How the Law Works FOURTH EDITION Gary Slapper ‘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 thor- oughly 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. Offer- ing 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 to 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. This page has been left blank intentionally How the Law Works FOURTH EDITION GARY SLAPPER LLB (UCL), LLM (UCL), PhD (LSE), PGCE (Law) (Manc) Global Professor, New York University Director, New York University, London Door Tenant, 36 Bedford Row Visiting Professor of Law, The Chinese University of Hong Kong; The Open University, UK Download from: aghalibrary.com Fourth edition published 2016 by Routledge 2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN and by Routledge 711 Third Avenue, New York, NY 10017 Routledge is an imprint of the Taylor & Francis Group, an informa business © 2016 Gary Slapper The right of Gary Slapper to be identified as author of this work has been asserted by him in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988. All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. Trademark notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. First edition published by Collins 2007 Third edition published by Routledge 2014 British Library Cataloguing in Publication Data A catalogue record for this book is available from the British Library Library of Congress Cataloging- in-Publication Data Names: Slapper, Gary, author. Title: How the law works/Gary Slapper. Description: Fourth edition. | New York, NY: Routledge, 2016. Identifiers: LCCN 2015044509| ISBN 9781138914964 (hbk) | ISBN 9781138914971 (pbk) | ISBN 9781315620794 (ebk) Subjects: LCSH: Law–England. | Law–Wales. Classification: LCC KD661.S584 2016 | DDC 349.42–dc23 LC record available at http://lccn.loc.gov/2015044509 ISBN: 978-1-1389-1496-4 (hbk) ISBN: 978-1-1389-1497-1 (pbk) ISBN: 978-1-315-62079-4 (ebk) Typeset in Vectora LH by Wearset Ltd, Boldon, Tyne and Wear Contents Preface ix Acknowledgements xi 1 The Importance of Law 1 The nature of law 5 The rule of law 7 Clear and accessible law 12 The golden metwand 16 Law and social change 18 The law and democracy 26 Further reading 27 2 Judges 29 Profile of the judiciary 30 Types of judge 32 Judicial appointments 35 Judicial animation of the law 37 Battle of the law- makers 38 The judiciary and the administration of the courts 43 Judges and communicating with the public 45 The training of judges 45 Judicial independence 46 Judicial impartiality 48 Removal of judges from office 53 Magistrates 54 Magistrates and popular justice 57 Further reading 59 3 Lawyers 61 The legal profession 63 Lawyers and fees 65 A fusion of the professions 67 Solicitors 67 New forms of organisation for lawyers 71 The Chartered Institute of Legal Executives 72 vi How the Law Works Barristers 73 Other help in the courtroom 79 Legal claims against lawyers 79 The proliferation of lawyers 82 Further reading 84 4 Cases and the Courts 85 Cases that changed the law 85 The common law system 90 The hierarchy of the courts 94 Human rights 105 Further reading 109 5 Case Technique 111 Titles 111 Ratio decidendi 112 Obiter dictum 113 Overruling 116 Distinguishing 117 Judicial development of the law 121 Dissenting judgments 127 Law reporting 128 News reporting 131 Judging the system of precedent 132 Further reading 134 6 Interpreting Acts of Parliament 135 A danger due to the state of the premises 138 The rules of interpretation 139 Other aids to interpretation 144 Human rights and interpreting UK law 149 The European context 152 Statutory interpretation, justice and truth 156 Further reading 162 7 Types of Law 163 Common law and civil law 164 Common law and equity 165 Common law and statute law 168 Public law and private law 169 Contents vii Criminal law and civil law 173 Further reading 188 8 The Jury 189 The law of juries 191 When juries are used 192 Majority verdicts 197 Judges as jurors 199 Tale 1: The seancers’ tale 200 Tale 2: The astrologer’s tale 203 Tale 3: The peace campaigners’ tale 204 Tale 4: The recusant’s tale 206 Tale 5: The madame’s tale 207 Tale 6: The avenger’s tale 208 Tale 7: The expert’s tale 208 Tale 8: The bonded juror’s tale 210 Tale 9: The cougher’s tale 211 Tale 10: The smoker’s tale 212 Tale 11: The crime fighters’ tale 213 Tale 12: The optimist’s tale 215 A verdict 215 Further reading 216 9 Language and Law 217 Latin and the law 219 Punctuation 223 Legal words that have become common 226 Names 227 Profane language 231 Conciseness 233 Arcane legal words and phrases 234 Further reading 237 10 Miscellany 239 Ten legal literary classics 239 Ten remarkable witnesses 243 Ten great lawyers 246 Ten classic cases of courtroom misconduct 249 Ten great films for those interested in law 251 Ten classic law school witticisms 257 viii How the Law Works Ten classic judgment openings 259 Ten classic legal mistakes 262 Ten remarkable pieces of evidence 264 Ten remarkable passages of judicial prose 267 Glossary of Terms 271 Notes 281 Bibliography 291 Table of Cases 295 Table of Legislation 299 Index 303 Preface Today law is a popular subject at universities and colleges. Although people who study subjects like mathematics, music, biology or history will have studied them before while at high school, and know something of the elements and methods of their chosen subject, that is not true of those who study law as a specialist subject. This book is aimed at introducing the subject to newcomers. It has also been written to be of use as a continuing companion to legal study, and of being helpful, I hope, to other citizens. The number and range of law books, law reports and legislative volumes in the library has grown considerably over the years. In his inaugural lecture at Oxford on 21 April 1883, the distinguished constitutional lawyer A.V. Dicey noted that even until well into the nineteenth century it was possible for a person to read the entirety of English law within the compass of an ordinary adult life. It could be contained in fewer than 200 volumes. Today, an earnest reader would probably need to live for over 600 years to read all law and regulations applicable in the United Kingdom. Whether that would be the most edifying way to spend a 600-year life is another matter. This book is about both the hardware and software of law. It is about the tangible parts of the enterprise, like lawyers, judges, the dramas of courtrooms, and juries – the hardware. It is also about the theories inexplicitly, and thus invisibly, relied on in law when, for example, cases are analysed or legislation is interpreted and applied – the software. In 1846, a parliamentary committee on legal education urged in a report that law be taught more animatedly and more widely. But five years after it published that report, another committee discovered that not only had no one done anything about the proposal, no one had even read the report! There was dust on the pages whose obscured writing complained that law was a dusty subject. Law continued to be seen widely as a subject of limited importance and as some- thing for a social elite. In 1948, in his inspiring Presidential Address to the Society of Public Teachers of Law, W.T.S. Stallybrass accepted that law was a fit subject to be studied at universities. He made many perceptive suggestions, some very advanced for the time, about how best legal education should be carried out. x How the Law Works However, he accepted the then prevailing notion that a law faculty should provide the sort of liberal education equated with ‘a gentleman’s knowledge’. He did not accept that the subject should include any analysis or criticism of the policies embodied in legal doctrines or in the operation of legal principles.