CHAPTER 1: PRINCIPLES AND SOURCES OF ENGLISH LAW

INTRODUCTION [NOT IMPORTANT FROM AN EXAM POINT OF VIEW BUT HELPFUL FOR
CONCEPT]

The first thing which the A-level law Cambridge book Chapter 1 explores are ‘the types of
different legal systems around the world’. However, for any new student of law, it is first
important to know two things: 1. What is law? And 2. What in fact is a legal system? Knowledge
about different legal systems around the world can only be truly understood if one first
understands what is meant by law and what a legal system is. Please note that this information
is shared here for the students’ understanding, it is not asked in examination questions.

 What is law?

Law can be loosely defined as a set of instructions issued by the government of a country that
explain the proper way of doing any activity. For example, if you see a sign of 60km/h on the
side of the road, the government is telling you through that sign that you cannot go faster than
60km/h on that road because that will be illegal and you may have to pay a fine if you go faster.

 What is a Legal System?

A legal system is a framework or order, that exists within a country, based on laws (rules and
regulations that specify how various state institutions like the government and courts will
interact with each other and its citizens.

The definition may be difficult to understand and for convenience and two diagrams are
inserted to help understand what may be regarded as a legal system.

Figure 1.1

Legal System
Legal
Legal System
System
Consists of

Parliament
Laws

Legislativ Judicial
Branch Executive
e Branch
Branch
The Legislative Branch is responsible for making laws within the legal system. Laws relating to
the people of the country will be passed by this branch. It usually exists in various forms in
different countries, for example in England it is known as Parliament, in America it is known as
Congress.

The Executive Branch is the part of the government that puts the laws into action. It makes sure
that what the legislature (like Parliament or Congress) decides is carried out in the country. The
executive can be a president, a prime minister, or a group of officials, depending on the country.

The Judicial Branch is made up of courts and judges. This branch explains what the law means
and listens to disputes that parties bring before it and then settles them in accordance with law.
It also checks if the other parts of government are doing their work properly.

 DIFFERENT LEGAL SYSTEMS AROUND THE WORLD

CODIFIED LEGAL SYSTEMS

 A codified legal system means a country’s laws are collected and clearly written in
organized codes. Each code covers a specific area—like tax or contract law—and includes
only laws passed by the legislative branch.
 This ‘code’ of law will be very detailed and comprehensive and will try to cover every
possible circumstance. For example, in a classroom if a teacher makes a codified law
relating to dress code, it would probably like: Wear White shirts and grey pants for boys
and White Shalwar Kameez for Girls. The fabric of the clothes should be cotton. The
shoes should be plain black. There should be no designs on the clothes just plain colors.
 Since the laws are detailed, there will be very few circumstances where the law does not
address an issue and therefore the judges will apply the code exactly as written, without
having the need for them to give or add meaning to the law on their own. Because the
code is public, the outcome of cases can be predicted early.
 The Codified laws will be made with a view to being long lasting and therefore they will
not be easy to change. For example: Changing laws in a codified system often requires a
large legislative majority (sometimes 75%).
 Many European countries, such as France, Germany, Holland, Spain, and Portugal, use
codified legal systems.
 Countries with a codified system usually have a special written set of laws which set out
how the legal system will operate (This written set of laws is called a constitution) and a
special court to explain them, but this court doesn’t make new laws.

COMMON LAW SYSTEMS

After the Norman Conquest in 1066, kings in England wanted more control, so they set up a
system of courts and appointed judges. These judges traveled around the country, deciding
cases based on local customs or old laws. When they returned to London, they discussed what
they had learned and picked out the best customs, which eventually became the standard law
used everywhere—known as ‘common law.’

Common law is still important in England today. It is law made by judges over time instead of by
lawmakers. For example, the crime of murder is defined by common law, while theft is defined
by an official written law called the Theft Act 1968.

FEATURES OF COMMON LAW SYSTEM

 A common law system means a country’s laws are not primarily found in comprehensive
codes but are instead based on a history of judicial decisions and precedent. These
judge-made rulings build upon a foundation of unwritten customs and principles,
alongside some statutes passed by the legislative branch.
 This ‘body’ of law is built case-by-case and is often more general and principle-based.
For example, in a classroom, a teacher using a common law approach might simply
state: "Students must wear neat and appropriate attire." A ruling would then be made if
a student wore jeans, establishing a precedent that jeans are not 'appropriate'. Later, a
ruling on a student wearing a t-shirt would refer back to the 'jeans precedent' to decide
the new case.
 Since the laws are principle-based, there will be many circumstances where a statute
does not address an issue directly. Therefore, judges must interpret the law and give it
meaning, effectively creating new law through their rulings. Because the law is built on
precedent, the outcome of cases can be predicted by studying past rulings on similar
facts.
 The common law is inherently flexible and adaptable. It can be changed more easily as
new situations arise, either by a new judicial decision that overturns an old precedent
or by a simple majority in the legislature passing a new statute to clarify or change the
law.
 Many countries that were part of the British Empire, such as the United Kingdom (its
originator), the United States, Australia, Canada, and India, use common law legal
systems.
 Countries with a common law system often have an unwritten constitution (like the UK)
based on traditions and statutes, or a written one (like the US) that is intentionally brief.
Its meaning is developed over time through judicial interpretation, which effectively
allows the courts to shape and refine the law.
 Judges can still create new law today. However, they can only do this when a relevant
case comes before them, and even then, they can only rule on the point in that case.
 This then becomes the law for future cases. Judicial decisions cannot make wide-
ranging changes to the law or set penalties. This can only be done by statute law.

