Unit One Introduction to law

Transcription

1 Unit One Introduction to law GCSE Law Year 10 Mrs Fyfe adapted from GCSE Law by J Martin

2 What is law? It is difficult to give a short simple answer to this question. There is no generally agreed definition, though many legal writers have attempted to define law. For example an English legal writer, Sir john Salmond, defined law as the body of principles recognised and applied by the State in the administration of justice. A simpler definition is that law is a set of rules. Many organisations, however, have rules and there are also rules of morality. So what makes law different from these? Rules become law when they are created or recognized by the Government. The rules will then be enforced by the courts. In other words, they are recognised and applied by the State. A rule in an organisation is a private matter and not in force throughout the community. A moral rule is a matter for people s consciences; it will not be enforced by the Government. In this country there is a complicated legal system to make sure that laws are obeyed; that is a system concerned with the administration of justice. Why we need law There are several reasons why it is necessary to have law. The main reasons are: To keep public order To protect individual freedoms To regulate relationships To set standards To provide solutions for legal problems Keeping public order There are people who believe that there should be no laws at all. These people are called anarchists, but it is difficult to imagine how any society would operate without at least some rules. What if there was no law against stealing; or assault; or murder? What do you think society would be like? It has been said that without law, man s life would be brutish, nasty and short. These are very obvious examples of why we have law, but there are many other examples. Try imagining what traffic conditions would be like if there were no law about which side of the road you should drive on. or if everyone could ignore traffic lights! Most people would agree that this would lead to traffic chaos, numerous accidents and injuries. So it is easy to see that rules (laws) are needed to keep public order. Protecting individual freedoms The law recognises that individuals have rights. These are set out in the European Convention on Human Rights. This lists the freedoms and rights that everyone should have. There include: The right to liberty Freedom of movement Freedom from discrimination There are many others. However, without laws recognising these freedoms, they could be ignored. It is clearly important to protect individuals from being locked up for no reason. Of course, the law does recognise that there are occasions when people must lose their liberty, for example those sent to prison for committing crimes. Many laws are concerned with protecting our rights and freedoms. In employment law there are laws forbidding discrimination against people on the basis of their gender, race, religion or age.

3 Regulating relationships In any society, people need to operate together in a wide variety of matters, so it is necessary to have laws to regulate these relationships. For example, when items are bought and sold, there must be rules as to what should happen if the item is faulty. Another example is when two people marry. There must be some rules, for example should there be a minimum age at which they can marry? If they divorce, how should their property be divided? In the world of business, laws on a number of points are needed. How do you form a company and what are the rules about contracts and employment? All these show that a modern society needs laws and the more complex society becomes, the more laws it will need. If you lived alone on a desert island it would not be necessary to have any laws. Setting standards In our increasingly complex and technological society, it is important that there are standards for many areas of everyday life. For example, it is important that there are standards for traffic. These are needed to prevent accidents. So this means that there are laws on many points to do with vehicles and roads. There are speed limits, set standards for the tyres and lights used on vehicles, limits on weights carried by vehicles and many, many more. Without these there would be far more accidents causing injury or death. In some cases it does not matter what the rule is, as long as there is a law. The side of the road in which we drive is not important. What is important is that all traffic in the country drives on the same side. In the United Kingdom traffic drives on the left side of the road. In many other countries, traffic drives on the right side of the road. Another area where it is important to have standards is in the production and sale of food. This is to prevent food being sold which is unfit for people to eat. If there were no such regulations, there would be many cases of food poisoning causing illness and in some cases death. Yet another major area is in health and safety, especially at work. In the nineteenth century, when there were few rules about safety at work, large numbers of workers were killed in the course of their work. Since then many laws have been passed to make employers use safe working systems and protect workers from the risk of injury or death. Providing solutions for legal problems It is also necessary to have a method of providing solutions for legal problems. The court system allows those with a legal problem to take the matter to court for a decision on it. Having a set of laws also allows lawyers to advise on any legal problems that arise. Classification of law From the references already made to various laws, it is obvious that there are many different types of law in England and Wales. Law can be divided up in several ways. International and national law First there is an important distinction between international law which governs disputes occurring between nations and national law, which is concerned only with the rules of one country in our case England and Wales. Scotland has its own municipal laws. This is why there have already been references to England and Wales in this article, rather than Great Britain or the United Kingdom.

