Law: The Basics

Gary Slapper, David Kelly

• Publisher: Routledge
• Year: 2012
• ISBN:
  9781136681875
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

An engaging introduction to one of the most complex areas of modern life. The book introduces both the main components of the legal system - including judges, juries and law-makers - and key areas of law - contract, civil negligence, and criminal law - to provide the uninitiated with an ideal introduction to law. Key questions to be considered include:

• How are laws made?
• How do judges decide cases?
• What is the exact role of the EU in the legal system?
• What are your rights and duties under contract law?
• What is a crime and what are criminal defences?

Throughout the book, a wide range of contemporary cases are examined to relate key legal concepts to familiar examples and real world situations.

Types of Law

There are many ways to divide law into different types. Putting law into categories is like putting people into categories – it can be done in different ways and for different purposes. If you take 100 random people in a crowd you could sort them into groups according to height, or weight, or age, or occupation, or skin colour, or blood type, or place of birth, or any number of other criteria. A 34-year-old, 5 ft 7 in., dark-haired female musician, weighing 8 stone, and born in Hong Kong with blood type O, would be placed among different subsets of people from the 100 depending on how people were being categorised.

In the same way, law can be put into different groups according to different criteria. The quantity of law that applies in the UK today is very considerable. It is contained in thousands of voluminous law reports of decided cases judged over many centuries, statutes and regulations passed by Parliament, and a gigantic quantity of European law and European human rights law.

Taking this law as a whole, it can be divided according to whether it has originated from judicial pronouncement (judge-made law) or legislation (from Parliament). Equally, it could be divided according to whether it is private law (law, like contract law, which applies to people in the private relations they might have as citizens or organisations) or public law (like criminal law which applies to everyone at large).

Very commonly, a single transaction or relationship or event will entail the relevance of a great many laws and several types of law. For example, consider the awful case of a lorry travelling at speed along a motorway, crashing into a car that had stopped on the hard shoulder, killing one of a number of people standing near the car, and then smashing through the barrier and plunging down an embankment on to a railway line in front of an oncoming train. All sorts of law could be applied to such a dreadful situation including the following:

• A criminal charge of dangerous driving against the lorry driver;
• A criminal charge of causing death through dangerous driving against the lorry driver;
• If defective brake pads and discs had been fitted to this lorry, along with others in the fleet owned by the haulage company, and it evidently knew of this danger, then there might be a charge of ‘corporate manslaughter’ against the haulage firm;
• A civil claim in the tort of negligence by the dependants of the person who was killed, against the lorry driver and his or her employer;
• A civil action in the tort of negligence for nervous shock by people who witnessed the horror of the carnage at its scene;
• A civil action for economic loss in the tort of negligence against the lorry driver and the haulage firm brought by the train company, or companies, whose business was disrupted for days following the terrible accident and the blocked train lines;
• The accident might well have prevented a number of scheduled events with a commercial significance from taking place. For example, if a pop group or orchestra was unable to arrive at a large auditorium to play on a scheduled night (as part of a busy world tour that would not be repeated) then various civil actions for breach of contract or insurance-related claims might follow, in which case the law relating to the frustration of contracts and so called ‘Acts of God’ might be applicable.

These last four claims would, if successful, be likely to be paid by the defendant’s insurance companies.

What follows are a number of ways in which the law might be divided.

Criminal Law and Civil Law

Criminal cases are generally brought by the state for offences ranging from graffiti to murder. If the defendant is found guilty he or she is punished. Civil cases are brought by citizens or organisations and the aim is usually to get compensation or a court order to make someone do something or stop doing something.

Criminal Law

Ultimately, all justice systems hinge on their criminal codes because the criminal law is the portion of the law underpinning the legal system and enforcing its edicts. Behind every civil law court order is the force of a criminal sanction for disobedience of the order. Testimony in all civil, family, and private law matters is upheld ultimately by criminal laws against contempt of court, perjury, and perverting the course of public justice. There are many types of law but failing to obey a court which tries to enforce any of these types of law is ultimately a crime.

What is the distinguishing characteristic of a crime? What puts one type of wrong in the category of a crime, and keeps another as a civil wrong? The truth is that there is no scientific way of differentiating wrongs on that basis. It is impossible to be definitive about the nature of a crime because the essence of criminality changes with historical context. As one legal writer, Glanville Williams, observed (1983):

a crime (or offence) is a legal wrong that can be followed by criminal proceedings which may result in punishment.

