The nature of Law - Lecture notes 1 PDF

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The nature of law ...

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Chapter 1-The nature of Law: 

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English law can be defined as a body of rules, created by the state binding by its jurisdiction and enforced with the authority of the state through the use of sanctions. The law of any country is only binding to its territory. Rules are commands aimed at regulating behaviour. Rules tell us what we can and cannot do.

Characteristics of English Law: The origins of the English legal system can be traced to the Norman Conquest in 1066. Although huge changes have taken place since then, development has been gradual and piecemeal. English law has been little influenced by the Roman law principles which dominate the legal systems of other European countries and which also have some influence on Scots law. Judges were the principal lawmakers until their powers were superseded by Parliament in the eighteenth century. Adversarial Procedure: Trail in which judge acts like the referee the contest between two opposing litigants.  Inquisitorial Procedure: When the judge helps to establish the evidence by actively questioning the witness. A system of law may be needed for the following reasons:  to provide a governmental structure and legislative procedures: constitutional law; to provide public services and to raise taxes to pay for them:  administrative and revenue law;  to regulate and promote the economy:  administrative, civil and criminal law are all involved; to promote public order and preserve national security:  criminal law; to give individual members personal rights and duties in relation to others and to enable personal enforcement of these rights:  the civil law. civil law duties may arise through agreement between the parties (the law of contract), or be imposed directly (the law of tort);  to give legal validity to approved relationships and transactions between members of the society: this involves the law of contract, the law of property and succession, company and partnership law, and family law. 

Criminal Law Purpose: Regulates behaviour perceived as being anti-social and dangerous to the public. Provides machinery by which the state may take action against offenders.

Procedure: Generally started by the police, but some legislation is enforced by other agencies like local authorities or revenue & Customs. Exceptionally, a private prosecution may be brought by an individual. The victim usually plays no part

Civil Law Purpose: Gives legal rights to individuals to govern their formal and informal relationships with one and another. Provides the means by which they may enforce the rights arising from these relationships. Procedure: Civil proceedings are taken against the alleged lawbreaker by the party who claims that they have been wronged. The case may not go to trial even if proceedings are started. Most civil law claims are settled out of court without any

in the decision to prosecute. Once started, a case will proceed to trial in the magistrates’ court or the Crown Court. The prosecution must prove that the accused is guilty beyond all reasonable doubt. Penalties: Focus on the accused and the need to protect society against criminal conduct. The ultimate aim is to control the criminal, while protecting society from future anti-social conduct. A penalty may be used to contain criminals by depriving them of their freedom, or to rehabilitate them; it may be intended to deter them or others from committing future crimes. Penalties: Focus on the accused and the need to protect society against criminal conduct. The ultimate aim is to control the criminal, while protecting society from future anti-social conduct. A penalty may be used to contain criminals by depriving them of their freedom, or to rehabilitate them; it may be intended to deter them or others from committing future crimes.

threat of legal action. In many others, the proceedings are abandoned before trial. Most civil cases are heard in the county court and the High Court and in certain specialised tribunals. The claimant must prove that the defendant is liable on the balance of probability.

Penalties: Focus on the needs of the victim and generally require the wrongdoer to pay damages, which are often covered by insurance. Exceptionally, the court – by injunction or other equitable remedy – may require some practical correction of the wrong. This is usual in domestic violence cases.

Changing the Law: It is important to realise that the law is subject to frequent change. Very few principles actually remain constant. These changes reflect social, political, economic and technological developments taking place within society. Social Change: Changes in moral values have influenced a number of legal developments in the last 50 years. This includes reform of the divorce law, decriminalisation of abortion, as well as the introduction of legislation to prevent discrimination on the grounds of sex, race, sexual orientation, disability, religion or belief and age. Political Change: No government can issue new policies unless it has the legal right to do so. This means that law may require constant and radical change. The privatisation of electricity, water, gas was achieved by repeal of pervious legislation, which has introduced a policy of nationalisation. Economic and technological change: Much of the law governing commerce and industry, including the regulation of health and safety at work, is subject to such influence. As industrial practice changes, old hazards disappear and new ones develop. For example, the commercial exploitation of the internal combustion engine has led to the development of a huge body of road traffic law.

Essential Legal terms:       

Claimant: The party who brings a civil action. Defendant: Person against whom criminal or civil proceedings are brought. Defence: The person being prosecuted in a criminal trial/ their legal representatives. Accused: The person being prosecuted in a criminal trial. The prosecutor/ The Crown: The prosecutor in criminal proceedings. Common Law: Law applicable to the whole of England including judges. The law has been made. Equity law: Complements the common law based on morality as well as legal right and practical remedies granted at the discretion of the court....