The Westminster Parliament

The Westminster Parliament consists of two chambers (also known as ‘Houses’) called the House of Commons and the House of Lords. Having two chambers or houses is known as a bicameral parliament while having one legislative body (like the Welsh Assembly) is a unicameral parliament.

Theoretically, the Monarch is a third element of the law-making process, having to give formal approval for the proposed legislation to become law. This is done by affixing his/her signature (known as giving Royal Assent) to the legislation. In reality, no Monarch has done this since 1854 but it is actually done on behalf of the Monarch.

Theoretically also, the Monarch can withhold Assent to any legislation but this has not been done since 1707. You can read more about the role of the Monarch (currently a Queen) here.

House of Commons:

The House of Commons is considered to be the more important of the two Houses. The Members are also called Members of Parliament or MPs and are elected every 5 years in a general election. They are elected from constituencies or ‘seats’ by the people who reside in these areas, and are elected to represent the interests and concerns of the people who voted for them. They may also propose new laws, questions government ministers and generally raise interest in matters you think are important.

The House of Lords:

“Members of the House of Lords are not elected and are made up of peers, who have been appointed by the House of Lords Appointment Commission (HLAC), and life peers The HLAC is an independent body which was established by the then Prime Minister, Tony Blair, in 2000. Peers have a wide range of knowledge through experience gained during their professional careers, such as in the legal or academic professions, business, health and in various roles in public service. They utilise their occupational experience by contributing to matters which are debated in the House of Lords, such as education, health and public services. The function of the House of Lords is important as it contributes to the democratic process by scrutinising and revising proposed legislation that has been proposed by the current government, but as you will see later on in this unit their power to block legislation is curtailed by the Parliament Acts 1911 and 1949.

Members of the House of Lords do not have to be in a political office, such as being a member of a political party and, therefore, do not have to adhere to the convention of being either collectively responsible for a party policy or supporting proposed legislation. They may have a personal political persuasion and have previously held a ministerial role within a political party but this does not take away their independence as a member of the House of Lords. This places them in a position where they may either support or challenge a piece of proposed legislation by holding the government of the day to account, by questioning the MPs and undertaking formal enquiries which relate to the specific aspects of the new legislation. However, although members of the House of Lords may delay proposed legislation and bring the matter to the attention of the media and general public, they cannot defeat a piece of legislation. The reasoning behind this position, which is outlined below, is that members of the House of Lords are not democratically elected to this chamber. Whether a piece of legislation succeeds should be according to the will of the people, which is represented in the House of Commons and not by the members of the House of Lords. The bicameral structure of Parliament – the House of Commons and the House of Lords – produces a checks and balance system whereby power is not held by one body: the principle is that there should be transparency during the debate of any proposed legislation.”

[The Open University, 2014]

Next: The Parliament Acts of 1911 and 1949.

Sources of Law–Legislation

Unit 4 of W101 focuses on legislation as a source of law. It focuses on the idea of democracy, how laws are made by Parliament, and devolution.

Learning outcomes

After studying this unit you should be able to:

• explain the roles played by various individuals and bodies who may instigate legislative proposals
• discuss the legislative process in the Westminster Parliament
• distinguish between primary and secondary legislation
• explain the structure of a piece of legislation and discuss its application in context
• explain what is meant by devolution and explain how devolution has evolved in Wales.

[The Open University, 2014]

There are three main sources of law in the UK. These are: legislation, common law, and European law arising out of the EU. Note: this has not changed with the Brexit vote. It is still in effect.

© The Open University, 2014

The above figure gives details on how each of the sources are further sub-divided, so the various sources are more readily understood. However, there is a hierarchy of importance, and the OU advises:

“Given the hierarchical application of the three main sources of law, you need to be able to discuss the legal rules that apply in different situations. When dealing with a problem or essay question, you may need to consider whether the matter is controlled by EU law, by UK legislation or is governed by a previous decision of a court in England and Wales. Dealing with these sources of law and saying which source will prevail is important.”

[The Open University, 2014]

The hierarchy is as follows:

© The Open University, 2014

Democracy:

What is democracy? In theory, it is about the laws reflecting the values and views of the society in which you live, and that you are allowed a say in how you are governed. In the UK, this comes in several forms, one of which is the electoral process in which you get to choose who represents you in Parliament. It is a government by the people. You may have heard the phrase “a government of the people, by the people, for the people”. It was part of Abraham Lincoln’s Gettysburg Address.