4 Public and private law The second main division is between public and private law; public law involves the State or Government in some way while private law (often called civil law) is concerned only with disputes between private individuals or businesses. If you bought a DVD player which did not work you would certainly want to have it changed for one that did work or to have your money back. This type of dispute comes under private law since it concerns only you and the shop. Both public law and private law can be further divided. Public law may be divided into: (a) Constitutional law dealing with the method of government, for example laws setting out who has the right to vote at a general election (b) Administrative law which governs how public bodies such as local councils should operate (c) Criminal law which states what behaviour is forbidden at risk of punishment; it involves the State on one side and one or more individuals accused of a particular crime on the other side. Private (civil) law has many branches. Look at the following situations, all of which are covered by different areas of civil law: John is behind with the hire- purchase payments on his car contract law Imran is injured in a car crash caused by Leanne tort law Sheila and Henry decide their marriage has broken down family law Alysha wants to start a new company company law David claims he has been unfairly dismissed from work employment law William has died and not left his wife any money inheritance law These are just a few examples of civil law. It covers a wide variety of situations Constitutional law Public Administrative law International law Criminal law LAW National law Contract Tort Private (Civil Law) Family law Company law many other areas

5 Differences between civil and criminal law For our purposes the distinction between civil and criminal law is the most important division in law. It is important to know whether a case is civil or criminal as it affects how the case is started, who starts it, in which court it will be heard and what powers are available to the judge. Criminal cases Criminal cases are where the State accuses someone of a crime. The case is usually taken (prosecuted) by the Crown Prosecution Service. The case takes place in the Magistrates Court or the Crown Court. The purpose of the trial is to decide whether the defendant is guilty or not guilty. Quite often the defendant will admit his or her guilt by pleading guilty. When someone admits their guilt or is found guilty by a court, they are sentenced. There are a number of different ways in which a court can deal with a person who is guilty of a crime. For example, the court may send them to prison, give them work to do in the community or fine them. The criminal law has developed to protect the community. There are several different types of crime. For example, there are offences against the person, such as assault; offences against property, such as theft; and offences against public order, such as riot. Civil cases These are cases taken by individual people or businesses in order to claim or enforce a right. The person starting the case is called the claimant. There are different types of civil case. For example, there may be a breach of contract or there may be a claim for damage done through the negligence of another person (this is known as a civil wrong or tort). Usually the person making the claim wants money to compensate for what has happened. In civil cases the main purpose is to investigate disputes between the parties and decide whether the defendant is liable to pay compensation. There is no punishment involved. The court is trying to put the people back into the position they would have been in if the contract had been carried out properly or the tort not happened. Case name The name of the case will usually tell you if the case is criminal or civil. For example, R v Smith; the R stands for Rex (which means King) or Regina (which means Queen) showing that the case has been started by the State. Some criminal cases will be started by the Director of Public Prosecutions and this is always written as DPP in a case name. it is also possible to have a criminal case taken by the Attorney- General. In each case name, the small v between the names means versus (Latin for against). The year of the case is given after the names. For example, R v Moloney (1985), this is a criminal case. In the civil cases the surname of the person starting the case is given first, then the surname of the person being sued (taking the case against). If a company is involved in a case, then the company s name is used. The legal term for the person starting the case is the claimant. For example, Beale v Taylor (1967), this is a civil case.

6 The standard of proof Another important difference between civil and criminal cases is what is called the burden of proof or the standard to which the case has to be proved. In criminal cases this standard is a high one, beyond reasonable doubt, since a conviction could result in the defendant going to prison for a long time. In civil cases the standard is lower, on balance of probabilities. This is because the judge has to decide for one party or the other and so gives judgement for the party he or she thinks is probably right. Double liability Sometimes one action can be in breach of two types of law. This gives rise to what is known as double liability; that means that two separate court cases may take place. Double liability can occur wherever there is a crime and, in the course of that crime, an individual s rights are affected. The most common occurrence of this is where there is a road traffic offence (involving criminal law) and someone is injured as a result so that he wants to claim damages (under the civil law of tort). Lets take an imaginary example. Mr Brown drives through a red traffic light and crashes into Mrs Green s car, damaging her car and causing minor injuries to her. First, Mr Brown has committed a crime by going through a red light. This is the criminal case and will be started by the police and then taken over by the Crown Prosecution Service. Mr Brown will be summonsed to appear at the Magistrates Court. If he disputes the case by claiming the lights were green, the magistrates will hear evidence and decide if he is guilty or not guilty. If they decide he is guilty, they have the powers to order him to pay a fine, put penalty points on his licence or even disqualify him from driving. In other words they are punishing him for his bad driving. Second, Mrs Green will want to claim compensation, both to pay the cost of repairing her car and for her injuries. This means see will have to start another case against Mr Brown in the County Court to make her claim. This is the civil case. The judge will have to decide if Mr Brown was negligent and caused her injuries. If he decides this is so, then he will award damages to Mrs Green. This will be money to pay for the repairs to her car and another sum of money as compensation for her injuries. So the one act of driving through red lights by Mr Brown means that he has two cases taken against him in two different courts. This is why it is called double liability.