Transcript (An introduction to!) Introduction to Law and Society

English Legal System
Introductory Lecture
Katarzyna Gromek Broc
University of York
Overview of the course
1) Introducing myself,
2) Teaching methods: interactive, student –
centred, enhancing students’ participation and
student- active learning
3) My expectations/ your expectations
4) Assessment: addressing the question,
supporting your idea by evidence, developing
legal reasoning
English Legal System
• Purpose of the module
• To grasp the basic knowledge about the
English Legal System and its operation
• To see the interdisciplinary character of
law and legal scholarship
• Should help you develop some important
skills and techniques which will be useful
across all courses on English Law
English Legal System:
The course
Choice for the course
There is no a single way of teaching
English Legal System
English Legal system could be defined as a
mixture of various processes, institutions, and
the personnel involved in the resolution
(formal and informal) of legal disputes.
It is more about procedure than substantive
Law
English Legal System
• 1. Introductory remarks
• English Legal System covers the law
making machinery and the rules governing
it,
• It covers people involved in decisionmaking and operation of the system
• English Legal System refers to England
and Wales. Scotland and Northern Ireland
have separate legal systems.
English Legal system
• Cownie and Bradney define legal system
as a system constructed around the
resolution of legal disputes:
• 'Legal systems are there to determine
what will happen when people have
disputes. Legal rules are also there so
people can order their lives in such a way
as to avoid such disputes' English Legal
System in Context
English Legal system in context an
‘interdisciplinary’ character of law
• Law is not just a set of legal rules
– It is informed by underlying philosophical,
political, social, cultural, economic and other
ideas and it also informs those disciplines
• Law is to ensure particular social order
through civil and criminal institutions and
procedures.
English Legal System in
Context
• The Law is political construct:
• Why political?
• Governed, influenced, dominated, often
created by current political establishment’
• Law is a social construct:
• Social order is continuously created and
recreated by law it is one of the
mechanisms through which the social
order was established and has been
shaped.
English Law in Context
• Law is about choice... who makes the
choice? why those who are entitled to do
so make a particular choice?
• who gives them power?
• to what extent they are accountable for
their decisions?
• Why judges’ voice has become so
important?
Shortcomings of the Legal
Language
• There is a particular problem with the
language that might justify the role of the
judges, giving interpretation and making
sense of statutes. Here we have to
consider some difficulties in linguistic
communication, obscurity of the language,
the lack of clarity, absence of indications
on a particular point.
Legal language
• Legal Language in judicial decisions:
• Common law refers to substantive law and
procedural rules that have been created
by the judiciary through the decisions in
the cases they have heard.
• Legal language in Statutes
• Statutes are created by the Parliament in
the form of legislation.
2. How is the course structured?
• An element of flexibility: (law in society,
institutions, personnel)
Syllabus and four themes: natural law/legal
positivism, duty of care, homosexuality,
terrorism
• 1. Introduction to English Legal
System: Structure and operation:
• the purpose and functions of the law; law
as a public, political, social, economic
order.
Syllabus
• 2. Law as a subject in England and Wales
• The main classification of law in England and
Wales:
• criminal/civil law; public/private and public
international/private international law.
• How different perceptions of the role of law in
society inform English Legal System? (natural
law, legal positivism, Hart, Dworkin)
• 3. Sources of Law: A general Overview:
Common Law, Statute, delegated legislation,
Custom, EU and international Law
Syllabus
• 4.Common law
• a) Authority of judicial decisions, Do
judges make law? How do judges decide
cases?
• b) Judicial Precedent
• The doctrine of Stare Decisis. Nature and
authority of precedent with examples.
Syllabus
5. Common Law: Judicial Precedence applied in
medical cases
6. Sources detailed analysis : Parliament’s Acts:
• Delegated Legislation
• Statutory Interpretation:
• 7. Institutions: Privy Council, Supreme Court, The
Courts Structure
• 8. Criminal Justice System: CPS, Magistrates’
Courts.
• 9. People operating the system: the juries, the
magistrates, the judiciary
• 10. People operating the system: legal profession;
How is the course structured?
• setting the scene
– getting to grips with key legal sources –
reading and understanding cases; reading
and interpreting statutes, reading academic
literature
– describing some basic characteristics of the
legal system of England and Wales (eg.
courts)
Course Learning Outcomes
• That is, By the end of the course, you
should be able to …
Course Learning Outcomes
1. demonstrate knowledge and
understanding of some of the
fundamental principles and institutions of
the legal system of England and Wales
Module Learning Outcomes
2. demonstrate knowledge and
understanding of a variety of roles played
by law in society
Module Learning Outcomes
3. identify, retrieve and discriminate among
sources of law and sources of
information relevant to law
Module Learning Outcomes
4. synthesise and analyse a variety of
information sources to develop further
knowledge, construct arguments and
draw conclusions supported by
appropriate authority
Lecture 1: The functions of the
Law
• To understand the operation of English
legal system we need to start with
questioning what is the law for? If the
answer is to maintain the order, we can
ask which order?
