Chapter 1 holland and Webb week 1 foundations of law and social justice - understanding the law

Define perennial

continuing for a very long time or recurring again and again.

What are the three main functions/roles of law?

Coercive, protective and facilitative.

What is the coercive function of law?

Law uses its power to control or influence conduct, e.g. through criminal penalties.

How can law be coercive beyond criminal punishment?

Court decisions can be an exercise of state coercion, even in civil cases.

What is the protective function of law?

Law protects and defends the rights and interests of legal persons.

How does law help to stabilise society?

It prevents conflict or channels it into acceptable, institutionalised forms.

What is the facilitative function of law?

Law enables people, businesses and states to carry out transactions and agreements.

Give examples of law's facilitative role.

Marriage, buying/selling property, business transactions and trade agreements.

What are the potential downsides of law?

The state can abuse law to legitimise its rule and suppress dissent.

How can law be abused by repressive regimes?

It can be used to justify force, oppression and control.

How can abuse of state power be prevented?

By separating political and legal authority and using checks and balances.

Why should lawyers, police and courts be independent?

To prevent the executive government from controlling the legal system.

What is the rule of law?

The principle that no person or organisation is above the law.

What does freedom under the law mean?

Individual autonomy can only be restricted by a legitimate exercise of law.

What is an important function of law in a liberal democracy?

To limit the state's ability to infringe individual rights and liberties.

How does law help protect citizens from state power?

By protecting fundamental rights and freedoms, such as fair trials and free speech.

What rights can help constrain abuses of state power?

The right to a fair trial, freedom of speech and freedom of lawful protest.

What is a constitution?

The fundamental rules governing how a state is organised and how political power is exercised.

What is a written constitution?

→ A constitution where fundamental rules are primarily contained in one authoritative document.

Does the UK have a constitution?

Yes, but it is not contained in one single constitutional document.

Why is the UK constitution described as "unwritten"?

Its constitutional rules come from multiple sources rather than one single document.

Give an example of a country with a written constitution.

France, whose current constitution dates from 1958.

What are some sources of the UK constitution?

Acts of Parliament, case law, constitutional conventions and historical constitutional principles.

What does it mean to say that UK constitutional arrangements are becoming "embedded in written statute law"?

More constitutional rules are being set out in Acts of Parliament.

What is an example of constitutional law contained in statute law?

The Human Rights Act 1998.

Why are Acts of Parliament important to the UK constitution?

They increasingly set out rules governing the organisation and powers of the state.

What role does law play in economic activity?

It facilitates trade while regulating economic activity.

How does law facilitate trade?

By creating legal frameworks and rules for trade and resolving disputes.

What does law establish when things go wrong in economic activity?

Principles for risk allocation and dispute resolution.

Why does law restrict economic entities?

To protect citizens, states and the environment from harmful practices.

What can economic regulation protect people from?

Unsafe labour practices, market abuses and unfair exploitation.

Why is balancing regulation and economic freedom difficult?

Law must encourage economic activity while preventing harmful practices.

What did the 2008–09 financial crisis demonstrate?

Regulatory failure can have massive economic and social consequences.

What primarily governs international relations?

Public international law.

What does public international law regulate?

Relationships between states, including boundaries and diplomacy.

What does public international law say about states?

It provides rules for recognising states as legal entities.

What does international law regulate about territory?

The setting and recognition of states’ territorial boundaries.

What does international humanitarian law protect?

People caught up in armed conflict.

What is international criminal law concerned with?

Serious international crimes, including war crimes.

Where can people accused of war crimes be judged?

Before international tribunals under international criminal law.

What organisation chiefly regulates international trade?

The World Trade Organization (WTO).

What is the role of the WTO?

It provides rules and dispute resolution for international trade.

What are examples of regional trade systems?

The EU, USMCA and ASEAN Free Trade Area.

What are the four main institutional sources of English law?

Parliament, the courts, the European Union and the European Convention on Human Rights.

What does focusing on lawmakers mean when studying law?

Focusing on the institutions that create legal rules.

What are primary sources of law?

The actual legal rules created by lawmakers.

What are secondary or literary sources of law?

Commentary or analysis explaining and discussing legal rules.

What is the key difference between primary and secondary sources?

Primary sources create law; secondary sources explain or analyse it.

Why is Parliament significant as a source of law?