CUSTOMARY LAW SYSTEMS

A custom is a rule of behavior which develops in a community without being deliberately

invented. Historically, customs are believed to have been important, in that they effectively
formed the basis of English common law. Following the Norman Conquest, judges were
appointed by the king to travel around the land making decisions in the king’s name, and they
based some of their decisions on common customs existing at the time. However, custom in
England is a historical source and unlikely to create new law today.

It is unusual for a new custom to be considered by the courts today, and even rarer for the
courts to decide it will be recognized as a valid custom, but there have been some such cases. In
Egerton v Harding (1974), the court decided that there was a customary duty to fence land
against cattle straying from the common. In New Windsor Corporation v Mellor (1974), a local
authority was prevented from building on land because the local people proved there was a
custom giving them the right to use the land for lawful sports.

RELIGIOUS LEGAL SYSTEMS

Religious legal systems are based on the sacred writings of a religion. These laws often cover
personal matters and agreements between people. Countries with religious law usually base
their rules on Sharia or Jewish law, and sometimes these religious laws exist alongside other
types of legal systems, such as common law or codified law.

Because religious laws come from holy texts, people see them as unchanging and eternal. They
describe how people should act and believe, and religious leaders usually settle disagreements.
In contrast, non-religious (secular) laws can be changed by the government, focus on actions
between people, and are decided by regular judges. For example, Sharia law is a key part of the
Muslim faith and is thought to be God’s perfect law. It covers not just crimes and politics, but
also family, business, and even things like hygiene, diet, and manners.

MIXED LEGAL SYSTEMS

Many countries organize their laws using civil codes, common law, statute law, religious law, or a
blend of these types. Some countries, like South Africa and Cyprus, are called mixed legal
systems because they combine both common law and civil code rules in important ways. In
these systems, civil code often covers private matters like contracts and accidents, while
common law may guide public issues like criminal law.

Mixed legal systems are common in countries that were once ruled by different European
powers. For example, Malta’s laws started with Roman law, then were influenced by the French
Napoleonic Code, Italian civil law, and later, English common law. The island of Jersey uses a mix
of Norman customary law, English common law, and modern French civil law.

 BENEFITS AND DRAWBACKS OF DIFFERENT LEGAL SYSTEMS AROUND THE WORLD

CODIFIED LEGAL SYSTEMS

BENEFITS

1. Legal Certainty and Predictability:

This is the foremost benefit, because the law is comprehensively written down and made
public in an organized manner, individuals and businesses can easily access and understand
their legal rights and obligations. This allows citizens to plan their lives and commercial
activities with a high degree of confidence about the legal consequences of their actions.
The ability to "predict the outcome of cases early" is a cornerstone of a stable economic and
social environment.

2. Limitation of Judicial Power:

Judges in a codified system apply the code exactly as written. This ensures that the power
to create law remains solely with the democratically elected legislature. Judges act as
neutral appliers of the law, not as its creators. This prevents the development of "judge-
made law" and ensures that legal rules are made by representatives of the people, not by an
unelected judiciary.

3. Uniformity and Consistency in Application:

By having a main written code for each area of law, judges across the country follow the
same rules. This reduces differences in decisions from place to place and helps make sure
people are treated equally, since similar cases are decided using the same clear standards.

4. Systematic Organization and Accessibility:

Instead of laws being scattered across hundreds of separate statutes and court rulings, they
are consolidated into logical, coherent bodies of law (e.g., a Civil Code, a Penal Code, a
Commercial Code). This makes the law vastly more accessible to citizens, students, and
legal professionals, who can study one primary source for a given legal matter rather than
doing a complex research.

5. Stability and Permanence:

Since the laws are made with a view to being long lasting , it is a significant benefit because
it provides stability. Legal rules are not subject to sudden shifts based on a single court
decision. This long-term stability allows societal institutions, businesses, and international
 investors to operate with a reliable and predictable legal framework that is immune to rapid,
unpredictable changes

DRAWBACKS

1. Rigidity

One big problem with a codified system is that it can be too strict. Because the laws are
meant to last a long time and aren’t easy to change, they might not keep up with new
developments in society, technology, or the economy. For example, a law about privacy
written before the internet wouldn’t work well today and updating it would take a lot of
time and effort.

2. Gaps In The Law

It is impossible for legislators to foresee every future scenario. This can lead to gaps or
lacunae in the law where no specific rule exists for a novel situation.

