LAW AND LEGAL STUDY 1
There are a number of possible approaches to the study of law. One such is the traditional or formalistic approach. This approach to law is posited on the existence of a discrete legal universe as the object of study. It is concerned with establishing a knowledge of the specific rules, both substantive and procedural, which derive from statute and common law and which regulate social activity. The essential point in relation to this approach is that study is restricted to the sphere of the legal without reference to the social activity to which the legal rules are applied. In the past, most traditional law courses and the majority of law textbooks adopted this ‘black letter’ approach. Their object was the provision of information on what the current rules and principles of law were, and how to use those rules and principles to solve what were by definition, legal problems. Traditionally, English legal system courses have focused attention on the institutions of the law, predominantly the courts, in which legal rules and principles are put into operation, and here too the underlying assumption has been as to the closed nature of the legal world – its distinctiveness and separateness from normal everyday activity. This book continues that tradition to a degree, but also recognises, and has tried to accommodate, the dissatisfaction with such an approach that has been increasingly evident among law teachers and examiners in this area. To that end, the authors have tried not simply to produce a purely expository text, but have attempted to introduce an element of critical awareness and assessment into the areas considered. Potential examination candidates should appreciate that it is just such critical, analytical thought that distinguishes the good student from the mundane one.
Additionally, however, this book goes further than traditional texts on the English legal system by directly questioning the claims to distinctiveness made by, and on behalf of, the legal system and considering law as a socio-political institution. It is the view of the authors that the legal system cannot be studied without a consideration of the values that law reflects and supports, and again, students should be aware that it is in such areas that the truly first-class students demonstrate their awareness and ability.
One of the most obvious and most central characteristics of all societies is that they must possess some degree of order to permit the members to interact over a sustained period of time. Different societies, however, have different forms of order. Some societies are highly regimented with strictly enforced social rules, whereas others continue to function in what outsiders might consider a very unstructured manner with apparently few strict rules being enforced.
Order is therefore necessary, but the form through which order is maintained is certainly not universal, as many anthropological studies have shown (see Mansell and Meteyard, 2004).
In our society, law plays an important part in the creation and maintenance of social order. We must be aware, however, that law as we know it is not the only means of creating order. Even in our society, order is not solely dependent on law, but also involves questions of a more general moral and political character. This book is not concerned with providing a general explanation of the form of order. It is concerned more particularly with describing and explaining the key institutional aspects of that particular form of order that is legal order.
The most obvious way in which law contributes to the maintenance of social order is the way in which it deals with disorder or conflict. This book, therefore, is particularly concerned with the institutions and procedures, both civil and criminal, through which law operates to ensure a particular form of social order by dealing with various conflicts when they arise.
Law is a formal mechanism of social control and, as such, it is essential that the student of law be fully aware of the nature of that formal structure. There are, however, other aspects to law that are less immediately apparent, but of no less importance, such as the inescapable political nature of law. Some textbooks focus more on this particular aspect of law than others, and these differences become evident in the particular approach adopted by the authors. The approach favoured by this book is to recognise that studying the English legal system is not just about learning legal rules, but is also about considering a social institution of fundamental importance.
1.2.1 LAW AND MORALITY
There is an ongoing debate about the relationship between law and morality and as to what exactly that relationship is or should be. Should all laws accord with a moral code, and, if so, which one? Can laws be detached from moral arguments? Many of the issues in this debate are implicit in much of what follows in the text, but the authors believe that, in spite of claims to the contrary, there is no simple causal relationship of dependency or determination, either way, between morality and law. We would rather approach both morality and law as ideological, in that they are manifestations of, and seek to explain and justify, particular social and economic relationships. This essentially materialist approach to a degree explains the tensions between the competing ideologies of law and morality and explains why they sometimes conflict and why they change, albeit asynchronously, as underlying social relations change.
Law and Morality
At first sight it might appear that law and morality are inextricably linked. There at least appears to be a similarity of vocabulary in that both law and morality tend see relationships in terms of rights and duties and much of law’s ideological justification comes from the claim that it is essentially moral. However that is not necessarily the case and much modern law is of a highly technical nature (such as rules of evidence or procedure) dealing with issues that have very little if any impact on issues of morality as such. Opinions about the relationship between law and morality diverge between two schools of thought:
• One side adopts a ‘natural law’ approach which claims that law must be moral in order to be law, and that ‘immoral law’ is a contradiction in terms. Natural lawyers usually base their ideas of law on underlying religious beliefs and texts which are in the very literal sense sacrosanct, but this is not a necessity and opposition to specific law may be based on pure reason or political ideas.
