1. 1
Learning Outcome 1
Marine Law
Lesson 2
HNC Nautical Science
Marine Law & Management
Recap
• What classes (systems) of law exist in the UK?
• Why do we require laws?
Aim
• To understand law and how it is made
2. 2
Objectives
By the end of the session the student will be
able to:
• Identify where law comes from
• Define what a state is
• Identify how law is made in England &
Wales
• Explain the concept of common law
• Explain the concept of precedent
Where do rules come from?
• Unspoken ways to behave that have been
accepted by people.
• Developed into moral obligations and passed
down through the generations.
• Absorbed into religion and organised societies.
• Made into law.
• Things can be morally wrong but not legally
wrong i.e. breaking a promise.
• There can be a legal interest in morality. See
example; Bland case
Bland Case
• Tony Bland: Injured at the Hillsborough
disaster and classed as brain dead. His family
wants the ventilator turned off. The Health
authority refuse as ‘dead’ in English Law is
when the heart stops beating.
• There can be a moral interest in legal
decisions.
• For example human rights, abortion,
3. 3
Rules about Rules
• Not everyone will like them.
• They have to be reasonable given the
circumstances (are they always?)
• There has to be a sense of obligation.
The State
• The ‘State’ in law is the equivalent of country
The definition of state?
• A ‘state’ must have an area of land under it's
domination and must be controlled by a
government having the ability to make those who
live within it's territory obey its decisions.
• A ‘state’ is a community or association of human
beings membership is compulsory.
• Anyone within the confines of the ‘state’ must
submit to the laws of the land or the state takes
action against him.
Justice
Justice is the concept of moral rightness based on
ethics, rationality, law, natural law, religion, fairness,
or equity, along with the punishment of the breach
of said ethics
• No one is above the law
• Everyone is equal before the law
• No one can judge his own case
• There is a right for both sides to be heard
4. 4
Rule and laws reflect the society in
which we live?
• Licensing laws
• Human rights
• Internet (tighter controls?)
Exercise
• If you could pass one law what would it be?
• What country would it apply to?
• How would you enforce it?
How laws are made
A rule must pass through the criteria of validity
in order to become a law.
Previous Rulings
New Legislation
Judicial Precedent
Custom
Law
5. 5
Custom
• Before the Norman conquest laws in England
were decided by general custom.
• Customs are accepted ways of doing things
which develop in a community over a period
of time.
• The French consolidated the system and
judges turned the custom into common law
using the principle of judicial precedent.
What does Custom have to do with the
picture below?
Judicial Precedent
• Refers to the way in which the law is made
and amended through the decisions of judges
• The doctrine of judicial precedent is based on
the principle of stare decisis, this means that
like cases should be treated alike.
• The general rule is that all courts are bound to
follow decisions made by courts higher than
themselves in the hierarchy and appellate
courts are usually bound by their own
previous decisions.
6. 6
Binding Precedent
A previous decision will be binding on the court if:
• The legal point involved in the case is the same as
the one in the previous decision
• The facts of the current case are similar to the
previous case (they do not have to be identical)
• The earlier decision was made by a court higher
in the hierarchy, or at the same level as the
current court (and it is bound by its own previous
decisions)
Ratio Decidendi & Obiter Dicta
A judgment by the court is split into three parts:
• the material facts
• the principle of law
• the decision of the court
Only the principles of law that are relevant to
the decision are the ratio decidendi of the
judgment. Any other statements of law that are
not relevant to the decision are obiter dicta.
Advantages Of Judicial Precedent
• Certainty - It creates certainty in the law and
means solicitors and barristers can advise their
clients on the probable outcome of their case.
• Fairness - Similar cases are treated in a similar
way, this is in the interests of justice and fairness.
• Time Saving - It saves court time as for most
situations there is already an existing solution.
• Law Development - it allows the law to develop
alongside society R v R (1991) - this case
overturned a centuries old legal principle that a
man could not rape his wife.
7. 7
Disadvantages of Judicial Precedent
• Rigidity - The system is too rigid and does not allow the law
to develop enough.
• Injustice - The strict rules of judicial precedent can create
injustice in individual cases
• Slow Development - The law is slow to develop under the
system of judicial precedent. The law cannot be changed
until a case on a particular point of law comes before one
of the higher appellate courts.
• Confusion - Hundreds of cases are reported each year,
making it hard to find the relevant precedent which should
be followed.
• Complexity - The law is too complex with thousands of fine
distinctions.
Legislation
Although the earliest UK legislation dates back
to AD 600 the first big outbreak of legislation
came in the reign of Henry II ( often called Henry
the Lawmaker).
Statutes are now the ultimate source of law and
if it is in conflict with common law the statute
will prevail.
We will cover legislation in lesson 7
Can You?
• Identify where law comes from
• Define what a state is
• Identify how law is made in England &
Wales
• Explain the concept of common law
• Explain the concept of precedent
