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The nature of law and the English legal system flashcards

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Nature of law

How does a legal rule differ from other rules and norms of behaviour?: A legal rule is made by a recognised authority (Parliament or the courts) and is enforced by the state through the courts, with sanctions. Moral rules, customs and etiquette are enforced only by social pressure or conscience.
What is the difference between civil and criminal law?: Criminal law: the state prosecutes wrongs against society; proof beyond reasonable doubt; the outcome is punishment. Civil law: individuals sue over private disputes (contract, tort); proof on the balance of probabilities; the outcome is usually compensation.
What are the main sources of English law?: Legislation (Acts of Parliament and delegated legislation), judicial precedent (common law), and formerly EU law. Custom and equity are historical sources.

Nature of law: law and society

What roles does law play in society?: Keeping order (social control), protecting rights, settling disputes, regulating relationships and economic activity, and bringing about social change.
What is Roscoe Pound’s view of law as social engineering?: Law should balance competing interests (individual, public and social) so that as many interests as possible are satisfied with the least friction.
How does law balance competing interests? Give an example.: It weighs one group’s interests against another’s, e.g. in nuisance the claimant’s enjoyment of land is weighed against the defendant’s use of theirs (Miller v Jackson, 1977, refused an injunction to protect the community’s cricket).
How can the law be used as a means of social control?: Through the criminal law and sanctions that deter and punish, through regulation (licensing, inspections), and through civil remedies that set standards of behaviour.

Nature of law: law and morality

How do law and morality differ?: Law is made formally, changes deliberately, is enforced by the state and is obligatory. Morality develops gradually, varies between people and groups, and is enforced by conscience and social pressure. They overlap (e.g. murder, theft) but are not the same.
What was the Hart–Devlin debate?: After the Wolfenden Report (1957). Lord Devlin: society may use the law to enforce its shared morality, or it may disintegrate. Professor Hart, following Mill’s harm principle: the law should intervene only to prevent harm to others.
How does R v Brown (1993) show the link between law and morality?: The House of Lords held that consent was no defence to actual bodily harm inflicted in private sadomasochistic activity, enforcing a moral view even though those involved consented.
What is the difference between natural law and legal positivism?: Natural law: a rule must be morally just to be valid law. Legal positivism: a rule is valid law if made by the proper procedure, whatever its moral content.
How has the law changed with moral attitudes? Give an example.: R v R (1991): the House of Lords held that a husband can be guilty of raping his wife, reflecting the changed view of marriage.

Nature of law: law and justice

What are distributive and corrective justice (Aristotle)?: Distributive: the fair sharing out of benefits and burdens in society. Corrective: putting right the balance between parties after a wrong, as damages do.
What is the difference between formal (procedural) and substantive justice?: Formal/procedural: fair rules and procedures applied equally (e.g. a fair trial). Substantive: whether the content of the law and the outcome are themselves just.
What is the utilitarian theory of justice?: Bentham and Mill: the law is just if it produces the greatest happiness for the greatest number. Criticised because it can justify sacrificing a minority.
What is John Rawls’ “veil of ignorance”?: In A Theory of Justice (1971): just principles are those people would choose without knowing their own place in society, which favours equal liberties and helping the least well off.

The rule of law

What are Dicey’s three principles of the rule of law?: No one is punished except for a breach of law proved in the ordinary courts; everyone is equal before the law, including officials; and rights are secured by decisions of the ordinary courts.
How did Lord Bingham describe the rule of law?: In The Rule of Law (2010) he set out eight principles, including that the law must be accessible, clear and predictable, apply equally to all, protect fundamental human rights, and that ministers must act within their powers.
Which case shows that the state needs legal authority for its actions?: Entick v Carrington (1765): officers who searched a home and seized papers under a warrant with no legal basis were liable in trespass.
Give two ways the English legal system upholds the rule of law.: Judicial independence and judicial review of the actions of ministers and public bodies. Others: the right to a fair trial, legal aid, and the presumption of innocence.

Law making: parliamentary law making

What are Green Papers and White Papers?: Green Paper: a consultation document setting out proposals for discussion. White Paper: the government’s firm proposals for new law.
What are the stages of a Bill in Parliament?: First Reading, Second Reading (main debate and vote), Committee Stage, Report Stage, Third Reading; the process repeats in the other House; then Royal Assent.
What do the Parliament Acts 1911 and 1949 do?: They allow a Bill passed by the House of Commons to become law without the consent of the House of Lords after a delay, as with the Hunting Act 2004.
What is parliamentary sovereignty?: Parliament can make or repeal any law, one Parliament cannot bind its successors, and no court can set aside an Act of Parliament.
Name three influences on Parliament’s law making.: The Law Commission, pressure groups, the media, political parties’ manifestos, and public opinion.

