The nature of law
This section covers the legislative process in Parliament, the use and control of delegated legislation, the rules and approaches of statutory interpretation, the doctrine of judicial precedent, and the various influences on law reform, including the Law Commission.
Topic Overview
The nature of law is a foundational topic in OCR A-Level Law that explores what law is, its purpose, and how it differs from other rule systems. You'll examine legal philosophy, including natural law and legal positivism, and consider the relationship between law and morality, justice, and society. This topic sets the stage for understanding how laws are created, interpreted, and enforced within the UK legal system.
Understanding the nature of law is crucial because it underpins every other area of legal study. It helps you critically evaluate whether a law is 'good' or 'just', and why we obey laws. This topic also connects to concepts like the rule of law, parliamentary sovereignty, and human rights, which appear across the OCR specification. Mastery here will strengthen your ability to analyse and evaluate legal scenarios in exams.
In the wider subject, the nature of law provides the theoretical lens through which you view substantive law (e.g., criminal, tort, contract). It encourages you to think like a lawyer: questioning the source of legal authority and the moral foundations of legal rules. This topic is assessed in Paper 1 (The Legal System) and can also appear in synoptic questions across all papers.
Key Concepts
Core ideas you must understand for this topic
- →Natural law theory: Law is derived from universal moral principles; an unjust law is not a true law (Aquinas, Fuller).
- →Legal positivism: Law is a social construct, separate from morality; validity comes from proper enactment (Austin, Hart).
- →The rule of law: No one is above the law; laws must be clear, prospective, and applied equally (Dicey's principles).
- →Law and morality: The overlap and distinction between legal rules and moral rules; examples like assisted suicide or theft.
- →Legal personality: Who or what can have rights and duties under the law (e.g., humans, companies).
What You Need to Demonstrate
Key skills and knowledge for this topic
- Legislative process stages in the House of Commons and House of Lords
- Types of Bills (Public, Private, Private Members, Hybrid, Ten-minute rule)
- Types of delegated legislation (Orders in Council, Statutory Instruments, By-laws)
- Parliamentary and judicial controls on delegated legislation
- Rules of statutory interpretation (literal, golden, mischief)
- Purposive approach to interpretation
- Intrinsic and extrinsic aids to interpretation
- Doctrine of precedent (stare decisis, ratio decidendi, obiter dicta)
Marking Points
Key points examiners look for in your answers
- Legislative process stages in the House of Commons and House of Lords
- Types of Bills (Public, Private, Private Members, Hybrid, Ten-minute rule)
- Types of delegated legislation (Orders in Council, Statutory Instruments, By-laws)
- Parliamentary and judicial controls on delegated legislation
- Rules of statutory interpretation (literal, golden, mischief)
- Purposive approach to interpretation
- Intrinsic and extrinsic aids to interpretation
- Doctrine of precedent (stare decisis, ratio decidendi, obiter dicta)
- Court hierarchy and its relevance to precedent
- Methods of dealing with precedent (overruling, reversing, distinguishing)
- Influences on law reform (political, public opinion, media, pressure groups, Law Commission)
Examiner Tips
Expert advice for maximising your marks
- 💡Ensure you can support each type of delegated legislation with a specific example
- 💡When discussing judicial precedent, be prepared to explain the civil and criminal court hierarchies
- 💡Use relevant case law to illustrate types of precedent and judicial methods
- 💡For law reform, focus on specific influences and provide supported examples of Acts they have brought in or amended
- 💡Understand the role of the Law Commission and their working process
- 💡Tip 1: When evaluating theories, always use specific case examples (e.g., the Nazi law example for positivism vs natural law). This shows depth and application.
- 💡Tip 2: For 'discuss' or 'evaluate' questions, structure your answer with clear paragraphs: explain the theory, give strengths, then weaknesses, and conclude with a balanced judgment.
- 💡Tip 3: Use legal terminology precisely (e.g., 'validity' not 'correctness'; 'promulgated' not 'published'). This demonstrates subject knowledge and impresses examiners.
