Unlocking Legal Learning

Chris Turner, Jo Boylan-Kemp

• Publisher: Routledge
• Year: 2013
• ISBN:
  9781134651702
• Edition: 3
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

Unlocking Legal Learning is an essential textbook for undergraduate students new to legal study. By explaining the different fields of this intricate subject and helping you to develop the skills to engage with it successfully, Unlocking Legal Learning will provide you with an essential foundation for your studies and future career. This third edition is fully up-to-date and incorporates new styles of assessment and learning resources.Support for your studies in Unlocking Legal Learning includes:

• Detailed information on how to succeed in mooting competitions, coursework, and dissertation assignments
• Numerous tips on how to take good notes and revise effectively for exams
• Advice on how to tackle problem-based questions and work well in groups
• Guidance on how to access and understand legal materials and references in print and online The Unlocking the Law series is designed to make the law accessible and covers all the core subjects required by the Bar Council and the Law Society for entry onto professional qualifications as well as popular option units. The website www.unlockingthelaw.co.uk provides additional resources such as multiple choice questions, key questions and answers and revision mp3s.

1

What Learning Law is All about

Aims and Objectives

After reading this chapter you should be able to:

• Understand the basic definition and character and purpose of law
• Understand the specific character of the English legal system
• Understand the various classifications of law within the English legal system
• Understand the basic sources of the law in England and Wales
• Use accepted legal terminology
• Research aspects of law by using a legal dictionary

1.1 The Character and Purpose of Law

What do you think ‘law’ means? A very important legal skill is being able to define concepts and topics. To start with, you may wish to write down as many different examples or types of law that you can. Then reflect on that list and see if you can come up with a definition of ‘law’.

The term ‘law’ is very difficult to define because it is used to mean different things in different contexts. A comprehensive definition is therefore hard to provide as it would have to be very wide.

The majority of people use the term ‘law’ to describe the criminal law. This may be because of the media coverage given to crimes, such as assault, murder, ‘joyriding’ etc. Some people use the word ‘law’ to describe the institutions of the legal system, such as the courts, the police, prisons and so on. Other people associate it with the rules regulating our relationships with others. Every time we purchase goods or pay for a service (like a haircut) we are entering a contract and contracts are regulated by the law. Other people would think of the processes of law, its rules and procedures, such as the steps that have to be followed when beginning a legal action under the well-advertised ‘no win; no fee’ schemes. Alternatively, the word law may be used to describe the rules laid down by Parliament and/or the courts that govern our behaviour and thus refers to the sources of the law.

So, which of these options, in your opinion, is right?

In fact, none of the above can be said to be ‘right’ to the exclusion of the others. The better way of phrasing the answer would be to say that none of them is wrong.

Consult a good English dictionary, such as The Concise Oxford Dictionary, and notice the numerous different ways in which the word ‘law’ can be defined. You may find that your understanding of these definitions changes as your knowledge increases. Clearly the word alone can have very broad meanings, which will be seen by looking for the definition of law in any dictionary. Even in a dictionary as small as the Collins English Gem Dictionary we found the following:

Quotation

‘Law. noun. Rule binding on community; system of these rules; legal science; knowledge, administration of it; general principle deduced from facts; invariable sequence of events in nature.’

Clearly there is quite a lot of scope within these definitions and there is obviously more than a single definition included here. One definition we like because it seems to identify all of the key elements of any type of law is in the Shorter Oxford English Dictionary:

Quotation

‘Any body of rules which is organised and structured and relates to a particular code of conduct.’

From this activity you will probably have realised that the word ‘law’ can be understood in many different ways, including those outlined above, but is very often defined in terms of rules. You are probably aware of many rules which people observe in their daily lives which regulate the way that they behave and yet these are not necessarily referred to as law. Many people also live according to moral rules and abide by religious codes and yet these are not laws either. So when is a rule regarded as part of the law? Rules are regarded as law when they originate from one of the recognised law-making institutions which you will learn about shortly. But that is not the whole story, for where does the system of law and its processes fit into the picture?

One way of defining the law so as to take account of all three aspects mentioned above, i.e. the rules of law, the legal system and its processes, is to say that law is a body of the rules of conduct formally recognised as binding or enforced by a controlling body. This definition is useful as a brief and simple way of explaining the concept of law. We could, however, say that the law is simply a way of regulating behaviour; it tells us what must be done, what may be done and what cannot be done.

Activity

Quick Quiz

From your reading so far and from your general knowledge, which of the following statements are true and which are false?

