Fundamentals of Legal Systems and Jurisprudence

Posted on Oct 18, 2025 in Law

Law: Definition and Purpose

Definition: Recognized, legitimate, and mostly codified standards binding a community.
Characteristics:
- Universal: Applies to everyone in the jurisdiction.
- Coercive: Enforceable through institutions.
- Open: Accessible and understandable to those subject to it.
Functions of Law:
- Order: Maintains public, political, social, economic, international, and moral order.
- Conflict Resolution: Provides peaceful ways to resolve disputes.
- Rights Protection: Secures individual and collective rights.
- Social Engineering: Shapes behavior, advances policy, and reforms society.
- Predictability & Certainty: Ensures people can plan and act with knowledge of consequences.
- Education: Communicates societal values, norms, and expectations.

Natural Law (Classic): Law is grounded in morality, often linked to divine order. Unjust laws are not valid.
Modern Natural Law: Morality and law derived from reason, producing universal principles across societies.
Legal Positivism (Classic – Austin): Law is man-made; validity comes from the sovereign, separate from morality.
Legal Positivism (Modern – Hart): Law exists independently of morality; distinguishes primary rules (what can/cannot do) and secondary rules (how to change or enforce laws).
Marxist Theory: Law maintains and enforces class structures and economic power.
Legal Realism: Law is what judges apply in practice; focuses on outcomes and societal impact.

Structure: Constitution, separation of powers, hierarchy of authority, government institutions.
Substance: Laws, regulations, statutes, common law, treaties, EU law (pre-Brexit), delegated legislation.
Legal Culture: Values, expectations, norms, and practices influencing law enforcement and compliance.

Central versus local government relationship.
Leadership and authority structures (politicians, administrators).
Religion (influences legal culture and moral order).
Geography, military, neighboring states – external factors affecting law function.

Legislation (Statute Law):
- Primary: Acts of Parliament; prevail over other laws; grant statutory rights.
- Secondary (Delegated): Created under authority granted by Parliament; efficient but with less democratic oversight.
- Tertiary: Sub-body rules under delegated authority.
- Soft Law: Guidance, policy, non-binding recommendations.
Common Law: Judicial decisions, precedent, and case law. Judges interpret, develop, and refine law.
International and EU Law: Treaties, regulations, and historical EU law influence domestic law.
Mixed Jurisdictions: Combination of civil law (codified) and common law (precedent) traditions; flexible and adaptive.

Bills are draft legislation not yet enacted:

Public Bills: General application.
Private Bills: Affect specific entities.
Hybrid Bills: National projects impacting specific groups disproportionately.

Public Law versus Private Law:
- Public: Governs the citizen-state relationship; includes constitutional, administrative, and criminal law.
- Private: Governs citizen-citizen relations; includes contract, tort, family, and property law.
Criminal Law versus Civil Law:
- Criminal: Offenses against the state; maintains public order; focuses on punishment.
- Civil: Disputes between private parties; focuses on compensation or remedies.
Substantive Law versus Procedural Law:
- Substantive: Defines rights and duties.
- Procedural: Defines rules on enforcing rights in court.
Administrative Law: Governs decisions of public officials; ensures fairness, accountability, and reason-giving.

Rule of Law:
- Everyone is subject to law, including the government.
- Laws must be clear, fair, accessible, and non-arbitrary.
- Fundamental rights are protected.
- Access to justice is essential.
Sovereignty of Parliament: Parliament can make or repeal any law; courts cannot invalidate legislation.
Separation of Powers: Distinct functions for the legislature, executive, and judiciary to prevent power concentration.
Judicial Independence: Judges are free from political influence, ensuring impartial decisions.
Justice and Fairness:
- Procedural Justice: Fairness of the process.
- Substantive Justice: Fairness of the outcome.

Functions of Courts:
- Resolve disputes.
- Apply law.
- Fact-finding.
- Protect rights.
- Shape precedent.
Hierarchy of Courts:
- Lower Courts: Magistrates’ Courts (minor crimes), County Courts (civil cases <£100k), Small Claims, Family Courts.
- Middle Courts: Crown Court (serious crimes, jury trials), High Court (King’s Bench, Chancery, Family divisions).
- Appeals Courts: Court of Appeal (civil and criminal divisions).
- Top Court: Supreme Court (final appellate authority, handles cases of public importance).
- Special Courts: Tribunals (employment, immigration, tax), Privy Council (overseas appeals).
Juries: Decide facts in serious criminal trials; can acquit against the law.
Judicial Review: Courts review the legality of government action.

Stare Decisis: Latin for “Stand by decided cases.”
- Vertical Binding: Lower courts must follow higher courts.
- Horizontal Binding: Some courts can follow their own decisions; exceptions exist.
Binding versus Persuasive Precedent:
- Binding: Ratio decidendi (the reason for the decision).
- Persuasive: Obiter dicta (non-binding commentary).
Supreme Court Flexibility: Can depart from precedent if justified (via the Practice Statement).
Functions of Precedent: Ensures consistency, fairness, predictability, and gradual law development.

Judges refine and develop law through case decisions.
Common law evolves organically, balancing tradition and innovation.
Judges are not legislators but shape law through interpretation, precedent, and responding to social change.
Courts must balance stability (respecting precedent) and adaptability (addressing new problems).

Public Order: Absence of disorder; maintains public tranquility.
Public Order Crime: Acts that disrupt society’s functioning.
Political Order: Maintained through constitutions, laws, and democratic structures.
Social Order: Law reduces inequality and promotes fairness (e.g., equal pay, welfare).
Economic Order: Regulates markets, protects property and contracts, and corrects market failures.
International Order: Law invoked even without a sovereign (e.g., WTO, tribunals).
Moral Order: Law is influenced by moral and religious beliefs.
Other Functions: Resolving conflict, regulating relationships, educating society.