1 Jun 2018

Course Notes

Note to every law student,

I have some course notes I can share on the following topics:

  1. Constitutional and Administrative Law
  2. Equity and Trusts
  3. Tort law
  4. The English Legal System
I have also, notes on critical thinking and academic writing in Plain English.

If anyone wants them, please email me. Click on my profile to access ways to contact me.


It's free. I have spent months compiling these but my view is that we are all here to learn, hence my 'offer' to share.

13 May 2018

Why law?

udhr

It is quite common to hear expressions such as, “That is my right!”, “I have the right to [insert comment of choice here, such as ‘free speech’]”, “I have the right to privacy”, and so forth. So, to those who frequently trot out this phrase, I ask this question:

“What is a right?”

How many readers can answer that question? How many will have to turn to Google, or use a legal dictionary? Where do rights come from? Rights are such a fundamental thing; everybody has them, governments and courts must respect them, yet the percentage of people who can answer that question is very small.

As a person pursuing an LLB in law, I admit that I find law to be a fascinating subject. I also admit not everyone will. My purpose for writing this column though, is not to “teach” law to the readers of this website/column. What I hope to achieve is to provide some clarification of how the law works as related to issues that we see in the news daily. Far too often, the layman does not understand the concepts and principles behind the law, and there is a public outrage when behaviour does not conform to what we perceive as being “fair”. It’s the nonsensical opinions that are promulgated that stoke anger, racial hatred and other intolerance.

Before embarking on my law journey, I was one of the blissfully ignorant. Ignorant because I did not know, and blissful because my ignorance permitted me to expound views on matters I did not understand… much like many persons today. We see it daily in letters to the editors of newspapers, and contributions to online forums and even in complaints when we feel aggrieved. Later, in a subsequent column, I will come to the ‘invincible ignorant’, and how they differ from the ‘mere’ ignorant.

Law is evolutionary. It evolves in small increments as society sees fit. At the heart of the law lies the principles of fairness, justice, equity, and equality but also principles of punishment and deterrence for wrongdoing – to prevent harm to others. Law is a method of social control, clamping down on aberrant behaviour that bring harm to others and where harm has occurred, it punishes the perpetrator and tries to compensate the victim adequately and fairly.

Law is based around the society. The truth of this statement can be seen from the different legal systems around the world, which are influenced by culture and religion, as well as political agendas. In the following questions, I use the word ‘right’ to mean whether we think it is fair and ethical. By which/whose yardstick do we measure ‘rightness’ or ‘wrongness’?

Is it right to bury persons to the neck and throw stones at the head until they are dead? Is it right to throw a homosexual person off 12 storeys? Is it right to hang a person if there is a possibility that he is innocent? Is it right that the police can frame a person to satisfy crime statistics? Is it right that abortion is illegal/legal? Is it right for the Catholic Church to ban condom use while tens of thousands of deaths could be prevented by using a condom? Is it right for a man to ‘marry’ and have sex with a 12 years old girl?

When we understand how the law works, we can understand the reasoning behind court judgments and recognise the logic and legal principles Judges use to arrive at their decisions. We can also understand matters of public policy, politics, arguments (not quarrels but rather units of critical thinking). We can understand the need for contracts and courts, we can understand what a crime is and why it is a crime. We can understand the need for laws and why we should obey the law, and what penalties apply if we don’t. We even understand why the penalty is what it is and whether it is fair.

When we understand how the law works, we will understand when and how to express an opinion, based upon evidence and persuasive arguments.

Oh, as for what is a right? I’ll leave you to work that one out.

4 May 2018

5 Writing tips

I try to emphasise at every opportunity how important plain English is to the legal profession. I came across the this blog on The Law Society’s website with 5 great tips:

  1. plenty of short, informative, accurate headings
  2. sentences no more than 2 lines long – 26 words or less (my recommendation)
  3. writing the reader's language – for the reader to understand (know your audience)
  4. use a list format wherever possible – this summarises – very clearly – big chunks of text
  5. good punctuation – punctuation helps understanding. The precise

The blog can be found here: http://www.lawsociety.org.uk/news/blog/5-writing-habits-every-lawyer-needs/

17 Apr 2018

Is it worth it?

Pretending to know the law is not a good idea, especially when you are among people who actually know the law. Let me explain.

