How the Law Works

Gary Slapper

• Publisher: Routledge
• Year: 2016
• ISBN:
  9781317218012
• Edition: 4
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

'How the Law Works is a gem of a book, for law students and for everyone else. It is a must read for anyone interested in how society is shaped and controlled via law.'

Dr Steven Vaughan, solicitor, Senior Lecturer, Birmingham Law School

' How the Law Works is a comprehensive, witty and easy-to-read guide to the law. I thoroughly recommend it to non-lawyers who want to improve their knowledge of the legal system and to potential students as an introduction to the law of England and Wales.'

HH Judge Lynn Tayton QC

Reviews of the first edition:

'A friendly, readable and surprisingly entertaining overview of what can be a daunting and arcane subject to the outsider.' The Law Teacher

'An easy-to-read, fascinating book... brimful with curios, anecdote and explanation.'

The Times

How the Law Works is a refreshingly clear and reliable guide to today's legal system. Offering interesting and comprehensive coverage, it makes sense of all the curious features of the law in day to day life and in current affairs. Explaining the law and legal jargon in plain English, it provides an accessible entry point to the different types of law and legal techniques, as well as today's compensation culture and human rights law. In addition to explaining the role of judges, lawyers, juries and parliament, it clarifies the mechanisms behind criminal and civil law.

How the Law Works is essential reading for anyone approaching law for the first time, or for anyone who is interested in an engaging introduction to the subject's bigger picture.

1

The Importance of Law

Law is all-pervasive. It exists in every cell of life. It affects everyone virtually all of the time. It governs everything in life and even what happens to us after life. It applies to everything from the embryo to exhumation. It governs the air we breathe, the food and drink that we consume, our travel, sexuality, family relationships, and our property. It applies at the bottom of the ocean and in space. It regulates the world of sport, science, employment, business, political liberty, education, health services; everything, in fact, from neighbour disputes to war.

The law in the United Kingdom has evolved over a long period. It has, over the centuries, successfully adapted itself through a great variety of social settings and types of government. Today it contains elements that are ancient, such as the coroner’s courts, which have an 800-year history, and elements that are very modern, such as electronic law reports and judges using laptop computers. Law has also become much more widely recognised as the standard by which behaviour needs to be judged. A very telling change in recent history is the way in which the law has permeated all parts of social life. The universal standard of whether something is socially acceptable is progressively becoming whether it is legal. In earlier times, most people were illiterate and did not have the vote. They were ruled, in effect, by what we would call tyranny. And this was not just in 1250. That state of affairs still existed in the UK in 1850. Today, by contrast, most people are literate and have the vote. Parliamentary democracy is our system of government. So, it is quite possible and desirable for people in general to take an interest in law. A widely esteemed jurist, A.V. Dicey, said that:

Where the public has influence, the development of law must of necessity be governed by public opinion.¹

Like the pen or the knife, law is a versatile instrument that can be used equally well for the improvement or the degradation of humanity. In a healthily participative social democracy, law can be used to serve the general public interest.

That, of course, puts law in a very important position. In our rapidly developing world, all sorts of skills and knowledge are valuable. Those people, for example, with knowledge of computers, the Internet and communications technology are relied upon by the rest of us. There is now an IT expert or help desk in every school, every company, every hospital and every local and central government office. Without their constantly applied expertise, many parts of commercial and social life today would seize up in minutes.

But legal knowledge is often just as important and as universally needed.

The American comedian, Jerry Seinfeld put it like this:

To me a lawyer is basically the person who knows the rules of the country. We are all throwing the dice, playing the game, moving our pieces around the board, but if there is a problem the lawyer is the only person who has read the inside of the top of the box.²

Consider the extensive reach of modern law. Most people would agree that it is desirable to be governed by law and rules so that, in any department of life, we can understand in advance of any conduct what is democratically permitted and how certain things must be done. Every time we examine a label on a food product, engage in work as an employee or employer, travel on the roads, go to school to learn or to teach, stay in a hotel, borrow a library book, create or dissolve a commercial company, play sports or engage the services of someone for anything from plumbing a sink to planning a city, we are in the world of law. The extent and influence of law has never been greater. Law governs every aspect of what we do today. In the UK, about 35 new public Acts of Parliament are produced every year, thereby delivering thousands of new rules into our world. The legislative output of Parliament has more than doubled in recent times from 1,100 pages a year in the early 1970s to over 2,500 pages a year today. There are over 12,000 criminal offences under English law. Between 1997 and 2010, 4,289 separate offences were the subject of legislation. These include disturbing a pack of eggs when directed not to do so by an authorised officer, selling or offering for sale game birds that have been shot on a Sunday and swimming in the wreck of the Titanic.

