This document provides an overview of the nature of law. It defines law and discusses the classification of law into public law, which governs the relationship between citizens and the state, and private law, which governs relationships between individuals. Within public law it outlines areas like constitutional law, administrative law, and criminal law. It then explains civil and criminal law in more detail. The document also discusses the common law system and how equity developed to complement common law. It concludes by outlining sources of legal change and how legislation is made in the UK.

1. The Nature of Law
Lecturer:
Rachel A. Persad LLB,MBA

2. What is law?
A set of rules, enforceable by
courts which regulate the gov’t
of the state & governs the
relationship between the state
& its citizens & between one
citizen and another.

3. Classification of Law
 Public Law- relationship between the
state & its citizen
Comprises several specialist areas:
 Constitutional Law- workings of the
British constitution which includes the
position of the Crown, the composition &
procedures of Parliament, the functioning
of central & local gov’t, citizenship & the
civil liberties of individual citizens

4. Classification of Law
Administrative Law- developed
to deal with the complaints of
individuals against decisions of
the administering agency of for
eg. State retirement pensions,
income support, child benefit

5. Classification of Law
 Criminal Law- wrongdoings that
pose a serious threat to the good
order of society that is considered
crimes against the whole society.
The state accepts responsibility for
the detection, prosecution &
punishment of offenders.

6. Classification of Law
 Private Law- primarily concerned
with the rights and duties of
individuals towards each other.
State provides a civilised manner
to resolve the disputes which is
also known as Civil law.

7. Criminal Law
 Brought in the name of the Crown & are called
prosecutions.
 Prosecution of Offences Act 1985-process of
prosecution passed from the police to the newly
appointed Crown Prosecution Service under the
DPP
 Prosecutor prosecutes a defendant in the
criminal courts
 Consequences are serious that the standard of
proof is higher than civil cases: must be proved
beyond a reasonable doubt.

8. Criminal Law
 If prosecution is successful, the defendant is
found guilty (convicted) and may be punished by
the courts.
 Imprisonment, fines or community orders such
as unpaid work requirements.
 If prosecution is unsuccessful, the defendant is
acquitted
 Businessperson may breach criminal law under
Companies Act 2006, Consumer Protection &
Unfair Trading Regulations 2008 & Health &
Safety at Work 1974

9. Civil Law
 Private rights & obligations which arise between
individuals
 Purpose of action-to remedy the wrong
 State’s role-to provide procedure & the courts
necessary to resolve the dispute
 Claimant sues the defendant in the civil courts.
 Claimant is successful if he can prove his case
on the balance of probabilities i.e the evidence
weighs in favour of the claimant

10. Civil Law
 If the claimant wins, the defendant is liable
& the court will order the appropriate
remedy such as damages (financial
compensation) or an injunction (an order
to do or not do something)
 If the claimant is unsuccessful, the
defendant is not liable
 Businesspersons are affected by part of
civil law especially contract, tort & property
law.

11. Criminal Law Civil Law
Concerns Offences against the Disputes between
state private individuals
Purpose of action To preserve order in To remedy the wrong
the community by which has been
punishing offenders & suffered
deterring others
The parties Prosecutor prosecutes Claimant sues a
a defendant. defendant
Prosecutions are
brought in the name of Jones v Patel
the Crown, R,
(Rex=King) or
(Regina=Queen)
R V Smith
Where the action is Criminal courts ie Civil Courts ie
heard Magistrates or County Court or
Crown Court High Court

12. Criminal Law Civil Law
Standard & burden Prosecutor must Claimant must
of proof prove his case establish his case
beyond a on the balance of
reasonable doubt probabilities
Decision Defendant may be Defendant found
convicted if he is liable or not liable
guilty & acquitted if
innocent
Sanctions Imprisonment, fine Damages,
or community order injunction, specific
performance,
rescission
Examples Murder, theft, driving Contract, tort, trusts,
with excess alcohol, property law
engaging in an
unfair commercial
practice

13. Common Law
 Anglo-Saxon legal system was based on local
community. Each area had its own courts in
which local customs applied
 1066 William of Normandy defeated King Harold
at the Battle of Hastings.
 Normans allowed the English to keep their
customary laws and then they embarked on
centralisation which created the right climate for
the evolution of a uniform system of law for the
whole country.

14. Common Law
 Norman Kings with the powerful men in the land
formed a body known as the Curia Regis (King’s
Council)
 It acted as a primitive legislature, performed
administrative tasks & exercised certain judicial
powers
 Royal Officials met in small meetings to deal
with specialised areas & this led to the
development of courts to hear particular cases.