Law making: delegated legislation

What are the three main forms of delegated legislation?: Statutory instruments (made by government ministers), byelaws (made by local authorities and public corporations), and Orders in Council (made by the Privy Council).
How does Parliament control delegated legislation?: Through the enabling Act itself, the affirmative and negative resolution procedures, and scrutiny committees such as the Joint Committee on Statutory Instruments.
How do the courts control delegated legislation?: By judicial review: it can be declared ultra vires and void if the correct procedure was not followed (Agricultural Training Board v Aylesbury Mushrooms, 1972), if it goes beyond the powers given, or if it is unreasonable (Strickland v Hayes Borough Council, 1896).
What are the advantages of delegated legislation?: It saves Parliament’s time, allows experts and local knowledge to be used, and can be made and changed quickly.
What are the disadvantages of delegated legislation?: It is made by unelected people, so it is less democratic; there is so much that scrutiny is limited; and it may be hard for the public to find and follow.

Law making: statutory interpretation

What is the literal rule? Give a case.: Words are given their plain, ordinary meaning even if the result is absurd. Whiteley v Chappell (1868): impersonating a dead person was not impersonating “a person entitled to vote”.
What is the golden rule? Give a case.: The literal meaning is modified to avoid an absurd result. Narrow approach: Adler v George (1964), “in the vicinity of” read to include inside. Broad approach: Re Sigsworth (1935), a murderer could not inherit from his victim.
What is the mischief rule? Give a case.: From Heydon’s Case (1584): the court asks what mischief the Act was passed to remedy. Smith v Hughes (1960): prostitutes calling from windows were “in a street”, as the Act aimed to stop soliciting in public.
What is the purposive approach? Give a case.: The court looks for the purpose of the Act as a whole. R (Quintavalle) v Secretary of State for Health (2003): organisms created by cell nuclear replacement were within the Act regulating embryos.
What are intrinsic and extrinsic aids to interpretation?: Intrinsic: inside the Act (long title, preamble, headings, schedules, interpretation sections). Extrinsic: outside it (dictionaries, Law Commission reports, earlier Acts, and Hansard since Pepper v Hart, 1993).
How does the Human Rights Act 1998 affect statutory interpretation?: Section 3 requires legislation to be read and given effect, so far as possible, in a way compatible with Convention rights.

Law making: judicial precedent

What is stare decisis?: “Stand by what has been decided”: like cases are decided alike, and lower courts follow the decisions of higher courts.
What is the difference between ratio decidendi and obiter dicta?: Ratio decidendi: the legal reasoning needed for the decision, which binds lower courts. Obiter dicta: other things said, which are persuasive only.
What does the Practice Statement 1966 allow? Give an example of its use.: The House of Lords (now the Supreme Court) may depart from its own previous decisions when it appears right to do so. In R v Shivpuri (1986) it overruled Anderton v Ryan (1985) on attempting the impossible.
When may the Court of Appeal depart from its own decisions?: Young v Bristol Aeroplane (1944): where two of its earlier decisions conflict, where its decision conflicts with a later House of Lords/Supreme Court decision, or where its decision was made per incuriam (by mistake).
How do judges avoid following a precedent?: Distinguishing (the material facts are different), overruling (a higher court decides an earlier case in a different case was wrongly decided) and reversing (a higher court changes the decision in the same case on appeal).
What are the advantages and disadvantages of judicial precedent?: Advantages: certainty, consistency, fairness, flexibility, and practical detail from real cases. Disadvantages: rigidity, complexity and volume of cases, slow change, and judges making law without democratic mandate.

Law making: law reform

What is the Law Commission?: A full-time, independent body set up by the Law Commissions Act 1965 to keep the law under review and recommend reform.
What are codification, consolidation and repeal?: Codification: bringing all the law on a topic into one code. Consolidation: combining several Acts on a topic into one Act. Repeal: removing obsolete laws from the statute book.
Give an example of a Law Commission report becoming law.: The Fraud Act 2006 was based on the Law Commission’s report on fraud.
What are the strengths and weaknesses of the Law Commission?: Strengths: expert, independent, consults widely and produces draft Bills. Weaknesses: the government does not have to act on its reports, and many are implemented late or not at all.