3. Complexity

Because legal codes are often very detailed, they can become complicated and hard for
most people to understand. Sometimes, only specialized lawyers can make sense of them,
which goes against the goal of making laws clear and accessible to everyone.

4. Inflexibility

As changing laws "requires a large legislative majority," , a small minority in the legislature
can block necessary reforms. This can cause the legal system to become outdated and
unresponsive to the will of the people, potentially leading to public frustration and a lack of
respect for the law

COMMON LAW SYSTEMS

BENEFITS

1. Flexibility and Adaptability:

Unlike strict codes, common law can change over time through court decisions. This
means the law can quickly adapt to new technology, social changes, and unexpected
situations. One court ruling can set a new example, helping the law stay up to date and
useful.

2. Practicality and Real-World Testing:

 Legal principles in common law come from real-life cases with actual facts. This makes
the law practical and effective, since it is shaped by real problems people face—not just
abstract ideas. The law evolves naturally to address society’s needs as they come up.

3. Detailed and Granular Precision:

Common law becomes more detailed over time as judges make decisions on different
cases. This helps create specific rules for many situations—something a written code
can’t always predict or include.

4. Judicial Discretion and Pursuit of Justice:

Common law systems let judges use their judgment to make fair decisions for each case.
This means they can consider the unique details of a situation, instead of being forced to
follow a strict rule that might not fit. This helps make sure the law stays fair and flexible.

5. Certainty through Predictability (Stare Decisis):

Common law isn’t random—judges follow earlier decisions, which helps keep the law
predictable. People can look at past cases to guess what might happen in their own
situation, making things more stable and reliable.

DRAWBACKS

1. Complexity

A big drawback of common law is that it can be complicated and hard to use. Since the
rules are based on many past court decisions instead of one clear code, it takes a lot of
time to find the right law. Lawyers often have to look through hundreds of cases, which
can be confusing and makes the law less clear for ordinary people.

2. Rigidity

The heavy use of past decisions in common law can make the system stiff and slow to
change. Lower courts have to follow old rules, even if times have changed, which can
keep unfair laws in place. Updating these rules usually takes a special case reaching a top
court that’s willing to make a change.

3. Uncertainty

Another problem is that judges can end up making new laws when they decide cases.
This makes things less certain because the rules aren’t always clear until a judge gives a
decision. People may find it hard to know what will happen in new situations, which can
 make it risky to plan ahead. It also means that judges—who aren’t elected—can have a
lot of power in shaping the law, which some think is unfair.

4. Instability

Another drawback is instability. Laws can change quickly if judges or lawmakers make
new decisions, so important rules might not stay the same for long. This makes it hard
for people to know what to expect or rely on the law over time.

5. Inconsistency

Another issue is that common law can be inconsistent. Different courts in different areas
might make opposite decisions about the same problem, so the law isn’t always the
same everywhere. Fixing these disagreements usually takes a long time and can be
expensive, and meanwhile, people in different places have to follow different rules.

CUSTOMARY LAW SYSTEMS

BENEFITS

1. Legitimacy and Social Acceptance:

One of the main strengths of customary law is that people trust and follow it because it
comes from their own community. These rules aren’t created by outside authorities, but
grow naturally from the group’s shared beliefs and history.

2. Flexibility and Ability to Change:

Customary law can easily adapt as the community changes. Instead of sudden changes,
the rules adjust slowly with time and community practice. This helps the law stay useful
and connected to traditions without causing confusion.

3. Promotion of Social Harmony and Order:

Customary law helps keep communities together. Its rules focus on solving problems in a
way that repairs relationships and brings people back together, instead of just punishing
someone.

4. Accessibility and Lack of Formality:

Customary law is easy for everyone in the community to understand and use. People
know the rules and solve disputes themselves, often quickly and cheaply, without
needing lawyers or complicated legal codes.

DRAWBACKS

1. Uncertainty
 The biggest problem with customary law is that it can be unclear and confusing. Because
these rules aren’t usually written down, people might not always agree on what the
rules are or if they even exist. This makes it hard to know your rights and can lead to
disagreements.

2. Discrimination

The system can be unfair and biased. Customs often come from old traditions that
favored certain groups and left others out. This means some customs may treat women,
young people, or minorities unfairly, keeping old and unequal rules—for example, by not
letting women inherit property.

3. Rigidity

Because customs usually have to be very old to count, they often don’t change quickly or
easily. This makes it hard for customary law to deal with new problems in society,
technology, or business, so it often can’t keep up with modern challenges.

4. Difficulty in Proving a Custom

It’s hard to prove a custom in a formal court. The community has to show that the
custom exists, is reasonable, and has been followed for a very long time. This process is
difficult, costly, and often keeps many valid customs from being accepted or enforced by
the state.

5. Lack of Uniformity

Different communities can have very different customs for the same situation, creating a
confusing mix of rules across a country. This makes the law less clear and can cause
problems when people are not sure which rules apply.
  ADVERSARIAL AND INQUISITORIAL LEGAL SYSTEMS

FEATURES OF ADVERSARIAL LEGAL SYSTEM:

The adversarial system is used in countries with common law jurisdictions. The system describes
the way in which the courts and lawyers operate.