15. Common Law
 Courts emerged by the end of the 13th century-
Courts of Common Law in Westminister
 Court of Exchequer-taxation disputes but later
extended jurisdiction to other civil cases
 Court of Common Pleas-heard disputes of a civil
nature between citizens
 Court of King’s Bench- most important because
of close association to the King, included both
civil & criminal, supervised activities over inferior
courts

16. Common Law
 Normans exercised control by sending
representatives of the king to all parts of the
country to check up on local administration-
made records of land & wealth, collected taxes &
adjudicated disputes
 When they completed travel they returned to
Westminister to discuss the customs
encountered & sifted out the unreasonable ones.
 This selection of customs & applying them in
future similar cases gave rise to the common
law.

17. Common Law
 Civil action at common law begun with the issue
of writ purchased from the offices of the
Chancery, a dept of the Curia Regis under the
control of the Chancellor
 Different kinds of actions were covered by
different writs
 Procedural rules & type of trial varied with the
nature of the writ
 Correct writ to be chosen otherwise the claimant
would not be allowed to proceed with his action.

18. Defects of the Common Law
 It failed to keep pace with the needs of an
increasingly complex society. Writ system
was slow to respond to new types of
actions. If a suitable writ was unavailable,
an injured party could not obtain a
remedy, no matter how just his claim
 Writ system was very complicated but
trivial mistakes could defeat a claim

19. Defects of the Common Law
 Only remedy available in the common
law courts was damages which was
not always suitable or adequate
 Men of wealth & power could
overawe a court & there were
complaints of bribery & intimidation of
jurors

20. Equity
 Aggrieved citizens petitioned the king for
assistance who passed them to the Curia
Regis & a committee was set up to hear
the petitions presided by the Chancellor
 15th century the Chancellor was hearing
petitions on his own & the Court of
Chancery was established
 The body of rules applied by the court was
called Equity.

21. Equity
 Chancellors ordered what was fair and just an
varied which led to uncertainty for petitioners
 Then they began to follow previous decisions &
a large body of fixed rules grew
 Decisions of the Court of Chancery & the
common law courts conflicted
 Start of 17th century when James 1 ruled, in
cases of conflict, equity prevailed.
 Equity complemented common law rules

22. Equity’s Contribution to the
Development of English Law
 Recognition of new rights- concept of trust
(where a settlor conveys property to a trustee to
hold for a beneficiary.) Equity recognised &
enforced the rights of the beneficiary under a
trust. COC assisted borrowers who had
mortgaged property as security for a loan. Equity
gave the mortgagor the right to pay off the loan
& recover his property even though the
repayment date had passed known as equity of
redemption.

23. Equity’s Contribution to the
Development of English Law
 Introduction of new remedies-
Contract law Court of Chancery
developed injunctions, specific
performance, rescission &
rectification. Discretionary under
common law.

24. Supreme Court of Judicature-CA
& HC
 Judicature Acts 1873-75 arose to handle
both common law & Court of Chancery
cases (known for their length & expense)
 Every judge was empowered to administer
both common law & equity in his court
 Equity still prevailed
 Both systems were complementary- a
judge may draw on both sets of rules to
decide a case.

25. Common Law Equity
Developed by circuit judges from Developed by Chancellors in
English customary law applying dealing with petitions addressed to
the principle of stare decisis the King from citizens complaining
about the rigidity of the common
law
Complete system of law Complements the common law but
could not replace it
Does not recognise the existence Acknowledges the common law &
of equity tries to provide an alternative
solution
Upholds rights irrespective of the Originally a court of conscience
motives or intentions of the parties which ordered the parties to do
what was just & fair. These
principles are contained in
equitable maxims eg. ‘He who
seeks equity must do equity’ &
‘Delay defeats equity’
Remedies available as of right Discretionary remedies

26. Civil Liability-Contract
 Contractual liability arises when 2 or
more persons enter into a legally
enforceable agreement with each other.
Law of contract determines which
agreements are binding, the nature &
extent of the obligations freely undertaken
by the parties & the legal consequence of
breaking contractual promises.

27. Civil Liability-Tort
 Tortious Liability-
consists of a breach of
a duty imposed by the law. Law of tort
seeks to compensate victims of certain
forms of harmful conduct by an award of
damages or to prevent harm from
occurring again by granting an injunction.
Eg. Negligence, nuisance, trespass,
defamation & conversion

28. Criminal Liability
 Requires an element of moral fault on the part of
the offender
 Prosecution must establish 2 essential reqts-
actus reus (prohibited act), men rea (guilty
mind)
 Most criminal cases both must be present
 Crimes of strict liability-only need actus reus eg.
Selling food for human consumption which fails
to comply with food safety reqts under Food
Safety Act 1990. Once the prosecutor
establishes that the food was unsafe & it was
sold would make the offender guilty.

