2022-23

Module Convenor Hannah Gibbons-Jones

Introduction the
Law and Legal
Theory
 Week One

01 02 03
• Welcome to the Module • The English Legal System • The Role of Equity
• Goals and Assessments – Common Law • Exploring Legal Rules
• Studying law • The Court Structure and Principles
 01
Welcome to the Module
Goals and Assessments

Part One
Week One
Introduction Legal
Research

to Law & Legal

Theory Participation
in Group Legal
Reasoning
Module
Work

Learning ILLT
Outcomes
Oral Written
Communication Communication

Critical
Analysis
 ILLT ASSESMENT

Formative Assessment Summative Coursework 1 Summative Coursework 2

Practice Task Submitted January Submitted May
Writing Task to support Summative 40% of overall mark 60% of overall mark
Assessments Assessed coursework Assessed Coursework
To be submitted in November and Critical Case Review Critical Essay
March – please Task Guidance
issued via Moodle pages. 4 Pages including Footnotes A response to one essay question
totalling 8 pages in length
Please note that this practice task
will not be graded but and guidance
and feedback will be given
Semester One
Focus – The development and use of the Legal Rule
The English Legal System

Law Making

Understanding Statute Law

Introduction to Judicial Precedent.

Exploring Common Law and The Legal Rule

Looking for meaning - Reading and Navigation of Law

Studying
law
The Study of Law and legal theory

Ideas about law and

the legal system
Application

THE LEGAL
RULE
TORT,
CONTRACT,
Opinions and
PUBLIC, CRIME, perspectives about
LAND
law and its uses,
Effect Meaning impact and value
Thinking about Law
• Perspective is everything
• Mechanics
• The Function of Law
• The State
• Rules and Principles
• Procedure
• Policy
• & much more …..
Alternative Ways to read Law

Formalism Contextualism Critical Legal Theory

• Law as a method of • Sets law within a social • Considers structural and

control environment contextual issues of law
• Derived from Statute and • Law can be regarded as a • The context of legal study
common law - known as social phenomenon is also are an object of
the Black Letter approach • Law facilitates and review
• Focus is on legal supports a wider • Looks for answers about
reasoning environment why and how law is
• Examines substantive • Law links to economics formed and the context
rules, procedural rules and social regulation (of of this formation
and the use of principles behaviour)
What are the wider issues
to consider when studying
law
• Pause and discuss in pairs

• Make a note of your shared ideas

• Share with the group….

 Wider issues to consider when studying law

Beliefs &
Legitimacy Recognition The State Individuals
Bias

Policy &
Control Commands Rules Systems
Principles
Context is
everything…
and context
creates
perception
Thinking about Law &
context
• The System
“…what remains concealed and
invisible in each law is thus presumably
the law itself, that which makes laws of
these laws, the being law of these
laws…”
• Its Context & Impact
“…To enter into relations with the law
which says, "you must" and "you must
not" is to act as if it had no history or at
any rate as if it no longer depended on
its historical presentation…”
• Jacques Derrida Before the Law (Lecture to the Royal
Philosophical Society 1982)
Our Perception of law changes with time & context (always
look both ways)…
Empty Plinth of the Edward Colson
Statute Bristol 2020 “In England, justice is open to all, like
the Ritz Hotel” Sir James Matthews (1830–
1908)

“The real heritage to be protected here is not the The Criminal Bar Association (CBA) is carrying out indefinite
statue of a slaver, but the institution of the jury strike action from 5 September 2022, escalating its protest to
itself.” the government’s proposals on criminal legal aid.