In court, advocates for both sides represent their parties’ case or interest. Each party builds a
case by producing evidence and witnesses and attempts to discredit the opposition. The case is
presented to an impartial judge or jury to decide the outcome, after hearing both sides.

Benefits of the Adversarial System

It could be argued that this system protects the rights of individuals and the presumption of
innocence of the accused in a criminal case. The accused has the right to remain silent, obtain a
lawyer in serious cases and remain innocent until they are proved guilty.

Before a criminal trial, the investigation is run by the police, who must follow certain procedural
rules. The system is not necessarily designed to arrive at ‘the truth’ in a case.

In civil cases, it allows both parties to consider the strength of each other’s case and to come to
a pretrial settlement, or indeed to use other methods of dispute resolution.

Drawback of the Adversarial System

On the other hand, critics of the system argue that it leads to a contest between the parties,
with an objective to win at all costs. As a result, there may be injustice if, for example:

 there is a procedural issue which leads to the freedom of an accused against whom
there is strong evidence of guilt, or
 an innocent defendant is handicapped by an unskilled lawyer or unable to afford a
lawyer to defend them.

FEATURES OF INQUISITORIAL LEGAL SYSTEM:

The inquisitorial system often applies in countries with a codified system of law. An initial
investigation is often led by an examining magistrate, whose report is presented to a trial court.
The judge acts as a fact finder, and the officers of court – the advocates – help the judge to
decide the truth, rather than to take one side over the other. The judge takes a more active role
and questions witnesses.

Benefits of the Inquisitorial System

 This system emphasizes impartiality and truth-finding over ‘winning’ in court.

  It reduces the advantage of wealth of one of the parties in a dispute and reduces
emotion and possible bias.
 It makes sure that no one receives special treatment, and everyone is asked the same
questions by the court.

Draw Backs of the Inquisitorial System

 On the other hand, due to the need for thorough investigation, the case may be lengthy
a
 It is often impossible for unrepresented, or untrained, defendants to defend themselves,
 There is generally no right to remain silent.
 It may not be fully independent, as the minds of the judge and advocates may be
predetermined before the hearing and the outcome could be decided by just one person
– the judge.
 THE RULE OF LAW AND ITS APPLICATION

The ‘rule of law’ is a symbolic idea. It is difficult to give a precise meaning to the concept, and
academic writers have defined it in different ways. However, the main principle is that all
people are subject to and accountable to law that is fairly applied and enforced. Also, the
process by which the laws of the country are made, administered and enforced must be fair.

The rule of law is a safeguard against dictatorship. This is because the government and its
officials are accountable under the law. Also, authority is distributed in a manner that ensures
that no single organ of government can exercise power in an unchecked way.

The best-known explanation of the rule of law was given by Professor A.V. Dicey. He held that
there were three elements that created the rule of law:

 An absence of arbitrary power on the part of the state: the state’s power must be
controlled by the law, i.e. the law must set limits on what the state can or cannot do. An
example of this branch of the theory is the successful court challenge on Prime Minister
Teresa May’s decision not to hold a parliamentary vote on the decision to leave the EU.

 Equality before the law: no person is above the law. It does not matter how rich or
powerful a person is, the law must deal with them in the same way as anyone else
would.
 The supremacy of ordinary law: Law made by judges through cases were regarded as the
one of the main way of development in the law and therefore should be followed by all.

TO WHAT EXTENT DOES THE RULE OF LAW EXISTS IN THE ENGLISH LEGAL SYSTEM?
A major problem with Dicey’s view of the rule of law is that it conflicts with another
fundamental principle, that of parliamentary supremacy. This concept holds that an Act of
Parliament can overrule any other law, and that no other body has the right to override or set
aside an Act of Parliament.

So, under the rule of law there should be no arbitrary power on the part of the state, yet under
parliamentary supremacy, Parliament has the right to make any law it wishes, and this can
include granting arbitrary powers to government ministers.

This in turn allows the executive to effectively create and amend laws without adequate debate
or approval from the Parliament, which goes against transparency and democratic law-making
central to the rule of law.

This also creates another problem which is that since the rule of law is not protected in a
written constitution, Acts of Parliament cannot be judged and struck down. Parliament could, in
theory, pass a law that explicitly violates fundamental rights with no constitutional barrier.

Another issue is that Dicey’s idea of equality before the law only means everyone is treated the
same in theory. People have different levels of money, power, and influence. True equality
under the law can only happen if there is help for those who are less privileged. For instance,
going to court is expensive, so people with less money need support from the government to
stand up for their rights and be equal before the law.

Long delays before going to trial go against the rule of law. Waiting too long can cause stress,
make it harder for someone to have a fair trial, and prevent victims from getting justice, which
means the legal system isn’t working as it should.

