Reference to statutory instruments

The most common form of delegated legislation is the statutory instrument. Each statutory instrument is allocated a number, and reference to the instrument is to the year of issue followed by the number so allocated. For example,

S.I. 1968 No. 1911

relates to the Town and Country Planning (Planning Inquiry Commissions) Regulations, 1968.

The printing of Bills, Acts of Parliament and statutory instruments is done by Her Majesty’s Stationery Office. The Statutory Instruments (Production 1730, Sir Edward Coke’s Institutes (1628-41), Sir William Blackstone’s Commentaries (1765), and Sir Michael Foster’s Crown Law (eighteenth century).

The above works and a few other early works, written when law reporting had barely begun, are accepted as books of authority and therefore as an original source of common law.

The modern textbook is not a source of law, and not a book of authority. However, such works may have persuasive authority; counsel may adopt the view of a distinguished academic writer and the court may accept that view of the law. In this way the writer is influencing the law. Works by Cheshire, Dicey, Winfield, Salmond, Williams and Smith and Hogan have often been referred to in this way, particularly on points which are not covered by authority or where there is some doubt about the authority. As Mr. R.J. Walker has commented, “On the whole the persuasive authority of a standard textbook is of considerable weight.”

Similarly, articles in legal journals such as the Criminal Law Review, the Law Quarterly Review and the Cambridge Law Journal have been referred to in the courts.

 

Classification of Law

Warming-up :

1. What area of law interests you most? Why?

2. Try to classify the following branches of law into Public Law and Private Law: Law of Contract, Constitutional Law, Law of Tort, Criminal Law, Law of Property, Administrative Law, Law of Succession, Family Law. Check your answer after reading the text.

Vocabulary notes:

substantive	матеріальний
wrongdoing	правопорушення
offence	правопорушення, злочин
to punish	покарати
disobedience	непокора
to forbid	забороняти
imprisonment	ув’язнення
penalty (fine)	штраф
discharge	звільнення
prosecution	судове або кримінальне переслідування
to determine	визначати
to enforce	застосовувати
enforceable	забезпечений судовою санкцією, має позовну силу
remedy	засіб захисту права
breach	порушення
property	власність
devolution	перехід до іншої особи(права, майна)
succession	спадкування
prejudice	упередженість, (юр.) шкода, збитки
accused	обвинувачений
incompatible	несумісний

 

CLASSIFICATION OF LAW

Law may be classified in various ways. The four main divisions are as follows:

(a)Criminal Law and Civil Law

(b)Public Law and Private Law

(c)Substantive Law and Procedural Law

(d)Municipal Law and Public International Law

Criminal Law is that part of the law which characterizes certain kinds of wrongdoings as offences against the State, not necessarily violating any private right, and punishable by the State. Crime is defined as an act of disobedience of the law forbidden under pain of punishment. The punishment for crime ranges from death or imprisonment to a money penalty (fine) or absolute discharge. For example, to commit murder is an offence against the State because it disturbs the public peace and security, so the action is brought by the State and not the victim.

The police are the public servants whose duty is the prevention and detection of crime and the prosecution of offenders before the courts of law. Private citizens may legally enforce the criminal law by beginning proceedings themselves, but, except in minor cases of common assault, rarely do so in practice.

Civil Law is concerned with the rights and duties of individuals towards each other. It includes the following:

(i) Law of Contract dealing with that branch of the law which determines whether a promise is legally enforceable and what are its legal consequences.

(ii) Law of Tort. A tort is defined as a civil wrong for which the remedy is a common law action for unliquidated (i.e. unspecified or unascertained) damages and which is not exclusively the breach of contract or breach of trust or other merely equitable obligation. (Salmond: Law of Torts.) Examples of torts are: nuisance, negligence, defamation, and trespass.

(iii) Law of Property is that part of the law which determines the nature and extent of the rights which people may enjoy over land and other property - for example, rights of 'ownership' of land, or rights under a lease.

(iv) Law of Succession is that part of the law which determines the devolution of property on the death of the former owner.

(v) Family Law is that branch of the law which defines the rights, duties, and status of husband and wife, parent and child, and other members of a household.

The above are the major branches of civil law. Its main distinction from criminal law is that in civil law the legal action is begun by the private citizen to establish rights (in which the State is not primarily concerned) against another citizen or group of citizens, whereas criminal law is enforced on behalf of or in the name of the State. Civil law is sometimes referred to as Private Law as distinct from Public Law.

Public Law comprises (i) Constitutional Law, (ii) Administrative Law, and (iii) Criminal Law.

(i) Constitutional Law has been defined as the rules which regulate the structure of the principal organs of government and their relationship to each other, and determine their principal functions. This subject includes: choice of monarch, his or her powers and prerogative; the constitution of the legislature; powers and privileges of Members of Parliament; the relationship between the separate chambers of Parliament; the status of Ministers; the civil service; the armed forces; the police; the relations between the central government and local authorities; the making of treaties; admission and rights of aliens; the courts of justice; liberties of speech, of meeting, of association; and voting rights.

(ii) Administrative Law is defined as that body of legal principles which concerns the rights and duties arising from the impact upon the individual of the actual functioning of the executive instruments of government. (С. К. Allen: Law and Orders.) For example, administrative law determines the legal rights of a private citizen whose house a local authority intends to acquire compulsorily.

(iii) Criminal Law has already been described, with its distinction from civil law.

Substantive Law is the body of rules of law in the" above branches which regulate the rights, duties and liabilities among citizens and governments.

Procedural Law lays down the rules governing the manner in which a right is enforced under civil law, or a crime prosecuted under the criminal law. Thus a legal action is started by taking out a writ in civil cases, by a summons or an arrest in criminal cases, and ends by the trial and judgment in the court itself, followed by the execution of the judgment. Procedural law governs the steps in the progress of the civil legal action or criminal prosecution.

The distinction between substantive law and procedural law is not always clear. It is an important rule of law that the prosecution may not (except in special circumstances) refer to the accused's bad character during the course of the trial, for this could clearly prejudice their case. (English law presumes that an accused person is innocent until proved guilty.) This rule may be regarded as either substantive or procedural, depending on the view taken of

its nature.

Municipal or National Law is the law operative within a State. One branch of that law is the law relating to conflict of laws, otherwise known as Private International Law, which determines which national law governs a case in which there is a foreign element.

Thus Jenkins, a British subject, makes a contract in Rome with Boussac, a Frenchman, for the supply of footballs to a team m Madrid. If Jenkins now takes action against Boussac in an English court of law for alleged breach of contract, the court will have to determine by the rules of private international law which law is to be applied: English, Italian, French, or Spanish.

Public International Law is the body of rules of law which govern the relationships between states, particularly rules of war. Certain writers hold that since there is no world authority with power to enforce the rules or laws and that, as public international law is incompatible with national sovereignty, the essential characteristics of law are absent.

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