How laws overlap classification

If you think about a situation, such as those you read in the news, you may realise that in many instances the situations described will have legal consequences. In other words, the same facts can give rise to criminal and civil/public/private liability.

Take this instance where the driver of a bin lorry crashed into pedestrians in Glasgow on 22nd December 2014. Six of those pedestrians died and ten more were injured.

In such a case, the State can investigate whether the driver committed a criminal offence for which he may be prosecuted. If he has, he can be prosecuted by the Crown Prosecution Service (CPS).

Victims also have the option of taking civil action for any injuries or loss, including financial loss with regards to medical expenses, for days missed in employment, care etc.

Similarly, think about a surgeon operating after consuming alcohol. or an employer who fails to provide adequate health and safety equipment/training.

Rights and Responsibilities:

It is important to note that law is ‘balanced’ since with rights granted, there are corresponding responsibilities.

For example, a ‘common’ right touted often is the ‘right to free speech’. But this is balanced by the responsibility not to commit slander, libel, hate speech etc.

This will be explored in more depth as the course progresses.

Classification of law by application

Law may also be classified by its application.

National law, the law within a State, can be classified as public law and private law. Each category can be further subdivided:

© The Open University

Public law is law that involves the State, that is, the legal rights and responsibilities the State has to its citizens in administering its many functions. Public law covers criminal law, administrative law and constitutional law.

Criminal law deals with the behaviour of persons, behaviour that is frowned upon by society in general and which the State has outlawed (prohibited). The State takes action to censure and punish offenders by various means such as fines, community orders, and imprisonment. *

Administrative law sets out the law in which the different organs of the State interact with the citizens. The relationships between individuals and organisations which administer governmental (public) policies must be defined, so that those treated unfairly can have redress. In the UK, the National Health Service, Local Councils and even State-funded schools are part of the administrative process and fall under this type of regulation. *

Constitutional law actually has a twofold function: it sets out the powers a State exercises through its different arms. While many States have a written Constitution, it should be noted that the UK Constitution is largely unwritten and comprises “a diverse set of guidelines and constitutional conventions that have evolved from unwritten customs and principles applied over the centuries.” [The Open University, (2014, Unit 1, s2.4)]

The other function sets out the State’s rights and responsibilities (and of individuals which are granted by the State - some of these go back centuries). For example, the writ of habeas corpus (‘you have the body’) was developed sometime in the 12th century. It is a procedure where a court makes an order to someone (or organisation) who is detaining a person e.g. as a prisoner, a patient etc. The order is not to free the person, but rather to have him/her brought to court to determine if the detention is legal. Thus, it safeguards personal freedom, and protects against arbitrary arrest and detention without a trial.

Private law is law not involving the State but involves individuals. (I should point out here that the word ‘individuals’ really mean a ‘legal person’ and can include companies, organisations etc., which I will explain under the “Legal Persons” unit.)

Legal persons have the freedom to enter into legal relationships, such as entering into contracts and what are the conditions of those contracts. It is also the option, of persons who suffer at the hands of another, to take action to get a remedy. Note that the State provides the means of arbitrating the disputes (the courts or mediation) but it is still the individual’s choice to seek remedy.

Private law encompasses the following:

• Law of contracts – it regulates the rights and responsibilities of those entering contracts and provides the means for those whose rights have been breached to get redress.
• Law of tort – A tort is also known as a ‘civil wrong’. It comes about because certain persons occupy positions in society where they owe ‘a duty of care’ (a responsibility to ensure a standard of behaviour/care) to other persons. An example would be of an organisation having a duty to take reasonable care of its employees, its customers and any members of the public affected by its activities.
• Law of Succession – This area of law covers disposal of property after death, with and without a will being made.
• Family law – This areas of law covers private relationships such as marriage, divorce, civil partnerships and the dissolution of the afore-mentioned. It also covers distribution of assets and property upon the end of these relationships  and custodial arrangements for dependants.

[The Open University, (2014, W101: An Introduction to Law, Unit 1)]

Next: A brief introduction to how laws overlap classification.

Classifying Law by its Source

Law can also be classified by its source, that is, where and how it was created.

There are three main sources of law, namely:

1. Common law (which I already discussed in my last post, and which I will go into in more details later),
2. Equity
3. Statute

Equity: This is a unique creation of law by the courts. It arose out of the limitations of the common law and created its own principles (also known as maxims) and ways of accomplishing things. Equity, as a source of law, has a centuries-old history and has left its mark on the judicial system in several ways.

Equity is difficult to define in a straightforward manner. It is described as a combination of “philosophy, social justice and legal doctrine and procedure”. [The Open University (2014, Unit 7, s2.1.)]. Equity is applied to, and brings a measure of “fairness” in, civil law. I will deal with equity in more detail further along, but I should point out that equity does not mean equality!

It should be noted that courts apply equity alongside statute and common law. (The Supreme Court of Judicature Acts 1873 and 1875) merged equity alongside the common law. If equity and the common law should conflict, equity prevails.

Statute: Also known as written law, or legislation, this source of law arises out of a State’s legislature (Parliament) making and passing laws through the legislative process (I will describe this later on, remember, this is an introductory state). Statutes are also known as Acts of Parliament example, the famous (or infamous, depending on your personal view point) Human Rights Act 1998.

Statute overrides (takes supremacy over) common law. Some areas which this happens are employment law and company law. Also, some areas of law were wholly created by legislation, such as consumer protection laws.

Next: Classification of law by application.