Categories of law

<v ->So why do we need to categorise?</v> Well, the answer lies in the fact that taken as a whole, the volume and sheer complexity of the law can be bewildering. The law reaches into almost every conceivable area of our lives. It has multiple sources, multiple authors. There are hundreds of Acts passed by legislatures, thousands of statutory instruments made by officials and countless court decisions. And this big body of law doesn’t stand still. It is also constantly developing as new legislation is passed and new decisions are handed down by our courts. Some of our legal questions involve these new laws, but they can also involve legislation or court decisions that are many years or decades old.

When faced with complex material, it’s frequently helpful to categorise it, in other ways to divide it into categories and subcategories. Let’s begin with an everyday example. Imagine your wardrobe, which is full of clothes. If your clothes are just in one big undifferentiated pile on the floor of the wardrobe it’s going to be much more difficult and really time consuming to work out what clothes you have, which ones are clean, where they are and which you would like to wear on any particular day. These decisions will be much simpler if your wardrobe is well-organised, but how should you achieve that?

Now it might well be logical to organise by brand of clothes or perhaps by colour of your clothes, or perhaps by the season, whether they’re clothes for the spring, summer, autumn, or winter. However, not all of these approaches are useful. Their usefulness actually depends on why we might want to organise our clothing, and this might vary from person to person. Now it certainly seems likely that most of us need a tidy wardrobe to help us decide what to wear, to find the items we’ve chosen, and then to get dressed.

Now on a normal day, most of us need one of each item: underwear, trousers or a skirt, and then a top. Therefore ordering by type of item will fulfill that function well in a way that ordering by for example, colour, might not. But probably nobody would find organising by brand particularly helpful. Now you’re not here of course, to learn about ordering your wardrobe at home. This is a course about learning law. Even so, I think we can draw an important lesson from this everyday example of the wardrobe. Good categories need to be logical and coherent, but they also need to be useful. And this is equally true of categorisations or perhaps classifications of the law.

Now, if we turn to think about our law, remember, of course, we’ve got a big body of rules to put into order, then there are several approaches to classifying the law that would make logical sense. Now these include perhaps organising the law chronologically, going from the oldest laws to the most recent. Or perhaps we could organise by the source of law. We could categorise according to primary legislation, secondary legislation and case law handed down by the judges. Or perhaps we could organise legislation and case law alphabetically, going from A to Z, according to the legislations title or the cases name.

But if you think about it, none of these approaches that I’ve just mentioned to classification is a particularly useful or illuminating category if we come to think about why we might need to be able to access the law. Above all, it’s essential that individuals, whether that’s you or me or legal professionals, such as solicitors and barristers can understand which legal rules are relevant to any particular set of circumstances. For example, if I’m involved in an accident, I need to know the law relevant to that kind of situation.

We need to have easy access to the relevant law so that we can understand our rights and our duties so that we can understand what we legally must or may do or what we’re legally entitled to demand from other people. Equally, if the law is categorised appropriately, then that can help people, especially students, when it comes to learning the law. A good approach to classification can help people navigate their way around the legal rules more easily. Now good approaches to categorisation can also help critical reflection on the law by academics or by those who might more practically be concerned to consider how it should be reformed.

Now in the light of all of this, probably the most immediately accessible and practically useful way of categorising the law would be to divide the subject matter contextually. The law is after all, fundamentally concerned with the human world, it provides an essential framework that underpins the operation of our society, of our economic activities and our governance. This means that it is certainly practically useful to gather together relevant law, according to the different activities or institutions or problems for which the relevant law provides a framework or solution, such as family law, environmental law, tax law, perhaps employment law, banking law, company law, planning law, and perhaps intellectual property law that’s concerned with copyright, for example.

Now textbooks have been written on all of these separate areas, both for students and for legal professionals to use. Law degrees will typically contain courses devoted to many of these contextual areas. Legal professionals will also describe their professional expertise in terms of one or more of these contextual categories. Nevertheless, this sort of contextual classification isn’t actually the only possible classification. Other classifications can be valuable too because they help to highlight distinguishing features of different areas of law. Now, one other particularly helpful way of categorising our law involves a threefold division between private law, public law and criminal law. In fact, we think this division is so useful that it forms the structure for later weeks of this course.

The value of this three fold division is that it reflects and helps to highlight some fundamental differences in the nature of the different parties involved, their legal relationships and the differences between the purposes of the relevant categories of law. So if we think about the parties potentially involved in a legal dispute, we have on the one hand individuals, including companies; and on the other hand, we have the state. Now their legal relationships might take one of three main forms, which correspond to the three important categories that we call private law, public law and criminal law. Let’s explore each of these.