Edward Henry KC, Barrister at Mountford Chambers https://www.lawsociety.org.uk/topics/legal-aid/bar-strike-what-you-need-to-

The Times on 7th January 2022 know
Law as a command!
• John Austin - Legal Theorist (1790- 1859)
“The commands which God has revealed we
must gather from the terms wherein they are
promulg[ate]d. The command which he has not
revealed, we must construe by the principle of
utility”
(Austin 1873: Lecture IV, p. 160; see also Austin 1832: Lecture II, p. 41)

• Law is a Command (a rule that you are compelled to follow)

• Command is generated by the Sovereign
• Commands are an express wish – common law…
• Sovereign has a willingness and ability to impose “an evil” if that
wish is not complied with….penalties
Law as a System of Rules
• Professor H.L.A. Hart (1907–92) English legal
philosopher and academic.
Law is made up of “rules of behavior which are valid
according to the system’s ultimate criteria of validity
must be generally obeyed, and…its rules of
recognition specifying the criteria of legal validity
and its rules of change and adjudication must be
effectively accepted as common public standards of
official behavior by its officials”
The Concept of Law, Oxford: Clarendon Press. Third edition (1961) [2012] at 116

• Considered that Law was a Rule that had to be recognised to be

observed or followed... ultimate legal rules are more than social
norms
 • Unwritten law – not
codified
• 2 main features
Case law
• based on interpretation
of decisions
Custom and practice
• informs decision making
The Common
Law: • Legislation is used to
support decisions
• Precedent is binding

• Dispute resolution is
based on an adversarial
system
• (rather than
inquisitorial)
The characteristics of a
Common Law System
• Case Centered
• Precedent
• Judge made….
• Statute based
• Certainty
• Rigidity
• Reliability
Introduction to
Law & Legal
Theory Module Legal Research

Learning Legal
Outcomes
Participation in
Group Work Reasoning

Your Goals Understanding ILLT

Legal reasoning

Developing your critical voice Oral Written

Communication Communication
Awareness of the bigger legal
picture
Critical
Analysis
23-24
Module Convenor Hannah Gibbons-Jones

Introduction the
Law and Legal
Theory
 Topic One

01 02 03
• Welcome to the Module • The English Legal System • The Role of Equity
• Goals and Assessments – Common Law • Exploring Legal Rules
• Studying law • The Court Structure and Principles
 02
The English Legal System – Common
Law
The Court Structure

Week One
Part Two
Navigating the
system
Features of law & Courts
– essential for Precedent

Recognising the legal ‘system’

- as a formal structure

Investigating relationships and

boundaries
- between features of the
system
 • Unwritten law – not
codified
• 2 main features
Case law
• based on interpretation
of decisions
Custom and practice
• informs decision making
The Common
Law: • Legislation is used to
support decisions
• Precedent is binding

• Dispute resolution is
based on an adversarial
system
• (rather than
inquisitorial)
 Main sources of Law

Common Law
• Precedent

Legislation
• Primary and Secondary sources

Equity
• Case law based on principles (maxims)
Law as a System of Rules
• Professor H.L.A. Hart (1907–92) English legal
philosopher.
Law is made up of “rules of behavior which are valid
according to the system’s ultimate criteria of validity
must be generally obeyed, and…its rules of
recognition specifying the criteria of legal validity
and its rules of change and adjudication must be
effectively accepted as common public standards of
official behavior by its officials”
The Concept of Law, Oxford: Clarendon Press. Third edition (1961) [2012] at 116

• Considered that Law was a Rule that had to be recognised to be

observed or followed... ultimate legal rules are more than social
norms
Classification
of Law

Engages with
public bodies
Concerns Private
Individuals or
organisations
Classifying law
Substantive Rules Procedural Rules
Theft Act 1968 • Investigation
1Basic definition of theft. • Charge
• Plea
(1)A person is guilty of theft if he dishonestly
appropriates property belonging to another with the • Trial
intention of permanently depriving the other of it; and • Verdict
“thief” and “steal” shall be construed accordingly. • Sentence

• Sets out the legal rule e.g. Police & Criminal Evidence Act 1984
• The rule must be followed • Focuses on the process
• The substantive law identifies • Outlines how, when and why the rules should be used
• Recognised
• Rights • Interpreted
• Duties • Applied
• Obligations
Identifying Types of law - Criminal and
Civil
Distinguishing
Criminal and
Civil Law
Classifying the Courts in England and Wales
 UKSC
Supreme
Court

Court of
Appeal High Court
The Civil
Courts Civil
Kings Bench
Division
Chancery
Division
Family
Division