In a democracy, with so much complicated law, lawyers do a great deal not just to vindicate the rights of citizens and organisations but also, through legal arguments, some of which are adapted into law by judges, to help develop the law. Law courts, as we shall see, can and do grow new law and prune old law, but they do so having heard the arguments of lawyers. Consider this observation from the famous twentieth-century judge, Lord Denning, made in a case from 1954:

What is the argument on the other side? Only this, that no case has been found in which it has been done before. That argument does not appeal to me in the least. If we never do anything which has not been done before, we shall never get anywhere. The law will stand still whilst the rest of the world goes on: and that will be bad for both.³

However, despite their important role in developing the rules in a democracy, lawyers are not universally popular. Anti-lawyer jokes have a long history. The ancient Athenian philosopher Diogenes once went to look for an honest lawyer. ‘How’s it going?’ someone asked him after a while. ‘Not too bad,’ answered Diogenes. ‘I still have my lantern.’

A popular joke, much-adapted from the seventeenth century, concerns a lawyer at the outset of his career.

FRIEND: It is good, Sir, to see you after so long. How are you getting along in the law?

LAWYER: I have just one client.

FRIEND: Is he wealthy?

LAWYER: He used to be.

A story popularised from the 1860s in the United States concerns a doctor who was most vexed when he finally reached his table at a banquet. A woman who had sought his medical advice had delayed him for ten minutes. ‘Do you think I should send her a bill?’ he asked a lawyer who was sitting next to him. ‘Why not?’ the lawyer replied. ‘You rendered professional services by giving advice.’ ‘Thanks,’ the physician said. ‘In that case, I shall invoice her.’ When the doctor sat down at his desk the next day to send a bill to the woman, he saw a letter had just arrived from the lawyer. It read: ‘For legal services – $50.’

Popular on both sides of the Atlantic in the twentieth century was a story about a young associate who was invited to a party at the home of an eminent senior partner at his firm. The associate wandered mesmerised through the house, astonished at the original artworks by Picasso, Miró, Matisse and others adorning the walls. As the associate gazed at one Picasso, the senior partner put his arm around the associate’s shoulder and said, ‘You see that? If you work diligently, day in and day out, six, seven days a week, for 15 hours a day, then, one day, I could buy another one!’

The public image of lawyers has not changed much during the 2,400 years since Diogenes decided to close himself off from people by living in a large earthenware jar in Athens. In an episode of the television cartoon series Futurama, during a riot, one of the characters looks at a body on the ground and exclaims to another character: ‘You killed my lawyer!’, to which the instant reply is: ‘You’re welcome.’

When Malcolm Ford, the son of film actor Harrison Ford, was asked at his junior school what his father did for a living, he replied:

My daddy is a movie actor, and sometimes he plays the good guy, and sometimes he plays the lawyer.⁴

One of many anti-lawyer jokes concerns a little boy, Tim, who was in a class in an American infants’ school. A teacher was asking all the children what jobs their parents had. One girl said her mother was a doctor, another said her father was a librarian. Then Tim was asked the question, and replied: ‘My dad plays the banjo in a brothel.’ The shocked teacher moved the conversation on, but later told Tim’s mother when she collected her son. The mother said, ‘Oh, well, to tell you the truth, his dad is a lawyer, but you can’t tell that to a four-year-old.’

For balance, though, it is worth remembering that there have been, and are now, many heroic and revered lawyers. Any such parade of fame should include Marcus Tullius Cicero (106–43 BC), Sir Thomas More (1477–1535), Louis Dembitz Brandeis (1856–1941), Nelson Mandela (1918–2013), Clarence Darrow (1857–1938) and Mohandas Karamchand Gandhi (1869–1948) (see Chapter 10 for descriptions of their contributions).

Comments are sometimes made characterising lawyers as professionals whose concerns put reward above truth, or who make financial gain from misfortune. There are undoubtedly lawyers who would fit that bill, just as there are some scientists, expert medical witnesses, journalists, academic researchers, preachers, business gurus and others in that indictable category. But, in general, it is no fairer to say that lawyers are bad because they make a living from human problems than it is to make the same accusation in respect of ambulance drivers or IT technicians. A great many lawyers are involved in public law work, like that involving civil liberties, criminal defence work, welfare law, housing law and employment rights, which is not lavishly remunerated and whose quality relies on considerable professional dedication. Moreover, much legal work has nothing to do with conflict or misfortune, but concerns commerce, property conveyancing, document drafting and company work.

