1. Introduction
The ELS has not been designed; it has grown. Over more than nine centuries, monarchs, noblemen, judges, church leaders, Parliament and the public have each, in turn, shaped its institutions. Before we tour that history (Chapter 2), this first chapter sets out the foundational vocabulary every SQE1 candidate must command from memory.
You will soon discover that the English Legal System is unique. Much of its tradition is still visible in the wigs and gowns of advocates, in the formality of the courts, and in the way modern statutes still speak in long, conditional sentences. Over time, more modern ideas — human rights, devolution, technology — have had to be absorbed into the system, and that has not always been easy.
The SQE1 examines whether candidates can apply the law to a client scenario. Before you can apply, you must first classify. A claimant who has lost £8,000 to a builder needs civil advice in contract or tort; a person accused of stabbing another needs criminal advice. Every chapter that follows assumes you can place a problem in the right box.
2. What is Law?
Law is the system of enforceable rules by which the state regulates conduct within its territory. It is different from morals, ethics or social custom because the state can compel compliance through the courts.
Since we are looking at the law in the context of the ELS, your first question might be: why do we not call it the British Legal System? In fact the other parts of the United Kingdom — Scotland and Northern Ireland — have their own separate legal systems. There are historical reasons for this, arising from the process by which the four nations unified into the United Kingdom over several hundred years. For the SQE1 you are tested only on the law of England and Wales.
(i) Law vs Morals — both regulate conduct, but only law is enforceable through the courts. Murder is both immoral and unlawful; breaking a promise to call a friend is immoral but not unlawful.
(ii) UK vs ELS — the UK has three legal systems (England & Wales, Scotland, Northern Ireland). The SQE tests only the ELS.
(iii) Common law vs Civil law family — the ELS is a common law jurisdiction; Scotland and most of continental Europe are civil law jurisdictions.
3. Different Types of Law
The law can be classified in several different ways. Understanding these classifications is essential for the SQE: assessment questions frequently require you to identify the correct classification of a legal issue from a client scenario.
1.3.1 Statute Law v Case Law
Most law in the ELS comes from two main domestic sources: statute law (legislation made by Parliament) and case law (the body of legal principles developed by judges in decided cases).
1.3.2 Criminal Law v Civil Law
Criminal law deals with offences — wrong acts that, according to the legal system, are serious enough to affect society as a whole. Where a person commits a crime, the state prosecutes the defendant, who is described as being 'guilty' if convicted. Punishment may include a fine, community order, or imprisonment.
Most criminal offences today are defined by statute, but some remain governed solely by the common law. Murder, for example, is a common law offence: its definition derives from case law rather than from any Act of Parliament.
Civil law, by contrast, encompasses all law that is not criminal. It gives individuals and companies rights and obligations as against one another: a duty not to cause harm, to honour contracts, to respect property, and so on. The claimant (not the state) brings the action against the defendant. The court's role is not to punish but to require the wrongdoer to put things right — typically through damages (monetary compensation) or by injunction.
| Aspect | Criminal Law | Civil Law |
|---|---|---|
| Parties | State (R / Crown) v Defendant | Claimant v Defendant |
| Standard of proof | Beyond reasonable doubt | Balance of probabilities |
| Outcome | Guilty / Not guilty | Liable / Not liable |
| Remedies | Fine, imprisonment, community order | Damages, injunction, specific performance |
| Purpose | Punish offender; protect society | Compensate claimant; restore position |
| Example | R v Smith (theft prosecution) | Jones v Brown (negligence claim) |
A single factual incident can give rise to both types of proceedings. A drunk driver who injures a pedestrian may be prosecuted in the magistrates' court or Crown Court (criminal) and separately sued in the County Court or High Court (civil). The civil claim may succeed even if the criminal prosecution fails, because the civil standard is lower.
1.3.3 Public Law v Private Law
Public law concerns disputes between the state and individuals (or the exercise of state power). It includes constitutional law, administrative law, criminal law and human rights. Judicial review proceedings — where individuals challenge decisions of public bodies — are a core example of public law.