County Court
 UKSC Supreme
Court

Court of Appeal
Criminal
Division

Criminal High Court –

Kings Bench
Courts Divisional Court

Crown Court

Magistrates
Court
https://www.supremecourt.uk/docs/supreme-court-and-the-
uks-legal-system.pdf
Recognising Appeals on Paper
Magistrates Court &
Crown Court

Our Local
Courts in
Nottingham
Managing the English Legal system

The Lord Chief Justice

Alex Chalk KC MP was appointed Lord
The Rt Hon The Lord Burnett of Maldon
Chancellor and Secretary of State for Justice
Head of the Judiciary of England and Wales
on 21 April 2023
President of the Courts of England and Wales.

https://www.judiciary.uk/about-the-judiciary/who-are-the-judiciary/senior-judiciary-list/lord-chief-justice-heads-of-division-
and-members-of-the-judicial-executive-board/
Observing the bigger picture – Consistency is Key
“Among the values that it can secure,
Courts and
Common Law
none is more important than legal
certainty…security of legal
Law makers, expectations and the safety of the
Lawyers,
Procedures
citizen from the arbitrary interference
by governments and their agents”
Politics/Economics N.MacCormick Rhetoric & the Rule of Law OUP 2005 at 16

Society “Law needs to be as predictable as

possible or an instrument whose
effects should be capable of being
calculated in advance…”
N. Luhmann Law as a Social System OUP 2004 at 61
Thinking about bigger picture of law…
some ideas to be aware of….

Natural Law Critical Legal

Legal Positivism Legal Realism
Theory Studies
“Law is the command of a Based on social norm or a set of Considers that law should reflect Connects law, social systems and
sovereign.” J Austin objective norms governing social reality and be changed politics
Law made using legal processes human behaviour and updated on this basis. Law controls and perpetuates
is legitimate Underpinned by morality and Regards the social context of law inequality
Delineates social rules and law binding on all to be just as significant as Legal decision making is
Law that is not underpinned by procedure or process used to influenced by privilege, wealth,
The legal rule has no moral resolve disputes (precedent).
basis… Natural, Universal or divine rules politics and status
are not legitimate i.e. immoral Judges do not act in a vacuum Outsider Jurisprudence takes
but work in a social context,
into account status inc. gender,
have personal bias – who they race, economics and political
are influences decisions. identity
2022-23
Module Convenor Hannah Gibbons-Jones

Introduction the
Law and Legal
Theory
 Topic One

01 02 03
• Welcome to the Module • The English Legal System • The Role of Equity
• Goals and Assessments – Common Law • Exploring Legal Rules
• Studying law • The Court Structure and Principles
 03
The Role of Equity
Exploring Legal Rules and Principles

Week 1
Part Three
Perspectives on law
…..impact how law works
Sources of English
Law

Statute

Common Law Equity

Judge made
through Judge made
through Custom
Interpretation
The Intervention
of Equity
Equity is a body of law which is based upon
common law

Developed by the Courts to support the

exiting system of common law

Based upon moral principles and the

avoidance of injustice

Based on values - Conscionable acts

Equity – Origins
Procedural

• Equity n. justice, fairness; system

of justice existing side by side
with and supplementing the
common law Interactional JUSTICE

Distributive
What is the “…equity arose as a
second doorway to justice
“…Now equity is no part of
the law, but a moral virtue,
Purpose of as a consequence of which qualifies, moderates,
defects, weaknesses and and reforms the rigour,
Equity? limits in the common hardness, and edge of the
law”…“so that the justice law, and is an universal
system could properly truth; it does also assist the
ensure that substantive law where it is defective
justice could be done…” and weak in the
constitution…Equity
Lord Neuberger
therefore does not destroy
the law, nor create it, but
Equity, ADR Arbitration and the law: assist it…”
different dimensions of Justice
May 2010 Para 30
Lord Dudley v Lady Dudley [1705] 24
E.R. 118
The conscionable aspect nature Law
“Why do we call what "the law" says a matter of legal
"obligation"? Is "obligation" here just a term of art, meaning only
"what the law says"? Or does legal obligation have something to
do with moral obligation? Can we say that we have, in principle at
least, the same reasons for meeting our legal obligations that we

‘Equity is that specific body of law which have for meeting our moral obligations?”
supplements the common law and is Ronald M. Dworkin The Model of Rules
The University of Chicago Law Review, Autumn,
Invoked in circumstances where the
1967, Vol. 35, No. 1 (Autumn, 1967) 14-46
conduct of the defendant is deemed
unconscionable.’ “…Without Equity and its famous maxims…the common law
Sukhninder Panesar, Exploring Equity and Trusts (2010 Pearson) 4 would be an incomplete means to achieve justice…”

Lord Neuberger MR Has Equity had its day?

