet most people living on this world have little understanding of the legal system that operates. For many their main awareness comes from newspaper articles with headlines such as “murderer jailed for life” and “burglar caught”.
Many people only think of the criminal law and the courts that deal with this type of case. In reality law covers an enormous range of situations and the lagal system in England and Wales has a variety of courts and methods for dealing with different types of cases.
Types Of Law
The first distinction is that between international and national law: National law can then be classified into public and private law; finally these classification can be sub divided into a number of different categories.
International and National Law:
International law is concerned with disputes between nations much of this law comes from treaties which have been agreed by the governments of the countries. National law is the law which applies within a country. Each country will have its own national law and there are often wide differences between law of individual countries. For example while serious criminal cases are tried by jury in both systems the scotish jury has 15 members and the decision can be made by a simple majority of eight to seven. In contrast the jury in England and Wales has 12 members at least 10 of whom must agree on the decision.
Public and Private Law:
Within national law there is usually a clear distinction between public and private law. Public Law involves the state or government in some way , while private law is concerned with disputes between private individuals or businesses, Both private and public law can be sub-divided into different categories.
There are three main types of law in this category. These are:
- Constitutional Law: This controls the method of government and any disputes which arises over such a matters as who is entitled to vote in an election or who is allowed to become a member of parliament or whether the elections are carried out by the correct procedures.
- Administrative Law: This controls how ministers of state or other public body such as local councils should operate.
- Criminal Law: This sets out the types of behaviour which are forbidden at risk of punishment. A person who commits a crime is said to have offended against state and so the state has a right to prosecute them, for example a crime of burglary.
This is usually called civil law and has many different branches. The main ones are Law of Tort (even though there is no contract between them, one person owes legal responsibility of such kind to another person and there has been a breach of that responsibility ) . Family Law (whether marriage is valid, rules for divorce and who should have the day to day care of any children of the family. The law of succession (it is concerned with regulating who inherits a property when a person dies) Company law is very important in the business world. It regulates how a company should be formed , sets out formal rules for running companies and deals with rights and duties of shareholders and directors. Employment law ( covers all aspects of employment from the original formation of a contract to situations of redundancy or unfair dismissal. As well as these areas of private law, there are also laws relating to land, to copyright and patents, to marine law and many other topics so it can be seen that civil law covers an enormous range of situations.
Difference Between civil cases and criminal cases
Purpose of the law
To uphold the rights of individuals
To maintain law and order or to protect society
Person starting the case
The individual whose rights have been affected
Usually the state through police and crown prosecution service
Legal name of that person
Courts hearing cases
County court or High court. Some cases dealt within the tribunals
Magistrates courts or crown court
Standard Of Proof
The balance of probability
Beyond reasonable doubt
Persons Making the decision
Judge (or panel of judges) very rarely a jury
Magistrate or jury
Liable or not liable
Guilty or not Guilty
Powers of the court
Usually an award of damages, also possible : injunction , specific performance , recession or rectification.
prison , fine , probation, discharge, community service order, curfew order etc
Sources Of Law
The law of England and Wales has been built up very gradually over the centuries. There is not just one way of creating and developing law, there have been and still are, a number of different ways, These methods of developing law are usually referred to as sources of law. Historically, the most important ways were custom and decisions of judges. Then as parliament became more powerful in the 18th and early 19th centures, Acts of parliament were the main sources of new laws , all the judicial decisions were still important as they interpreted the parliamentary law and filled in gaps where there was statute law. During the 20th century, statute law and judicial decisions continued to be the major sources of law but, in addition , two new sources of law became increasingly important these were delegated legislation and European law. All these sources of law have combined to make our present day law.
These are rules of behavior which develop in a community without being deliberately invented. There are two main types of custom : general custom and local custom.
- General Customs: Historically these are believed to have been very important in that they were effectively the basis of our common law. It is thought that following the Norman conquest (as the country was gradually brought under centralized government) the judges appointed by the kings to travel around the land making decisions in the king’s name based at least some of their decisions were on the common custom.