The rule of law means that new laws should be made in an open and fair way. In reality, the
government usually has a majority in the House of Commons, so most laws it suggests are
passed. The House of Lords acts as a check in this process, since all new laws must be agreed to
by them as well. The House of Lords can delay laws if they feel the laws are rushed, not well
thought out, or might harm basic rights. This helps make sure the law-making process is careful
and follows the rule of law.

However, since the House of Lords is not elected, delaying or refusing a law that the House of
Commons has already approved can sometimes be seen as going against democracy, which is
also important to the rule of law.

 THE DIFFERENT CATEGORIES OF LAW

As this diagram shows there are different categories of law:

Law has been divided into two main categories of International Law and National Law.

International Law (not the scope of this syllabus) refers to laws that applies to countries when
they interact with each other, international bodies such as the World Trade Organization (WTO)
or the United Nations.

National Law refers to laws that apply within a country, imposed by the government on its
citizens. It is divided into two main categories: Public Law and Private Law

Public Law is about rules that deal with the relationship between the government and the
people. For example, Constitutional Law explains what rights citizens have and how the
government is organized. Criminal Law covers actions that the government says are crimes, like
stealing or hurting others. If someone breaks these laws, the government acts against them
because they have broken the rules of behaving in society.

Private Law on the other hand relate to rules on matters between private citizens. It could
include family , property, inhertance, money and business matters. For example if a person tries
to illegally acquire another person’s property , that other person will have to go to court to stop
the illegal acquisition because it is his right of enjoying his property that is being infringed. The
state will not be involved here.

DIFFERENCE BETWEEN CRIMINAL AND CIVIL LAW:

WHY IS IT NECESSARY TO HAVE BOTH CIVIL AND CRIMINAL LAW:

Civil law is essential because it is primarily concerned with upholding the rights of individuals
and regulating interactions between private parties. Its necessity is demonstrated in several key
areas:

 Redress for Individuals: Civil law provides a mechanism for individuals or businesses to
seek redress when their private rights have been infringed. As the action is taken by
individuals/businesses not the state, it empowers citizens to resolve their own disputes.
The wide range of application in business and for individuals—from contract breaches to
personal injury—shows how it underpins daily economic and social life.

 Appropriate and Practical Remedies: The solutions provided by civil law are tailored to
the wrong. Monetary compensation (damages) is a primary remedy, aiming to restore
the injured party to the position they were in before the wrong occurred. Crucially, it can
also provide practical remedies, i.e., specific performance, injunctions, which order a
party to do or not do something. This flexibility is vital for resolving complex disputes
where money alone is insufficient.

 Creating Social Structures: Beyond resolving conflicts, civil law is proactive. It allows
society to create structures i.e., marriage, forming contracts etc.

 Civil law is easier to access because it only requires the lower burden of proof, on a
balance of probabilities. This is fair since the usual result is about money or property, not
someone’s freedom.

Criminal law is equally essential but serves a different function. It exists to protect the public as
a whole and maintain social order:

 Protection of Society: Actions are taken on behalf of the state rather than the individual.
This is because crimes are considered wrongs against society itself. Its core purposes are
 to maintain law and order and to protect individuals from harm by outlawing and
punishing harmful behaviour.

 Punishment and Control: While civil law focuses on compensation, criminal law is about
punishing, deterring, and sometimes rehabilitating those who break the law. It sets clear
rules and consequences to discourage harmful actions. One main purpose is to protect
the public by removing dangerous people from society, often through imprisonment.

 Moral and Legal Standards: Criminal law often, but not always, reflects a society's moral
code. However, as noted, it may/may not reflect moral beliefs, demonstrating that its
focus is on prohibiting acts deemed harmful to public order, regardless of their moral
status (e.g., many traffic offences).

 High Standard of Proof: The extremely high standard of proof beyond reasonable doubt
is necessary because the potential penalties—including the loss of liberty—are so
severe. This protects individuals from the immense power of the state.

The Necessity of Both Systems Working Together

The need for both systems is clear because they are designed to address fundamentally
different issues. A single act can give rise to both actions, demonstrating their complementary
nature.

For example, a dangerous driver who injures a pedestrian may be prosecuted by the state
under criminal law (for the crime of dangerous driving) to punish them and protect society.
Simultaneously, the injured individual can sue the driver under civil law (for the tort of
negligence) to seek compensation for their medical bills and pain and suffering.

One system cannot perform the role of the other. Civil law lacks the power to punish and deter
public wrongs, while criminal law does not provide compensation or practical remedies for
victims.

 THE RELATIONSHIP BETWEEN LAW AND MORALITY

Morality’ is defined in the Oxford English Dictionary as ‘a particular system of values and
principles of conduct, especially one held by a specified person or society’.

Morality can be a personal morality or collective morality of society. It is ‘normative’ or

prescriptive; that is, it specifies what ought to be done and delineates acceptable and
unacceptable behavior.

In our society and in many others, morality has been influenced largely by religious beliefs. The
Bible provides a moral code for Christian communities, both in the very basic and strict rules of
the Ten Commandments, and in the more advanced, socially aware teachings of Jesus. In Islam,
the Koran provides an extensive moral code for Muslims.

