AQA A-Level Law: The Nature of Law and the English Legal System (7162)

This guide covers Section 3.1 The Nature of Law and the English Legal System, one of AQA A-level Law (7162)’s five content sections, for teaching from September 2017, A-level exams from 2019 onwards. Three sections are compulsory – this one, Criminal law and Tort – and two further sections, Law of contract and Human rights, are options: Paper 3 examines one or the other. This section is the only one examined on all three 100-mark papers, at 25 marks per paper: a quarter of each paper, and 75 of the qualification’s 300 marks, a quarter of the whole. The other 75 marks on each paper come from one substantive area: Criminal law on Paper 1, Tort on Paper 2, and Law of contract or Human rights on Paper 3. Each paper carries a third of the total award – the specification states it as “33% of A-level” for each paper and as 33.33% in its weighting table – but that figure is a paper’s weighting, not this section’s. The specification’s Appendix 2 sets out which topics of this section are examined on which paper.

Where this fits in 7162

This section provides the institutional and theoretical grounding – how law is made, applied and enforced – that the more applied Criminal Law and Tort sections draw on when analysing specific legal scenarios. AQA now offers a single Law qualification at A-level; the separate AS-level Law (7161) has been withdrawn and does not appear among the board’s current specifications, so this section should not be presented as co-teachable with it.

Syllabus coverage

AQA A-LEVEL LAW (7162) — SECTION 3.1 THE NATURE OF LAW AND THE ENGLISH LEGAL SYSTEM

• Nature of law — the distinction between enforceable legal rules and other social norms, and the relationship between law, society, morality and justice, including the role law plays in society and the meaning and importance of fault
• The rule of law — the constitutional doctrine and its application to law making, the legal system and substantive law: no person shall be sanctioned except in accordance with the law, equality before the law, and fairness and clarity
• Law making — parliamentary law making, delegated legislation, statutory interpretation, judicial precedent, law reform through the Law Commission, and the institutions, sources and impact of European Union law on the law of England and Wales
• The legal system — sources of law including custom, the civil and criminal courts (including criminal court powers and the sentencing of adult offenders), alternative dispute resolution (tribunals, mediation and negotiation), the role of lay people (magistrates and juries), legal personnel and the judiciary (including the basic regulation of barristers, solicitors and legal executives), and access to justice and funding

How to approach it

Because this section covers four broad strands rather than a small numbered list of sub-topics, organise revision around each strand as its own mini-topic – nature of law, the rule of law, law making, and the legal system – building specific examples and case references for each rather than trying to hold the whole section as one undifferentiated block. Law making questions frequently ask candidates to evaluate the advantages and disadvantages of a particular method (such as delegated legislation or judicial precedent), so practise structured evaluation rather than description alone.

Official syllabus

AQA A-level Law (7162) specification, for teaching from September 2017 onwards — aqa.org.uk.

The nature of law

Law is a set of rules enforced by the state through the courts, distinguished from moral and social rules by that enforceability. The relationship between law and morality is a recurring essay theme: Hart argued they are separate spheres, Devlin that shared morality is essential to society’s survival, and the Hart–Devlin debate remains the standard framework.

Law and society. Law maintains order and provides a means of social control, protects people and their property, regulates relationships such as employment, trade and family life, and gives a peaceful means of resolving disputes. It does so by creating enforceable rights — the right to sue for compensation after negligent injury, for example, or statutory rights at work — and it must balance competing interests, such as public against private interests: an individual’s liberty against public safety in police powers, or one landowner’s use of land against a neighbour’s enjoyment of theirs in the tort of nuisance.

Fault — blameworthiness — is the usual basis for liability. In criminal law it is expressed through mens rea (such as intention or recklessness) alongside the actus reus, and the degree of fault shapes both the offence (murder requires intention to kill or cause grievous bodily harm, while an unlawful killing without that intention may be manslaughter) and the sentence, where the offender’s culpability is central. Strict liability offences are the main exception, requiring no fault as to at least one element. In civil law, negligence requires the defendant to have fallen below the standard of the reasonable person; contributory negligence reduces damages to reflect the claimant’s own fault; and vicarious liability makes an employer liable for an employee’s tort without personal fault. Fault matters because it links legal liability to moral responsibility: liability without fault can seem unjust, but can be justified where it protects the public or ensures that a victim is compensated.

Law also differs from justice, which concerns fairness of outcome. A rule may be validly enacted yet produce an unjust result, and the tension between certainty and fairness runs through the whole subject.

The most examined classification is civil versus criminal:

	Criminal	Civil
Purpose	Punish, deter, protect society	Compensate, resolve disputes
Parties	Prosecution v defendant	Claimant v defendant
Standard of proof	Beyond reasonable doubt	Balance of probabilities
Courts	Magistrates’, Crown	County, High Court
Outcome	Conviction and sentence	Liability, damages, injunction

Sources of law

Parliamentary supremacy places Acts of Parliament above all other sources; no court may override one. The doctrine is not unlimited in practice: devolution to Scotland, Wales and Northern Ireland has transferred competences that are politically very difficult to reverse, and the Human Rights Act 1998 lets courts issue a declaration of incompatibility rather than strike an Act down, so an incompatible Act stays law unless and until Parliament itself amends it.

Custom — a long-established local practice, recognised as law where it is certain, reasonable and has existed since time immemorial — survives today as a minor source alongside statute and case law.

