8th December 2022
When I decided to start a Substack I also had to decide what to call it.
I could not call it “law and policy” as that is the name of this blog.
Dear old folkloric wizard “Jack of Kent” is safely dead and buried.
And so I settled on “law and lore” as that put together two things which not only interest me but also are more closely connected than many people realise.
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Let me explain.
Many of those reading this blog will not be lawyers and so have had little need to look up the raw black-letter texts of the law – in statutes, case reports and elsewhere.
Even those of you with the unfortunate affliction of being a lawyer, will not always have read the black-letter texts of every law about which you will have a view or an understanding.
And in society generally, a great deal of the law in practice is what people believe it to be – or should be.
“You cannot do that.”
“I cannot do that.”
“That is not allowed.”
“I have my rights.”
“Technically you are not allowed to do this.”
“Technically if you do this you don’t break a law.”
And so on.
Entire areas of law are, in practice, mini belief systems where people are confident about what the law is, free from ever looking it up: data protection, health and safety, consumer rights, Magna Carta.
And on the political plane, belief is (or was) a great deal of our uncodified convention: a general sense of balance and self-restraint.
This all fascinates me.
I have often wondered what an alien looking down would work out about our laws and legal system just by watching what people do and do not do.
Would such a Martian’s account correspond to what our legal texts say about the law?
And so my view is that to understand law in practice, one has to have an understanding of lore, which I see is helpfully defined online as “a body of traditions and knowledge on a subject or held by a particular group, typically passed from person to person by word of mouth”.
This is not to say that it is consciously invented: those with strong opinions about the law usually believe that they are actually correct.
Sometimes there is a close relationship between law and lore – in, for example, mercantile law, the practices of business folk often give rise to enforceable legal obligations.
And sometimes there are stark discrepancies: for example, data protection in practice often has no relationship with data protection as set out in law.
I would like to explore this distinction between law and lore more in future posts in particular areas.
Let me know if you have any ideas for subjects of such posts.
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It’s not practical for any one person to know all the law and case law that applies to them. Even the rather short highway code booklet is not known by most who it applies to.
It’s troubling that we have a system of codified behaviour with which we’re all expected to comply but which none of us can practically know.
Perhaps the biggest mismatch between lore and law is the fallacious concept of the ‘Common Law Marriage’. It is, of course, much written about but belief in it still persists to an astonishing degree
I look forward to seeing your content on Substack. I think you will enjoy that forum.
Related to your request for what people might like information on, I am interested in how ‘nuisance’ is handled in UK law and how it arose. I the U.S. nuisance is often the underpinning of environmental law and that has its pluses and minuses. I am curious if the UK experience is similar.
Thank you.
Occasionally in English cities you may pass an alley at the entrance of which, on its Victorian, soot-stained brick work you may read in beautifully seriphed calligraphy the admonition: “Commit no nuisance.” Translated, this means,”You may be so desperate that you are about to soak your trousers, but if you try to soak this wall instead, you’ll be up before the Beak before you can do your buttons up.”
Is that the kind of nuisance you had in mind?
Yes, among other things. The cases I’ve seen in the U.S. are related to early placement of pig farms and offal processors. Usually at the edge of a town. Then, as humans do, the town grows toward the nuisance and demands changes from the owners of the site producing the nuisance. I’ve also seen cases of being too noisy (from parties to aircraft flying overhead).
In your case, how did the nuisance of urinating on a building become a thing that people were prosecuted for and did that lead to other laws with a similar perspective, prevent or control an action because the harm it caused was indirect.
Thank you.
I’ll definitely be interested – and law and lore is a good approach.
It feels like it may also cover the difference between law and justice (and why we have a legal system rather than a system of justice – if that is true).
In a sense, common law is exactly lore – a body of traditions and knowledge passed on to a younger generation of lawyers who are reading, retelling, and reinterpreting the sooth sayings of an earlier generation of lawyers.
The more interesting bits of law are often those at the margins – resolving the two clauses that don’t quite meet, or which overlap in an unforeseen manner; reconciling the facts that don’t quite fit, or which could be viewed in one way from one angle, or another quite different way from another angle. It is rarely cut and dried. Telling the story in a helpful and convincing manner is often half the battle.
Yes, the practice of the law is often at some distance from the black letter law. Often for good reason – perhaps there are rough edges that need to be smoothed away – but sometimes because the body responsibly for administering the law – the FCA, or the ICO, or HMRC, or whoever – takes a view which is stronger than the law allows or weaker than the law requires, and it is often easier just to bend to the regulator’s view than to have the fight.
