3.1 The nature of law and the English legal system


Additional information

Nature of law

  • Basic understanding of the distinction between enforceable legal rules and principles and other rules and norms of behaviour.
  • Basic understanding of the differences between criminal and civil law and between different sources of law including custom, statute law and the common law.

Nature of law: law and society

  • The role law plays in society.
  • The effect of law on enforceable rights and the balance required between competing interests (eg public and private).
  • The meaning and importance of fault in civil and/or criminal law.

Nature of law: law and morality

  • The distinction between law and morality and the diversity of moral views in a pluralist society.
  • The relationship between law and morality and its importance.
  • The legal enforcement of moral values.

Nature of law: law and justice

  • The meaning of justice and theories of justice.
  • The extent to which the law (civil and/or criminal) achieves justice.

The rule of law

Basic understanding of the constitutional doctrine of the rule of law 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
  • fairness and clarity.

Law making: parliamentary law making

Parliamentary law making including:

  • Green and White papers
  • the formal legislative process
  • the influences on parliament
  • the doctrine of parliamentary supremacy and limitations on it
  • the advantages and disadvantages of influences on parliamentary law making.

Law making: delegated legislation

  • Types of delegated legislation: orders in council, statutory instruments, bylaws (from local authorities and public bodies).
  • Parliamentary and judicial controls on delegated legislation.
  • The reasons for the use of delegated legislation.
  • The advantages and disadvantages of delegated legislation.

Law making: statutory interpretation

  • The rules of statutory interpretation: literal, golden and mischief rules; the purposive approach.
  • Internal (intrinsic) and external (extrinsic) aids.
  • The impact of European Union law and of the Human Rights Act 1998 on statutory interpretation.
  • The advantages and disadvantages of the different approaches to statutory interpretation.

Law making: judicial precedent

  • The doctrine of judicial precedent.
  • The hierarchy of the courts including the Supreme Court.
  • Stare decisis, ratio decidendi and obiter dicta; law reporting in outline and the reasons for it.
  • The operation of judicial precedent: following, overruling and distinguishing.
  • The advantages and disadvantages of the doctrine of judicial precedent and the operation of precedent.

Law making: law reform

  • The work of the Law Commission: reform, codification, consolidation and repeal.
  • The advantages and disadvantages of reform through the Law Commission.

Law making: the European Union

  • The institutions of the European Union: the Council, the Commission, the Parliament and the Court of Justice of the European Union and their functions.
  • The different sources of European Union law: treaties, regulations and directives.
  • The impact of European Union law on the law of England and Wales.

The legal system: the civil courts and other forms of dispute resolution

  • Basic understanding of civil courts, including the track system and the appeal system.
  • Other forms of dispute resolution: outline of the tribunal structure and the role of tribunals. The roles of mediation and negotiation.

The legal system: the criminal courts and lay people

  • Basic understanding of the criminal process including the classification of offences, and the appeal system.
  • Criminal court powers and sentencing of adult offenders.
  • The role of lay people: the role and powers of magistrates in criminal courts and the role of juries in criminal courts.
  • The advantages and disadvantages of using juries in criminal courts.

The legal system: legal personnel and the judiciary

  • Basic understanding of the different roles of barristers, solicitors and legal executives.
  • Basic understanding of the regulation of legal personnel.
  • The judiciary: types of judge.
  • The role of judges in civil and criminal courts.
  • The independence of the judiciary: security of tenure, immunity from suit, independence from the Executive.
  • Reason for and advantages of judicial independence and the methods by which it is achieved.

The legal system: access to justice and funding

  • Basic understanding of alternative sources of legal advice: help lines, Citizens Advice Bureau (CAB), law centres and trade unions.
  • Private funding: own resources, insurance and conditional fee agreements.
  • Basic understanding of public funding: criminal and civil state funding.