In ancient times, lending money and charging interest was the crime of usury. Now if done successfully it might earn a banker a knighthood. Cocaine used to be a legal narcotic used both for recreational purposes and toothache; now it is illegal.

If you ask ‘what is a crime?’ and are given the answer ‘anything that can be punished as a crime’, you might reply that such an answer keeps you going around in circles because you could then say ‘yes, but what sort of things are likely to be labelled by the state as crimes and then punished?’ In an attempt to escape from the circularity of these definitions of crime (‘a crime is anything that is punished as a crime’), some writers have sought to explain its nature in terms of the seriousness of the conduct it prohibits.

Thus Glanville Williams eventually concedes (1983) that

a crime is an act that is condemned sufficiently strongly to have induced the authorities (legislature or judges) to declare it to be punishable before the ordinary courts.

This is a little more helpful but it still leaves unanswered the question – ‘condemned sufficiently strongly’ by whom? The principle connects with the thinking of the nineteenth-century French writer, Emile Durkheim. He remarked on the way that collective ‘social consciousness’ can be enhanced by the condemnation and punishment of deviance. People like to stick together to condemn what they see as wrong, and this behaviour strengthens their togetherness. Criminal law therefore bolsters social solidarity.

The public nature of crimes is evidenced by the fact that, technically, any citizen is permitted to bring a prosecution after a crime. He or she does not have to establish a personal interest as is necessary in civil proceedings. Each year there are about two million prosecutions, of which about 20 per cent are brought by someone other than the Crown Prosecution Service. These include shops, the education welfare service, utility companies and transport organisations. About 2 per cent of prosecutions are brought by private individuals.

By contrast to the general principle that anyone can prosecute for a crime, in civil law a litigant needs to show a particular status. For example, in Holmes v Checkland (1987) an opponent of cigarette smoking was denied ‘standing’ to restrain the BBC from broadcasting a snooker championship sponsored by a tobacco company, since he was no more affected than anyone else. He could only proceed with the aid of the Attorney-General. The word ‘standing’ in this context comes from the Latin phrase locus standi, ‘a place to stand’, which was used in older cases to denote that someone, by virtue of being personally affected by a matter, was in a position to sue.

There are only minimal controls over who can prosecute for a crime for the public good. There is provision in s. 24 of the Prosecution of Offences Act 1985 for the High Court, on the application of the Attorney-General, to restrain a ‘vexatious’ prosecutor. A vexatious prosecutor means someone who by the serial nature of their prosecutions or the evident malice of them is denied the facility in future. Another control is that if a private prosecution is regarded as inappropriate by the governmental legal authorities, the Attorney-General can take it over, for the sole purpose of dropping it. That process is called nolle prosequi (Latin for ‘not to wish to proceed’).

However, if a citizen begins a prosecution, he or she may not discontinue it at will because, as was decided in R v Wood (1832), it is not only his concern but that of all citizens. If a prosecution succeeds and sentence is passed, a pardon cannot be granted by the instigator of the prosecution, it can only be granted by the Crown.

The Origins of Criminal Law

There can be little doubt about the importance of the criminal law as a method of social control. As the Criminal Law Commissioners noted in 1843: ‘The high and paramount importance of the Criminal Law consists in this consideration, that upon its due operation the enforcement of every other branch of the law … depends.’ This aspect of the criminal law’s importance has not diminished over the last 150 years. It retains a crucial ideological significance as being the form of law in closest touch with the public, and something which reinforces their belief in the need for ‘law’.

There are differing explanations accounting for the rise of criminal law as a distinct entity. Some writers have regarded the process as being a rather chaotic development. Harding, for example, looking at nineteenth-century changes, suggests (1966) that it was manufactured piecemeal by statutes ‘listing offences with minute particularity which had long ago obscured any general principles’.

The church’s influence over early medieval criminal law is illustrated by the fact that although sentences still retained the character of retribution or an equivalent, the retribution ceased to be directly linked to the loss of the victim based on his claim but acquired a higher general significance as a divine punishment. In this way the church attempted to associate the ideological motive of atonement with the material aspect of compensation for the injury, and thus to construct, from penal law based on the principle of private revenge, a more effective means of maintaining public discipline.

The notion of crime as a type of wrong associated with ‘wickedness’ or ‘evil’ was fostered by the early church and its doctrine of atonement by penance. It was under the Norman rule, after 1066, that the Crown started to take charge of the criminal courts to protect ‘the King’s peace’. The degree of royal control, however, was very limited because the initiative for bringing criminals to justice still lay with the victim and his or her kin.