The beginning of democracy is universally acknowledged as starting with the Magna Carta in 1215.

Constitutional Principles

“The constitutional statutes, conventions and prerogative powers that make up the UK’s uncodified constitution would not function as effectively as they do without three fundamental principles:

• the rule of law
• parliamentary sovereignty
• separation of powers.

These principles structure, strengthen and guide the legal and political aspects of a society.”

[The Open University, 2014]

The Rule of Law:

At level 1, I have already dealt comprehensively with The Rule of Law. We will meet this principle time and time again, so it is better to understand the basics of it now.

Separation of Powers:

Two philosophers contributed greatly to the theory of separation of powers; Montesquieu (1689–1755) who was French, and John Locke (1632–1704) who was English.

Montesquieu’s view was that:

“the administrative powers in France could be split into three: the executive, the legislature and the judiciary. The sovereign (monarch) stood alongside the administrative powers. The three powers would work and function separately from each other but still be linked in order to check and balance each other’s influences.”

[The Open University, 2014]

Locke had a slightly different view.

“He conceived of the legislative and executive as two different branches, as the law-making (legislative) and the law-executing power (executive). The judiciary was not seen as a source of power as its function was to interpret the existing law. According to Locke, it therefore did not need to be separated from the other two powers of legislature and executive.”

[The Open University, 2014]

In the UK, separation of powers means that the exercise of power is separated into three branches:

• Legislature – law making; refers to Parliament as the supreme (sovereign) law-making body.
• Executive – refers to all institutions of the state that apply the law. It includes the civil service, the police forces, and all the local authorities. The executive also relates to the Prime Minister, the Cabinet and other ministers.
• Judiciary – comprises of the courts, judges, magistrates and other personnel. Judicial officers have independence to prevent political interference, or any other type.

Previously, prior to the Constitutional Reform Act 2005 (“CRA”) which created the Supreme Court, the legislative and judicial branches of government were linked by the House of Lords. Remember that the House of Lords is the upper chamber of the legislative branch, but also 12 members made up the Judicial Committee of the House of Lords which was the highest court in the UK. This was considered a conflict and the CRA resolve this conflict by separating them through creation of the Supreme Court, which is now the highest court in the UK.

Parliamentary sovereignty:

“Parliamentary sovereignty is a key principle for the constitutional framework of the UK and unique to a common law system.

“A constitution provides the highest authority for a state. For example, the German constitution is a codified text which presents the sovereign authority of law in its interpretation by the constitutional court. The UK lacks this codified construct. There is no written and codified constitution that can be seen as embodying the sovereign authority of the law.

“The UK does, however, have a supreme law-making body: the Westminster Parliament. It is the highest law-making authority in the UK. The Westminster Parliament is sovereign – it can make and unmake any law, it cannot be bound by decisions of past parliaments and it cannot bind future parliaments.

“Parliamentary sovereignty is one of the essential pillars of the UK’s constitutional framework. However, this important principle is not enshrined in a constitutional statute. This is because the Westminster Parliament can make and unmake any law, so any statute regulating parliamentary sovereignty would be of limited effect.

“Constitutional statutes or conventions do not uphold parliament’s sovereignty. Constitutional statutes are the result of this principle. The courts and judiciary are the essential element of the UK’s constitution which secure parliamentary sovereignty. Hilaire Barnett summarises this in one brief paragraph:

Sovereignty is therefore a fundamental rule of the common law, for it is the judges who uphold Parliament’s sovereignty. For as long as the judges accept the sovereignty of Parliament, sovereignty will remain the ultimate rule of the constitution.

(Barnett, 2013, p. 112)

“Westminster Parliament, and therefore the legislature as a branch, is the most powerful institution in the constitutional framework. However, even Parliament can be held accountable for its actions. The Westminster Parliament is accountable to the electorate. The ultimate sovereign is the people as the electorate. The members of the Westminster Parliament are held responsible by citizens who vote in elections. The Westminster Parliament is given its authority and sovereignty by the citizens electing its members.”

[The Open University, 2014]

More on Parliamentary sovereignty later.

Exam techniques

Tomorrow is the big day. Exam for W102, a real, live, sit-down exam. First exam I’m having in approximately 30 years. The last exam I did was in electrical engineering and that was in another country altogether.

