What is Law?

STEPHANIE PYWELL: Hello, I’m Stephanie Pywell.

CAROLINE DERRY: And I’m Caroline Derry; we’re both Senior Lecturers in the Open University Law School.

STEPHANIE PYWELL: In this audio we’re talking about what the law is … So,  Caroline, could you start by giving me a simple definition of law?

CAROLINE DERRY: Well, a useful way of looking at law is as a system of rules that regulate the conduct of people in society. Compliance with the law is enforced by the state via the courts. Law exerts social control, creates enforceable rights and obligations, and resolves disputes.

STEPHANIE PYWELL: But most of us just try not to ‘break’ law. Does it affect law-abiding citizens?

CAROLINE DERRY: Absolutely! Law affects many aspects of life. It affects everyone from before they’re born to after they’ve died and it provides the framework within which we live, work, socialise. Law regulates the way that we use the roads, and everyone who has a job - including us - is subject to employment law. When we shop, for instance, we make legally binding contracts; when we go to the gym, we’re protected by health and safety laws - and many of us have a legal interest in our homes, whether as tenants, owners or if we have a mortgage. Even our personal relationships as wives and husbands, civil partners and parents are regulated by the law.

STEPHANIE PYWELL: What’s the system of law in England and Wales?

CAROLINE DERRY: England and Wales have a ‘common law’ legal system. ‘Common law’ has four different meanings. So, first, ‘common law’ distinguishes our case-based legal system from the civil law systems that have been adopted by many European countries, where all law is made by the law-making body and written down in a series of ‘codes’. Second, ‘common law’ or ‘case law’ refers to decisions made in our courts. This is a completely separate source of English and Welsh law from the laws made by the UK or Welsh Parliaments. Third, ‘common law’ is common to all the people in the country; until the 12th century, different parts of England and Wales had different laws: local customs. Fourth, and last, ‘common law’ is distinguished from another body of law called ‘equity’, which developed because the common law was too rigid.

STEPHANIE PYWELL: How do you mean, ‘too rigid’? Surely rules are meant to be rigid?

CAROLINE DERRY: Well of course, the law should be obeyed, but in the 12th century the rigid legal procedure required by the common law meant that some claims weren’t heard, which wasn’t just. So a new system of law, based on fairness - ‘equity’ - was developed. There’s an animation for students to watch that illustrates why and how equity developed.

STEPHANIE PYWELL: So is equity based on different principles from the common law?

CAROLINE DERRY: Not exactly. Equity and the common law have the same broad aim – fairness – but equity achieves this explicitly, via sayings or ‘maxims’. One maxim is: ‘equity will not suffer a wrong to be without a remedy’, which means that equity will always seek to find a way of righting a wrong. Another maxim is, ‘he who comes to equity must come with clean hands’, which means that, if someone’s morally in the wrong, equity won’t regard them as deserving a remedy. Equity also recognises legal rights and obligations in a wider range of circumstances than does the common law.

STEPHANIE PYWELL: So could you give me an example of something that’s covered only by equity?

CAROLINE DERRY: Certainly. Only equity recognises trusts. And trusts exist when one person (the trustee) holds money or property for the benefit of someone else (the beneficiary). At common law, the beneficiary has no rights, but equity enforces the beneficiary’s ‘moral’ rights if the trustee misuses the money or property.

STEPHANIE PYWELL: So equity and common law have different approaches – but do they have the same potential outcomes?

CAROLINE DERRY: Actually no. One big difference is that, if a claimant wins a claim at common law, a court must award damages, whereas, if the claim’s brought in equity, the court may award damages. Because of this, equitable remedies are described as ‘discretionary’. If money – the only remedy at common law – would be an insufficient or inadequate remedy, a court may make an order for a practical, equitable remedy.

STEPHANIE PYWELL: Could you explain more about practical remedies?

CAROLINE DERRY: Well, one type of remedy is an ‘injunction’; this protects the claimant by compelling the defendant to do, or not to do, something. So, for instance, a court might prohibit a violent ex-husband from going within a specified distance of his ex-wife’s home. Another remedy is an ‘order for specific performance’. This requires the defendant to perform something they’ve contractually undertaken to do. So, suppose someone’s promised to sell a valuable painting: money’s changed hands, and then the seller refuses to hand it over. At common law, the buyer would get their money back, but in equity the seller could be ordered to give the painting to the buyer.

STEPHANIE PYWELL: OK, but what happens if someone just refuses to comply with the order?

CAROLINE DERRY: This is where equity has teeth! If a person doesn’t obey a court’s order, they’re in contempt of court, and they can be sent to prison.

STEPHANIE PYWELL: I can see why that makes equitable remedies effective! Finally, where do I find the law?

CAROLINE DERRY: Well, there is no single source, I’m afraid. The sources of law in England and Wales are common law (that's case law), equity, and legislation made by the UK and Welsh Parliaments. There’s more about these in the Steps called ‘Common law’, ‘UK statutes’ and ‘Devolution’.

Finally, from 1st January 1973 until 31st January 2020, the UK was a member state of what’s now the European Union – the EU – and it’s important to remember that some of the legislation passed during that period reflects EU law. Almost all those laws are still in force but, now that the UK has left the EU, they can be changed without reference to any EU authority.

STEPHANIE PYWELL: Thank you very much, Caroline.