The English Legal System: Why, How Laws are Made

THE ENGLISH LEGAL SYSTEM

Before one considers what laws are and how they are introduced into a society or a circumstance, it is necessary to consider…

WHY WE HAVE LAW

People’s behaviour, sometimes, may lead to generally undesirable outcomes, injurious to one or more others physically or as repugnant. People have sought to establish some rules, to enable the smooth functioning of the societies in which they live, of a kind that themselves can sanction to avoid chaos.

WHAT ARE LAWS

The set of rules that regulate behaviour are laws; and those that regulate human behavior in ways that they can be legally sanctioned if breached are men’s Legal Laws.

What the should be the basis of such rules, the extent of the limitations on man’s actions, who and how should decide and organize them, apply the sanctions -with what safeguards against injustice and as defined by whom and how, and the growth of society -necessitating variations of them, and other such considerations, are essentially, also part of Law.

There has been the Authoritarian View -that law’s intention should be to prevent wickedness, and the moral welfare of the society; and there has been the Libertarian View -that private morality and immorality is one’s own business and not of law: e.g., the Misrepresentations Act 1967.

THE AIM OF LAW

The Libertarian view has been mostly preferred, aiming to ensure two things:-

1. Primarily, with minimum conflict with natural law, rules for the survival of the society (e.g. regarding murder, theft -mostly criminal in nature), against human greed and aggression.

2. Secondarily, to make allowance for growth, and complex situations by way of…

a. A system of adjudication for the settling of e.g. mercantile disputes

b. A system of who and how to change the rules as and when necessary

c. A system of recognition of the primary rules themselves as legal rules.

In a non-complex society an elected body should make, and publicize, and sanction, above all, Criminal Law (rules intended primarily for a simple society with a unity of purpose which is, above all, survival -regarded as being best ensured by considering it most important that the norm should not be

deviated from, to enable cohesion and solidarity).

In a complex society there being no unity of purpose and the emphasis being on the interdependency of the members of the society, deviance would not be the most important consideration, and the purpose and the function of any law would be, chiefly, between conflicting individual interests, to maintain a reasonable balance, mostly by Civil Law -for which reason in e.g. European Law the interests of the individual are paramount to those of the state.

ENGLISH LAW

Classification of English Law is as being, both, affected by, and incorporating in part -and increasingly, international law; it comprises of…

INTERNATIONAL LAW and NATIONAL LAW

INTERNATIONAL LAW

Britain must respect and meet the expectations of various international agreements in the application of its laws -whether binding on it or not, to maintain its political standing among other countries; and, often, such expectations are met by its own, voluntary, incorporating of such laws into English law. This is done, mostly, as a condition of its membership of the European Union, as and when it is directed by Europe -as in the case of the level of its water-purity and the European directive regarding a standard common to all member states of it, and as in the case of the requirement to treat as binding on itself e.g. the Single European Act 1986.

NATIONAL LAW

National Law, on the other hand, is that which is made by the state, for the state, and in Britain by its Parliament, intended, within the state, in this case within Britain alone -with variations for Scotland and Northern Ireland, to ensure the non-anarchic organizing and running of the society, in respects from less of consequence to those fundamental, increasingly as written-law, as:-

PRIVATE LAW and PUBLIC LAW

PRIVATE LAW

Private Law regulates the dealings of the individuals with each other within the state, under such headings as:-

Family Law, Tort, Property Law, Commercial Law

Family Law is a good example of the laws in this category; it deals with matters between individuals such as marriage, divorce, and matters arising as related rights -such as the custody of children, e.g. the Family Law Reform Act 1969.

Tort or Torts -as some prefer to call it (from the French word meaning wrong, or wrongs), is the private individual’s right -if without financial assistance from the state s/he can, not to be civilly wronged by another, sometimes by an organization, in respects not contractual, sometimes including such as, with a very fine distinguishing line, may fall short of being criminal ~e.g. negligence, or the Occupiers’ Liability Act 1957.