Private law concerns disputes between private parties (individuals, companies or organisations) where the state is not a party. It includes the law of contract, tort, property, trusts and family law.
| Aspect | Public Law | Private Law |
|---|---|---|
| Parties | State v individual / official body | Private party v private party |
| Sub-branches | Constitutional, administrative, criminal, human rights | Contract, tort, property, trusts, family |
| Example | Judicial review (CPR Part 54, Administrative Court) | Negligence claim in County Court |
| Court / forum | Administrative Court (KBD) | County Court / KBD / ChD |
| Time limit | Promptly, in any event within 3 months | Generally 6 years in contract / tort |
1.3.4 Substantive Law v Procedural Law
Substantive law defines the legal rules themselves — the rights, duties and obligations that govern conduct. For example, the offence of murder is defined by substantive law: there must be an unlawful killing with the intention to kill or to cause grievous bodily harm.
Procedural law governs how the substantive law is applied and enforced. It provides the framework of rules, for example the police powers of detention under the Police and Criminal Evidence Act 1984 ('PACE'), the admissibility of evidence, or the rules governing how a trial is conducted under the Criminal Procedure Rules ('CrimPR') or the Civil Procedure Rules ('CPR').
① Statute v Case law — two domestic sources; statute prevails.
② Criminal v Civil — state v defendant vs claimant v defendant; beyond reasonable doubt vs balance of probabilities.
③ Public v Private — state involvement vs private dispute; admin court vs ordinary civil courts.
④ Substantive v Procedural — WHAT the law is vs HOW it is applied.
4. Key Notes (Chapter Summary)
The following summary table consolidates every term and rule examined in this chapter. Treat it as a revision checklist — you should be able to define each row from memory and give one example.
| Item | Concept | Cases / References |
|---|---|---|
| ELS | Law of England and Wales — not Scotland, not NI. A common law system in which judicial precedent plays a significant role alongside legislation. | — |
| What is law? | System of rules a country recognises as binding on those within its territory, enforceable through the courts. | — |
| Statute Law | Made by Parliament — Acts of Parliament. Highest form of law in the ELS; prevails over case law in conflict. | Parliament Act 1949; Consumer Rights Act 2015 |
| Case Law | Derived from the legal principles in judicial decisions. Also called 'common law' or 'precedent'. | Donoghue v Stevenson [1932] AC 562; Rylands v Fletcher (1868) LR 3 HL 330 |
| Criminal Law | Offences that affect society. The state prosecutes. Standard: beyond reasonable doubt. | Theft Act 1968; R v R [1992] 1 AC 599 |
| Civil Law | Rights and duties between private parties. Private action. Standard: balance of probabilities. | Contracts (Rights of Third Parties) Act 1999 |
| Public Law | Disputes between the state and individuals — criminal, constitutional and administrative law. | — |
| Private Law | Disputes between private parties — contract, tort, property, family law. | — |
| Substantive Law | Defines legal rules, rights and obligations. | — |
| Procedural Law | Governs how substantive law is applied and enforced. | CPR; CrimPR; PACE 1984 |
5. MCQ Practice — Five SQE-Style Questions
Each of the following five questions mirrors the style, length and difficulty of the SQE1 FLK1 single best answer questions. Attempt each question closed-book, write down your answer, then turn to the answer key. The answer key explains why each option is correct or incorrect — read every explanation in full.
A. A body of rules that people living in the country are expected to follow voluntarily and which guide their moral conduct.
B. A body of enforceable rules which the state recognises as binding on those within its territory and which it can compel people to keep.
C. A set of values, customs and ethical principles which citizens of the country are expected to observe.
D. The written rules contained in Acts of Parliament, which every citizen must obey.
E. The decisions of senior judges that people in the country are required to follow in their daily lives.
Answer & explanation
B is correct — law is a body of enforceable rules recognised as binding on those within the territory and backed by state coercion. That is what distinguishes law from morals, ethics or custom.
