Chapter 1: Law and Legal Systems - Insurance Law

What is the body of general rules which governs and controls the behavior of people in the country or sovereign state in which people live?

Laws

What happens when someone breaks a legal rule?

They will face some penalty or adverse consequence

What does it mean if someone faces a penalty or adverse consequence if they break a rule?

They are backed by sanctions

What are laws based upon?

The reflection of the feelings of the community as to what is right, and what is wrong

What is true about some laws, particularly criminal law?

They are based on morality

What is much of the law designed to do?

• Regulate the economy

• Ensure life is orderly and civilized

Why do tax regulations exist?

For the sake of economic efficiency

Why is there a rule requiring all drivers to drive on a specific side of the road?

For safety rather than morality

Why are much of the non-consumer (business) laws created?

To ensure that commerce functions smoothly and according to principles which are clear and well-understood

Why must laws be enforced?

If they are ignored it will lead to disorder and confusion

How are laws enforced?

• By legal systems in developed societies to bring wrongdoers to justice

• Established courts to hear disputes and try offenders

• Designed mechanisms to ensure that disputes between private parties are resolved with decisions that can be enforced

Which territory in the United Kingdom has a legal system that has different origins from those of English law?

Scotland

What is one of the major legal systems in the world?

English Common Law

What are some countries that have adopted English Common Law?

• USA

• Canada

• Australia

• New Zealand

• Many states in Africa and the Far East

What, along with English Common Law, as spread to be widely used?

Civil Law

What area along with the UK also uses Civil law?

Europe

What is Civil law based on?

The laws of ancient Rome

Who does law relate to insurance?

An insurance policy is a legal contract

What does it mean for an insurance policy to be a legal contract?

Insures and insureds are subject to laws that apply to all contracts, along with the principles that apply specifically to insurance

What are the two distinct meanings for ‘civil law’?

• Civil law system

• Civil law as opposed to criminal law

What meaning for civil law is the legal system inspired by Roman law, and the primary basis for legal statutes is legislation?

Civil law system

What is another name for common law?

Case law

What meaning for civil law refers to the branch of law that deals with disputes between individuals and organisations?

Civil law as opposed to criminal law

What is the body of law that refers to cime?

Criminal law

What are the basic distinctions that are made in law?

• Public law

• Private law

What type of law is concerned with the legal structure of the state and relationships between the state and individual members of the community, along with governing the relationships between one state and another?

Public law

What is included under public law?

• Constitutional law

• Administrative law

• Criminal law

What type of law refers to the structure of the main institutions of government and how they work with each other, including the relationship between the two Houses of Parliament in the UK and between central and local government

Constitutional law

What is included under constitutional law?

• The making of treaties with foreign states

• The status, function and powers of the Monarch, Members of Parliament, Government Ministers, the Judiciary, the Civil Service and the Armed Forces

What is true about every country with a written or unwritten constitution?

It will have its own body of constitutional law

What is connotational law in the United States based on?

Interpretations of the U.S. Constitution by the Supreme Court

What is constitutional law in the UK based on?

Statutes, common law, and conventions

What branch of constitutional law is concerned with the the legal relationship between private citizens and the various agencies of local and central government, along with the impact of their activities on ordinary individuals?

Administrative Law

What are some areas that fall within the area of administrative law?

• Questions of local rating

• Taxation and compulsory acquisition of land

• The powers of local boards and authorities in relation to highways

• Health and education

• The granting of licences for various trades and professions

What touches everyone’s lives in more ways than we realize and covers a wide range of criminal activities?

Criminal law

What are some of the wide range of offences that are covered under criminal law?

• Offences against persons and property including theft and burglary

• Offences against the person such as murder, manslaughter, rape, and assault

• Drug offences

• Road traffic offences

• Offences against public order

• Offences against public morals.

What are some defenses for criminal law?

• Loss of control

• Self-defense

• Duress

• Automatism

What can change the definition of what is deemed criminal?

• Geographical location

• Historical context

What made attempted suicide no longer a crime in England and Wales?

The Suicide Act 1961

What is conduct which the law deems to be criminal under statute or common law?

Crime

What would make an action a crime under statute?

An Act of Parliament

What would make an action a crime under common law?

Case law

Why are crimes prohibited?

They involve the threatening or causing of harm to individuals or to public interests

Why could conduct be deemed to be criminal?

Due to moral and/or social reasons

What are the characteristics of criminal law that differ from tort and contract law?

• It falls under public law, impacting the broader society

• The state brings charges against a person

• It addresses actions that society deems unacceptable, marking them as public wrongs

What are the characteristics of tort and contract law that differ from criminal law?

• They are subcategories of private law, affecting individuals

• Individuals initiate lawsuits against other parties

• They address public private disputes between parties

What concludes a criminal case?

The verdict of the trial

What concludes a civil trial?

When liability is determined

What is the main goal of civil law?

To offer compensation to the aggrieved party, typically in the form of monetary damages

What are the key purposes of criminal law?

1. It establishes behavioral benchmarks that citizens are expected to adhere to, and these benchmarks mirror societal values, which can be rooted in morality or religious beliefs

2. It forbids actions that pose harm either to individuals or the broader community

3. The core of the criminal justice system is retributive, aiming to penalize those who commit offences

4. A commonly cited rationale for labelling certain behaviors as criminal is the principle of deterrence. The notion is that by designating an act as unlawful, it deters the general population from engaging in such behavior. Through penalizing wrongdoers, the system aims to motivate the public at large to abide by the law.

What are crimes that have been established through court decisions?