Moral attitudes change over time. This can be seen in attitudes to issues such as abortion,
homosexuality, drugs and drink-driving.

Morality was easier to define when societies were small and shared similar beliefs and values.
People followed the customs and rules of their own community. But today, in places like the UK
where society is multicultural, there are many different views.

Law on the other hand has the following characteristics:

1. Rules based.
This means that law is a system of formal rules that everyone must follow. These rules are not
just suggestions—they are created through official processes and are meant to guide people’s
actions clearly.

2. Imposed in all of society

The law applies to everyone in society—citizens, visitors, businesses, and even the government.
This is different from private rules, which only affect members of a group. If someone breaks the
law, the state can punish them with things like fines, jail, or court orders.

3. What must be done, or not done

The law tells you what you must do, such as paying taxes or keeping promises in a contract. It
also makes clear what you must not do, like stealing or hurting someone, and breaking these
rules can lead to punishment.

4. Can link to religious beliefs.

Many laws come from religious ideas. For example, English laws were shaped by Christian
values, and some countries use religious laws like Sharia.

5. Can change, but more slowly than morality.

Law does not stay the same forever. As society changes, its laws can change too, but usually
more slowly. This is because changing laws takes time and follows careful steps, which helps
keep things steady and predictable.

RELATIONSHIP BETWEEN LAW AND MORALITY

Law and morality are closely connected. Most crimes in the law, like theft and violence, are also
considered wrong by society and religions. Civil laws, such as those about negligence, aim to
make things right and prevent unfair gains. Contract law is built on the idea that people should
keep their promises. If someone has an unfair advantage when making an agreement, the law
tries to fix that, like with rules that protect consumers.
  LAW AND JUSTICE: TO WHAT EXTENT DOES LAW ACHIEVE JUSTICE IN THE CIVIL AND
CRIMINAL LAW OF THE ENGLISH LEGAL SYSTEM
 Justice is a concept that can be described simply by a synonym, such as fairness,
equality or even-handedness
 The idea includes treating like cases in a like manner, showing impartiality and acting
in good faith.

Justice can be divided into three types: Procedural Justice, Corrective Justice, and Substantive
Justice.

Procedural Justice: Making and implementing decisions according to fair processes

Corrective Justice: Sometimes known as restorative justice; when the law restores the
imbalance that has occurred between two individuals, or between an individual and the state

Substantive Justice: Where the content of the law itself must be just

TO WHAT EXTENT HAS PROCEDURAL JUSTICE BEEN ACHIEVED IN THE CIVIL AND CRIMINAL
LAWS OF ELS?

Access to legal aid is a key part of making sure justice is fair for everyone. People need legal aid
to get help with the law, receive a fair hearing, and understand their rights. At first, about 80%
of people could get legal aid. Over time, as the rules became stricter, fewer people qualified. By
the early 1990s, about 45% were eligible. By 2019, only about 20% could get legal aid. This
reduction is also in part due to the the effects of changes made by the Legal Aid Sentencing and
Punishment of Offenders Act (LASPO) 2012. This law removed further areas for which legal aid
was removed including ‘social welfare law’ – advice on welfare benefits, employment, housing
(except homeless cases), immigration (except asylum) and family (except in cases of domestic
violence).

Legal aid is important because a person who cannot afford legal representation can be said to
have no right to a fair trial.

In criminal cases, anyone arrested and taken to a police station can get free legal advice, no
matter how much money they have. After being charged or given a court summons, people
must pass a financial test to get more help from a lawyer. This support helps prepare the case
and covers representation in court. Legal aid is only given if it’s considered necessary for justice.
If someone is found guilty, they may have to pay back their legal costs.

Because of these changes, some areas now have very few legal aid lawyers, as many firms have
stopped offering these services. This makes it more likely for mistakes to happen in court,
especially for the most vulnerable people who need legal help the most. Many find the legal
process scary, even when they do have a lawyer to guide them.

Justice requires access to the law. This is, arguably, achieved, as no one in the UK is specifically
denied access to the law. Effective access to the law is a different matter, as those who are less
able to act for themselves or to pay for someone to act for them may be denied justice.

TO WHAT EXTENT HAS CORRECTIVE JUSTICE BEEN ACHIEVED IN THE CIVIL AND CRIMINAL LAWS
OF ELS?

CRIMINAL LAW:

IN SENTENCING OF CRIMINALS:
When judges or magistrates give sentences, they think about several things. They may want to
punish the offender, discourage others from doing the same, or help the offender change their
ways. They also look at details of the crime and the person who did it, and must follow certain
rules for sentencing.

IN TRIALS:
Trial by jury enables jury members to use their view of justice, rather than adhering strictly to
the rules of law and the evidence presented to them. In R v Ponting (1985), a civil servant was
charged under the Official Secrets Act for releasing secret information about the sinking of the
Argentinian warship General Belgrano. The jury acquitted him.

