Nature of Law

Rules

Definition (AO1)

• Informal

• Set ‘norms of behaviour’

• Develop over a long period of time

• Often reflect a moral implication to abide by the rule

• There are not direct consequences in not following the rule

• Breaking them has less impact than legal rules

• The only sanctions are societies disapproval if they are not followed

• Possible for anyone to set rules (parents, schools, communities, footbal teams)

• Rules can transfer into legal rights shown in early common law and customs.

• Are voluntary & apply only to those who choose to accept and follow them.

Lega Rules / Laws

Definition (AO1)

• Formal

• Can be changed, created or amended instantly

• Made by those who have the authority to do so (i.e. Parliament, local councils and judges)

• Legal system in place to enforce laws (supported by police and other organisations)

• Consequences for breaking criminal laws can range from fines to imprisonment.

• In Civil law, the party who has broken an obligation may be required to put right the wrong.

• Are obligatory & apply to everyone

Aim and basics of Civil law

Definition (AO1)

• Upholds the rights of individuals and companies

• Seeks to put the party not at fault in their pre-tort position

• Party seeking action is the Claimant

• Party having action taken against them is the Defendant

• Cases will be heard in either the County or High Court (depending on value and complexity of claim)

• Will be heard and decided by a judge who decides the outcome (liable or not liable).

• Judge decides most appropriate remedy to be awarded if D is found liable

• Standard of proof is on balance of probabilities

Sources of Law

Definition (AO1)

Various sources of law in the english legal system:

• Common (Case) Law

• Custom

• Legilsation (statute)

Common (Case) Law

Definition (AO1)

• Law created in courts rather than parliament

• Decisions of courts are written in law reports and these decisions become law.

• Case law requires accurate reporting

• Also requires the development of judicial precedent

• Once a point of law has been decided in a particular case, that law must be applied in all future cases containing the same material facts

• Precedents brings consistency and certainty to the law.

Custom Law

Definition (AO1)

• Laws that have existed since '“time immemorial”, and has been continious - Blackstone (Legal writer)

• This source of law is still seen in commercial law.

• Bills of exchange originated as customs in mercantile law and are today incorporated in mainstream law e.g. equity and trusts and trades such as ‘Baker’s dozen’

Legislation (Statute / Parliamentary law)

Definition (AO1)

• Parliament is responsible for approving new laws (legislation)

• Government introduces most plans for new laws, or changes to existing laws - but they can originate from an MP, Lord or even a member of the public or private group

• Before becoming law, both the House of Commons and House of Lords must debate and vote on the proposals.

Examples -

• OLA 1957 & 1988 /

• Law Reform (contributory Negligence 1966)