Common law offences

What are examples of crimes that are defined by the precedent set by judges in past cases?

Murder and manslaughter

What are examples of crimes that are explicitly defined by legislations or statutes?

• Theft, as per the Theft Act 1968 (s.1)

• Rape, as outlined in the Sexual Offences Act 2003 (s.1)

• Intentional wounding or grievous bodily harm, according to the Offences Against the Person Act 1861 (s.18)

What is true about criminal law that comes from statutes?

While these offences are statutorily outlined, their specifics can sometimes be further refined by subsequent case law

How is assault and battery a criminal law that is a mixture of statute and case law?

They are prosecuted under the Criminal Justice Act 1988 (s.39), but their definitions are influenced by the court decision in Fagan v. Metropolitan Police Commissioner (1969)

How can offenses be classified by?

Their seriousness

What are the categories for criminal offences?

• Summary offences

• Either-way offences

• Indictable-only offences.

What are criminal offences that are for minor crimes?

Summary offences

Where are summary offences exclusively dealth with?

In Magistrates’ court

Where are are either-way offences tried?

At either a Magistrates’ court or Crown court

What determines where an either-way offence is tried?

The severity of the crime

What are the most serious criminal offences?

Indictable-only offences

What are examples of indictable-only offences?

• Murder

• Manslaughter

• Rape

• Robbery

• Wounding or causing grievous bodily harm with intent

Where must indictable-only offences always be tried?

In the Crown Court with a jury

What is the normal practice when a criminal offence occurs?

The police will investigate the alleged offence and the state (more specifically, the Crown Prosecution Service (CPS)) will prosecute the alleged offender

What are the steps in the criminal justice process?

• Investigation

• Arrest and charge

• First court appearance

• The trial

• The verdict and sentencing

In a criminal trial why does the state have the onus of the burden of proof?

They have much more resources than the defendant and are therefore able to prove the guilt of the defendant

In criminal cases why is the defendant not obligated to prove anything?

The court operates under the foundational legal principle that they are innocent until the prosecution proves their guilt

In criminal cases why must they establish guilt "‘beyond a reasonable doubt’?

The consequences for the defendant in a criminal trial can be severe

What governs the relationships between legal persons such as individuals, businesses and other organisations?

Private law

What are some of the most important branches of private law?

• The law of contract

• The law of torts

• The law of trusts

• The law of property

• The law of succession

• Family law

Why is private law also known as civil law?

It comes from the Latin word for citizen

What makes up part of civil law?

The rules which govern insurance

What parts of civil law are most applicable to insurers?

• The law of contract

• The law of torts

Why is the law of torts particularly important to insurance?

In relation to liability insurance

What can jusirstiction mean?

• The authority or power of a specific court to determine a dispute between parties

• The territory over which the legal authority of a court extends

• A specific geographical area where a legal system or authority operates

What are the characteristics of English law that distinguish it from other legal systems, particularly those of continental Europe?

• Age and continuity

• Little codification

• Judge-made law

• Independence of the judiciary

• Adversarial system

• No written constitution

• Rule of law

How is age and continuity a characteristic of English law?

• It has developed without interruption for over 900 years

• Many cases and statues that are relevant today go back more than 500 years, like old cases on trespass

What is codification?

Laws being made into a series of written codes

What is true about codification in English law?

• A fair proportion of the criminal law has been codified

• Codification of the civil law is only in a few areas

What areas of civil law in English law have been codified?

• Partnerships

• The sale of goods

• Bills of exchange

• Marine insurance

What is true about judge-made law in English law?

The decisions of judges in the superior courts have had a profound effect on its growth and development

How are judges chosen?

They are appointed by the Monarch on the recommendation of the Lord Chancellor

Who is the independent commission that selects and recommends candidates for judicial office in courts and tribunals in England and Wales?

The Judicial Appointments Commission (JAC)

How can senior judges be removed from office before their retirement age of 70?

By a motion approved by each House of Parliament

How an junior members of the judiciary be removed?

By the Lord Chancellor only on grounds of incapacity (Like through illness) or misbehavior

What does it mean for the English legal system to be an adversarial system?

A court case is essentially a contest between two sides

Who are the adversaries in a civil case under English law?

• The claimant (previously the plaintiff)

• The defendant

Who are the adversaries in a criminal case under English law?

• The prosecution

• The defense

What can a court under English law consist of?

A judge or judges and sometimes a jury

What is a jury?

A bod of 12 ordinary citizens who provide a verdict on the basis of evidence submitted

What is true about the court when it comes to overseeing a case?

They must remain neutral

What does it meant for the role of the court is not to investigate but simply to listen to the evidence presented by the two sides and then give judgment for one side or the other?

An adversarial system

In civil cases, what does it mean that the claimant has the burden of proving that their case is true?

The balance of probabilities

What is true about guilt in criminal proceedings?

It must be proven ‘beyond a reasonable doubt’

What is the legal system that is common in continental Europe where the court does not remain neutral but plays a role in discovering the truth?

An inquisitorial system

What are the only courts under English law that employ n inquisitorial system?

The coroners’ courts

Why do coroners’ courts employ the inquisitorial system?

They inquire into cases of violent, unnatural or suspicious death

What do some say signals a gradual change in the role of English courts by granting the courts more extensive powers to ‘manage’ cases which come before them?

The Civil Procedure Rules 1999

How does English law differ from that of many other countries?

• It has not traditionally defined any fundamental, unchangeable rights for its citizens

• In England there is simply freedom to do anything not specifically prohibited by law