EVIDENCE IN COURTS
The rules of evidence adopted in criminal trials seek to balance the interests of the parties in
the action. For this reason, evidence of previous convictions is not generally admissible unless
the facts are strikingly like those in the instant case.
Sometimes, evidence found during an illegal search can still be used in court. For example, in
Jeffrey v Black (1978), the police found drugs while searching a student’s flat without
permission. Even though the search was illegal, the court said the evidence could be used. This
might seem unfair, but if police found proof of a serious crime—like plans for a terrorist attack—
using that evidence can help protect people. Laws like the Counterterrorism and Border Security
Act 2019 have also given police more power to search people and stop crime.

Injustices arise where people serve prison sentences for crimes, they are not guilty of. Famous
cases include the Birmingham Six and the Guildford Four. The publicity of these and other
similar cases led to the establishment in 1997 of the Criminal Cases Review Commission (CCRC),
whose role is to review the cases of those it feels have been wrongly convicted of criminal
offences, or unfairly sentenced.

CIVIL LAWS:
TORT LAW:
In negligence, the aim of compensation is to restore the claimant to their pre-tort position, in so
far as money can achieve this. To balance this, any contributory negligence on the part of the
claimant will reduce their award For example, in Jebson v Ministry of Defence (2000), 75 per
cent of the claimant’s award was deducted for his contributory negligence. This reduction is just
because it is proportionate: it reflects that the claimant was largely responsible for his own
harm.

CONTRACT LAW
In contract law, damages are meant to put the claimant in the position they would have been in
if the contract had been carried out as promised. However, only losses that both parties could
have reasonably expected to happen can be claimed. For example, in Victoria Laundry Ltd v
Newman Industries Ltd (1949), the court decided which losses were foreseeable. This approach
is fair because it means damages are given based on the actual situation and not automatically
for every loss someone experiences.

TO WHAT EXTENT HAS SUBSTANTIVE JUSTICE BEEN ACHIEVED IN THE CIVIL AND CRIMINAL
LAWS OF ELS?
CRIMINAL LAWS
IN SENTENCING
The principle of proportionality generally governs the sentencing practice of judges and
magistrates. This satisfies our expectations that the more serious the offence is, the harsher the
sanction will be imposed. Those convicted of murder are subject to a mandatory life sentence.
The sentencing judge will then impose a tariff, this being the minimum term the murderer must
serve. Many agree that imposing a life sentence on a killer is just.

Some murderers are viewed as worse than others: the setting of a tariff does not allow for
proportionality and so may lead to harsh decisions. In R v Cocker (1989), the defendant
suffocated his wife, at her insistence, with a pillow; she had been terminally ill and in much
pain. The trial judge denied the defendant any partial defence that would reduce murder to
manslaughter.

Here, a life sentence may seem a disproportionate punishment. However, the judge may be
inclined to provide a measure of justice by imposing a reduced tariff period; this was shown in R
v Inglis (2010). (Tariff period is the range of punishment period. For example, for murder the
tariff period starts from a minimum of 12 years to a maximum of life sentence).

R v Inglis (2010)
The defendant killed her son because she believed she was acting in his best interests and did
not
want him to suffer any further. She was found guilty of murder. The trial judge imposed a nine-
year tariff period, reduced on appeal to five years.
Cases such as this show that, perhaps, justice is better served by allowing judges and
magistrates to pass the sentence they feel to be most appropriate, rather than have a
mandatory fixed sentence.

CIVIL LAWS

CONTRACT LAW

FORMATION OF CONTRACT

In Reveille Independent LLC v Anotech International (UK) Ltd (2016), the court considered
whether a contract existed even though the parties were still negotiating. The court looked at
their actions to decide if they had agreed, aiming to protect fairness and meet the expectations
of honest businesspeople.

EXCLUSION CLAUSES

Parties to a contract may try to limit their liability by relying upon exclusion clauses. The
traditional rule of caveat emptor (let the buyer beware) can work against the interests of the
weaker bargaining party or where there is a pre-printed standard form of contract. The courts
try to achieve a more just result.

Olley v Marlborough Court Hotel (1949)

An exclusion clause was invalid as it had not been brought to Mrs Olley’s attention when she
booked in at reception.

The Unfair Contract Terms Act 1977 restricts the use of exclusion clauses. A person cannot
exclude liability for death or personal injury resulting from their negligence. This Act aims to
prevent those with strong bargaining power from taking unfair advantage of weaker parties and
provide a fairer balance between the bargaining parties.

PENALTY CLAUSES

A Penalty Clause is a provision in a contract which states the penalty that one of the contracting
parties will have to pay to the other in case they breach the contract. Under UK law, the penalty
clause is either valid or invalid. In Cavendish Square Holding BV v Talal El Makdessi (2015) and
Parking Eye Ltd v Beavis (2015), the Supreme Court stated that:
The test for a penalty is whether the amount or action required after a contract breach is
excessive or unfair compared to the innocent party’s actual interest in having the contract
performed.

This suggests an idea of justice being applied.

