The Definition of Law

Introduction

To give an explanation of the definition of law this response looks briefly at the historical background to how judges made law, before looking at law made by Parliament.
It will conclude with how both types of laws are classified today.

Historical Background

Until 1066, when William of Normandy, from France, conquered England the definition of law in England was ‘piecemeal’. England was divided up into shires (counties) and each shire had its own laws. These local laws governed local people and were enforced in local courts.

William declared himself King and began to change this definition of law. Firstly, he made himself owner of all the land. Then he set about making one central law to govern the people. To begin with his definition of law was rudimentary including such things as swearing allegiance to the King and believing in only one God; however, together with his Norman successors, he began to develop the common law.

The Definition of Law Made by Judges

1. Definition of Law ( Common Law)

The Royal Normans sent out their own judges, (the Curia Regis), on horseback to the local shire courts. The judges ruled on local cases to ensure that these were resolved in accordance with the king’s definition of law. At the same time the judges took the best of the local laws and, over time they applied them consistently to all the cases they heard. Thus the law was centralised and this central law was the beginning of the today’s Common Law (Law of Precedent).

2. Definition of Law (The Law of Equity)

The Common Law was inflexible; a tightly controlled system based on ‘writs’, i.e. documents which outlined the ‘wrongs’ complained of. If a ‘writ’ was not available because the ‘wrong’ happened outside of the scope of the common law then a remedy was not available either. To illustrate, a man might have a claim in law if someone stole one of his sheep but he might not be legally protected against a thief who stole his potatoes.

Thus people were deprived of a remedy for some wrongs committed against them and they began to appeal directly to the King’s conscience in the hope that he would help them.

The King delegated these responsibilities to his Chancellor and in 1474 the court of Equity was established. This was called the Court of the Chancery.
The definition of law for Equity was a separate, flexible law based on the Chancellor’s conscience and used where no prescribed common law remedy existed.
Equity proved popular and today it continues to provide a remedy for the changing needs of society where no remedy can be found at common law.

Following the Judicature Acts 1873-1875, many judges, not just the Chancellor, may apply the principles of Equity to a case that comes before them if they consider it ‘just’. The definition of law for Equity remains the same today because the principles of common law and equity are still separate bodies of rules.

The Definition of Law Made by Parliament

In order to give a definition of law made by Parliament it is necessary to understand that Parliament is supreme and can pass laws on any subject, even laws with retrospective effect. This means that, in theory, Parliament could declare every single law made until now as void or they could require all children to go to war.

The correct definition of law made by Parliament is that it is the highest law in the land and the judges will seek to abide by it. Within this definition of law, there are two types of laws: Primary Laws and Secondary Laws

1. Definition of Law (Primary Law)

The most important laws made by Parliament are primary laws. It is instructive to note that the term ‘primary law’ is interchangeable and this definition of law can also include such terms as ‘primary legislation’, ‘statutory law’, ‘Acts of Parliament’ or ‘statutes’.

An Act of Parliament starts life as a Bill which proceeds through a lengthy legislative procedure, where it is read, debated on and reported on in different stages by both the House of Commons and the House of Lords.
If both Houses agree on it, it receives the Royal Assent by the Queen and becomes primary legislation. Many Acts of Parliament are ‘Enabling Acts’ containing provisions which delegate law making powers to certain other bodies.

2. Definition of Law (Secondary Law)

An enabling provision in an Act delegates powers because Parliament does not have time, local knowledge or technical expertise to legislate about everything.
For example, local authorities know about their local communities and so create ‘Byelaws’ for their own areas. Government Ministers have technical expertise and so make ‘Statutory Instruments’ for their departments and the Privy Council can more speedily make ‘Orders in Council’ in times of emergency. This definition of law is that it is law which is made by other bodies with the authority of, and subject to control by Parliament.

In looking at this definition of law it is important to note that the term ‘secondary law’ is interchangeable with ‘secondary legislation’ or ‘delegated legislation’.

The Definition of Law as it used Today

Having looked at the definition of law made by judges and the definition of law made by Parliament, one must conclude by looking at the definition of law today.

Today both Acts of Parliament, which are interpreted by judges and Judicial Precedent, the law made by judges following their previous decisions, are classified into Public Law and Private law. Public law is made by and on behalf of the state: for example, the state prosecutes criminals. Private Law is civil law which gives individuals them a right to sue privately, for example, in contract.

For a thriving legal system which continues to serve the country effectively both Parliament and the judges must work cooperatively together. It is their cooperation which should constitute the real definition of law.