Actions against the criminal, the ‘appeal of felony’, had retribution as their main object was that the felon’s property was forfeited, his belongings to the King and his lands to his feudal Lord so there was no gain for the victim. The Crown guarded this right to prosecute jealously – it was an offence for a victim to settle privately (take cash from the culprit) without permission. It was the imperfections of the appeal procedure, and the resulting loss to the revenue when claimants started to disregard the felony and sue in the civil courts, that brought about the introduction, in the twelfth century, of a new straight criminal process at the option of the Crown. That was the start of the modern criminal justice system. Today, over a million cases are prosecuted every year, criminal law is a core part of every criminal law course at university, and the most famous branch of the law.

Civil Law

Sometimes words carry different meanings according to the settings in which the word is used. For example the word ‘rich’ can mean quite different things depending upon what sentence it is within. The person possessing great financial or financially quantifiable wealth can be described as rich. A food or diet can be described as rich if it contains a large proportion of fat or eggs, or even spice. A voice is rich if it is mellow or deep. And where it is said of a person’s assertion or statement ‘that is rich coming from you’ then rich means highly amusing or ludicrous. The phrase ‘civil law’ can mean different things depending on the context in which it is used.

Civil law can be used to connote Code law (as in France or America), and so to distinguish it from common law jurisdictions like the UK. In other circumstances, ‘civil law’ can be used to refer to Roman law. Most commonly though, in the UK, ‘civil law’ is used to refer to the sort of law used in civil proceedings. Common examples include cases for breach of contract, for nuisance, for negligence and for defamation. Such civil proceedings have the object of declaring or enforcing a right for the advantage of a person or company, or of recovering money or property.

This can be contrasted with an action in law which is a criminal prosecution, which we have examined earlier, and with a public or administrative law action. Criminal actions are brought on behalf of the state to condemn as criminal something affecting society at large. Similarly, public or administrative law actions are aimed at securing a benefit for the general public, for example to stop a nuisance which is disturbing the public at large.

In civil proceedings, the person or organisation bringing the action is known as the claimant (before the Civil Procedure Rules 1998 came into effect in 1999, a claimant was known as a plaintiff). If this litigation, often called a civil action, succeeds, the defendant will be found liable, and judgment for the claimant might require the defendant to pay compensation (damages) to the claimant or to comply with a court order to carry out the terms of a contract (an order of specific performance), or to do something or to refrain from doing something (an injunction).

Important areas of civil law include contract law and tort law.

The Law of Contract

A contract is a legally enforceable agreement. In very early human societies where people lived in small, family, kin or tribal communities, and everybody knew everyone else, it was unnecessary to have any framework of rules dealing with exactly at what point and in what circumstances an agreement was made, and how it should be enforced. The more complicated a society becomes, though, with many thousands of transactions each hour or every day between strangers, the more it needs to have a sophisticated law of contract. Each week in the United Kingdom, with a population of 60 million, there are hundreds of millions of contracts made. You make a contract every time you buy something in a shop, or on the internet, or every time you buy a train or bus ticket. One leading writer on contract has put it this way:

Contracts come in different shapes and sizes. Some involve large sums of money, others trivial sums. Some are of long duration, while others are of short duration. The content of contracts varies enormously and may include contracts of sale, hire purchase, employment and marriage.

(McKendrick 2003: 1)

If you read a book on the law of contract you will discover that there are many hundreds of possible points of contention concerning whether a contract has been properly made by two or more parties who have clearly consented to all of the same points in an agreement. Disputes can arise over whether the behaviour of one party is a breach, or tantamount to a breach, of the agreement, whether an agreement based on a mistake or misrepresentation should still enjoy the protection of the law of contract, and what remedies are available where a contract has been broken.

Here is an example of a case decided in the law of contract. Under general principles in the law of contract, if there is to be an enforceable agreement, then an acceptance of an offer must be communicated to the person who has made the offer. If I am to accept your offer I must communicate my acceptance to you. In Entores v Miles Far East Corp (1955), the court was concerned with the technicality of precisely where a deal for ‘100 tons of Japanese cathodes’ had been completed because other matters swung on the question of in which city the deal had been made. The court had to consider at what point an acceptance made by telex (a precursor of the fax machine) in Amsterdam was ‘communicated’ to the person receiving the message in London. Was it communicated when it was typed in by the sender or when it was printed at the other end? The Court of Appeal decided the deal was made in London when the telex message was printed out in that o...