The Nature of Law (AQA A-Level Law): Revision Notes

The Nature of Law

This content is assessed in all three exam papers (Papers 1, 2, and 3). Understanding the nature of law is fundamental to all areas of A-Level Law study, so ensure you can distinguish between different types of rules, categories of law, and legal terminology.

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What is law?

Law consists of rules and regulations that can be enforced by the state. This enforcement power is what distinguishes legal rules from other types of rules in society.

Legal rules share two essential characteristics:

• They are created by the state (through Parliament, courts, or other official bodies)
• They are administered by state organisations, such as Her Majesty's Court Service, the police, and government departments

We follow laws because we are required to, not because we choose to. Failure to obey the law can result in legal consequences such as punishment or compensation orders.

Law versus other rules

Many rules exist in society that are not laws. For example:

• The rules of football
• Social etiquette (such as queuing or table manners)
• Club or association rules

These rules differ from laws because they are not enforceable by the state. We follow them because we choose to participate in particular activities or wish to behave appropriately in certain social contexts. Breaking these rules may result in social disapproval or exclusion from an activity, but not legal punishment.

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Categories of legal rules and regulations

There are four main categories of legal rules, each serving a different purpose within the legal system:

1. Procedural laws

Procedural laws establish the framework for how other laws are made and enforced. They set out the processes and procedures that must be followed.

2. Substantive laws

Substantive laws create and define legal rights and obligations. They establish what conduct is lawful or unlawful and what rights people possess.

Examples:

• Criminal offences (such as theft, assault, or murder)
• Employment rights
• Laws relating to divorce
• Contract law

3. Public laws

Public laws regulate the relationship between the state and its citizens. They define the powers of government institutions and establish limits on state authority.

Examples:

• Criminal laws (which allow the state to prosecute offenders)
• Most procedural laws
• Constitutional laws defining the powers of Parliament, government, police and courts

4. Private laws

Private laws create rights that are enforceable between individuals rather than between individuals and the state. These are mainly substantive in nature.

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Differences between criminal and civil law

Understanding the distinction between criminal and civil law is essential. They have different purposes, procedures, terminology, and outcomes.

Criminal law

Criminal law creates offences and punishes those who commit them. The primary purpose is to maintain public order and protect society.

The Criminal Justice Service (CJS) enforces criminal law and includes:

• The police (who investigate crimes)
• The Crown Prosecution Service (CPS) (who decide whether to prosecute)
• The criminal courts (Magistrates' Courts and Crown Court)
• Her Majesty's Prison Service (who manage prisons)
• Her Majesty's Probation Service (who supervise offenders in the community)
• The National Offender Management Service (who coordinate prison and probation services)

Key terminology in criminal law:

Prosecute: The legal term for bringing a criminal charge against a defendant. The Crown (represented by the CPS) prosecutes criminal cases.

Defendant: The person accused of committing a crime.

Guilty: When a defendant is found legally responsible for committing a criminal offence.

Standard of proof - Beyond reasonable doubt: In criminal cases, the prosecution must prove the defendant's guilt so that the jury or magistrates have no reasonable doubt. This means they must be certain or nearly certain that the defendant committed the offence. This is a high standard of proof because of the serious consequences of a criminal conviction (such as imprisonment).

Outcome: If found guilty, the defendant receives a punishment (such as imprisonment, a fine, community service, or a conditional discharge).

Categories: Criminal law is both substantive (it defines offences) and public (it governs the state's power to punish).

Civil law

Civil law creates rights enforceable between private individuals or organisations. Its purpose is to compensate those whose rights have been violated, not to punish.

Unlike criminal law, enforcement agencies such as the police are not involved in civil disputes. Individuals must take their own legal action if they wish to enforce their civil rights.

Key terminology in civil law:

Claimant: The person or organisation starting a civil claim in court (seeking to enforce their rights or obtain compensation).

Sue: To take civil legal proceedings against another party.