29. Law of Property
 Rights which may arise in relation to anything
that can be owned. Eg land, goods & intangible
rights such as debts, goodwill & patents.
 Ownership- greatest right a person can have in
relation to property, enjoys fullest power of use &
disposal, does not have absolute rights-
restrictions may be imposed to protect the rights
of other members of the community Eg. Noise
 Possession- physical control & intention to
exclude others.

30. LAW MAKING

31. Legal Change & the Changing
World
 Scientific & technological creations demand its own
legal change. Eg TV, computers, motor vehicles etc
 20th century the courts took more responsibility for
the social & economic well-being of citizens
 Trade Union legislation giving greater legal control
over unions & their activities
 UK being a member of the EC-local courts being
subjected to the rulings of the ECJ
 Changing of moral beliefs & social attitudes- laws
against homosexuality, legalisation of abortion,
divorce more easily obtainable, increased rights to
women

32. Law Reform
 ‘Lawyers’ Law’ consist largely of the body of
rules developed over many years by judges
deciding cases according to principles laid down
in past cases.
 Its flexible- judges can adapt or re-work the rules
of common law or equity to meet changing reqts.
 Legal change becomes dependent on the
chance of an appropriate case cropping up in a
court which can effect change.

33. Sources of Legal Change
Official Law Reform
Agencies
Government Departments
Political Parties & Pressure
Groups

34. Sources of Law
Legislation (Acts of
Parliament)
Case Law (Judicial
Precedent)
EU Law

35. Legislation
 Enacted by the Queen of Parliament in the form of
Acts of Parliament or Statutes
 Parliament-House of Commons & House of Lords
 Commons-646 elected MPs who represent a
constituency
 Political party that command a majority of votes in
the Commons form the govt & its leader becomes
PM.
 Ministers are appointed by the PM to take charge of
the various govt depts (most important Ministers
form the Cabinet which is responsible for
formulating govt policy.
 House of Lords-not an elected body

36. Parliamentary Sovereignty
 It’s the supremacy of Parliament in the legislative sphere
ie Parliament can make any laws it pleases, no matter
how perverse or unfair, it may repeal any enactments of
an earlier Parliament, it may delegate its legislative
powers to other bodies or individuals, courts are bound
to apply the law enacted by Parliament, the judiciary
cannot challenge the validity of a statute on the grounds
that the legislation is absurd, unconstitutional or
procured by fraud. Pickin v British Railways Board
(1974).
 However the courts may challenge the validity of UK
Legislation it is in conflict with EC Law

37. R v Secretary of State for Employment, ex parte
Equal Opportunities Commission (1994)
 HOL upheld the right of a statutory body,
the EOC, to challenge restrictions on part-
time workers’ right to redundancy pay &
unfair dismissal protection under UK Law
using the procedure of judicial review. The
5 yr qualifying period for protection for
those working between 8-16 hrs/week laid
down in UK legislation was in breach of
EC Law

38. The Making of An Act of
Parliament
 Green Paper-consultation document passes through a
no. of parliamentary committees.
 Issued as White Paper (a statement of the gov’ts policy-
Bill) when all comments are received & considered
 The Bill is discussed & reviewed by the House of
Commons (1st, 2nd Reading, Committee Stage, Reporting
Stage, 3rd Reading) then the House of Lords before being
finalized.
 It becomes a statute when it receives the royal assent.
 Usually consent from both houses is req’d but some
legislation was passed without the consent of the HOL
(power to delay a bill up to one year in Parliament)

39. Types of Bills
 Public Bills- change general law or affect the
whole country, extends to all of the UK unless
specifically stated to the contrary
 Private Bills- do not alter the law for the whole
community but deal with matters of concern in a
particular locality or to a private company or
individual, mainly promoted by local authorities
seeking additional powers to those granted by
general legislation

40. Types of Bills
 Government Bills- introduced by a minister with
the backing of the govt & are almost certain to
become law, some designed to implement govt’s
political policies but others may deal with an
emergency which has arisen to amend or
consolidate earlier legislation
 Private Members’ Bills- introduced by an
individual MP or private peer (HOL) without
guarantee of gov’t backing, usually deal with
moral or legal questions

41. Delegated Legislation
 Parliament does not have time to
deal with all legislation so an
enabling Act of Parliament is
passed which sets out the basic
structure of the legislation but
allows other bodies or people to
draw up the detailed rules
necessary