- Local Customs: This is the term used where a person claims that he is entitled to some local right, such as a right of way or a right to use land in a particular way, because this what has always happened locally. Such customs are an exceptions to the general common law of land and will only operate in that particular area. Since there were exceptions to the general common law, the judges from the earliest times, established a series of rigorous test or hurdles that had to be passed before they recognized any local custom. These tests still exist today and are used on rare occasions that a claim to a right come before the court because of local custom.
The word ” Equity ” has a meaning of “fairness” . Equity developed because of problems in Common law, Major problem was the fact that the only remedy the common law courts could give was ” damages ” which is an order that defendant pay a sum of money to the plaintiff by way of compensation. In some cases this would not be the best method of putting matters right between the parties. For example, in a case of trespass to land , where perhaps the defendant had built on his neighbour’s land, the building would still be there and the plaintiff would have lost the use of that part of his land. In such a situation the plaintiff would probably prefer to have the building removed , rather than be given money in compensation.
People who could not obtain justice in the common law courts appealed directly to the king. Most of these cases were referred to the king’s Chancellor , who was both a lawyer and a priest , and who became known as the keeper of the King’s conscience. This was because the Chancellor based his decisions on principles of natural justice and fairness, making a decision on what seemed ‘right’ in the particular case rather than on the strict following of previous precedent . To ensure the decisions were fair , the chancellor used new procedures such as subpoenas, which ordered a witness to attend the court or risk imprisonment for refusing to obey the chancellor order. He also developed the new remedies which were able to compensate plaintiffs more fully than the common law remedy of damages. The main equitable remedies were:
- Specific Performance
These are still used today. Equity was not a complete system of law ; it merely filled the gaps in the common law and softened the strict rules of the common law.
Clearly the legal system in England and Wales could not rely only on customs. Even in Anglo Saxon times there were local courts which decided disputes, but it was not until after the Norman conquest in 1066 that a more organised system of courts emerged. This was because the Norman king realised that control of the country would be easier if they controlled, among other things, the legal system. The first Norman king William set up the King’s court and appointed his own judges . The nobles who had dispute were encouraged to apply to have the King or his judges decides the matter. The judges were sent to major towns to decide any important cases. This meant that judges travelled from London all round the country that was under the control of the King. In the time of Henry these tours became more regular and Henry divided up the country into “circuit ” or the areas for the judges to visit. Initially the judges would use the local customs or the old Anglo saxon laws to decide cases but over a period of time it is believed that the judges on their return to Westminister in London would discuss the laws or customs they had used, and the decisions they had made, with each other. Gradually, the judges selected the best customs and these were then used by all the judges throughout the country. This had the effect that the law became uniform or common .
Common Law is the basis of our law today it is unwritten law that developed from customs and judicial decision. This phrase ‘common law’ is still used to distinguished law that developed from customs and judicial decisions from law that have been created by Statute or other legislation. For Example murder is a common law crime while Theft is a statutory crime. This means that murder has never been defined in any Act of Parliament but theft is now defined by the Theft Act 1968. Common law also has another meaning ,in that it is used to distinguish between rules that were developed by the common law court the King court and the rules of Equity which were developed by the Lord Chancellor the Chancery Court.
In the English Common Law system , Case law develops as courts hear disagreement between parties, making a decision as to what the law should be in a particular case. These decisions creates precedents. The doctrine of judicial precedents operates by ensuring that a previous courts decision is followed by another court when deciding a subsequent legal case, provided certain rules for extracting the legal principle from the earlier case and applying it to the current one are followed.
Statute Law comprises legislation that made by the House of Parliament. Legislation may be a primary legislation which starts as a Bill and become an Act of Parliament or it may be secondary or delegated legislation, drafted by the Government department and enacted under powers given by primary piece of legislation. UK Statutes are not only form of binding legislation in England; EU regulations are also immediately binding. In addition, UK is committed by EU membership to enact the provision of EU directives into the national law. Statutes are not always new laws, they may amend previous statutes or they may codify the common law, so making a body of previous binding case law redundant.