So I'm as nervous as a mouse in a roomful of cats. I have so many questions in my mind, for example, will the exam be in the same format or similar as I knew in my past experiences? Still, I think I am fully prepared, and having answered the sample papers, reviewed my TMA's, and checked and rechecked my planning and my strategies, I am off now to pack my bag.

Yes you heard me right. I am packing my bag with: pens, pencils, identification, notification of examination allocation (absolutely necessary to enter the exam room), a drink and a couple of energy bars. Oh, and some headache pills. If I begin to get a headache in the exam room, I want to stop it in its tracks.

In preparation for the exam, I have been revising for the past several weeks. The OU has many different ways to support students for examinations and revision: http://www2.open.ac.uk/students/help/topic/study-skills/

The advice and guidance are great and I strongly recommend that students use these skills in conjunction with their study modules.

Some more advice:

• Listen to your tutor and pay attention to the feedback you were given. Also, redo the activities from your face-to-face tutorials.

• Pay attention to your TMA's; they were designed to help you answer the exam questions

• Try to do the sample paper; answer all the questions as this will give you the experience to answer a greater number of options in the exam room

• Read the examination guidelines carefully – my own is 25 pages long!

• Plan to get there at least half an hour before the examination begins to give yourself time to find your seat and relax.

• It's okay to speak to other students but try to avoid speaking about the exam or any module topics – this may create doubts in your mind if someone mentions something you think you did not study properly and cause you to feel unprepared.

• Give yourself time to read the exam paper carefully before beginning to write.

• Make sure you understand what the questions are asking. Pay attention to the wording so that you do not begin to answer incorrectly down the wrong path. For example, one sample question asked what year was the legal age for homosexual relationships made the same as that for heterosexual relationships. Note carefully what it was asking. It is NOT asking what year homosexual relationships was made legal.

• Make a plan regarding time strategy with respect to the total time of your exam. Balance it in terms of how many marks you will be able to obtain in comparison to the length of the entire exam. For example, in a three-hour exam, the recommended time of 20 multiple-choice questions worth 20 marks total, is 40 minutes. It is recommended to spend one hour (60 minutes) each on sections 2 and 3 which are worth 40 marks each. This is total for the number of questions so you need to break down what you will spend on each question within each section.

• Stick to your plan! If you have a question that is not fully answered,  and the time is up, move on!! If you have time at the end you may return to it. It is better to partially answer a question, and obtain some marks rather than to spend a lot of time on it to gain just a few more marks. In the end, you may miss more marks by not having the time to answer another question.

• For the multiple-choice, if you do not know the answer, guess. You have a one in four chance to get it right but your instinct may actually help you to get the answer correct. It is better than having an unanswered question which would bring you zero marks.

• Remember to prepare your answers properly. By this I mean, if you have an essay type question, remember your introduction, body and conclusion. You are not required to put a reference list at the end.

• Develop your techniques to help you remember case law with regard to legal principles, rather than situations.

• Get a good night’s sleep before the exam day, go to bed early and do not try to cram.

• Do not panic! You have been preparing for this for the past year.

Law and Morality 3

Continuing from W102 on Law and Morality.

How does the law reflect Moral values?

While many laws have a moral aspect to them – think of murder which is frowned upon by almost all societies – there are important differences. Remember that law has legal sanctions and moral rule breaking has ‘social’ sanctions. As an example, think of all the news headlines where a paedophile is found in a neighbourhood. Even if he has served his punishment and been placed in the Sexual Offences Register, the public’s disapproval is sometimes bordering on violence. On the other hand, parking on double yellow lines, or going 5 mph over the speed limit will not bring so much emotions out. Ah, but parking in a handicap parking spot when you’re able-bodied?

“These general principles may be summed up in two propositions: first, the law holds liable, as a general rule, only the actual wrongdoer; and second, the law insists, as a general rule, that a person's liability will depend on whether that person may be said to be morally blameworthy. These underlying general principles, referred to by such phrases as 'individual responsibility' and 'no liability without fault', have long been at the root of liability in English law” (Harris, P. (2007) An Introduction to Law p 29). [More reading on Law and Morality may be found at the end of this webpage]

For a quick understanding of how morality crosses societies, cultures and religions, take a look at the ‘pillars of morality.

As you can see, the issues surrounding law and morality become more complex the further we delve into them. With this in mind, I draw this topic to a close here, and will take this up again when I am dealing with W102. However, for those who have the time and interest, I suggest reading

Wacks, R. (2012) Understanding Jurisprudence, 3rd edn, New York, Oxford University Press, p 265-268

which you can find through your OU library link.