Law making: the European Union

What are the main institutions of the EU?: The European Commission, the Council of the European Union, the European Parliament and the Court of Justice of the European Union.
What is the difference between EU regulations and directives?: Regulations are directly applicable: they became law in every member state without further action. Directives set a result to be achieved; each member state chose how to implement them by a set date.
What did the Factortame litigation (1990) show about EU law?: The House of Lords disapplied part of an Act of Parliament (the Merchant Shipping Act 1988) because it conflicted with EU law, showing that EU law took priority while the UK was a member.
What is the position of EU law in the UK after Brexit?: The UK left the EU on 31 January 2020. The European Union (Withdrawal) Act 2018 kept existing EU-derived law as “retained EU law”, renamed “assimilated law” from 2024; Parliament can now amend or repeal it.

The legal system: the civil courts and other forms of dispute resolution

Where are civil cases heard and how are they allocated?: In the County Court or, for higher-value or complex claims, the High Court. Cases are allocated to the small claims, fast, intermediate or multi-track by value and complexity.
What is the civil appeal route from the High Court?: High Court → Court of Appeal (Civil Division) → Supreme Court, which hears only cases of general public importance.
What are negotiation, mediation and arbitration?: Negotiation: the parties settle the dispute themselves. Mediation: a neutral mediator helps the parties reach their own agreement. Arbitration: an arbitrator makes a binding decision (Arbitration Act 1996).
What are tribunals and how are they organised?: Specialist bodies that decide disputes in particular areas, such as employment and immigration. The Tribunals, Courts and Enforcement Act 2007 created the First-tier Tribunal and the Upper Tribunal.
What are the advantages and disadvantages of ADR?: Advantages: cheaper, quicker, private, informal, and helps preserve relationships. Disadvantages: an imbalance of power between the parties, no binding precedent, and limited appeal (from arbitration).

The legal system: the criminal courts and lay people

Which criminal cases are tried in the Magistrates’ Court and which in the Crown Court?: Summary offences: Magistrates’ Court. Either-way offences: either court (the defendant may choose a jury trial). Indictable offences: Crown Court, with a judge and jury.
What is the burden and standard of proof in a criminal trial?: The prosecution must prove guilt beyond reasonable doubt (Woolmington v DPP, 1935).
Who are lay magistrates?: Unpaid volunteers with no legal qualifications who sit as a bench of two or three, advised on the law by a legally qualified justices’ clerk or legal adviser.
Who is eligible for jury service?: Under the Juries Act 1974: aged 18 to 75, on the electoral register, and resident in the UK for at least five years since age 13. Some people, such as those with certain criminal convictions, are disqualified.
What is a majority verdict?: Where a jury cannot all agree, the judge may accept a verdict of at least 10 of 12 jurors after they have deliberated for a minimum period.
What are the advantages and disadvantages of juries?: Advantages: public confidence, a cross-section of society, and impartiality (no case-hardening). Disadvantages: possible bias or influence of the media and the internet, no reasons given, and secret deliberations (R v Young, 1995, a Ouija board was used).

The legal system: legal personnel and the judiciary

What is the difference between barristers and solicitors?: Barristers: specialist advocates, usually self-employed in chambers, regulated by the Bar Standards Board. Solicitors: deal directly with clients on a wide range of work, regulated by the Solicitors Regulation Authority.
What are chartered legal executives?: Qualified lawyers who usually specialise in one area of law, trained and qualified through the Chartered Institute of Legal Executives (CILEx).
How are judges appointed?: Through the independent Judicial Appointments Commission, set up by the Constitutional Reform Act 2005, selecting on merit.
What did the Constitutional Reform Act 2005 change?: It reduced the Lord Chancellor’s role, made the Lord Chief Justice head of the judiciary, created the Judicial Appointments Commission, and created the Supreme Court (which opened in 2009).
Why is judicial independence important and how is it protected?: Judges must decide cases, including against the government, without fear or favour. It is protected by security of tenure (senior judges can be removed only by an address of both Houses of Parliament), immunity from suit, and protected salaries.

The legal system: access to justice and funding

Which Act governs legal aid, and who runs it?: The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO). It is administered by the Legal Aid Agency.
What tests apply to civil legal aid?: The case must be within the scope of the scheme (LASPO removed many areas of civil law), and the applicant must pass a means test and a merits test.
What tests apply to criminal legal aid?: An interests of justice test (e.g. the risk of losing liberty) and, in most cases, a means test. Free advice from a duty solicitor is available to anyone held at a police station.
What is a conditional fee agreement?: A “no win, no fee” agreement: the lawyer is paid only if the case is won, usually with a success fee on top. Since LASPO the success fee cannot be recovered from the losing side.
Name other sources of legal advice besides legal aid.: Citizens Advice, law centres, pro bono work by lawyers, trade unions, and legal expenses insurance.