Private law
This division of law is sometimes called civil law and is contrasted with criminal law. The latter deals with offences against the state, while civil or private law concerns the dealings between individual members of the state. When the state starts an action the case is usually called in the name of the monarch. Regina is used when a Queen is on the throne and Rex when there is a King. For convenience, a criminal case is usually written as R. v. Brown. In civil cases the names of the individual parties are used: Smith v. Brown. First named is usually called the plaintiff (the person bringing the action) and the second name is the defendant.
Because civil law only affects the individuals involved, it does not mean the state is not concerned or involved. In many instances the state will have created the law which regulates the conflict between the individuals, and will also administer courts to hear disputes, which have arisen. The main distinction may be that in a criminal case, the state brings the action and stipulates and administers the punishment, while in civil cases an individual starts the action and the courts award the wronged individual the remedy best suited to the situation. For example, in breach of contract or negligence a sum of money Called damages may sufficient compensation but if a trespassing refuses to leave another person's land an injunction may be needed to ensure the trespassing leaves the land.
The main classes of civil law are as follows:
Law of Contract
Agreement between two or more persons which is intended to be legally binding.
Law of Tort
A recognised civil wrong, other then a breach of contract or trust. Tort cover such wrongs as trespass, negligence, nuisance and defamation.
Law of Property
The rights of individuals to ownership and possessions of their property, both land and personal property (chattels). The law of succession deals with Wills and how property is distributed after death.
Family Law
The law concerning marriages, divorce and separation, and the responsibilities, and duties of parents to each other and to their children.
Welfare Law
Administrative law deals with disputes arising from the provision of state benefits, welfare law is concerned with the rights of individuals to obtain state benefits, and the rights and duties of parties with respect to housing and employment.
Sources of law
Where does the law come from. In English law the law comes from two main sources, legislation (acts of parliament) and judicial precedent, the decision of judges.
Judicial precedent
Judicial precedent or case law as it is often called is the source of a large part of common law and equity. The law is judge made, in that when a judge makes a decision in a court case on a particular aspect of law, other judges may be bound to follow this decision in subsequent cases. Once the law has been established, the example or the precedent is binding on other judges, who must make a similar decision in cases concerning this aspect of law. Some courts are more important than others generally speaking the higher the court which creates a precedent, the greater the authority the decision will have. The hierarchy or standing of the course is as follows:
The House of Lords
The House of Lords, as a judicial court, is the highest Appeal Court in civil and criminal matters, and decisions of this court are binding on all lower courts. Unlike most other course, the House of Lords is not bound by precedent and may depart from its own previous decisions if it wishes to do so, but if the precedent is to be reversed consideration should be given to the effect it would have particularly on Criminal Law and Commercial and business transactions.
The Court of Appeal (Civil Division)
The Court is bound by decisions from the House of Lords and all though it has been suggested in court that the position should be otherwise, the court is bound by its own previous decisions. The court may depart from its previous decisions under certain circumstances:
Where it considers that a decision was made “per incuriam” that is in error.
Where there are two previous conflicting decisions, the court may choose which decision is correct and overrule the other decision.
When a later House of Lords decision applies this must be followed.
The Court of Appeal (Criminal Division)
Decisions of the House of Lords of binding on the Criminal Division, but unlike the civil divisions of the Court of Appeal. This court is not always bound to follow its own previous decisions. The court will probably follow decisions of its predecessor, the Court of Criminal Appeal, unless that would cause an injustice. The decision of this court bind all lower criminal courts and may bind inferior courts hearing civil cases. Decisions of this court are not binding on the civil division of the Court of Appeal nor is it bound by decisions over civil division.
The Divisional Court's of the High Court
These courts are bound by the decision of the House of Lords and Court of Appeal. The civil divisional courts are bound by their own previous decisions, but the Divisional Court of the Queen's Bench Division (which deals with criminals matters) is not so strictly help to its previous decisions. Decisions of divisional court of binding on judges of the same division of the High Court sitting alone, and on the inferior courts.
The High Court's
Decisions of cases of first instances, Where the judge sits alone, are binding on the inferior courts but are not binding on other High Court judges. A previous decision of a High Court judge may be treated as a persuasive precedent but will not be binding in other High Court cases. It is suggested that this also applies to High Court judges sitting in the Crown Court, but does not apply to Circuit judges or recorders, and they would be bound by previous decisions of a High Court judge. Decisions of the House of Lords, Courts of Appeal and Divisional Court of the High Court of generally binding on these courts.
The Inferior Courts
The county courts and the magistrates courts are bound by decisions of the superior courts. The inferior courts are not bound by their own decisions as they cannot create a precedent.
