Equity – What is it?

Given what we know about equity so far, how difficult would it be to get a definition? The answer may be surprising, especially if you were to consider the dictionary meaning: "the quality of being fair and impartial". It may surprise you to know that equity does not mean equality (as I had previously mentioned). In law, the real meaning of equity would be something like: "providing for individual needs in such a manner that the individual can live on equal terms with everyone else" (my words). To give you an idea of what I mean take a look at the following picture:

In the above picture, on the left, we can see that even though each person was treated equally, there is still an imbalance. On the right, each person as been treated according to his individual needs, but the result is that each person has equal opportunity (to view the game). To put it another way, equality is giving each person the same resources; equity is giving each person the resources that he or she needs to achieve equality – equity is the road and equality is the destination.

This is how the legal academic Gary Watt introduces ‘equity’:

The word ‘equity’ is used by the ‘haves’ and the ‘have nots’ in quite different ways, but always to denote something they hope to attain or retain. Whether approached from a religious or secular perspective, whether approached from a starting point of poverty or privilege, equity is universally considered to be something desirable, something to aspire to … Equity therefore has the potential to provide a language capable of traversing or filling some fundamental fissures in modern society.

(Watt, 2012, pp. 37–8)

Equality is a very important idea, and one that should be taken seriously. Since the late 1990s the importance of equality has been cemented in law by a number of high-profile pieces of UK government legislation, including the Human Rights Act 1998 and the Equality Act 2010. Yet equality alone cannot provide all the answers. Perhaps, as the image above suggests, when confronted with the novelty of individual needs an alternative method – one that does not rely upon treating everyone as identical – is required to ensure a reasonable chance of justice or fairness being achieved.

Thus, as this brief section has aimed to demonstrate, it is important to be aware of the problems that can and will arise if close attention is not paid to language and the context in which it is used. Where talking about justice, for example, it is not automatically about equality and vice versa. Likewise, equality cannot be automatically exchanged for equity.

© The Open University

In trying to understand equity, we must understand that there are advantages or privileges that exist alongside disadvantages. To achieve equality we must address the imbalances. Consider this: would affirmative action fall under equity, or would it, in its own right, be considered discrimination?

It is worth paying attention to the subjective nature of emotions/feelings, as these play a very important role in whether a person feels he is treated fairly or not. While law has certain objective mechanisms within its structure to help achieve fairness, equity plays a key part in "ensuring a degree of humanity remains within the law". It helps to maintain a degree of balance within the legal system, but there is always that subjective aspect of emotions.

To be continued…

W101 – Equity: introduction

Unit 7 of W101 introduces equity. Equity is a part of the common law and is another source of law as mentioned before. Equity is a queer creature; described as a combination of “philosophy, social justice and legal doctrine and procedure”, equity has a long and rich history. The learning outcomes for this unit are:

Learning outcomes

After studying this unit you should be able to:

• describe equity’s philosophical foundations
• consider equity’s present place and role in the common law jurisdiction of England and Wales
• discuss some of equity’s key areas of intervention within the common law system, e.g. remedies
• describe key historical points in the development of equity
• discuss extra-legal concepts and their relationship to equity, e.g. justice, fairness and conscience.

© The Open University

Equity was described by Aristotle as:

"When the thing is indefinite the rule is also indefinite, like the leaden rule used in making the Lesbian* moulding; the rule adapts itself to the shape of the stone and is not rigid, and so too the decree is adapted to the facts."

*A lesbian rule is a flexible rule used to draw smooth curves.

Photo of a Lesbian rule courtesy http://douglasbgibson.tumblr.com.

In other words, equity is flexible enough to find a solution that fits the problem. We will see how this works during this unit. Keep in mind that equity is both a foundational principle in legal philosophy as well as an ideal of social justice. Given that equity was recognised by Aristotle (384 – 322 BC), we can see that equity goes back more than 20 centuries! Of equity, Aristotle also said:

"Equity bids us be merciful to the weakness of human nature; to think less about the laws than about the man who framed them, and less about what he said than about what he meant; not to consider the actions of the accused so much as his intentions; nor this or that detail so much as the whole story; to ask not what a man is now but what he has always or usually been."

This excerpt demonstrates that equity can be divided into three broad but related categories which together form a starting point for thinking about equity. Equity is:

• a set of philosophical principles
• an ideal form of social justice
• a branch of legal doctrine and procedure.

© The Open University

The most accurate representation of equity in the 21st century is the last of the above – as a form of legal doctrine and procedure – as it follows rules and precedent much as the common law.