Law and Morality 2

At the end of the last blog post, I said I was going to move on to “Law and Justice”. However, the W102 module, Unit 16 also deals with law and morality, and I suspect that this is a good time to summarise this unit as well. However, if you are using this blog to revise for W101, please ignore this post.

Learning outcomes

After studying this unit you should be able to:

• define law and morality
• identify key similarities and differences between law and morality
• identify the moral dimension of legal rules
• consider whether there is a moral duty to obey the law
• compare the argument from natural law and positivism
• consider whether there is a necessary connection between law and morality
• be aware of, and be able to form an opinion on, the debate on whether the law should enforce morality
• use your research skills to find journal articles and other relevant content.

© The Open University

The Unit begins by defining law as: “Law is a system of enforceable rules that regulate the conduct of people in society.” (The Open University, 2014)

Morality as defined by Phil Harris (2007, p 26): “A society’s ‘code of morality’ may be defined as a set of beliefs, values, principles and standards of behaviour, and such codes are found in all social groups.”

Bernard Gert (2011) postulates:

“The term “morality” can be used either

1)    descriptively to refer to some codes of conduct put forward by a society or,

a. some other group, such as a religion, or

 

b. accepted by an individual for her own behavior, or

2)    normatively to refer to a code of conduct that, given specified conditions, would be put forward by all rational persons.”

It is important to point out here, I think, one of Gert’s followup points; namely, that if a person is not part of a particular group, then s/he does not in any way feel obligated to conform to the morality of the group. This is a key difference in the descriptive and normative senses of morality.

Connection between law and morality

Phil Harris (An introduction to Law, 2007, p27 – p29) shows that there is a connection between law and morality in that aside from the actual wrongdoing/wrongdoer, there must be the mental aspect (mens rea) or ‘blameworthiness’ which is a moral principle.

(to be continued)

Law and morality

The moral values of any society are hinged upon a combination of the religious and cultural influences within that society. What is considered right and wrong are based upon these influences. Different societies have different moral values and what is acceptable in one society may not be in another.

Utilitarianism:
Historically and traditionally, people believe that "natural law" was derived from a higher power, namely God. However in the 19th century writers such asJeremy Bentham (1748–1832) and John Stuart Mill (1806–1873) rejected the concept of natural law, arguing for a rational man-made view of law. They asked the question: what is the use of law? And their answer was that its purpose was to work towards the greatest good for the greatest number of people and to minimise suffering. [The Open University, (2014), Unit 2]

This became known as utilitarianism. So what does this theory mean in practice?

• Should a country drop a bomb killing thousands and tens of thousands of people in an effort to stop a war in order to ultimately save more lives?
• Should children be mass inoculated, perhaps against parental wishes, to eradicate diseases?

Utilitarianism would support such policies, with the idea that the benefit to the greater numbers outweigh the restrictions on the freedoms of the minority.

Differences between law and morality:
Most behaviour that is immoral can also be illegal. Sometimes however, things that are illegal may not be immoral, and what society considers immoral may not be illegal. Take for example parking on double yellow lines – this is illegal yet most people will not consider it immoral. On the other hand adultery is considered immoral by most people yet it is not illegal.

Legal and moral principles are usually self-evident. Some of the differences between legal and moral principles are:

• Immoral behaviour does not have legal sanctions whereas illegal behaviour does.
• Morality evolves slowly and cannot be deliberately changed. Law is deliberately changed by Parliament/courts.
• Morality is variable and flexible. Law requires a degree of certainty (see Rule of Law)

The interconnection between law and morality:
There are complex connections between law and morality. In modern society there are many people who come from different cultures and religions and the morality they share is minimal. What may be moral to some may not be to others. Law has to find a balance.

However, there are certain things that are seen as abhorrent to most religions and cultures. For example, murder and theft. Criminal law is one area where law and morality merge, though differences lie in punishments in different societies.

But is it necessary to have law based on only moral values? Lord Devlin saw law and morality as being interconnected. Prof Hart disagreed: “he argued that using law to enforce moral values was unnecessary, as society was capable of containing different moral standards without disintegrating. It was also undesirable as it would freeze morality at a particular point and morally unacceptable as it infringes the liberty of the individual.

