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Uk Laws


UK laws can be created through common law. Common law has been defined as law, which is created by judges and developed on a case-by-case basis’ . There is a question of fact and a question of law in every case. The legal definition of facts is the content of the law . In other words, facts are the substance in a legal issue. An example of this would be whether the defendant signed the contract. Whereas law may be defined as a set of rules created by elected bodies or judges, which carry sanctions or fines if the law is not followed. This essay will discuss the differences between facts and law, and their relative importance in common law.

Distinction between facts and law

One distinction that can be drawn between facts and law is a question of fact tends to be easier to agree on than a question of law. For example, in the case L’estrange v F Graucob ltd [1934] , the facts of the case are concerned with whether the claimant had signed the written agreement, in this case the claimant had signed the document, while the law is concerned with whether the signature means the terms were incorporated into the contract. Maugham LJ, the dissenting judge in this case, stated in his judgement if a party has signed a written agreement it is irrelevant to question his liability, that may have been excluded in the contract, based on the fact that he did not read the terms and does not know its contents . A later but similar example is Curtis v chemical cleaning and dyeing co [1951] , the facts of the case was the claimant signed the contract because she was told by an employee it exempts the company’s liability for beads and sequins only. The facts of the case are easy to determine, it is simply a question of whether the claimant signed the document exempting liability. However a question of law is more complex, in this case, the judges had to determine whether the liability would still be exempt even though there was a misrepresentation.

Another distinction between facts and law is that over time the facts remain the same whereas the law or what is considered lawful changes along with changing social views. An example of this is seen in the case of R v R [1991] . In the mid-eighteenth century (prior to this case) sir Matthew Hale commented

“A husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given herself up in this kind unto her husband which she cannot retract”.

At the time Sir Matthew Hale made that comment marital rape was clearly not seen as a bad thing. There was inequality between the genders and the law reflected this. As the common law is developed by judges on case-by-case basis, this law remained until it was challenged in R v R [1991]. Lord Keith in his judgement in R v R quoted Sir Matthew Hale’s proposition and said, “The common law is, however, capable of evolving in the light of changing, social, economic and cultural developments. Hale’s proposition reflected the state of affairs in these respects at the time it was enunciated” he went on to say, “Any reasonable person must regard [Hale’s proposition] as quite unacceptable” At this point women’s status had improved and at the time the case came to court, it was considered unacceptable to rape your wife. As a result, the judges changed the law to reflect society’s values and criminalised marital rape.

Possible similarities between facts and law

Some academics may argue facts make law. Mark Greenberg wrote an article on how facts makes law, he stated that “it is possible for social facts alone to determine what the law is, and even when they make value facts relevant, social facts do the fundamental work in making the law what it is”. Here he is saying that social facts are the main determiner of law and even when value facts are relevant, social facts are still primarily the makers of the law and determining what it is. Therefore referring only to Greenberg’s article, there may be little to no distinction between facts and law in common law.

Relative importance of facts and law

As a result of common law being decided on a case-by-case basis, the principal of stare decisis was introduced which translates to “to stand on decided cases” to oblige judges in the lower courts to decide like-cases in the same way. The lower courts are bound by the higher court’s (Supreme Court, Court of Appeal) previous decisions. It is decided if there is binding precedent by looking at the facts of the case and then applying the binding precedent (law). Without facts and law in common law, stare decisis would not be possible. The importance of having precedent is that it creates certainty within the law; this means it enables the public to be able to predict the limits the law places on themselves and other members of the public and governmental behaviour. An example of this is the case of London tramway co v LCC [1898] where Lord Halsbury claimed that all courts, including House of Lords should be bound by their decision in order to keep the law rigid and consistent . However, this was criticised by others because it could create injustice within the law in certain cases. Lord Halsbury acknowledged this inflexibility could produce unjust decisions for some cases because it would not allow the common law to adapt and develop to meet changing social views.

Facts and law are important in common law because make up precedent which in turn allows for the practice statement to be effective. The practice statement 1966 was issued on the 26th July by the Lord Chancellor to allow the House of Lords (now Supreme Court) to depart from its previous decisions to avoid injustice in some cases and to enable the development of common law to reflect changing social views. The facts are crucial in common law because without the facts the judges would not know when it is right to depart from their previous decisions. Prior to the practice statement, the House of Lords were reluctant to depart from previous decisions in order to create absolute certainty within common law, this was known as the London Tramways rule, the rule was abolished in 1966 when the practice statement was issued. In the case of R v R if the House of Lords were not able to depart from previous decisions, the act of raping your wife would be legal until parliament passed an act to criminalise it. This would not allow the common law to develop over time to reflect social views instead would only reflect the views held in the past. The practice statement gives the law flexibility to deal with every situation to guarantee justice in each particular case.

Disadvantage of facts and law

A disadvantage of common law is that in order for judges to change a law, the case must be brought to court. This is a disadvantage because in terms of cultural and social changes, it would be unknown at which point in time the actions became unacceptable and the law effectively changed therefore it is not clear to individuals at the time of the crime whether their actions are unlawful or not until the case is presented to the judges. This was seen in the case of R v C [2004] , where the defendant had been convicted in 2002 of raping his wife. The rape had occurred in 1970, prior to the case of R v R [1991] . C argued that although the law had changed prior to R v R, it had not changed at the time he raped his wife. The question of law for the court of appeal was did the law change before or after the time of the offence; this could essentially leave many men exposed to prosecution. Without facts and law and no binding precedent, the judges would not have to question at which point the law changed, it would have simply changed as social views changed. It would have been difficult for the defendant to argue marital rape was legal at the time, as it would have been based on social views, which a reasonable person at the time would have considered to be unacceptable. Conclusion

To conclude this essay has discussed the distinctions between facts and law and their importance in common law, facts and law are vital elements in common law, without the two, common law would cease to exist or be greatly criticised by others for the out-dated laws and injustice they cause. This essay explained the main difference between facts and law, but also explains how facts and law may not be as different as others would think. In addition, the essay has discussed the importance of facts and law in common law as well as a possible disadvantage of facts and law.

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