Next: what is equity?

Skills 2 – Personal Development Planning

Skills 2 is a unit presented in Week 11 of W101.

Learning outcomes

After studying this unit you should be able to:

• understand your progress so far and understand Personal Development Planning
• understand the need for, and nature of, effective writing skills for law
• understand the use of legal language and vocabulary
• understand the use of grammar, punctuation and spelling
• understand the use of a legal database to find statute and case law.

© The Open University

Keep in mind that these skills are built upon each other, so that they should be treated as a continuous learning process, rather than individual ‘lessons’. In other words, you should be using these throughout your study. Don’t worry too much though, you will eventually become unaware that you are actually using them as they become more familiar and part of your study habits. The skills of reading, note-taking and summarising are integral and essential to any field of study, including law.

Personal Development Planning

At this stage in the OU W101, you should have submitted a TMA (tutor marked assignment) and received feedback from your tutor. I had mentioned before that the initial feedback from tutors might be a bit uncomfortable because you are forced to face some negative aspects of your performance. Keep in mind that tutors are not making personal statements about you, but rather they are trying to critique (not criticise!) your work. You may find comments on content (and the relevance of what you wrote to what the question was asking), identifying the correct material, writing style including grammar and spelling, referencing, presenting information concisely and accurately, making appropriate use of legal terminology and examples (remember when using examples to clearly state what the relevance is to the topic), et cetera. If all this seems a bit much at the moment, don't worry because the types of comments that are included in your feedback are designed to help you, and will be referenced to the appropriate part of your work.

More importantly, each TMA is designed so that the student can give some personal feedback on their own performance. In other words, you may have to answer questions such as: "Outline two things that you think you could improve when preparing for TMA 02 and give reasons why."

This forces you to think about your own self study, and a good student will think of all aspects of study, not just areas that help to complete answering the question(s). Therefore you are forced to examine things such as time management, understanding of the material, appropriateness and relevance to the questions, choosing examples, writing skills, referencing et cetera. And as mentioned before, some of your discoveries about yourself might not be too comfortable to admit such as (and this is just an example) browsing the Internet or being on Facebook instead of studying.

PDP aims to improve your capacity to learn and to ensure that you review, plan and take responsibility for your own learning. It is an active and continuous process of self-appraisal, review and planning. It should enable you to:

• become a more effective, independent and confident learner
• improve your generic and legal study skills
• identify your goals and evaluate your progress towards them.

The PDP Cycle © The Open University

The important lesson here is that your tutor is not making personal attacks on you, and you have to take responsibility for your own learning.

W101 Skills – 1

The online Open University law module W101 has some skills lessons built in, interspersed at intervals to aid the student in recognising and developing the necessary skills that are so important, both as a student and future lawyer. Some of the skills may seem obvious, some not so much. For example, the learning outcomes for Skills 1 are:

Learning outcomes

After studying this unit you should be able to:

• review your progress so far
• develop the skills of reading, note-taking and summarising
• know how to find your way around a statute
• know how to find your way around a case.

© The Open University

So, reading, note-taking and summarising may seem to be very obvious skills… but, these are not just the pleasurable, ‘normal’ way we might read the latest John Grisham novel, or the daily newspaper. For academic purposes, these skills have to be developed and used in an effective manner. They are part of your cognitive development. You, the student, need to learn how to identify what is relevant, what is not, how to identify facts and apply principles to those facts.

About the hardest part of your development (at least it was for me) is the self-analysis, the idea of being totally honest with yourself, and avoid making excuses. Did you use your time effectively? Were you able to do more hours of study than you actually did? Did you really have to eat that last muffin? Okay, I threw that in to see if you were paying attention.

Activity 1:

This activity gets you to think about the first weeks of study on W101 and ask yourself some questions. You may wish to make some notes as you respond to these questions:

• What did you find to be the easiest aspect of your study so far?
• What did you find to be the hardest aspect of your study so far?
• Which aspects of your study did you do well at?
• Which aspects of your study need improving?
• What can you do to improve and develop your learning?
• Was your time management efficient and can you do anything to improve it for the future?

© The Open University

An average person is ready to be honest about their strengths, but can you face up to your weaknesses? You will encounter a lot of this when you have to give feedback on your assignments and it will be uncomfortable, to say the least. Can you be completely honest with yourself, and your tutor, in answering the above questions? You can do a personal SWOT Analysis to determine your strengths, weaknesses, opportunities (for improvement) and threats (to your improvement).