Some time ago, there was a brouhaha on the OU law forum. The gist of the 'argument' was this:

A student, who started studying law approximately 20 years ago, but started at the Open University on the very beginning module of W101, made some rather outrageous claims on the LLB forum, to wit –

  • that students who had a negative experience with the OU, and dared to say so on the LLB forum, were actually defaming the OU

"but to write how disappointing the end of the course was (publicly) in my opinion and after reading the rules of the forum (which every student should have done). is rather unnecessary. I would never do that and I have seen that other students are actually courteous to others (including the OU) too. Perhaps I should have mentioned all the student names I was referring to. The actual statement includes more than just defamatory:

Don’t write or share anything that is: defamatory, obscene, discriminatory, illegal, incites hatred or could damage the reputation of the University.”

When challenged, it was clear that the student did not know the difference between criticism and defamation. The student posted numerous messages on the forum, suggesting that her legal qualifications and experience were far in excess of those which a first-year student may reasonably be expected to have. When challenged, she was unable to substantiate her claims, and appeared to be pursuing an agenda of dominating forum discussions.

The starting point at which the student’s credibility was undermined, was when she asserted that she was “a practising solicitor with 25 years’ experience”, an assertion which is clearly ridiculous for someone starting out on the Level 1 LLB modules, as well as being a potential offence pursuant to Section 21 of the Solicitors Act 1974.

The student then asserted that she had represented a person at an Employment Tribunal. When asked to provide a link to the case report on the HMCTS website, she then stated that the barrister had advised that the details be kept private, which suggests that, while she may have assisted in some way, representation at the substantive Tribunal hearing was undertaken by Counsel. All of the above examples, and many others, indicate that the student inhabits a world of fantasy, in which she exaggerates her qualifications and experience out of a misplaced sense of self-importance.

Requests for proofs of her qualifications resulted in the posting of some strange documents purporting to be certificates of achievement, including some typed up in MS Comics font as well as various redacted scans and photos.

The robust challenges to the student’s outlandish claims resulted in the challengers, other OU students, being accused of – and subsequently sued for – defamation against this student's imaginary qualifications. Additionally, the student made several complaints to her local constabulary that she was being defamed on the OU forum – not surprisingly, the police did not take her seriously, and no action was taken by the police. On the other hand, the student sent approximately 110 emails in the space of a few hours, resulting in those receiving the emails reporting harassment to the police. Subsequently, a written warning was issued to the student by her local police.

The assigned Master to the lawsuit deemed that “the claim form, particulars of claim and accompanying documents are an abuse of the Court’s process or is otherwise likely to obstruct the just disposal of proceedings…”

Sadly, the penance this student now has to undergo for having grandiose ideas of her own knowledge and capabilities is likely to prove a heavy burden. Ask yourself whether the consequence of your boastings is worth the repercussions you may suffer, then… DON’T!


7 Apr 2018

Return to the Rule of Law – Part 3

This series is intended to explain the rule of law at a basic level to give a clearer view for easier understanding by the public.

It is by no means a complete view which would be academic in nature.


What are the formal and substantive elements of the rule of law?


If I were to go back to using my previous example: Parliament decides, and correctly passes a law to the effect that 95% of your earnings will be taxed – taken by the State – what would be your reaction? I am certain that not many people will agree to bringing home 5% of their earnings.


The scenario above demonstrates both elements of the rule of law; the formal element is the passing of the law, using the correct procedures established. The substantive element of course, is the content of the law, what it says.


I will use another real example. A law is passed:

 

A subject of the state is a person who enjoys the protection of the German Reich and who in consequence has specific obligations toward it.


Do you see any problem with this? This was an actual law passed in Germany prior to World War II. It was ‘legally’ passed by the Reichstag (German authority led by a legally elected Adolf Hitler) at the time.


The content, of course, is questionable, and certainly does not meet some of the requirements of the rule of law as laid out by Prof Raz. Specifically, can anyone say that this particular law is clear? Would a person be able to predict accurately how the State will confirm his citizenship? Can it be challenged in the courts, with a predictable outcome? What if the Reich ‘withdraws its protection’ of a person, is that person still a subject of the State?