Property Law, also called Land Law, deals with matters of property, such as land that in practice is regarded as personal -although ‘all land belongs to the Crown’, and including matters of dispute over minerals under it and treasure trove, as well as dwellings on it and fittings, often dealt with by the Courts of Chancery -e.g., the Law of Property Act 1925.

Commercial Law comprises of laws of major importance in the dealings of individuals with others, such as:-

Mercantile Law, Consumer Law, and the Law of Contracts

Mercantile Law is the original body of laws that governed commercial dealings ~it was so called because it involved dealings of merchants with each other. As it developed, it concerned itself also with dealings between merchants and the consumer, and the occasional agreements between the individuals -which later grew into separate laws themselves. Almost exclusively, it deals with such matters as competition between traders, trademarks and patents, and e.g., bills of exchange under the Bills of Exchange Act 1982.

Consumer Law is from laws-merchant; it regulates the dealings of the individuals with merchants as to, e.g., the quality, and return, of goods purchased, deeming existent a collective contract between the consumers and any trader, as in the Sale of Goods Act 1977(as amended).

Contract Law is about the, not necessarily regular, agreements of individuals with others, on specific terms offered and accepted (unless under duress or by coercion), intending it to be legally binding, for consideration in return, e.g., under the Misrepresentations Act 1967.

PUBLIC LAW

This branch of the law governs the relationships between the state and other states, and between the individual and the state, under such major headings as:-

Constitutional Law, Administrative Law, Criminal Law

Constitutional Law is about the system, the framework, of who and how, and how come to, govern, by which laws how made and applied, as the state; e.g., the Parliaments Acts 1911, 1914.

Administrative Law defines and controls the limits of government, mostly protecting against absolute power, enabling complaints and appeals against the state -e.g., the Human Right Act 1998.

Criminal Law regulates such conduct of the individuals as are regarded to be against the society, actionably, punishably, by the state; e.g. Offences Against the Person Act 1861.

THE DIFFERENCE BETWEEN PUBLIC AND PRIVATE LAW

The differences are, mainly, these:-

Public Law are those categories of law, such as Administrative, Constitutional, Criminal, which involve the conduct of the state in relation to itself, or in relation to society generally, through one or more individuals, or the conduct of the individual against the society -mostly through one or more other individuals, in representing the society.

Private Law, i.e.,
Family, Tort, Property, Commercial -with its branches, chiefly, involves the state as only the arbitrator in personal or collective dealings between the individuals.

THE DIFFERENCE BETWEEN CRIMINAL LAW AND CIVIL LAW

IF IT IS CRIMINAL LAW…

1. It is Public Law

2. It is between the state and the individual or organization

3. The state (Crown Prosecution Service) complains, prosecutes)

4. It is registered as R –v- name of the accused (R = Rex/Regina –the monarch)

5. Proof is the states, beyond reasonable doubt

6. It is dealt with by Magistrates, or by Crown Court

7. It is Not Guilty or Guilty and a Sentence –imprisonment/community-service/fine and trial costs unless on legal assistance

IF IT IS CIVIL LAW…

1. It is Private Law

2. Its is between individual/s and/or organization/s

3. The individual/s or the organization sues

4. It is Complainant (plaintiff) –v- Defendant (their names)

5. Proof is on a balance of probabilities

6. It is dealt with by a County Court or the High Court

7. It is a Judgment and the winner is awarded a remedy and, normally, costs

THE LEGISLATIVE PROCESS IN ENGLAND

The Sources of English Law

Main sources of law in England are:-

1. Legislation -including Delegated Legislation…

2. Precedent (Judge-made law) -which mostly comprises of the Laws of England and Wales and as (differently) applied in Northern Ireland (the basis being same of the slightly differing Scottish Law -and of the laws of many countries of the British Commonwealth)…

3. European Union Law -which is increasingly becoming the

Published by: koolguy on January 20th, 2011 | Filed under Legal



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