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Describe How Law Is Made and Examine the Purpose Behind Criminal Law and Civil Law.

By lexie666 Jun 27, 2013 994 Words
, describe how law is made and examine the purpose behind criminal law and civil law. Goodey and Silver (2012) define law as a set of rules created by the state which forms a framework to ensure a peaceful society. This essay will aim to describe how laws are made using parliament, common law and European law. It will also examine the purpose behind criminal law, laws created to protect society and to enforce punishment to those that don’t follow them. It will also examine the purpose behind Civil law, law made to protect the rights of individuals/organisations.

The UK parliament is the elected law making body in the UK; they make laws, known as statutes or Acts. Acts of parliament start out as a bill, an idea for a new piece of legislation. There are three types of bills; public bills, private members bills and private bills. The bill goes through different stages taking several months, within both houses of parliament to enable debate and thorough consideration. It begins with the first reading, a formal introduction where the bill is read out without debate. Then the second reading, where the main principles of the bill are discussed. Next the committee stage, a detailed examination of the bill leading to debate and amendments before it reaches the report stage, a further opportunity for amendments before the final debate. The bill has to be passed through both the houses of parliament before it’s returned to the house it originated for the amendments to be considered. With approval from both houses the bill receives a formal approval by the monarch, called the royal assent. A bill then becomes law, and becomes an act of parliament. The house of commons has precedence over the House of Lords once certain time limits have passed. Legislation can also be made by a person/body to whom Parliament has given the power to make laws; known as delegated legislation. There are three main forms of delegated legislation; statutory instruments, by-laws and orders in council. Statutory instruments are made by government ministers, to fill in details which couldn’t be included in the original legislation. By laws are created by local authorities to cover local matters, such as the local council increasing car parking charges in the town centre, these laws are still approved by the government. Orders in council are made by a group of ministers known as the Privy Council; their role is to advise the queen in her monarchical duties. Delegating legislation allows law to be made more quickly than parliament, which is important in times of emergency. It also appreciates the need for local knowledge and technical expertise. A high volume of UK law is now made through delegated legislation, although it comes under criticism due to the lack of democratic involvement. Common law, known as the system of judicial precedent, is laws that have developed through judicial decisions, the decisions made in court by Judges. These decisions establish a principle of law, and are used in later cases with similar issues. In Donoghue v Stevenson (1932) AC (HL), the courts established the neighbourhood principle to determine a civil law dispute. By applying this principle to the facts the judges had extended the common law by making case law. Common law originated in 1250, after William the conqueror established a central government, creating laws that applied to the whole country. Statutory interpretation is where the courts must determine what the intentions of parliament were; it’s used when the wording of an act is unclear or could have different possible meanings. The courts must then implement their findings in that particular case. In the case of Adler v George (1964) 2QB 7, the court had to interpret the meaning of ‘vicinity’ in the official secrets act 1920. There are two main sources of European law that impact on the UK’s legal system; the European Union (EU) and the European convention on human rights (ECHR). The UK became a member of the EU in 1973; it covers matters such as trade and the freedom of movement of workers. Within its own court, the court of justice of the European Union (CJEU), it decides on disputes between the European law making institutions, clarifying pieces of EU law. In 2011, they decided after a request from a Belgium court that the practice of allowing different insurance rates based on gender was against the equal treatment directive 2004/113/EC on sexual equality in respect of goods and services. As a result, higher rates for men were outlawed in 2012. The European convention on human rights (ECHR) originated to protect individual rights, e.g. the right to life. The human rights act 1998 requires the UK legal system to comply with the human rights in the ECHR.

Civil law is the legal system that protects the rights and settles disputes between individuals/ organisations, at the end of which compensation may be awarded to the victim. Civil cases are brought forward by the individual/organisation, the claimant. They must prove their case on the balance of probabilities. Miller V Jackson (1977) QB 966 is an example of a civil case protecting the rights and responsibilities of a cricket club and their neighbours who suffered from cricket balls landing in their garden. The courts resolved the dispute by allowing the club to continue playing on the condition they paid compensation to the Millers. The purpose of criminal law is to prevent behaviour which is unacceptable and to preserve order in society, punishing those who don’t abide by these laws. A prosecutor brings the case against the defendant; they must prove their case beyond reasonable doubt, with evidence to back up their claims. Murder and fraud are examples of criminal law being broken. In conclusion laws are made using Parliament and common law using influence from European law.

Goodey, J and Silver, K (2012) Starting with law, Milton Keynes, The open university.

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