Defendant: The person defending or responding to a civil claim. (In some civil matters, this person may be called the respondent.)

Liable: When a defendant is held legally responsible for breaching civil law and must provide a remedy (usually compensation).

Standard of proof - Balance of probabilities: In civil cases, the claimant must satisfy the court that their version of events is more likely than not to be true. This means the evidence must show that it is more probable than not (over 50% likelihood) that the defendant is liable. This is a lower standard of proof than in criminal law.

Outcome: If found liable, the defendant usually pays compensation (called damages) to the claimant. Other remedies may include injunctions (court orders) or specific performance.

Category: Civil law is primarily substantive and private in nature.

Key differences at a glance

Aspect	Criminal Law	Civil Law
Purpose	To punish offenders and protect society	To compensate victims and enforce rights between individuals
Who brings the case?	The Crown (via CPS) prosecutes	The claimant sues
Standard of proof	Beyond reasonable doubt (high)	Balance of probabilities (lower)
Outcome	Guilty or not guilty	Liable or not liable
Consequence	Punishment (prison, fine, community order)	Remedy (usually compensation/damages)
Who is involved?	Police, CPS, criminal courts, Prison Service, Probation Service	Claimant, defendant, civil courts
Example	Theft, assault, murder	Negligence, breach of contract, trespass

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Different sources of law

Law in the UK comes from several different sources. Understanding where laws originate is important for appreciating how the legal system works.

Custom

Custom refers to practices and rules that have developed over time through tradition and community acceptance. These are not formal laws but may become law if they are widely recognised and accepted.

• Early common law developed from customs that were commonly followed throughout England
• Some customs may "harden into rights" and eventually be recognised as legal rules by the courts
• Custom is rarely a source of new law today, though it remains historically important

Breaking customary rules typically results in social disapproval rather than formal legal punishment. Individuals may feel personal guilt or shame for violating social customs, but they will not face legal consequences unless the custom has been recognised as law.

Statute

Statutes (also called Acts of Parliament) are laws passed by the UK Parliament. Parliament is located in the Palace of Westminster and consists of three parts:

• The monarch
• The House of Commons (elected MPs)
• The House of Lords (appointed and hereditary peers)

Statutes are the most important source of law in the UK. Parliament has legislative supremacy, meaning it can make or unmake any law, and no other body can override Acts of Parliament.

Most new law is created by Parliament, particularly controversial laws or those involving significant changes (such as increased police powers or changes to criminal offences).

Statutes are easy to identify because they have formal titles including the year they were passed.

Devolved bodies

The UK Parliament has delegated (transferred) some of its law-making power to other bodies in specific areas. These bodies can make laws within their areas of authority:

Devolved administrations:

• Scottish Parliament (can make laws on most matters in Scotland)
• Welsh Government (can make laws on devolved matters in Wales)
• Northern Ireland Assembly (can make laws on devolved matters in Northern Ireland)

Local councils:

• County councils, borough councils, and city councils can make by-laws that apply only within their local area
• Example: A by-law prohibiting ball games in a specific park

European Union (historical):

• While the UK was a member of the EU, EU law was an important source of law
• EU law no longer applies following the UK's departure from the EU (Brexit)

Common law

Common law refers to law that has been developed by judges through their decisions in court cases, rather than created by Parliament through statutes.

The common law developed historically from ancient customs and continues to evolve as judges decide cases in the higher courts. When judges make decisions on points of law, these decisions become precedents that must be followed by lower courts in future cases with similar facts.

Key features of common law:

• Created by judicial decisions rather than Acts of Parliament
• Develops gradually through case law (the accumulation of court decisions over time)
• Judges interpret the law and apply legal principles to new situations
• Decisions of higher courts bind lower courts (this is called the doctrine of precedent or stare decisis)

As Lord Reid famously stated:

There was a time when it was thought almost indecent to suggest that judges make law – they only declare it ... But we do not believe in fairy tales anymore.

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