• The other side can be characterised as ‘legal positivists’. They argue that law has no necessary basis in morality and that it is simply impossible to assess law in terms of morality.
These issues feed into debates as to what is connoted by the rule of law, which will be considered in some detail in Chapter 2 of this text.
The Legal Enforcement of Morality: the Hart v Devlin Debate
This aspect of the law and morality debate may be reduced to the question: does the law have a responsibility to enforce a moral code, even where the alleged immorality takes place in private between consenting adults? Consider this example: in Britain there are over two million cohabiting gay couples. Homosexual sex was legalised in 1967 (for 21 year olds, lowered to 18 year olds in 1994), and consensual heterosexual anal intercourse was decriminalised by s 143 of the Criminal Justice and Public Order Act 1994. In British legal debate the moral issue was fought out in the 1960s by Lord Devlin and Professor HLA Hart. Devlin argued that ‘the suppression of vice is as much the law’s business as the suppression of subversive activities’. A shared morality, he argued, is the cement of society, without which there would be aggregates of individuals but no society. Hart argued that people should not be forced to adopt one morality for its own sake. He repudiated the claim that the loosening of moral bonds is the first stage of social disintegration, saying that there was no more evidence for that proposition than there was for Emperor Justinian’s statement that homosexuality was the cause of earthquakes.
In any event it might be said that Hart ‘won’ the debate in the sense that it was his influence that led to the passing of the 1960s legislation liberalising the law on abortion, prostitution, homosexuality, and abolishing capital punishment. However such issues can still arise – as was seen in the Brown case, considered later, and the ongoing issue of the ‘rights’ relating to assisted suicide as considered in R (on the application of Purdy) v Director of Public Prosecutions (2009).
The Morality of the Law Maker
One particular aspect of the debate that will be repeatedly highlighted in what follows is the way in which certain individuals, particularly judges, have the power not just to make and mould law, but to make and mould law in line with their own ideologies, i.e. their individual values, attitudes and prejudices – in other words their moralities.
Morality vis à vis the law constitutes an external environment which interacts with the lawmaking process, not because law makers are blessed with divine insight into the ‘general will’, but rather because laws tend to be based on value-loaded information which percolates to the law-makers (whose own individual values have a disproportionate influence upon the process). [L Bloom-Cooper and G Drewry, Law and Morality (1976), p. xiv]
There are various ways of categorising law, which initially tend to confuse the non-lawyer and the new student of law. What follows will set out these categorisations in their usual dual form, while at the same time trying to overcome the confusion inherent in such duality. It is impossible to avoid the confusing repetition of the same terms to mean different things and, indeed, the purpose of this section is to make sure that students are aware of the fact that the same words can have different meanings, depending upon the context in which they are used.
1.3.1 COMMON LAW AND CIVIL LAW
In this particular juxtaposition, these terms are used to distinguish two distinct legal systems and approaches to law. The use of the term ‘common law’ in this context refers to all those legal systems that have adopted the historic English legal system. Foremost among these is, of course, the United States, but many other Commonwealth and former Commonwealth countries retain a common law system. The term ‘civil law’ refers to those other jurisdictions that have adopted the European continental system of law derived essentially from ancient Roman law, but owing much to the Germanic tradition.
The usual distinction to be made between the two systems is that the common law system tends to be case-centred and hence judge-centred, allowing scope for a discretionary, ad hoc, pragmatic approach to the particular problems that appear before the courts, whereas the civil law system tends to be a codified body of general abstract principles which control the exercise of judicial discretion. In reality, both of these views are extremes, with the former overemphasising the extent to which the common law judge can impose his discretion and the latter underestimating the extent to which continental judges have the power to exercise judicial discretion. It is perhaps worth mentioning at this point that the European Court of Justice (ECJ), established, in theory, on civil law principles, is in practice increasingly recognising the benefits of establishing a body of case law.
It has to be recognised, and indeed the English courts do so, that, although the ECJ is not bound by the operation of the doctrine of stare decisis (see below, 3.6) it still does not decide individual cases on an ad hoc basis and, therefore, in the light of a perfectly clear decision of the European Court, national courts will be reluctant to refer similar cases to its jurisdiction. Thus, after the ECJ decided in Grant v South West Trains Ltd (1998) that Community law did not cover discrimination on grounds of sexual orientation, the High Court withdrew a similar reference in R v Secretary of State for Defence ex p Perkins (No 2) (1998) (see below, 15.3, for a detailed consideration of the ECJ).
