The Legal System - introduction to the nature of law Flashcards
What is the procedure in criminal law?
The Crown prosecutes the defendant
Defendant may be found guilty, provided the jury/magistrates have no reasonable doubt
What is the procedure of civil law?
The claimant can sue the defendant
Defendant may be found liable on the balance of probabilities
What is purpose and outcomes of civil law?
Civil law create rights that are enforceable between private individuals
Meaning that enforcement agencies such as the police do not get involved in these law
Civil laws therefore do not aim to punish but to compensate those whose rights have been violated
What is the purpose and outcomes of criminal law?
Criminal laws create criminal offences and punish those who commit them
What are the civil and criminal courts
Civil - county and high court
Criminal - magistrates and crown court
What are procedural laws?
Prescribe the framework in which other laws are made and enforced
What are substantive laws?
Create and define legal rights and obligations
e.g criminal offences
What are public laws?
Govern the relationship between the state and its citizens
Include criminal laws and most procedural laws as they define powers of parliament government and other key institutions of the state such as police and courts
What are private laws?
Create rights enforceable between individuals; they are mainly substantive in nature e.g the law of trespass allows you to restrict access to your property
What are custom?
Customs are rules of behaviour developed in a community
- not suddenly invented
- important historically as they form basis of common law
A legal custom is the established pattern of behaviour that can be objectively verified within a particular social setting
What is common law?
Refers to laws that have been developed by judicial decisions (judicial precedent)
- it has never been defined in an act of parliament but instead developed from ancient custom and is still developing through the decisions of judges in the high courts
e.g murder is a common law offence
England and Wales use a common law system as well as many countries, which we colonised under British empire
Decision based and consists of many individual cases
What is statute law?
UK parliament is based in the Palace of Westminster: made up of the King, House of Commons and House of Lords
-laws are passed here are known as acts of parliament/statutes and these are superior to any conflicting law
Statute laws are easy to identify as the clues are in the names e.g Fraud Act 2006
The connections between law, morality and justice
Both law and morality are referred to as normative concepts - they specify how people should behave. The aim of adhering to the law and a moral code or rules is to achieve justice
Normative concepts - concepts which establish standards of normality or acceptable behaviour
If morals dictate how laws should be made, then justice is served if someone breaks the law and injured party is compensated as a result
- however it is possible to find a single set of moral values that can be considered acceptable to all members of society
What is the rule of law?
The process by which the laws of the country are enacted, administered and enforced must be fair
Nobody can be above the law. ROL is sovereign. This safeguards democracy and protects against dictatorship
Officials and government are accountable. No single organ of government can act in an unchecked way
Professor Dicey believed rule of law had 3 elements:
- An absence of arbitrary power on the part of the state (law sets limits on what state can or cannot do)
- Equality before the law
- Supremacy of ordinary law
Problem with Dicey’s rule of law is that it conflicts with the fundamental principle that of Parliamentary Supremacy - meaning Act of Parliament can overrule any law and not other body has the right to override an Act of Parliament or set it aside
- whilst under the rule there should be no arbitrary powers on the part of the state, Parliament actually can create arbitrary power (coronavirus act 2020)