• There is no one order but variety of them
depending of the angle, public order and
political order, social order, economic
order, international order and moral order
Functions of the Law
• The relationship between the law and
different orders can only be understood in
its social, political and economic context
• Macro functions of the law
• Relationship between law and orders
Macro functions
• Public order
• Maintaining public order; the purpose of
the law is to set up boundaries of
acceptable behaviour and to prescribe
sanctions for breaches of those
boundaries,
• Maintain a balance between civil liberties
and protecting public order
Macro Functions of the Law
• Political order:
• lack of the written constitution, Accession
Act, devolution, Human Rights Act 1998
• Social Order:
• Escaping stereotyping and inequality
looking forward towards endorsing equality
and eradicating social exclusion,
developing the concept of welfare state
Macro Functions of the Law
• Law and economic order
• Right to ensure property and to secure
rights around, different rights coexisting,
contract law, employment law, maintaining
parties to freedom of contract, competition
law, consumer law, housing law
• International order:
• International Law, Conventions, ILO,
Human Rights, asylum, immigration law
Macro Functions
• Law and moral order
• The law and moral order is a very
controversial subject. How far should the
law intervene into moral orders? For
example homosexuality, intervention into
religious orders?
Micro Functions of Law
• 1. Creating the boundaries of
acceptable behaviour
This would be the role of criminal law that
prescribes the limits of acceptable
behaviour,
• manslaughter or murder, smoking,
drinking alcohol
• Law of negligence defines the amount of
damage
Micro Functions
• 2: Defining the consequences of certain
forms of behaviour.
• Different consequences could incur in the
same accident, fire in the house, action for
damage against insurance company,
action for breach of health and safety
against a gasman, action against the
ambulance, it did not come within the
reasonable time
Micro Functions
• 3. Elaborating the processes for some
activities and transactions
Contract, fraud transactions, procedural
irregularity.
• 4. Creating Regulatory Framework
• The framework to regulate the financial
activities. Regulate financial services to
prevent fraud, telecommunications, utilities
and transport, planning law and protecting
the land.
Micro Functions
6. Giving the authority to the agent of the
state to take action
• Power of the police to stop, search
question or arrest,
• Power of a doctor to detain under Mental
Health Act
• Power of social workers to remove
children from the families
QUIZ
• A few questions to see what you know
already, and which we can use to help us
to make work most effectively…
– Not a test
– Hopefully fun
Question 1
• True or false? The House of Lords is the
highest appeal court in the jurisdiction of
England and Wales…
Question 2
•
Which government department is
responsible for administering the courts?
Is it..
a.
b.
c.
d.
The Home Office
The Ministry of Justice
The Ministry of Courts and Tribunals
The Department of the Judiciary?
Question 3
•
Who is the person in government
responsible for the department referred
to in question 2?
a.
b.
c.
d.
David Cameron
Nick Clegg
Theresa May
Kenneth Clarke
Question 4
•
The police have banned a protest march you
were wanting to take part in. You feel that
your right to freedom of assembly under the
European Convention has been violated.
Where would you go to have your case heard?
a. The European Court of Human Rights
b. The normal court system of England and Wales
c. The International Court of Justice
Question 5
•
What percentage of criminal trials are
heard by a jury?
a.
b.
c.
d.
More than 95%
45 – 50%
20 – 25%
Less than 5%
Question 6
•
What percentage of criminal offences
committed result in a conviction?
a.
b.
c.
d.
Around 80%
45 – 50%
24.6%
Around 2%
Question 7
•
True or false. Most magistrates who
hear cases in magistrates’ courts have
no legal qualifications …
Question 8
•
You are a judge in the Court of Appeal (Civil Division)
hearing a (fictitious) case about the level of damages
for negligence. A (fictitious) decision of the House of
Lords in 2005 on similar facts set out some principles
for quantifying damages in these cases. You think
those principles are not fair to the claimant in your
case. Do you …
Question 8 (cont…)
a.
b.
c.
Follow the House of Lords decision despite your sense
of unfairness
Find a relevant distinction between the House of Lords
case and your case and decide in line with your view
of what’s fair
Ignore the House of Lords case and make your
decision based on your view of what’s fair?