He set out some reasons why moral censure should not necessarily lead to legal censure:

• It may punish behaviour that may not have proved harmful to another person.
• The exercise of free choice by individuals is a moral value with which it is wrong to interfere.” [The Open University, (2014), Unit 2]

This debate continues today, for example in the debate about assisted suicide. You can read more here.

Next: law and justice.

Law and order in context

“Law is regarded as a formal mechanism of social control. It creates legal obligations and rights that are enforceable, adjudicates disputes, and settles conflicts in a peaceful and regulated way. There is considerable support for the view that the main aim or purpose of law is to provide a sufficient degree of order so that society can function.

 

The rest of the section explores law as a mechanism of achieving political, economic, public and social order.” [The Open University, (2014, Unit 2]

 

Political order:

Political order of any state is strongly supported, indeed it is reliant, upon law. A state’s constitution provides rules on important processes and systems, for example, the way the country is to be governed; the way a government is to be elected; the way laws are made; and sets out a judicial system to apply and enforce the laws.

 

Economic order:

Law also provides a framework that enables the functioning of the economy. It sets out how businesses are created, regulated and operated. It recognises agreements that are legally enforceable (contracts), and specialist rules for different sectors of industry. It also applies rules to prevent exploitation, regulate health and safety, labour et cetera.

 

Public order:

Public order is the socially acceptable behaviour of persons and entities within society, while carrying out ordinary everyday activities.

 

Public order can be threatened by strikes, riots, hate speech, terrorism etc.

 

Public order is maintained in the main by security services like police, and by intelligence service mandated to secure information, and by the CPS and judiciary who assist in enforcing the law.

 

Note: In modern societies there is a belief that balance should exist between public order and the freedom to exercise free speech, express beliefs and to assemble peacefully. The legal limits that is, the balance varies in different societies and cultures, and indeed within different legal systems.

 

Social order:

“Law is a key ingredient in the way society is organised and operates. Society comprises a complex network of institutions, customs, values, and social and economic forces which determine how people interact and live together. Within a society there are considerable differences in individual ability, education and wealth. Some of these are the result of birth; others are due to inequality of opportunity. The question is whether law helps to reinforce the status quo and protect entrenched interests in society, or whether it acts as a force for social mobility. This is a controversial and complex issue. The concept of social justice is concerned with the inequalities of economic wealth in society, and with encouraging social mobility and equality of opportunity.” [The Open University, (2014, Unit 2]

 

Law is an instrument of the government of the day. The elected government will make decisions and policies on education, health care, immigration et cetera. Laws will be created and passed to achieve the objectives of the government. These will be highly regulated by complex legal and administrative frameworks designed to create access to and provision of services. In the main however laws must be fair to everyone and may be challenged if it is unfair. Fairness is determined by the values of society and in the past has resulted in granting of the vote to men over the age of 21 in 1918, then women fully in 1928.

 

“It has become unlawful to discriminate against another person on the grounds of colour, ethnic origin, gender, sexual orientation, religion, disability and age in their access to education, employment and services.” [The Open University, (2014, Unit 2]

 

Next: law and morality

The Role of the Law

To understand law, sometimes it is better to look at the role it plays in society and examine some of the different theories.

For survival: –

Prof Hart argued that law is necessary for survival. For him, law provides the necessary restraints upon individual behaviour, to work together in a cohesive body to ensure survival. Ultimately, there's a better chance of success for a group rather than an individual.

To provide order: –

Max Weber (1864–1920), a German sociologist, argued that the primary function of law is to maintain order in society. Generally speaking, the majority of persons accept ‘the binding nature of the law’ and comply. Those who do not are sanctioned in some way.

“Roscoe Pound (1870–1964), a US academic, considered that law is a social institution created to balance the different interests in society.” [The Open University, (2014, Unit 2]

To provide social cohesion: –

The French sociologist Émile Durkheim (1858–1917) argued that law was an important device to keep society together. This was especially true as society becomes more developed than complex.

On the other hand, Karl Marx (1818–1883) saw society as having different classes with interests that opposed each other and that it was the ruling class who made the laws to promote their own interests and suppress the interests of working classes.

Factors influencing the law: –

When considering the role of the law in any society, it is important to note other factors which affect and influence law. Some of these include but are not limited to, culture, religion, politics, economic factors, customs and traditions, moral values and outside influences.

Next: law and order in context.

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.