A is incorrect — compliance with law is not voluntary.
C is incorrect — values, customs and ethical principles are not law.
D is incorrect — law in the ELS is found in both statute and case law, not only in Acts of Parliament.
E is incorrect — case law is only one of two principal domestic sources of law. (See Section 1.2.)
A. Case law is the highest form of law in the ELS and takes precedence over an Act of Parliament.
B. Acts of Parliament and case law have equal status, and the court must seek to reconcile them.
C. An Act of Parliament automatically repeals all inconsistent case law without any further action by the courts.
D. Statute law is the highest form of law in the ELS, and where statute and case law conflict, the statute prevails.
E. Case law continues to apply in priority to a later inconsistent statute unless the statute expressly refers to the earlier case.
Answer & explanation
D is correct — statute law is the highest form of law in the ELS; where a statute conflicts with earlier case law, the statute prevails (an aspect of parliamentary supremacy).
A is incorrect — case law is not the highest form of law.
B is incorrect — statute and case law do not have equal status.
C is incorrect — an Act does not 'automatically repeal' all inconsistent case law in the abstract; the courts apply the statute in subsequent cases, effectively displacing the earlier rule.
E reverses the correct hierarchy. (See Sections 1.3.1 and 1.4.)
A. Criminal law, because the neighbour has damaged another person's property.
B. Public law, because the dispute concerns land and property rights.
C. Civil law, because this is a dispute between private parties concerning compensation.
D. Procedural law, because the homeowner wants to know how to bring a claim.
E. Constitutional law, because property rights are protected under the common law.
Answer & explanation
C is correct — a dispute between two private parties about property damage and compensation is a civil matter (typically a claim in the tort of nuisance or negligence).
A is incorrect — the state is not prosecuting an offence, so it is not criminal.
B is incorrect — public law concerns the state's relationship with individuals, not private neighbour disputes.
D is incorrect — the classification of the dispute (civil) is a matter of substantive law; procedure addresses how the claim is pursued, which is a secondary question.
E is incorrect — this is an ordinary private dispute, not a constitutional issue. (See Sections 1.3.2 and 1.3.3.)
A. Substantive criminal law, because the client has been charged with a criminal offence.
B. Civil law, because the client is seeking legal advice from a solicitor.
C. Procedural law, because the issues concern the rules by which the court proceedings are conducted.
D. Private law, because the solicitor is advising a private client.
E. Public law, because the magistrates' court is a public body.
Answer & explanation
C is correct — the rules governing the admission of evidence and the calling of witnesses are rules of procedural law (found in the Criminal Procedure Rules, PACE 1984, and related authorities).
A is incorrect — while the underlying charge engages substantive criminal law, the trainee's specific question concerns procedure.
B is incorrect — a criminal charge is not a civil matter.
D is incorrect — the public/private distinction is not what the trainee's question turns on.
E is incorrect — the fact that the court is a public body does not make the question one of public law. (See Section 1.3.4.)
A. The offence of murder does not in fact exist in English law unless Parliament enacts legislation defining it.
B. Murder is defined by European Union law, which continues to apply in England and Wales.
C. Murder is a common law offence: its definition has been developed and refined through case law, which the courts continue to apply.
D. The offence of murder can only be prosecuted if the defendant agrees that the common law definition applies to their case.
E. Murder is governed by the Criminal Procedure Rules, which set out both the definition of the offence and the procedure for prosecuting it.
Answer & explanation
C is correct — murder is a common law offence: its elements (unlawful killing of a human being, with intent to kill or to cause grievous bodily harm — confirmed in R v Cunningham [1982] AC 566) have been developed by the courts through case law and continue to be applied.
A is incorrect — the offence exists at common law without the need for statutory definition.
B is incorrect — murder is not governed by EU law.
D is incorrect — the defendant's consent is irrelevant to whether the common law definition applies.
E is incorrect — the CrimPR are rules of procedure; they do not define substantive offences. (See Section 1.3.2 and SQE Exam Tip.)