• There is no difference between moral rules and legal rules.
• Procedural rules, for example how to begin a breach of contract action in court, are not part of law.
• The concept of law is not the same as the concept of justice.
• Law is an instrument of social control.

These questions should have given you some food for thought! You will probably have realised that although many of the rules which we regard as laws are based on moral codes (for example, people must not commit murder), not every moral rule is part of the law of this country. For example, envy, though forbidden by moral codes, is not forbidden by law. Therefore the first statement in the exercise above is false, as law and morality are not the same, although they may overlap.

There is a great deal more to law than this, however, and you will probably realise by now that the law also comprises many procedural rules which must be followed in order for legal issues to be dealt with by the courts. The second statement in the question above is therefore false, as these procedural rules are also part of the law.

When legal issues are considered by the courts, or when Parliament creates law, one of the aims of those involved in the process is to do justice between people who are affected by the law. Sadly, we know that this aim is not always achieved and therefore it has to be said that law and justice do not always coincide, so the third statement above is true.

The criminal law (as can be seen in Figure 1.2 on page 7) determines what behaviour is unacceptable and warrants punishment. Civil law (which again can be seen from Figure 1.2) regulates behaviour and allows individuals to make enforceable agreements or to gain compensation for wrongs caused by others. So it is true to say that law is an instrument of social control.

Figure 1.1 The basic classifications of English law

Figure 1.2 Classifying the differences between criminal law and civil law

You should by now have a good idea of what law is and what it is not and you should also have a good working definition of the law, a suggestion of which appears in the final statement in the exercise above. This statement is true. You might wish to reflect on the following definition given by Glanville Williams in his book Learning the Law:

Quotation

‘law is the cement of society and an essential medium of change’.

12th edn, London: Sweet and Maxwell, 2002, p 2.

1.1.1 Lawyers’ Definition of Law

When we begin to study ‘the law’ on a law degree or other law course we need a specific definition because we are talking about law in a very specific context. Legal philosophers would say that ‘the law’ is quite hard to define because again it has so many aspects and must be used in so many different contexts.

A clear and straightforward one is provided by Sir John Salmond in his book Jurisprudence:

Quotation

‘… the body of principles recognised and applied by the courts in the administration of justice.’

He even goes on to explain what he means:

Quotation

‘In other words the law consists of the rules recognised and acted on by the courts of justice.’

So, when we study ‘the law’ we are not talking merely about any body of rules that has some type of organisation and some type of structure. Hopefully, the law is both organised and structured but what we are specifically looking for is law that can be enforced in a system of courts.

1.1.2 The Character of a Legal System

There are many different legal systems in the world. In the UK we obviously study the English legal system, although it is possible, usually as an elective module or option, to study comparative law or sometimes even to do degrees in the law of other jurisdictions such as American law or French law.

Whatever legal system we study there are common characteristics. Understanding what all legal systems share as common characteristics goes a long way towards helping us understand what it is we are studying and in recognising what may be expected from a particular branch of the law.

Professor Hart in The Concept of Law identifies five things which he suggests that all legal systems must include:

1. Rules forbidding certain behaviour on forfeit of some form of penalty or sanction for non-compliance (we would recognise this in English law as the criminal law).
2. Rules that make people compensate other people that they have wronged for the damage caused by the wrong (in English law we would refer to this as civil liability or often, in very specific circumstances, as the law of torts).
3. Rules that regulate the conduct of and that enforce agreements, arrangements and relationships between individuals (these could be contracts or wills or even involve the rights and duties within a marriage – and in a more modern context it could involve the regulation of businesses – so we could see these as contract law, the law of succession and company law respectively).
4. There must be a system of courts in which to enforce all of the above rights and obligations.
5. There must also be a legislature of some form to make new laws to fit new situations and also to get rid of or repeal outdated laws (in the UK this role is carried out by Parliament).

Hart called this body of rules to regulate conduct the ‘primary rules’. He also recognised that on their own these rules are insufficient for a system of law to work effectively. There must also be ‘secondary rules’:

1. Rules of recognition – we have identified a number of separate branches of law above; crime, tort, contract, succession, matrimonial, company – each individual body of rules must have a character allowing it to be distinguished from any other body of rules.
2. Rules of change – we have recognised the need above for Parliament to change the law to be relevant but there must, therefore, be superior systems of conduct which will authorise alteration of the rules to accommodate social and economic changes in society but which themselves operate according to law.
3. Rules of adjudication – the courts are identified as the place where disputes are heard but they also must have rules regulating the methods by which those disputes are resolved, otherwise the law would be administered in an arbitrary way and may be seen as unfair.

These ‘secondary rules’ are equally essential and the prese...