The formal element of the rule of law


What I am calling elements were described by Prof Paul Craig as ‘conceptions’. So, you may see references to conceptions on various websites.


A formal element/conception of the rule of law addresses the manner in which the law was promulgated. The formal element looks at whether the law was created in a properly authorised manner, by a properly authorised person/body, whether it is sufficiently clear to guide an individual’s conduct et cetera. Thus, if we go back to Prof Raz’s work, we can see the formal concept on display. The drawback is that the substantive conception/element is missing – once a law is passed properly in the prescribed manner, it is still law, regardless of the content.


We see this in the examples of laws passed by Nazi Germany prior to World War II, South Africa under the apartheid system (it was all legal), modern China, and North Korea et cetera. These are all valid legal/political systems within formal sense of the rule of law, but lack respect for or even acknowledgement of most human rights.


We hope and expect that the content of laws should be morally sound and that rights are protected therein. There is an obvious problem in this formal view, which is: the rule of law is not about the rule of “good” law. Hence the importance of the judiciary being independent in order to bring checks and balances – restraint – to arbitrary exercises of State power. If the judiciary follows the State, anarchy is not far behind – again, look at Nazi Germany, apartheid South Africa, et cetera. In addition to the independence of the judiciary, there must also be integrity of the judicial system itself as well as government accountability to help protect the rights of ordinary people, help settle their disputes and protect them from abuses of power – both private and public.


The 8 principles in the formal view of the rule of law (generality; publicity; prospectivity; intelligibility; consistency; practicability; stability; and congruence) was shared by Dicey, Prof Fuller, and Roberto Unger, among other academics theorising on the rule of law. Their work has contributed immensely to our understanding of the rule of law, pointing out inherent weaknesses in the formal conception. What seems to overcome these weaknesses is the introduction of a substantive element into the rule of law.


The substantive conception of the rule of law


We can look at law as having 2 opposing faces: first, it imposes conditions on the people which they must comply with, and second, it instructs officials of the State in what to do when the law is not complied with.


When stated like this, it is easy to see that law that does not meet the 8 principles with respect to people, may still be lawful with regard to the State. A person not knowing what he is charged with or found guilty of because of a secret trial or suppressed evidence in which the State holds all the cards, gives rise to – well, Guantanamo Bay, for example.


Or as Arthur Chaskalson, former Chief Justice of South Africa, said with respect to law that fails to recognise fundamental human rights:


[T]he apartheid government, its officers and agents were accountable in accordance with the laws; the laws were clear; publicized, and stable, and were upheld by law enforcement officials and judges. What was missing was the substantive component of the rule of law. The process by which the laws were made was not fair (only whites, a minority of the population, had the vote). And the laws themselves were not fair. They institutionalized discrimination, vested broad discretionary powers in the executive, and failed to protect fundamental rights. Without a substantive content there would be no answer to the criticism, sometimes voiced, that the rule of law is “an empty vessel into which any law could be poured”.


The emphasis is mine.


The late Lord Bingham (The Rule of Law, 2010) was acerbic in his observation that:

A state which savagely represses or persecutes sections of its people cannot in my view be regarded as observing the rule of law, even if the transport of the persecuted minority to the concentration camp or the compulsory exposure of female children on the mountainside is the subject of detailed laws duly enacted and scrupulously observed.


Lord Bingham, like Profs Raz and Fuller, also argued that there are eight conditions for the rule of law to work:


1.    the law should apply equally to all;

2.    it should not be accessible only to the rich, meaning that disputes should be solved relatively cheaply;

3.    it must be easy to understand;

4.    it must protect fundamental human rights;

5.    it must be speedily enforced;

6.    the right to a fair trial is a cardinal requirement;

7.    public officials should not abuse their powers; and, finally,

8.    States should respect international law.


The fourth condition requires due regard to human rights, especially fundamental rights, which must be observed by the State if it is to fall within the ambit of the rule of law. Of course, the argument against the recognition of rights within the rule of law is that perennial question – which rights ought to be given priority? This is not only a legal question, but also a political one. Political because it is politicians who decides our rights and the conditions which we may access or assert those rights.

There is no question that people feel very strongly about their human rights, the way the State exercises its power through its agents, and indirectly, the rule of law, even if they do not understand the concept completely.


Next: the rule of law in economics.