English Legal System · Chapter 1

What Is Law?

Introduction

Whether you are British or not, you will soon discover that the English Legal System is unique, having developed gradually over more than a thousand years. This first chapter introduces the foundations: what is law, why the system is called the English (and Welsh) Legal System, and the four key classifications of law you must master for SQE1 FLK1 — statute v case law, criminal v civil, public v private, substantive v procedural.

Assessment focus

For the SQE1 FLK1 assessment, you need to understand the foundational concepts of the English Legal System ('ELS'), including the different types and sources of law. You should be able to distinguish between criminal and civil law, statute law and case law, public and private law, and substantive and procedural law. Questions in the SQE1 FLK1 are single best answer questions (SBAQs) set in realistic client-based scenarios; you will be expected to apply these classifications rather than simply recall definitions. This is a closed-book assessment — ensure you can recall the core concepts, distinctions and examples from memory.

Study tips

1) Memorise the definition of law (system of rules recognised as binding and enforceable). 2) Remember the hierarchy: where statute and case law conflict, statute prevails (parliamentary sovereignty). 3) Note that some criminal offences (notably murder) remain common-law offences — not every offence is statutory. 4) Master the 5-row comparison table for criminal vs civil (parties / standard of proof / outcome / remedies / purpose). 5) Substantive v procedural: substance answers «what is the law?», procedure answers «how is the law applied?».

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.

Key point
Why does the SQE care about this chapter?
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.

LawThe system of rules that a country recognises as binding on the people within its territory, enforced through the courts and subject to sanction where broken. Law is distinct from morals or ethics, which are voluntary standards of conduct rather than enforceable rules.

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.

English Legal System (ELS)The legal system that operates in England and Wales. Scotland has its own distinct legal system drawing on civil (Roman) law traditions (preserved by the Acts of Union 1707), and Northern Ireland also has a separate, predominantly common-law-based system. The ELS is itself a common law system: judicial precedent (case law) plays a significant role alongside legislation.
Key point
Three things often confused:
(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.
Key Notes for Section 1.2: ① Law is enforceable rules; ② ELS = England + Wales only; ③ Scotland (Roman/civil tradition) and Northern Ireland are separate legal systems; ④ ELS is a common-law system: case law has a significant role alongside statute.

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).

Statute LawLaw made by Parliament through Acts of Parliament (also called primary legislation). Statute law is the highest form of law in the ELS: where statute law and case law conflict, statute law prevails. Acts of Parliament are published on the official UK legislation website (legislation.gov.uk).
Case LawLaw derived from judgments given by judges in decided cases. The reasons for judicial decisions become legal principles which judges in later cases must follow under the doctrine of judicial precedent. This is often called the 'precedent system' or the 'common law system'. Case law is published in law reports and on legal databases such as Westlaw and LexisNexis.
Key point
The hierarchy rule — where statute and case law conflict, statute prevails. This reflects the doctrine of parliamentary sovereignty: Parliament is the supreme law-making body and the courts must give effect to a clearly enacted statute even if it displaces an earlier judicial rule. The SQE tests this directly in single-best-answer style — see MCQ 2 below.

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.

Key point
SQE EXAM TIP — Remember that some criminal offences (notably murder, manslaughter, common assault and battery, kidnapping, false imprisonment, misconduct in public office, outraging public decency) are still defined by common law, not by statute. This is a frequent SQE examination point. Do not assume that all offences are set out in legislation.

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.

Criminal Law v Civil Law (★ must memorise)
AspectCriminal LawCivil Law
PartiesState (R / Crown) v DefendantClaimant v Defendant
Standard of proofBeyond reasonable doubtBalance of probabilities
OutcomeGuilty / Not guiltyLiable / Not liable
RemediesFine, imprisonment, community orderDamages, injunction, specific performance
PurposePunish offender; protect societyCompensate claimant; restore position
ExampleR 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.

Public Law v Private Law
AspectPublic LawPrivate Law
PartiesState v individual / official bodyPrivate party v private party
Sub-branchesConstitutional, administrative, criminal, human rightsContract, tort, property, trusts, family
ExampleJudicial review (CPR Part 54, Administrative Court)Negligence claim in County Court
Court / forumAdministrative Court (KBD)County Court / KBD / ChD
Time limitPromptly, in any event within 3 monthsGenerally 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').

Key point
SQE EXAM TIP — In the SQE, you may be asked to identify whether a particular legal issue is one of substantive or procedural law. Remember: substantive law tells you WHAT the law is; procedural law tells you HOW the law is applied and enforced.
Section 1.3 Key Notes:
Statute v Case law — two domestic sources; statute prevails.
Criminal v Civil — state v defendant vs claimant v defendant; beyond reasonable doubt vs balance of probabilities.
Public v Private — state involvement vs private dispute; admin court vs ordinary civil courts.
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.

Chapter 1 — Key Notes Summary
ItemConceptCases / References
ELSLaw 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 LawMade 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 LawDerived 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 LawOffences that affect society. The state prosecutes. Standard: beyond reasonable doubt.Theft Act 1968; R v R [1992] 1 AC 599
Civil LawRights and duties between private parties. Private action. Standard: balance of probabilities.Contracts (Rights of Third Parties) Act 1999
Public LawDisputes between the state and individuals — criminal, constitutional and administrative law.
Private LawDisputes between private parties — contract, tort, property, family law.
Substantive LawDefines legal rules, rights and obligations.
Procedural LawGoverns 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.

Question 1
A client visits a solicitor and asks, in general terms, what 'the law' actually is. Which ONE of the following statements BEST describes the nature of law in England and Wales?

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
Answer: B.
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.)
Question 2
A client is concerned that a judge, in an earlier reported decision, has developed a legal rule that now conflicts with a subsequent Act of Parliament. Which ONE of the following statements about the relationship between statute law and case law in the ELS is CORRECT?

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
Answer: D.
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.)
Question 3
A homeowner instructs a solicitor about a dispute with their neighbour. The neighbour's recent building works have caused cracks in the homeowner's garden wall, and the homeowner wishes to be compensated for the cost of repairs. Which classification of law is MOST relevant to the homeowner's claim?

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
Answer: C.
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.)
Question 4
A trainee solicitor is preparing a client's first appearance at the magistrates' court on a charge of assault. The trainee needs to determine how evidence will be introduced at the hearing and in what order witnesses will be called. Which type of law PRIMARILY governs these issues?

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
Answer: C.
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.)
Question 5
A client is charged with murder following a fatal altercation. The client's representative explains that there is no specific Act of Parliament that defines the offence of murder. The client is surprised and asks how, in that case, the offence can exist at all. Which ONE of the following BEST explains the legal position?

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
Answer: C.
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.)
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