W101: Unit 1 – common law and civil law systems

In my previous Unit 1 post, I explained basic International Law. Now I will continue explaining how law can also be classified by national (also known as domestic) law systems. National law is the law of a single nation/country. Keep in mind that Unit 1 is the very beginning of W101, which itself is An Introduction to Law! Explanations at this level are very, very basic. I am following the OU format as I learn.

Common Law:-

Many countries follow the ‘common law’ system, that is, laws that follow a system of precedent set by judges who preside over cases. It is also known as ‘judge-made law’. When a judge hears a case, he has to decide two things:

• What are the facts of the case,
• How the law applies or fits with those facts.

When the judge makes a decision concerning those facts, a system is set up where any other subsequent case occurring, that has similar facts, the law (and interpretation) that the judge applied will be followed in like manner.

The rule also has structure. Higher courts, such as the Court of Appeal and the Supreme Court (domestically) and the European courts (ECtHR and ECtJ) can overrule the lower courts. This will be explained further when I come to the court system. At this time, it is enough to remember that higher courts have the power to overturn lower courts.

Common law systems are found in countries which follow the British legal system, such as the Commonwealth countries (USA, Canada, India etc.).

There are two ‘types’ of civil law, as explained below.

Civil Law 1:-

The ‘first’ type of civil law is a system of law used by countries which have a system of law originating from Roman law in Europe. This Roman root was later influenced by Germanic traditions.

Essentially, this civil law comprises of a series of abstract principles which form an authoritative statement on the law, and is comprised of a collection of legal codes on different issues. The role of the judge is to interpret and apply these codes to the situation. Many countries in Europe, Latin America, china and some African states use this system.

Civil Law 2:-

In this type of civil law, we care concerned about the lawful interactions between legal persons (more on this later). Suffice to say at this point, a legal person could be an individual, or a company.

When relationships break down because there is some type of breach, this type of civil law comes into place and the parties can make a claim for some form of relief at the court. Examples of the type of breakdown include:

• contracts,
• tort (where a duty has been breached such as failure to meet a standard of care),
• succession (the distribution of assets after death, involving inheritance, wills etc.),
• Family law (divorce, marriage, maintenance etc.).

Note that although the courts arbitrate, it is the decision of the individual to enter into these legal relationships, such as contracts. Therefore, the state itself is not party to the proceedings, and it is up to the aggrieved party to take action for redress. This is why it is considered ‘civil’ law and not ‘criminal’ law.

The aggrieved person makes a ‘claim’ or ‘sues’ the person s/he believes is ‘liable’. The party claiming is therefore known as the ‘claimant’ and the person defending is the ‘defendant’. The case is known by the names of the parties e.g. Smith v Jones which is read as Smith and Jones.

Next: Classification of law by source.

Returning to studies

I haven't updated this blog for a long time, primarily because I suffered some health issues (a heart attack) and had to give up my studies for the time I needed to recuperate. I'm back now, but my degree has changed from B05 to Q79, which is a new LLB from the Open University. The Q79 has started for the first time in October 2014. I guess this first batch of students will be the guinea pigs. (^_~)

The Q79 starts with module W101: An Introduction to Law. It is, for the very first time, an entirely online module, and as such, there are no books or materials to be had as before. Let me say from the onset, many students have complained of this lack of printed materials, as they are now bound to a computer/tablet and Internet to access the course.

It is possible to download the course as epub files, but from this one cannot access the links to the additional reading materials when offline. Neither can one do the exercises. It is also possible to download the audio and video files but again, one cannot link these to the correct place in the course when offline due to the naming conventions and the poor planning. Students therefore will need to be online to study properly. A broadband connection is recommended.

Q79 is made up as follows:

Block 01: The nature of the law

Block 02: Sources of law

Block 03: The administration of justice

Block 04: Elements of law and liability

Block 05: Legal remedies and sanctions.

These are further broken into a 30 weeks program and cover 18 units (on which I will be writing more later), 5 tutor marked assignments (TMAs) and 1 End of Module Assignment (EMA). There are 4 skill building sessions.

A pass is  40% minimum on all TMAs ("overall continuous assessment score (OCAS) is determined from scores for these assignments weighted as follows: TMA01 - 10%; TMA02 - 15%; TMA03 - 20%; TMA04 - 25%; TMA05 - 30%") and 40% on the EMA.   

I'll blog more on the individual units, and assignments, (no I will not be presenting assignments here) later on. At the moment, I am writing TMA 05 and preparing for EMA, so my course is almost over. Hopefully, anyone accessing this site will learn and benefit from my experience.

