Nature of Law

Rules (moral)

Definition (AO1)

Needed in society to keep order and set ‘norms of behaviour’.

Possible that rules transfer into legal rights as shown in early common law and customs

Rules

Characteristics

• Develop over a long period of time

• Should be obeyed/followed - unlikely to be direct consequences if broken

• Enforced by disapproval in the community, amongst peers or those who set the rule

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

• Exact source is often ambiguous

• Can come from religious texts

Rules

Examples

• Parents - Eat veg

• Schools - Don’t run in hallway

• Football teams - Turn up to practice on time

• Communities - Don’t lie (break trust)

Laws (Legal Rules)

Definition (AO1)

Formal and set down, made and enforced by those who have the authority to do so i.e. Parliament, local councils, judges etc.

Laws (Legal Rules)

Characteristics

• Can be changed, created or amended instantly

• Must be obeyed/followed - There will be direct consequences/sanctions if broken

• Enforced by the courts and state (police)

• Are obligatory & apply to everyone

• Promulgated - Made widely known

• Sources can be traced back to a specific case or act

Moral & Legal rules - Similarities

• Habit of obedience

• Normative - Tells us what is right and wrong

Moral & Legal rules - Differences

• Source

• Disagreements

• Change

• Maintenance

• Enforcements

• Breach

• Mens Rea

Aims and basics of Criminal Law

• To protect society & V and to punish the wrongdoer.

• CPS (P) prosecute on behalf of V

• Standard of proof is “Beyond all reasonable doubt” - Higher than civil due to greater impact on D if found G)

• Burden of Proof (BOP) is on CPS (P)

• Role of defence is to question/cast doubt in P’s evidence and to mitigate D’s sentence if found G.

Sources of Law

• Common Law (AKA. Case Law)

• Custom

• Legislation / Statute / Parliamentary law

Common Law

Law which is created in courts rather than Parliament.

-Court decisions are given in law reports and these decisions become law

-Requires accurate reporting and development of judicial precedent.

-Once a point of law has been decided in a case, that law must be applied in all future cases containing the same material facts - Allowing for consistency and certainty

Common Law Examples

• (R v Mohan) - Direct intent

• (R v Woolin) - Oblique Intent

• (R v G) - Recklessness

Custom Law

The legal writer “Blackstone” stated that custom is something that has existed since “time immemorial” (1189) and has been continuous.

A traditional and widely accepted way of behaving or doing something that is specific to a particular society

Not put in place by person or organisation - Evolve over time

This source of law is still seen in commercial law.

Custom Law examples

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 a baker’s dozen

Legislation / Statutory Law

• Parliament is responsible for approving legislation

• Government introduces plans for new laws, or changes to existing laws.

• Statutes can originate from an MP, Lord or even a member of public or private group.

• Before they become law, both HOCs and HOLs must debate and vote on the proposals

Legislation / Statutory Law Examples

• Theft Act 1986

• OAPA 1861

• Criminal Attempts Act 1981

Criminal Characteristics

• The state regulates behaviour

• Sets out forbidden behaviour at risk of punishment

Criminal Law - Aim

To prohibit certain behaviour

Criminal Law - Parties

Prosecution v Defence

Prosecutions are carried out by Crown Prosecution Service (CPS)

Criminal Law - Venue

• Magistrates court, heard by magistrates

• Crown Court, heard by crown court judge and jury

Criminal Law - Standard of Proof

Beyond reasonable doubt

Criminal Law - Burden of Proof

BOP is on prosecution

Criminal Law - Remedies

Sentence - Fine, Custody (prison), community sentence, discharge