Reading Skills:

There are different ways to read. The type of reading we do depends on the material we are reading and the purpose for which we are reading.

• Reading for gist – if we are reading to understand what the text is about, or to see if it is relevant for our needs, we may skim read, and this applies to a newspaper, a report or an academic article. We may also scan the text to get the general idea and to identify exactly what we need to know.

• Reading to gain a full understanding – if we are reading in order to gain a full understanding of something technical or complex, we tend to take our time. We may read the text through once quickly, to get the general idea, and then go back over it more carefully. We may take notes of the things we find difficult to understand, which we think are important, which we need to clarify later, or which we disagree with.

• Reading to reformulate – this type of reading aims to identify the main points of a text to enable you to make your own notes. This is important as it enables you to condense a lot of material.

© The Open University

A useful strategy in reading is known as SQ3R… Survey-Question-Read-Recite (or Recall)-Review. Click on the link for a PDF summary and description.

Effective Note-taking:

A person reading for academic study is advised to take notes, not only to help in digesting the material, but also to help summarise and clarify the ideas. “Taking notes forces you to think about the ideas in the text as you read it, because you have to decide what to write down and how to phrase it. As you write down the notes you are pressed into finding some sense in the words in the text. If you read without taking notes, no matter how good your memory is, you will find that the ideas gradually drift away from you.” It also helps if you rewrite in your own words so that avoiding plagiarism becomes automatic.

There are several different techniques for note-taking:

• Marking or annotating the text was signalled as a key activity when reading and it forms the beginning of note-taking – it highlights the relevant sections so that they are easier to find.
• Linear notes: this is the most common form of note-taking. It involves writing in sequence the points that you want to note. The aim is to pick out the relevant points.
• Mind maps: when making a mind map, you generally put the central topic in the middle of the page and then arrange the different aspects of the topic around it. However, you can give free rein to your creativity with mind maps. There are no hard and fast rules. Mind maps give you a clear visual representation of the relationship between points or ideas and many people find that the effort that they put into constructing a mind map is enough to fix the information in their memory.

© The Open University

One mistake students make when making annotations is to underline or mark almost everything on the page. However, the OU has a nifty little guide here on note-taking. It’s part of an on-going skills section on the OU website. Learning to identify and annotate what is important and necessary is an essential skill.

To be continued…

How statute is interpreted and applied

Unit 5 of W101 deals with how statute is interpreted and applied, and readers may want to go back to the 4 rules of interpretation prior to continuing:

• The Literal Rule
• The Golden Rule
• The Mischief Rule
• The Purposive Approach to interpretation

Learning outcomes

After studying this unit you should be able to:

• understand the need for statutory interpretation
• understand the role of judges in applying the law
• understand the rules of statutory interpretation
• be aware of the internal and external aids to interpretation
• understand how the judges apply the different rules of interpretation.

© The Open University

Statutes are drafted by specialist government lawyers called Parliamentary Counsels. They have to choose words with care when drafting legislation, for a number of reasons. Let’s consider some ways statutes may have some problems in interpretation:

• While passing through Parliament, the statute may have been subject to changes, and as a result, some of the wording has changed so that original clarity was lost.
• Due to the number of Bills passing through Parliament (greatly increased in recent years), Parliamentary scrutiny may be less than rigorous due to lack of time. Errors may slip through.
• All languages have ‘an inbuilt imprecision’, leaving words open to ambiguity:
• Words can have different meanings, depending on the context in which they are used.
• The meaning of a word can change over time.
• Unforeseen events or developments (such as in technology) may occur.
• Statutes are drafted in a general way that cannot cover every circumstance, but might need a court to resolve a specific situation.

The relationship of the rules of interpretation

There is no hierarchy in the use of the rules of interpretation. The position has been aptly explained by Lord Reid:

They are not rules in the ordinary sense of having some binding force. They are our servants, not our masters. They are aids to construction, presumptions or pointers. Not infrequently one ‘rule’ points in one direction, another in a different direction. In each case we must look at all relevant circumstances and decide as a matter of judgment what weight to attach to any particular ‘rule’. (Maunsell v Olins [1975] AC 373)

© The Open University

Aside from the rules of interpretation, judges may use a number of different internal and external aids to help them.

Internal aids are found within the statute, such as explanatory notes, presumptions and rules of language.

Explanatory Notes:

“A judge may look for guidance on the meaning of the Act itself in any definitions sections, headings, side or margin notes etc. Older statutes usually have a ‘Preamble’ at the beginning which sets out Parliament’s purpose in enacting the Act.” Keep in mind that this is for guidance only, as these are not actually part of the statute.