1.3.2 COMMON LAW AND EQUITY
In this particular juxtaposition, the terms refer to a particular division within the English legal system.
The common law has been romantically and inaccurately described as the law of the common people of England. In fact, the common law emerged as the product of a particular struggle for political power. Prior to the Norman Conquest of England in 1066, there was no unitary, national legal system. The emergence of the common law represents the imposition of such a unitary system under the auspices and control of a centralised power in the form of a sovereign king; in that respect, it represented the assertion and affirmation of that central sovereign power.
Traditionally, much play is made about the circuit of judges travelling round the country establishing the ‘King’s peace’ and, in so doing, selecting the best local customs and making them the basis of the law of England in a piecemeal but totally altruistic procedure. The reality of this process was that the judges were asserting the authority of the central State and its legal forms and institutions over the disparate and fragmented State and legal forms of the earlier feudal period. Thus, the common law was common to all in application, but certainly was not common from all. (The contemporary meaning and relevance and operation of the common law will be considered in more detail later in this chapter and in Chapter 3.)
By the end of the thirteenth century, the central authority had established its precedence at least partly through the establishment of the common law. Originally, courts had been no more than an adjunct of the King’s Council, the Curia Regis, but gradually the common law courts began to take on a distinct institutional existence in the form of the Courts of Exchequer, Common Pleas and King’s Bench. With this institutional autonomy, however, there developed an institutional sclerosis, typified by a reluctance to deal with matters that were not or could not be processed in the proper form of action. Such a refusal to deal with substantive injustices because they did not fall within the particular parameters of procedural and formal constraints by necessity led to injustice and the need to remedy the perceived weaknesses in the common law system. The response was the development of equity.
Plaintiffs unable to gain access to the three common law courts might directly appeal to the sovereign, and such pleas would be passed for consideration and decision to the Lord Chancellor, who acted as the king’s conscience. As the common law courts became more formalistic and more inaccessible, pleas to the Chancellor correspondingly increased and eventually this resulted in the emergence of a specific court constituted to deliver ‘equitable’ or ‘fair’ decisions in cases that the common law courts declined to deal with. As had happened with the common law, the decisions of the Courts of Equity established principles that were used to decide later cases, so it should not be thought that the use of equity meant that judges had discretion to decide cases on the basis of their personal idea of what was just in each case.
The division between the common law courts and the Courts of Equity continued until they were eventually combined by the Judicature Acts (JdA) 1873–75. Prior to this legislation, it was essential for a party to raise an action in the appropriate court – for example, the courts of law would not implement equitable principles; the Acts, however, provided that every court had the power and the duty to decide cases in line with common law and equity, with the latter being paramount in the final analysis.
Some would say that, as equity was never anything other than a gloss on common law, it is perhaps appropriate, if not ironic, that now both systems have been effectively subsumed under the one term: common law.
Common law remedies are available as of right. Remedies in equity are discretionary: in other words they are awarded at the will of the court and depend on the behaviour and situation of the party claiming such remedies. This means that, in effect, the court does not have to award an equitable remedy where it considers that the conduct of the party seeking such an award has been such that the party does not deserve it (D & C Builders v Rees (1965)).
1.3.3 COMMON LAW AND STATUTE LAW
This particular conjunction follows on from the immediately preceding section, in that the common law here refers to the substantive law and procedural rules that have been created by the judiciary through the decisions in the cases they have heard. Statute law, on the other hand, refers to law that has been created by parliament in the form of legislation. Although there has been a significant increase in statute law in the twentieth and twenty-first centuries, the courts still have an important role to play in creating and operating law generally and in determining the operation of legislation in particular. The relationship of this pair of concepts is of central importance and is considered in more detail in Chapter 3.
1.3.4 PRIVATE LAW AND PUBLIC LAW
Private law deals with relations between individuals with which the State is not directly concerned nor involved in. Public law, on the other hand, relates to the inter-relationship of the State and the general population, in which the State itself is a participant. Somewhat confusingly, under the English legal system the State can enter into private law relationship with individuals, so the term public law is more accurately restricted to those aspects where the State is acting in a public capacity.