RC1: What is law, Where does it come from ? Flashcards
How is it made ?
What is the law ?
The law is a set of rules set by the government which eah country must follow. By having laws, it allows all members of society to behave in a particular way and so it can be seen as an order as the law tells people what to do and what not to do. An example is the votes for women protest in which women struggled in getting the vote. The law was challenged, and the vote was finally given.
The Function of the law
Thomas Hobbes ‘social contract’ – ‘Hobbes argues we lived without rules which ensnared life was nasty, brutish and short’. By entering into a social contract agreement, it shows us how to govern relationships.
What are the sources of the law ?
-Houses of Parliament = HOC/HOLs
-Courts
-Government – Her majesty’s govt
-UN Headquarters
Who makes the law that applies in the UK ?
- The legislature
-The executive
-The judiciary
-Parliament and EU/UN
What form does that law take ?
-Delegated legislation
-Case law
-Act of parliament
-EU law
How is primary legislation in the UK made ?
It’s passed into the Houses of Parliament. It starts as a bill in the HOC and then goes through many readings. It is then passed onto the HOL where it will also go through all the readings. The king will give the royal assent. Once it has gone through this lengthy process, it becomes an act of parliament. Secondary legislation takes the form of statutory instruments with powers delegated by parliament to the executive. It may be challenged in courts under ultra vires.
The passage of a bill through parliament
-Draft bill
-Bill starts in either HOC/HOLs
-It goes through the multiple readings
-Causes a ‘ping-pong’ effect
-Royal Assent
What are the reasons for legislation ?
-Social Engineering- National Health Service Act 1946
-Codifying the law- Theft Act 1988
-Consolidating existing legislation – Equality Act 2010
-Law Reform and Revision- Law Commission Divorce Law Owens v Owens (2018)
What is a state-rule-centred paradigm ?
-A typical pattern/ example of something
Two problems with a paradigm
-It assumes an important difference between the role of state agencies in law making and related matters such as dispute resolution and the roles of non-state agencies. It elevates what we call legal positivism.
-Should the system be studied as the ELS in isolation from the rest of its context? Or should we at least remind ourselves that in the legal jurisdiction of England and Wales there are many other rules influencing our social behaviour.