Question 9
•
‘European Law’ (the Law of the European
Union) is enforceable in which of the following
courts?
a.
b.
c.
d.
The European Court of Human Rights
The European Court of Justice (CJEU)
The Court of Appeal
The Queen’s Bench Division of the High Court
Question 10
•
On whose behalf does the Crown Prosecution
Service act?
a.
b.
c.
d.
e.
The defendant
The police
The public
The victim
The court
Question 1
• True or false? The House of Lords is the
highest appeal court in the jurisdiction of
England and Wales…
Question 1
• False
• The highest appeal
court in the
jurisdiction of England
and Wales is now the
Supreme Court of the
UK
Question 2
•
Which government department is
responsible for administering the courts?
Is it..
a.
b.
c.
d.
The Home Office
The Ministry of Justice
The Ministry of Courts and Tribunals
The Department of the Judiciary?
Question 2
b. The Ministry of
Justice
Question 3
•
Who is the person in government
responsible for the department referred
to in question 2?
a.
b.
c.
d.
David Cameron
Nick Clegg
Theresa May
Kenneth Clarke
Question 3
Question 3
Question 4
•
The police have banned a protest march you
were wanting to take part in. You feel that
your right to freedom of assembly under the
European Convention has been violated.
Where would you go to have your case heard?
a. The European Court of Human Rights
b. The normal court system of England and Wales
c. The International Court of Justice
Question 4
•
The police have banned a protest march you
were wanting to take part in. You feel that
your right to freedom of assembly under the
European Convention has been violated.
Where would you go to have your case heard?
a. The European Court of Human Rights
b. THE NORMAL COURT SYSTEM OF ENGLAND
AND WALES
c. The International Court of Justice
Question 4
•
The police have banned a protest march you
were wanting to take part in. You feel that
your right to freedom of assembly under the
European Convention has been violated.
Where would you go to have your case heard?
a. THE EUROPEAN COURT OF HUMAN RIGHTS
b. the normal court system of England and Wales
c. The International Court of Justice
Question 5
•
What percentage of criminal trials are
heard by a jury?
a.
b.
c.
d.
More than 95%
45 – 50%
20 – 25%
Less than 5%
Question 5
d. Less than 5%
Question 6
•
What percentage of criminal offences
committed result in a conviction?
a.
b.
c.
d.
Around 80%
45 – 50%
24.6%
Around 2%
Question 6
•
What percentage of criminal offences
committed result in a conviction?
a.
b.
c.
d.
Around 80%
45 – 50%
24.6%
AROUND 2%
Question 7
•
True or false. Most magistrates who
hear cases in magistrates’ courts have
no legal qualifications …
Question 7
•
True. Most
magistrates who
hear cases in
magistrates’ courts
have no legal
qualifications …
Question 8
•
You are a judge in the Court of Appeal (Civil Division)
hearing a (fictitious) case about the level of damages
for negligence. A (fictitious) decision of the House of
Lords in 2005 on similar facts set out some principles
for quantifying damages in these cases. You think
those principles are not fair to the claimant in your
case. Do you …
Question 8 (cont…)
a.
b.
c.
Follow the House of Lords decision despite your sense
of unfairness
Find a relevant distinction between the House of Lords
case and your case and decide in line with your view
of what’s fair
Ignore the House of Lords case and make your
decision based on your view of what’s fair?
Question 8 (cont…)
a.
b.
c.
FOLLOW THE HOUSE OF LORDS DECISION
DESPITE YOUR SENSE OF UNFAIRNESS
FIND A RELEVANT DISTINCTION BETWEEN THE
HOUSE OF LORDS CASE AND YOUR CASE AND
DECIDE IN LINE WITH YOUR VIEW OF WHAT’S
FAIR
Ignore the House of Lords case and make your
decision based on your view of what’s fair?
Question 9
•
‘European Law’ (the Law of the European
Union) is enforceable in which of the following
courts?
a.
b.
c.
d.
The European Court of Human Rights
The European Court of Justice
The Court of Appeal
The Queen’s Bench Division of the High Court
Question 9
•
‘European Law’ (the Law of the European
Communities) is enforceable in which of the
following courts?
a.
b.
c.
d.
The European Court of Human Rights
THE EUROPEAN COURT OF JUSTICE
THE COURT OF APPEAL
THE QUEEN’S BENCH DIVISION OF THE HIGH COURT
Question 10
•
On whose behalf does the Crown Prosecution
Service act?
a.
b.
c.
d.
e.
The defendant
The police
The public
The victim
The court
Question 10
•
On whose behalf does the Crown Prosecution
Service act?
a.
b.
c.
d.
e.
The defendant
The police
THE PUBLIC
The victim
The court