Common Mistakes
Pitfalls to avoid in your exam answers
- Providing overly detailed accounts of the Parliament Acts 1911 & 1949
- Including unnecessary detail on pre-legislative procedures in either House
- Covering commencement of legislation
- Providing excessive detail on procedures, locus standi, or remedies for judicial review
- Attempting to explain influences on law reform in more than outline detail
- Misconception: 'All laws are based on morality.' Correction: While some laws reflect moral views (e.g., murder), many laws are morally neutral (e.g., driving on the left). Positivists argue law and morality are separate.
- Misconception: 'The rule of law means everyone is equal.' Correction: The rule of law requires equal application of law, but substantive inequalities (e.g., wealth) can affect access to justice. It's about procedural fairness.
- Misconception: 'Natural law is the same as religious law.' Correction: Natural law can be secular (e.g., based on reason) as well as religious (e.g., divine command). Aquinas integrated both, but modern theorists like Fuller focus on procedural natural law.
Revision Plan
How to revise this topic in 1–2 weeks
- 1Week 1, Day 1-2: Read your textbook section on the nature of law. Make notes on natural law and legal positivism, including key theorists (Aquinas, Fuller, Austin, Hart).
- 2Week 1, Day 3-4: Focus on the rule of law. Write out Dicey's three principles and find a current news example where the rule of law was challenged (e.g., government lockdown rules).
- 3Week 1, Day 5-6: Explore law and morality. Create a table comparing legal and moral rules, and list five behaviours that are illegal but not immoral (e.g., parking on a double yellow line) and vice versa.
- 4Week 2, Day 1-2: Practice past exam questions. Start with a 10-mark 'explain' question on natural law, then a 25-mark 'evaluate' question on whether law should reflect morality.
- 5Week 2, Day 3-4: Use active recall: cover your notes and try to explain each key concept out loud. Use the prompts in this guide to test yourself.
- 6Week 2, Day 5-7: Review your answers against mark schemes. Identify weak areas and re-read those sections. Create a one-page summary of the entire topic.
Exam Question Types
How this topic typically appears in the exam
- 📋Short answer questions (e.g., 'Explain what is meant by legal positivism.'): Be concise and define key terms. Use a theorist's name and a brief example.
- 📋Essay questions (e.g., 'Evaluate the view that law and morality are separate.'): Structure with introduction, arguments for and against, and a reasoned conclusion. Use cases like R v Brown (morality) or the Hart-Devlin debate.
- 📋Scenario-based questions (e.g., 'A new law requires all citizens to wear a tracking device. Discuss whether this law is valid according to natural law and positivism.'): Apply theories to the facts. Show how each theory would judge the law's validity.
- 📋Synoptic questions (e.g., 'How does the nature of law relate to the concept of parliamentary sovereignty?'): Link topics across the specification. Explain how positivism supports sovereignty, while natural law may limit it.
Command Word Expectations (OCR)
What examiners look for when using specific command words in this specification
Provide a clear, detailed account of a concept, theory, or principle. Include key definitions, relevant theorists, and examples. No evaluation is required unless specified. Aim for precision and depth.
Assess the strengths and weaknesses of a theory or statement. Present balanced arguments, use case examples, and reach a reasoned conclusion. The best answers show critical analysis and weigh competing perspectives.
Similar to evaluate, but may require more exploration of different viewpoints. You should consider arguments for and against, and come to a conclusion. Use legal authorities and academic opinions to support your points.
Active Recall Memory Test
Test your memory before revealing the key facts
Frequently Asked Questions
Common questions students ask about this topic
Before You Start
Prior knowledge that will help with this topic
- •Basic understanding of the UK legal system (courts, Parliament, sources of law).
- •Familiarity with key legal concepts like justice, rights, and obligations.
- •Some awareness of moral philosophy (e.g., utilitarianism, deontology) is helpful but not essential.
Likely Command Words
How questions on this topic are typically asked
Ready to test yourself?
Practice questions tailored to this topic