Presumptions:

“The courts have developed certain presumptions when interpreting statutes. The courts assume that certain points are implied in the legislation unless they are rebutted by the words in the statute which indicate something to the contrary.”

Some common presumptions are:

• Statutes do not apply retrospectively. It’s presumed that it is unfair to punish someone for  something that was not a crime when it happened, but later became a crime. It is important for people to know the legal implications of their actions. However, there are some cases where statute will apply retrospectively, but in cases like these, it will be stated in the statute itself. An example is the Adoption Act 1976 was brought into force on 1 January 1988 but replaces an earlier Act retrospectively from 1 January 1976.
• There is a presumption that a mental element (blameworthiness or intention – the mens rea) is required for criminal offences. For crimes that do not require intention (strict liability), the statute will reflect this.

• Statutes do not alter the common law – unless a statute expressly states that the common law has been changed it will remain as it is.

• Statutes do not affect the Crown – unless the statute contains a clear statement to the contrary it is presumed not to apply to the Crown.

• Statutes do not intend to deprive a person of their liberty – unless it explicitly makes provision for this form of punishment.

• Statutes do not intend to conflict with the country’s international law obligations, and so where possible statutes should be interpreted to give effect to existing international legal obligations.

• Statutes are ‘always speaking’ – this means that they need to be interpreted in the modern legal context rather than being fixed with the meaning that they had when they were created.

Rules of Language:

Rules of language are expressed in Latin terms, so students should familiarise themselves in recognising the expressions.

• “Ejusdem generis – this means the same type. If there is a list of specific words followed by general words then the general words are limited to the same kind of items as the specific words. So, for instance, if an Act stated that it applied to ‘dogs, cats, guinea pigs, hamsters and other animals’, then the words ‘other animals’ would be taken to mean animals of a similar type to the preceding list, so it would not include wild animals such as badgers.”
• “Noscitur a sociis – a word is known by the company it keeps. This means that the words in the statute must be looked at in context and interpreted accordingly. The other words in the same section or sections of the Act should be considered. It is wider than ejusdem generis, which only applies to general words at the end of a list of specific words.”
• “Expressio unius est exclusion alterius – this means that the mention of one thing excludes the others. Where specific words are used and not followed by any general words then the Act applies only to the specific words.”

© The Open University

“Some external aids have long been used to provide helpful guidance on the meaning of the words in a statute – these include:

• Other Acts of Parliament on the same topic have been used when applying the mischief rule.
• Dictionaries may be consulted to find the meaning of a word.

• The Interpretation Act 1978 – this Act sounds more promising than it is, but it does provide a number of standard meanings which can be applied to Acts of Parliament. For instance, the word ‘land’ includes land, buildings and other structures. Section 6 is particularly well-used:

  Section 6 of the Interpretation Act 1978 provides:

  In any Act, unless the contrary intention appears, —

  • (a) words importing the masculine gender include the feminine;
  • (b) words importing the feminine gender include the masculine;
  • (c) words in the singular include the plural and words in the plural include the singular.
• Textbooks/academic commentary on the relevant legal issue may be consulted.
• International treaties and conventions can be given national effect and are incorporated into an Act of Parliament. The courts may consult the wording of the original treaty or convention to ensure that they give effect to its true meaning.

Other external aids have been more controversial in their use by the courts. The courts have traditionally taken a restricted approach to what can be considered when interpreting a statute. However, this attitude has been considerably relaxed with the increased use of the purposive approach and judges will now consider the following:

• Reports – legislation is often preceded by a report highlighting issues of concern. These reports may be the work of ad hoc committees or commissions set up to consider a particular issue. Alternatively, they may be the work of one of the permanent law reform bodies such as the Law Commission. Its reports do on occasion lead to legislation. For instance, the Law Commission consultation paper Reforming Bribery (2008) formed the basis for the Bribery Act 2010 which updated the laws on bribery and corruption.
• Pre-parliamentary materials – Green and White Papers are prepared by government departments in preparation for new legislation.

• Hansard – contains the official daily ad verbatim report of parliamentary debates in the House of Commons and the House of Lords. It provides a record of what was said as the legislation was in the process of being approved by Parliament.”