W100 - Rules

Today I am going to discuss rules, in brief. Why?

Rules are the foundation of laws, and as stated earlier, allow us to live harmoniously in society. More on that later.

Let’s start by examining what is a rule. If you give yourself a few minutes, can you say/write/explain what is a rule?

To define a rule, let’s look closer at a simple scenario:

Imagine you go to the library. There is a sign posted on a wall, easily seen as you enter. The sign says “Do not disturb other users.”

Is this a rule? Of course, we all may agree it is. but what makes this a rule?

First, we know that people use a library to study/concentrate, so that we are aware that disturbing others will break a social tradition/habit.

Secondly, the sign posted has a definite descriptive aspect; that is, it tells us something we may not do. Descriptive rules also state things we may do (often written as ‘ought/not, may/not, can/not’).

Prescriptive rules on the other hand, are rules that give some sort of guidance,e g, “A police officer may use reasonable force in affecting an arrest.”

But here is a catch. Suppose you saw someone putting up the sign as you walk in. Would you be as clear that the sign is to be obeyed? Suppose the sign was put up by a person who is not working in/associated with the library… would the sign have the same impact? Likely not.

One aspect of a rule is that it is backed by authority, by someone/some body in a position to enforce that rule. For example, the librarian may well be able to sanction you in some way.

One of the key problems in writing rules is the need to be precise. You need to say what you want to mean. However, there is a bit of a blowback from this. Can you see any problems? Let’s examine another situation and see if we can clarify. I shall use a similar situation as the OU does.

If I open my garden to visitors, and don’t want them to ruin it, I can put up a sign that says ‘Do not pick flowers.’ Someone then decides to take fruit from my trees by breaking the branches. Okay, now I put up a sign that says ‘Do not pick fruits or flowers.’  Next I see someone cutting branches from the plants that grow by cuttings, claiming that they are not violating the rules I posted.

The way this is going is that I can be adding rules to cover every scenario as they occur. In the meantime, the damage (mischief) is constantly being done, leaving me with an increasingly damaged garden. My list of rules is also growing longer and longer, and takes much time and effort to read.

The solution to this is then to make the rule general enough to cover every scenario while stating my intention. So something like ‘Do not interfere with the plants; leave garden as you find it.’ may be general enough but still make my intention clear: that I want my garden to remain undamaged.

A course on how to write rules, or laws (legislative drafting) is taught at the University of London. The course price is £11,000. I understand there is a similar course in Barbados.

More on rules, and laws, coming up.

Y166– Starting with Law

The OU law degree comprises of 7 modules, 4 compulsory and 3 optional courses.

The starting point to the LLB at OU is the W100 – Rules, Rights and Justice. This is a 60 point course at Level 1.

However, I chose an alternative introduction called Y166 – Starting with Law. This is an introductory 10 point course that aims to introduce law concepts and “why law matters, how laws are made, why we need laws and who the key players are in the legal system”.

The cost of this course is £120.

I completed this course some time ago, and found it useful in the extreme, although it will not count towards my LLB.

The main reason I chose this as my starting point was to give myself confidence in starting ‘formal’ education again after many years. Not only did I find the course useful for building confidence, it also started me thinking on how to write better.

Writing ‘regularly’, for example on this blog, is a bit different to writing for law. I found law requires precision and concise wording, especially if you have to stick to a word limit. More on this when I move on to discussing the W100.

The Y166 does not give a grade, but instead a pass or ‘fail’. There are 2 tutor marked assignments (TMAs) and an end of course assessment (ECA). Tutors are contacted by phone (usually the tutor calls) at scheduled times, but they can be contacted via email and can be contacted by phone if additional help is required. Grading is as follows: “Achieved, Just achieved, Not quite achieved, Not achieved”.

The course requires reflective learning, i.e. throughout, the student is asked to reflect on how and what he has learnt. So a learning plan is submitted with every assignment as well as an essay plan. My essay plan was done as a mind map. I used the free EDraw Mind Map to do this.

Assignments are submitted by post in hardcopy. The feedback from the tutor is also in hardcopy, mailed back with the assignments. TMAs are sent to the tutor and the ECA to the OU. Care has to be taken to mail these before the actual deadlines so that they can reach before the deadline date – inclusive of unforeseen delays in the postal system.

I obtained ‘Achieved’ on all my learning outcomes.