Another source of social disaffection for lawyers, and sometimes disaffection for the law, is a deficiency in public understanding of how law works, why it is cast as it is and how it could be changed. Greater clarity and openness about these issues – through systematic education and legal public relations – would reduce many aspects of public disgruntlement with the law.

THE NATURE OF LAW

Throughout recorded history a great many statements have been made about the nature of law, and why we need it. There is an enormously varied and rich literature on this subject. Here we can really do no more than consider a few samples of these opinions. The writers who have addressed this theme come to it from a startling variety of viewpoints, and hold fundamentally different underlining assumptions about their subject.

The thirteenth-century Italian philosopher, and Dominican friar, St Thomas Aquinas set law in the context of nature.

There is in man a natural aptitude to virtuous action…. There are, indeed, some young men, readily inclined to a life of virtue…. But there are others, of evil disposition and prone to vice, who are not easily moved by words. These it is necessary to restrain from wrong-doing by force and by fear. When they are thus prevented from doing evil, a quiet life is assured to the rest of the community …⁵

Another type of analysis of the nature and purpose of law, focusing on necessity, is one like this of the eminent twentieth-century lawyer and academic, Denis Lloyd:

In any society, whether primitive or complex, it will be necessary to have rules which lay down the conditions under which men and women may mate and live together; rules governing family relationships; conditions under which economic and food-gathering or hunting activities are to be organised; and the exclusion of acts which are regarded as inimical to the welfare of the family, or of larger groups such as the tribe or the whole community. Moreover, in a complex, civilised community … there will have still to be a large apparatus of rules governing family, social, and economic life.⁶

Some writers have paid particular attention to what they regard as the moral purposes of law. This was the view of Sir Patrick Devlin, a judge who was later elevated to the highest level of the judiciary, the House of Lords. He said:

Societies disintegrate from within more frequently than they are broken up by external pressures. There is disintegration when no common morality is observed and history shows that the loosening of moral bonds is often the first state of disintegration, so that society is justified in taking the same steps to preserve its moral code as it does to preserve its government and other essential institutions. The suppression of vice is as much the law’s business as the suppression of subversive activities; it is no more possible to define a sphere of private morality than it is to define one of private subversive activity …⁷

In science, in order to understand or appreciate the nature of something, or its function, it is sometimes useful to remove it from its surroundings to see what happens or ceases to happen when it is not there. A similar sort of experiment, although really a ‘thought experiment’, has been done in books that depict societies without law. Sir Thomas More, a distinguished lawyer, and later a famed Lord Chancellor, wrote in his story Utopia about a society without lawyers. The intriguing world he describes can provoke many thoughts about the role of law in our own society:

They have very few laws, because, with their social system, very few laws are required enough…. For, according to the Utopians, it’s quite unjust for anyone to be bound by a legal code which is too long for an ordinary person to read right through or, too difficult for him to understand. What’s more, they have no barristers to be over-ingenious about individual cases and points of law. They think it is better for each man to plead his own cause, and tell the judge the same story as he’d otherwise tell his lawyer. Under such conditions, the point at issue is less likely to be obscured, and it’s easier to get at the truth – for, if nobody’s telling the sort of lies one learns from lawyers, the judge can apply all of his shrewdness to weighing the facts of the case, and protecting simple-minded characters against the unscrupulous attacks of clever ones.⁸

Some writers have used the structure of the political economy as being the main explanatory factor when exploring the nature of modern law. Friedrich Engels, the nineteenth-century writer, took this approach. He argued that:

Laws are necessary only because there are persons in existence who own nothing…. If a rich man is brought up, or rather summonsed, to appear before the court, the judge regrets that he is obliged to impose so much trouble, treats the matter as favourably as possible, and, if he is forced to condemn the accused, does so with extreme regret, etc., etc. and the end of it all is a miserable fine, which the bourgeois throws upon the table with contempt and then departs. But if a poor devil gets into such a position as involves appearing before the Justice of the Peace … he is regarded from the beginning as guilty; his defence is set aside with a contemptuous ‘Oh! We know the excuse’ and a fine imposed which he cannot pay and must work out with several months on the treadmill.⁹

One modern, and widely accepted, encapsulation of the nature of law is that of Professor A.W.B....

Table of contents

• Cover
• Haft Title
• Title Page
• Copyright Page
• Table of Contents
• Preface
• Acknowledgements
• 1 The Importance of Law
• 2 Judges
• 3 Lawyers
• 4 Cases and the Courts
• 5 Case Technique
• 6 Interpreting Acts of Parliament
• 7 Types of Law
• 8 The Jury
• 9 Language and Law
• 10 Miscellany
• Glossary of Terms
• Notes
• Bibliography
• Table of Cases
• Table of Legislation
• Index