© The Open University

Creating legislation

Legislation starts off as a Bill. This merely means that the legislation is in draft form. Bills can be proposed by members of the House of Commons (MPs) or by members of the House of Lords. Bills can either be (a) public Bill or (b) Private members’ Bill.  A public Bill is one which affects the entire population and is introduced by a government minister. A private members’ Bill is introduced by a Lord or an MP who is not a government minister. However, if the bill goes on to become law it will affect the entire population. Private members' Bills usually come about because some current issue is important and has attracted the attention of a pressure group which then lobbies an MP for change. Examples of pressure groups are the Citizens Advice Bureau,  and “Which?”.

There are three ways in which a Private members Bill can be proposed:

• A ballot procedure allows a maximum of 20 back-benchers to propose new legislation. However, the timeframe for Parliament to process new legislation means that there is only a small quota of legislation allowed to be introduced by back-benchers. At the beginning of each parliamentary session the 20 members who were successful in the ballot are allowed to present their proposed legislation. Each of the private members’ Bills are usually discussed on a Friday and given a provisional date for a second reading or any further stages to be undertaken. These Bills may be of a controversial nature and they tend to relate to a member or a group of members who have a connection with the subject matter. The majority of private members’ Bills are usually done through the ballot procedure.

• Ten minute rule Bills are allowed under Standing Order No. 23. This order allows members to gain permission to introduce a Bill. The ten minute rule allows members to introduce a subject matter and a proposed change in the law. This process is usually taken up just after question time on a Tuesday. The ten minute rule was used by the MP Alex Cunningham to introduce a Bill which proposed a ban on smoking in private vehicles where there are children under the age of 18 years old present. Pressure groups such as the British Lung Foundation (BLF) have supported this proposal through their campaign against smoking in cars where children are present.

• An MP is permitted to introduce a Bill after giving notice under what is known as Standing Order No. 57. This type of Bill cannot be presented until after all the ballot bills have been presented and they have reached the second reading stage.

[The Open University, 2014]

The Abortion Act 1967 is an example of a Private members' Bill that became law.

The Law Commission and Criminal Cases Review Commission (CCRC) may also suggest changes to the law.

Stages of a Bill

The stages that a Bill that has to go through before it becomes law is fully described here.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

© The Open University

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.

Constitutions

Before I begin on Constitutions, I should mention that the exam for the W102 was everything I hoped for. As the first sit-down exam I had for the Q79 LLB, I have to say that the course study does prepare you for the exam, and the TMAs are especially helpful when you add the tutors’ advice and really take on board what they are saying. I’m thinking I passed.

Constitutions

I label this in the plural, because although the UK constitution is the subject of interest, it certainly is only one type of a constitution and there are others that I’ve compared it to. I may well be mentioning some of the comparisons so that readers can get an idea of differences and similarities along the way.

The next Unit of the W101 module is the UK Constitution.

Learning outcomes

After studying this unit you should be able to:

• explain the concept of a constitution
• explain key constitutional principles
• explain the different elements of a constitutional framework
• discuss the different elements of the UK’s constitution
• discuss the evolution of the UK’s constitution

[The Open University, 2014]

Obviously, as with all things legal, we must define what is a constitution. At this point before reading on, you should, on your own, try to think of what is a constitution, what characteristics it has that makes it a constitution and come up with your own definition. You can even try creating a constitution for a club, for example.

I will point out that constitutions are legally binding, and may be used by an organisation eg a cricket club or union or political party. Or, a constitution can be used by a group eg the United States of America, or the European Union. Equally, the individual participants within the group may have separate constitutions, eg the Constitution of Virginia (USA) and Constitution of UK (EU).

"… at its most basic a constitution is seen as having the following elements:

• rules about the structure and power of government of a state
• rules about the basic rights and freedoms of the citizens of that state."

[The Open University, 2014]

“The Encyclopaedia Britannica (2014) defines a constitution in the following terms:

Every government has an organizational structure that defines the specific responsibilities of its public officials. Some officials make the laws, others see to their enforcement. Taxes must be collected and revenues spent. There must be provision for preserving the domestic peace and providing for national defense [sic]. The fundamental written documents that state how governments shall operate and define their limitations are their constitutions.”

[The Open University, 2014]

Note the last sentence… ‘The fundamental written document…’

We will get back to the highlighted word a bit later on.

“set of the most important rules and common understandings in any given country that regulate the relations among that country’s governing institutions and also the relations between that country’s governing institutions and the people of that country.” [King, 2009, p3]

The above is by Anthony King, an academic author on the subject of the UK Constitution. Note that he reiterates the organisation (relations) among governmental institutions and also the relationship between those institutions and the people.