European Union law occupies a distinctive place among the sources: the Council, the Commission, the Parliament and the Court of Justice of the European Union each played a role in making it, its own sources are treaties, regulations and directives, and it has had a lasting impact on the law of England and Wales in areas Parliament legislated to give effect to.

Delegated legislation — statutory instruments, byelaws, Orders in Council — is made under an enabling Act. Its advantages are speed, expertise and flexibility; its dangers are volume, sub-delegation and lack of publicity. Controls are parliamentary (affirmative and negative resolution, scrutiny committees) and judicial (review for procedural or substantive ultra vires, and unreasonableness).

Law reform through the Law Commission proceeds by reform, codification, consolidation and repeal; its advantages are independence and technical expertise, and its main disadvantage is that government implements only a limited proportion of its reports.

Statutory interpretation proceeds through the literal, golden and mischief rules and the purposive approach, assisted by the language rules — ejusdem generis, expressio unius est exclusio alterius, noscitur a sociis — and by intrinsic and extrinsic aids.

The specification names two influences on interpretation. European Union law required courts to interpret domestic legislation, as far as possible, in a way that gave effect to EU law, which pushed English courts towards the purposive approach — in Pickstone v Freemans (1988) the House of Lords read equal pay regulations purposively so that they complied with EU law. Since the UK’s withdrawal from the EU this influence is largely historical, but it helped make the purposive approach the courts’ dominant method. The Human Rights Act 1998, section 3, requires legislation to be read and given effect, “so far as it is possible to do so”, in a way compatible with the rights in the European Convention on Human Rights. In Ghaidan v Godin-Mendoza (2004) the House of Lords read “as his or her wife or husband” in the Rent Act 1977 to include a same-sex partner. Where a compatible reading is not possible, the higher courts may make a declaration of incompatibility under section 4, as in Bellinger v Bellinger (2003), but the Act remains in force until Parliament changes it.

Judicial precedent rests on stare decisis. The ratio decidendi binds; obiter dicta persuade. This specification names the operation of precedent as following, overruling and distinguishing: a court follows a binding precedent whose material facts are sufficiently similar, and may avoid one by distinguishing it on its material facts or, if it is a higher court, by overruling it. The Practice Statement 1966 allows the Supreme Court to depart from its own previous decisions where it appears right to do so.

The legal system

Civil claims are allocated to small claims, fast, intermediate or multi-track by value and complexity. Criminal offences are summary, either-way or indictable, determining the trial venue. Criminal court powers on sentencing adult offenders sit alongside this: magistrates’ and Crown Court sentencing powers differ, and the choice between custodial, community, fine and discharge sentences reflects the seriousness of the offence and any aggravating or mitigating factors.

Alternative dispute resolution sits within this section too: tribunals resolve disputes in specialist areas (such as employment, immigration and social security) outside the ordinary court structure. The Tribunals, Courts and Enforcement Act 2007 created a two-tier structure — a First-tier Tribunal, organised into chambers by subject, and an Upper Tribunal that hears appeals on points of law — while employment cases have their own Employment Tribunals and Employment Appeal Tribunal. Mediation and negotiation let the parties reach their own settlement, privately and without a binding third-party decision, as an alternative to litigation.

Access to justice and funding. Alternative sources of legal advice include help lines, Citizens Advice, law centres and trade unions. Private funding comes from a person’s own resources, legal expenses insurance or a conditional fee agreement (“no win, no fee”), and public funding is available as criminal and civil state legal aid, subject to eligibility rules.

Personnel: barristers (advocacy, specialist opinions), solicitors (client-facing, increasingly with rights of audience), and legal executives. Each branch has its own regulator with a basic disciplinary and training framework — barristers through the Bar Standards Board, solicitors through the Solicitors Regulation Authority, and legal executives through CILEX Regulation. The judiciary is appointed by the Judicial Appointments Commission, with independence protected by security of tenure and immunity from suit. Lay people — magistrates and juries — bring community participation but attract criticism over representativeness and competence in complex cases.

Worked example

Explain how judicial precedent operates, including how a court might avoid following an inconvenient precedent.

Following       -> the court applies an earlier decision because the material
                   facts are sufficiently similar and it is bound to.

Distinguishing  -> identify a material factual difference, so the earlier
                   ratio does not apply. Available to ANY court.

Overruling      -> a higher court declares the earlier decision wrong law.
                   The precedent loses authority for the future.

Practice Statement 1966 -> the Supreme Court may depart from its own past
                   decisions where it appears right to do so.

Common mistakes

Reversing the standards of proof between criminal and civil. Confusing ratio decidendi with obiter dicta. Treating distinguishing and overruling as the same. Saying the Practice Statement lets any court depart from precedent — it applies to the Supreme Court. Describing delegated legislation as made by Parliament. Setting out interpretation rules without applying them to the facts.

Quick revision checklist

• Explain the role of law in society, the balance between competing interests, and the meaning and importance of fault in criminal and civil law.
• Distinguish law from morality and justice, and outline the Hart–Devlin debate.
• Compare civil and criminal law across purpose, parties, proof, courts and outcome.
• Explain delegated legislation with its advantages, dangers and both sets of controls.
• Apply the interpretation rules and the language rules to a statute, and explain the impact of EU law and the Human Rights Act 1998 on interpretation.
• Explain precedent, including ratio, obiter, following, distinguishing, overruling and the Practice Statement.
• Describe the roles of legal personnel and evaluate lay involvement.