It is the main source of statute law.

What is delegated or subordinate legislation?

Law made by another body using law-making powers given by Parliament.

Which bodies can Parliament give law-making powers to?

Local councils, government departments and other agencies.

Where does the authority for delegated legislation come from?

An Act of Parliament.

How does delegated legislation differ from an Act of Parliament?

It is made by another body under powers delegated by Parliament.

What is Parliament's third important role in law-making?

It can create less formal regulatory systems within statutory frameworks.

Why is legislation important in the UK legal system?

Statutes are constitutionally the highest form of law.

Why has legislation become increasingly important?

Most new laws over the past century have been based on legislation.

What has happened to the amount of legislation over the past century?

It has grown significantly.

Why has the amount of legislation increased?

Social life has become more complex and government controls more activities.

Which areas of social life rely heavily on statute law?

Employment, childcare and social security.

Why does law tend to accumulate?

Old laws remain in force while new laws are added.

Does the growth of legislation mean Parliament simply makes more new laws?

No. The growth also reflects laws accumulating over time.

What is meant by the accumulation of law?

New laws are added while many existing laws remain in force.

What is a statute?

A document containing laws made by Parliament.

What is another name for a statute?

An Act of Parliament.

Where are statutes found?

Virtually all areas of law.

How are statutes created?

Through procedures followed by both Houses of Parliament.

What must happen before a Bill becomes law?

It must pass both Houses and receive Royal Assent.

When does a Bill become an Act of Parliament?

After it has passed both Houses and received Royal Assent.

What does it mean that an Act is “unimpeachable” in English law?

It cannot be challenged as invalid by the English courts.

Why does legislation require implementation?

It must be applied and enforced on a day-to-day basis.

Who implements legislation?

Officials who carry out Parliament’s commands or ensure others follow them.

What is meant by interpreting legislation?

Determining what the words and provisions of a law mean.

Who interprets legislation in day-to-day administration?

Officials regularly interpret primary and secondary legislation.

Who provides an authoritative interpretation of legislation?

The courts.

What are the two major roles of the courts in English law?

Interpreting legislation and developing common law.

How are courts a source of English law in their own right?

Through the development of common law.

What are “legal families”?

Groups of legal systems that share important common features.

What is a “legal tradition”?

The history, culture, values and principles shaping a legal system.

Why is history important to a legal tradition?

The past continues to influence and shape present law.

What is meant by a “living tradition”?

Legal traditions continue over time while adapting and changing.

How can a legal tradition change while maintaining continuity?

Existing principles can be reinterpreted to meet modern circumstances.

Why is the idea of legal tradition important when comparing legal systems?

It helps explain differences between legal systems and cultures.

What is the function of a trial court?

To hear a case at first instance and decide issues of fact and law.

What is the function of an appellate court?

To reconsider a case that has already been heard by a lower court.

What is the difference between civil and criminal law?

Civil law deals with disputes; criminal law deals with serious offences.

Why do courts interpret legislation?

To provide an authoritative meaning when questions arise about the law.

What are the two major roles of the courts?

Interpreting legislation and developing common law.

What is the basic hierarchy of the civil courts?

County Court/High Court → Court of Appeal → Supreme Court.

What is the basic hierarchy of the criminal courts?

Magistrates’ Court/Crown Court → Court of Appeal → Supreme Court.

What is the main function of the County Court?

To hear most ordinary civil cases at first instance.

What does the High Court deal with?

More serious or complex civil cases and certain appeals.

What are the main divisions of the High Court?

King’s Bench, Chancery and the Administrative Court.

What does the King’s Bench Division deal with?

Common law matters, including commercial and admiralty cases.

What does the Chancery Division deal with?

Equity, trusts and related matters, including companies and patents.

What does the Administrative Court do?

Supervises inferior courts and public bodies.

What does the Divisional Court hear?

Certain appeals, including County Court appeals on land and bankruptcy matters.

What is the role of the Court of Appeal?

To hear appeals from lower courts, through its Civil or Criminal Division.

What is the role of the Magistrates’ Court?

To deal with less serious criminal offences and initial stages of serious offences.

What is the role of the Crown Court?

To hear serious criminal trials and some appeals from Magistrates’ Courts.

What is the role of the Supreme Court?

It is the final court of appeal for the most important cases.