Hong Kong University Common Law lecture Oct 2010
Equity is Discretionary
• Equity = Structured Flexibility
• Taylor v. Dickens 1998
…there is no equitable jurisdiction to hold a person to a
promise simply because the court thinks it unfair..for him to go
back on it. If there was such a jurisdiction, one might as well
forget the law of contract and issue every judge with a portable
palm tree. The days of justice varying with the length of the
chancellor’s foot would have returned…

• Lord Eldon (1801 -27)

‘Nothing would inflict on me greater pain in quitting this place,
than the recollection that I had done anything to justify the
reproach that the equity of this court varies with the length of
the Chancellor’s foot’
 Equity & Statute
• Equity follows the law
• Equity will not permit a statute to be used as an
instrument of fraud

• Lord Ellesmere in the Earl of Oxfords Case [1615] 1

Rep Ch 1 pronounced that
“men’s actions are so diverse and infinite that it is
impossible to make any general law which will aptly
meet with every particular and not fail in some
circumstances. The office of the Chancellor is to correct
men’s consciences for fraud, breaches of trust, wrongs
and oppressions…and to soften and mollify the
extremity of the law.”
The characteristics of
Equity
Flexibility

Justice

Fairness

Equality

Mitigate the harshness of the common law

Fills in gaps
 • Equity allows all parties to be heard
“Equity provides citizens with the possibility of liberty in the face of the
legal system: the chance to have their individual stories heard by the court
regardless of the strict letter of the law.”
Alastair Hudson Understanding Equity & Trusts (2014 Routledge)

• Equity recognises discrimination

“Thus there was in the 19th Century quite a sophisticated system of equity
for the property of the rich…A clear discrimination between rich and poor
was maintained in the law, which was just as clear as the discrimination
between men and women.”

EQUITY protects
A.Diduck & F. Kaganas Family Law Gender & The State (2012 Hart Pub) 253

• Equity takes into account the intention, power and actions of parties
• “Otherwise, it should be assumed that equity follows the law and that
the beneficial interests reflect the legal interests in the property. I do not
think that this proposition is controversial, even in old fashioned
unregistered conveyancing. It has even more force in registered
conveyancing in the consumer context…” at 54
• “To put it at its highest, an outcome which might seem just in a purely
commercial transaction may appear highly unjust in a transaction between
husband and wife or cohabitant and cohabitannt…” at 40
Per Baroness Hale in Stack v. Dowden [2007] UKHL 17
Equitable Remedies create fairness

Specific Performance Injunction Limitation of actions

 Equitable maxims
Equity will not
They who seek
suffer a wrong to Equity follows the
equity mut do Equity is equality
be without a law
equity
remedy

Where equities are Equity imputes and Equity regards Equity looks to the
equal the first in intention to fulfil done as that which substance rather
time prevails an obligation ought to be done than the form

Delay defeats Equity acts in Equity will not

equity personam assist a volunteer
For example

The Maxim - Equity acts…

‘in personam’
• Equity acts against a person’s
• Conscience or behaviour
• not against an asset or anything which is
the subject of a court order
 The Equity
landscape • Fills the gap in law
• Focuses on justice

Law can be looked at

indifferent ways by lawyers
and commentators

Common law is a system Cases

based on case decisions and Legislation
is supported by the court • Interpretation of
system and judiciary • Rules Rules
Equity supports the law to be
• Fixed in Law • Create a patten of
fairer by creating legal information
opportunities for discretion
to be used (Maxims)
Questions and
Reflections