 The role of law in society

The rule of law cannot exist without a transparent legal system. Law attempts to control society
through regulation. This requires:

» a clear set of laws that are freely and easily accessible to all

» strong enforcement structures, and

» an independent judiciary, to protect citizens against the arbitrary use of power by the state,
individuals or any other organisation.

In 2010, Lord Bingham published The Rule of Law, He set out the rule of law through eight
principles, which society, the state and the judiciary must embrace:

1 The state must abide by both domestic and international law. This means no government can
act at whim.

2 People should only be punished for crimes set out by law.

3 Questions on the infringement of rights should be subject to the application of law, not
discretion.

4 The law should be accessible, clear, precise and open to public scrutiny.

5 All people should be treated equally.

6 There must be respect for human rights.

7 Courts must be accessible and affordable, and cases should be heard without excessive delay.

8 The means must be provided for resolving, without prohibitive cost or inordinate delay, bona
fide disputes which the parties themselves are unable to resolve.

These principles result in certain roles for law in society:

» To protect people from harm – typically by the mechanisms of the criminal law with respect to
harm by other people or by dangerous things such as unsafe machinery or pollution

» To ensure a common good – by providing facilities for all, such as education and healthcare

» To settle arguments and disputes – this is the idea of a civil justice system.
These roles result in regulating and controlling society. Informal social control occurs through:

» the family , peer groups , local communities, societal groups

Formal social control occurs through specific social agencies which have the role of maintaining
order in society. This is the criminal justice system, and includes:

» the police force, the judiciary, the probation and prison services law makers, i.e.:

– Parliament, through Acts of Parliament and through delegating its powers to local law makers

such as local councils, and – the judiciary, in its interpretation and application of the law.

The civil justice system also does this, so that disputes can be settled through formal
mechanisms trusted by society.

Social control is important, because without it there would be the likelihood of anarchy.

 THE IMPORTANCE OF FAULT IN CIVIL AND CRIMINAL LAW

The principle of causation is relevant in both civil and criminal law. It holds that for there to be
liability, the defendant must have caused the loss, damage or injury that is the subject of a claim
in law.

Civil law tries to balance both sides of a case and provide a fair solution. In tort law, someone is
usually only held responsible if they are at fault. Damages in negligence cases are meant to put
the claimant back in the position they were in before the incident, as much as possible. The
amount someone is at fault relates to the harm they caused. If the person making the claim also
helped cause the harm, the blame is shared between both parties, called contributory
negligence. Sometimes, higher damages are awarded if someone’s actions are especially bad.
For example, in Treadaway v Chief Constable of West Midlands (1994), the police tortured a
person into confessing and he was wrongly imprisoned for 15 years. Because their behavior was
so serious, the court ordered them to pay £50,000 in exemplary damages.

Interestingly, the decision not to prosecute the police for any offence of assault against
Treadaway was reviewed, but the police remained protected and there was no proper reflection
of the fault of the parties.

Vicarious Liability means that in certain circumstances, the employer may be held responsible
for the actions of the employee. This means that liability can occur without any fault, in both
civil and criminal law. In the criminal case of Harrow London Borough Council v Shah (1999),

A shop sold an age-restricted item to an underage child. The shop owner did not personally sell
the item, but one of his staff did. This was enough to make the defendant shop owner guilty. His
arguments that he did not himself sell the item, and that he had given all necessary staff
training, were irrelevant. He was strictly liable for the actions of his staff and was therefore
convicted.

QUESTIONS ON CHAPTER 1

1. Identify one criminal offence and one category of civil law. (May/June/2023/11/Q1) [2]
2. Identify two examples of a moral belief. (May/June/2023/12/Q1) [2]
3. Identify two legal systems used around the world. (May/June/2023/13/Q1) [2]
4. Identify one legal rule and one moral belief. (Oct/Nov/2023/11/Q1) [2]
5. Court trial is an example of justice in the English legal system. Identify two other
examples. (Oct/Nov/2023/12/Q1) [2]
6. Assess the need for society to have both civil and criminal law. (May/June/2024/11/Q5)
[10]
7. Discuss the relationship between law and morality. (May/June/2024/13/Q5) [10]
8. Identify five types of legal system used around the world. (Oct/Nov/2024/11/Q3) [5]
9. Explain the difference between inquisitorial and adversarial trials.
(Oct/Nov/2024/11/Q4) [6]
10. (a) Explain what is meant by the rule of law. [10]
(b) Assess the extent to which the rule of law exists in the English legal system. [15]
(Oct/Nov/2024/12/Q7)
11. Describe customary law. (May/June/2025/12/Q4) [6]
12. Describe Codified Legal Systems [6]
13. Describe Common Law Systems (6)
14. Describe Religious Law Systems (6)
15. Describe Mixed Legal Systems (6)
16. Describe the Three of Types of Justice [6]
17. Discuss the effectiveness of some of the legal systems around the world [10]
18. Discuss the extent to which justice is achieved within the English Legal System [15]
19. Describe the role of law in Society [10]
20. Discuss whether fault is important in Civil and Criminal Law [15]