42. Main Forms of Delegated
Legislation
 Orders in Council- made under the
authority of an Act by the Queen acting on
the advice of the Privy Council (an
honorary body descended from the old
Curia Regis). The power to make orders is
exercised by the Cabinet whose members
are all Privy Councillors. Queen’s assent
is a pure formality

43. Main Forms of Delegated
Legislation
 Rules & Regulations- made by a minister
in respect of the area of gov’t for which he
is responsible (most orders, rules &
regulations are collectively known as
statutory instruments)
 Byelaws- made by local authorities &
certain other public & nationalised bodies
to regulate their spheres of activity.
Consent of the appropriate minister is
req’d

44. Legislation & the Judiciary
 Courts can exercise considerable influence over
how the enacted law is applied to practical
problems
 Task of the judge is to interpret & construe the
words used by Parliament & thereby ascertain
the intention of the legislation.
 Rules of interpretation followed by judges may
be classified according to their origin as either
statutory rules or common law rules

45. Statutory Rules
 Modern acts usually contain an interpretation
section which defines certain key words used in
that Act.
 Interpretation Act 1978 lays down certain basic
rules of interpretation for all Acts
 Certain elements of the Act may prove useful
which are known as internal or intrinsic aids. The
courts may look at the long title & its preamble,
headings, side notes & punctuation to help
clarify the meaning of ambiguous words

46. Common Law Rules
 Judges left to develop their own
methods of statutory
interpretation
 Judges are free to decide which
approach is most appropriate to
the case in hand

47. Literal Rule
 If words of the statute are clear, the
courts must give them their ordinary
plain meaning regardless of the
result. Where a literal interpretation
produces an absurd or perverse
decision it is up to Parliament to put
matters right, not the job of non-
elected judges.

48. Literal Rule- Supporting
Case Law
 Fisher v Bell (1960)- held that the
shopkeeper who had flick knives in his
shop window could not by guilty of the
offence of offering for sale a flick knife
contrary to the Restriction of Offensive
Weapon Act 1959. In contract law, this is
called an invitation to treat so the
defendant could not be guilty of offering to
sell. Parliament closed the loophole by
passing amended legislation in 1961

49. Golden Rule
 Where the words of a statute are capable of 2 or
more meanings, the judge must adopt the
interpretation which produces the least absurd
result. Judges argue that the golden rule can be
applied where the words have only one meaning
but a literal interpretation would lead to
absurdity.
 Re Sigsworth (1935)- held that man who
murdered his mother could not inherit her
property even though he was entitled on a literal
interpretation of the Administration of Estates
Act 1925. A person should not profit from a
wrongdoing

50. Mischief Rule (rule in Heydon’s
case 1584)
 The court must look at the Act to see what ‘mischief’ or
defect in the common law the Act was passed to remedy
& then interpret the words of the act in light of this
knowledge.
 Gardiner v Sevenoaks Rural District Council (1950)-
Gardiner claimed that he was not bound by an act which
laid down regulations about the storage of films in
premises because he kept his in a cave. Held-cave
should be classified as premises because the purpose of
the Act was to secure the safety of those working in the
place of storage or living close by.
 A judge should adopt construction which will promote the
general aims or purposes underlying the provision

51. Ejusdem Generis Rule
 Where general words follow particular
words, the court should interpret the
general words as meaning persons or
things of the same class or genus Eg.
‘cats, dogs or other animals’- other
animals meaning other kinds of
domesticated animals and not wild
animals.

52. Expressio uniun est exclusio
alterius rule
 The express mention of one or
more things implies the exclusion
of others eg. If the act
mentions ‘dogs & cats’ other
kinds of domesticated are
excluded

53. Noscitur a sociis rule
 A word should be taken from the context in
which it was found.
 Muir v Keay (1875)- held a café which stayed
open during the night should have been licensed
under the provisions of the Refreshment Houses
ACT 1860. The act required houses of ‘public
refreshment, resort & entertainment’ to be
licensed. ‘Entertainment’ was gathered from the
context of the Act & held refer to refreshment
rooms for the public rather than involving
musical or theatrical entertainment.

54. The Presumptions
 Unless there are clear words to the contrary, the
court will make a number of assumptions:
 The Act is not retrospective i.e. it does not
backdate the change in the law
 The Act does not bind the Crown
 The Act does not alter the common law
 The Act does not restrict personal liberty
 The Act does not create criminal liability unless
mens rea is present

55. Use of Extrinsic Material
 Sources of information about a piece of
legislation apart from the Act itself
 The Act may have been prompted by a
report of the Law Commission, a Royal
Commission or other official committee.
 Govt sets out proposals