For those readers who haven’t come across it, HLA Hart’s Concept of Law is a great essay of related themes
https://books-library.net/files/books-library.online-02052042Jy2T4.pdf
“And sometimes there are stark discrepancies: for example, data protection in practice often has no relationship with data protection as set out in law”
This would be interesting and important, to my colleagues and me at least. GDPR has meant we have to complete on-line training sessions repeatedly/regularly, and I THOUGHT I (more or less) understood the legal obligations. Now I am worried I may not, since you single that one out for particular mention…
Test your understanding with this: an employee spots a perfectly lawful and GDPR compliant picture in a newspaper which happens to show a colleague in the background which proves that the colleague got time off on false pretences. If the employee emails a copy of that picture to a manager to support a disciplinary case against the pictured employee does the fact that this was a freely published picture mean that it can be freely used with no further consideration?
If you think the answer is “yes”, see https://ico.org.uk/for-organisations/guide-to-data-protection/guide-to-the-general-data-protection-regulation-gdpr/what-is-personal-data/what-happens-when-different-organisations-process-the-same-data-for-different-purposes/
Perhaps this is straying from the topic, but I’ve often wondered what makes people follow / obey a law.
This may seem an odd statement but to take a simple example, some people observe the speed limit when driving and some don’t. Although there are methods of enforcement (police, speed cameras etc), and penalties exist for exceeding the limit (fines, driving bans), observation of compliance isn’t always present.
So, if there is no method of enforcement in sight why do many drivers still respect the limit? Is it because “it’s the law”, a fear of being caught, or are there other influences which encourage this behaviour?
To take another driving example, driving under the influence of alcohol seems to be less common (thankfully) and this reduction seems to be as much from changing social attitudes as it is from legal enforcement.
And if social attitudes are an important influence, given these change over time what impact does that have on the creation and enforcement of law?
I think there are two factors that affect compliance apart from the risk of getting caught:
– whether people consider it ‘necessary’ (where I live, one-way street signs seem to be advisory)
– laws that people think are ‘for other people’ but not for them (bad cyclists who don’t follow the law complaining when others don’t).
I don’t think I’ve ever seen a cyclist complaining online about other road users’ behaviour while also saying that they personally don’t obey the law.
Road rules/law is particularly interesting in this regard as some of the Highway Code describes the law in ways that the layperson can understand it, wile other parts do not have legal weight (but if you cause an accident while not obeying those parts, that can be used against you).
I have (and I’m certainly not condemning all cyclists, by the way, just the idiots), most recently one complaining about cars parked on the pavement stopping him from going full pelt.
I think there is an element of ‘it won’t matter if it’s just me’, forgetting if they do it, others may follow.
I think you can see from the difference between rates of compliance with different laws. Disobeying speed limits is common, but traffic lights rare. People (correctly) feel that they are of different importance. Merely breaking a speed limit has little effect on road safety (if it was truly dangerous to break a speed limit, we’d set all limits to 10000mph), while running a red light carries significant risk of colliding with conflicting traffic.
The idea of “common law” marriage between people who have lived together in a relationship for some time. It seems to be a very common misconception, that AFAICT has no basis in the law of England, Wales and Northern Ireland.
But how did this mass delusion become so commonplace? Various surveys indicate that around 46% of adults believe in it.
How can the “lore” people rely upon for important life decisions be so wrong?
Serious legal analysis of Faustian bargains/Fey contracts.
Is there a fantastical equivalent of Unconscionability doctrine?
Perhaps a bit niche for you, but I think somewhat in your area of expertise: many procurement officials I have worked with believe that the law requires them to carefully track the volume of business that their authority (a university in my case) transacts with a particular supplier, because if the total volume exceeds a tender threshold over four years, that business must go out to tender. The law requires no such thing, but it’s much more practical to track spend-per-supplier than to do what the law actually requires, which is to prevent people subdividing large contracts into smaller ones to avoid going out to tender. But it’s become received wisdom that this is good practice, even though it leads to a huge amount of additional administration for routine purchases. “Better to be safe than sorry”, they say.
You say – “data protection in practice often has no relationship with data protection as set out in law”.
Would be interested to hear you expand on this.
My (limited) experience of this subject as a bank employee is that banks take compliance with DP law very seriously.
I appreciate you are probably not in a position to comment fully on other countries’ laws but it is very interesting how other countries choose their own law and lore. For example, travelling to the centre of Turkey many years ago, out of respect I put on a long dress to hide my legs but horrified the local people with my bare shoulders. Or it is illegal to jaywalk in some countries. And there are countless other examples.
The law on the maintenance of electrical equipment is set out in The Electricity at Work Regulations 1989 , which say (Regulation 4(2) that electrical systems shall be maintained – and that is it.
The Health and Safety Executive and The Institution of Engineering and Technology have published guidance on the Regulations, but none of these documents, in their current editions, say that it is mandatory, or even recommended as good practice, for all electrical equipment to be tested every year.
But the lore is that you have to test your equipment every year and this lore seems to be widely spread.
The Welsh Government are currently consulting on a licensing scheme for visitor accommodation providers, which would include the requirement to provide “proof of electrical safety (PAT testing)”.
Why is it that the annual portable appliance testing myth is so resilient, despite the Health and Safety Executive explaining repeatedly that whether or not testing is necessary should be a risk based decision? It is like trying to kill Japanese knotweed.