“The definitions discussed so far have considered the state, the government, and also the relationship between the state and individuals. In effect they have considered what a constitution is. Thomas Paine (1737–1809), an Anglo-American political activist during the American War of Independence, looked at the concept of a constitution from a rather different perspective:

A constitution is not the act of government, but of a people constituting a government, and a government without a constitution is power without right … A constitution is a thing antecedent to a government; and a government is only the creature of a constitution.

(Paine cited in Barnett, 2013, p. 7)

This approach to defining a constitution provides a different perspective as it focuses on the source of a constitution, where it comes from. Paine’s view is that a constitution ultimately derives from the people acting through the government.”

[The Open University, 2014]

I will continue on constitutions…

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.

Unit 2: The nature of the law

Unit 2 of W101 seeks to define the nature of the law, and has six subsections.

1. Seeking a definition of law
2. law is a system of rules
3. the role of the law
4. law and order in context
5. law and morality
6. law and justice

Each of these obviously has further subsections which I will get to. Rather than deal with each here, I will put it all together under the main subsections.

Definition of the law

There is no simple explanation to say what law is. Many academics and scholars have tried for centuries to define law. No one definition is precise; rather, different definitions just give us a clearer idea when put together.

At the heart of each definition (several of which I will come to shortly) is a common theme: law is a system of rules. Remember that a rule is backed by authority, by someone/some body in a position to enforce that rule. Rules (laws) also are created by some sort of formal process.

John Austin (1790–1859) argues "that law is distinct from other rules as ‘the command of a sovereign backed by cohesive sanctions’. Austin distinguishes law from other rules in the following ways:

• Law is created by a formal recognised process. The nature of the ‘sovereign’ will vary depending on the state concerned; in England and Wales, law is created by the monarch in Parliament.
• Legal rules are obligatory; an individual has no choice but to obey them.
• There is an enforcement mechanism to ensure that the laws are enforced."

[The Open University, (2014, Unit 2]

Note that law is not created by the monarch in Parliament*. The process has evolved since the time of Austin.

Upon reflection, Austin's theory aptly describes criminal law – the obligation to obey rules, and an enforcement mechanism by the State. However, this explanation does not adequately cover civil law where most of the relationships are voluntary.

Professor H.L.A. Hart (1907–1992) divided law into primary and secondary rules.

Primary rules: these rules are needed by simple societies and impose a duty on the members which are necessary for survival – they prohibit socially destructive behaviour. For example, murder and theft or behaviour that causes harm. In simple societies the enforcement comes from social pressure.

Secondary rules: these are needed by more complex societies, where there is need to confer authority and power. Prof Hart identified three types:

• Rules of Adjudication – these include which type of dispute is heard by which court, who is qualified to hear the disputes, and what sanctions are applied when a primary rule is broken.
• Rules of change – these set out the process by which both primary and secondary rules may be changed when necessary.
• Rules of recognition – these tell which rules have legal force, especially in developed societies where rules are numerous and complex.

It is to be noted that there are many theories on law put forward over time from many different people ranging from philosophers to legal practitioners and academics. As mentioned before, a simple definition of what law is, definitely is not a simple task.

Next: the role of the law.

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.

W101: Unit 1

 

Unit 1: An introduction to the Legal Framework is all about how law is classified, and about rights and responsibilities. It is the starting pointing of the Q79 LLB and is very basic… as studies progress, the depth of these initial lessons will increase.

The learning outcomes are:

• understand the different ways in which law is classified
• understand the distinction between the common law system and continental European civil law systems
• understand the nature of the common law, the importance of case law, statute and equity
• understand the distinction between public and private law, and the overlap between civil and criminal liability
• understand the concept of law framed in terms of rights and responsibilities.

As seen from above, law can be classified in several ways, and though it may be confusing in the very beginning to newcomers (to the study of law), rest assured that with some time, it all begins to fit in. It’s interesting to note that the unit begins with asking the student to think of how law affects us every day. It points out that the law affects us from before we are born to after our death.

© The Open University

International law is a mixture of treaties, international agreements and conventions which are agreed by the governments of the different states. It is consensual, whereas national law (law that is in effect within the borders of a country) is imposed on citizens regardless of their agreement or disagreement.

International law is relatively unenforceable. At best, economic sanctions can be applied, but there is nothing forcing a country to abide with any prior agreements. An example would be the Russia/Ukraine situation currently on-going. The EU and other Western countries have imposed sanctions against Russia but cannot use military actions without repercussions.

Next: common law and civil law systems.