English Legal System

1
English Legal System

• Introduction to the English Legal System
• Basic Concepts in Law
• Suggested Reading

2
Reading Guide for the English Legal System

• Cases and statutes
• Textbooks and casebooks
• Additionally reference should be made to academic
  texts and monographs where appropriate
• You should own a textbook and casebook for ease
  of reference

3
Suggested reading

• The main references in the lecture series will be
  to
• Slapper, G. and Kelly, D., The English Legal
  System (London Cavendish Press, 2004, 7th
  edition)
• Zander, M., Cases and Materials on the English
  Legal System (London, Butterworths, 2003, 9th
  edition)
• Smith, A.T.H, Glanville Williams Learning the Law
  (London Sweet and Maxwell, 2002)

4
Other major references

• Zander, M., The Law Making Process (London
  Butterworths, 1999, 5th edition)
• Partington, M., Introduction to the English Legal
  System (Oxford Oxford University Press, 2003,
  2nd edition)
• Hanson, S., Legal Method and Reasoning (London
  Cavendish, 2003, 2nd edition)
• Bailey, Ching, Gunn and Ormerod, Smith, Bailey
  and Gunn On the Modern English Legal System
  (London Sweet and Maxwell, 2002, 4th edition)

5
Aims of this lecture

• The aims of this lecture are to
• To look at the approaches to the study of law
• Introduce basic legal concepts and terminology
• To look at the jurisdiction of the courts in
  different areas of law
• Explore the different ways in which laws are
  classified
• To briefly overview the history of the English
  Legal System and how this influences the legal
  system today.

6
Learning Outcomes

• By the end of this lecture you should be able to
• Explain what is meant by civil and criminal
  jurisdiction and how family and administrative
  law structures fit into this model
• Explain the development of common law and equity
  and the effect that these terms and systems of
  law have within the modern English legal system
• Explain how civil or Roman law systems differ
  from common law systems and identify states which
  use this different classification

7
Learning outcomes

• 4. Be able to recognise the continued influence
  of technical Latin and Law French terms used in
  the English Legal System
• 5. Differentiate between substantive and
  adjectival laws.

8
Approaches to the Study of Law

• There are different approaches to the study of
  law
• The traditional/formalistic approach Slapper
  Kelly
• In this approach concentrates on the formal law
  as they have been laid down in statute or other
  legislation and interpreted through the common
  law.
• Also known as black-letter law where the rules
  have to be learnt by the law student

9

• 2. The socio-political approach which looks at
  how laws have been interpreted and are dependent
  on the societies which make the rules
• This is the approach which will be adopted
  particularly in the later sections of this
  lecture series

10
The traditions in jurisprudence

• Positivism here the law is said to be found in
  the rules which are posited in general legal
  sources
• Natural law this is related to the idea that
  laws must be located in the conscience and
  morality of the society which makes them
• In this model there is a close link between
  morality and the law
• See the debate between Professor Hart and Lord
  Devlin in the 1960s for an illustration of this
  conflict

11
Studying the English Legal System some
observations

• It is a product of a long history some of its
  institutions and concepts having been established
  in some form after the Norman Conquest
• It is continually changing the Labour
  Government has made major constitutional and
  political reforms since coming to power which
  impact on the subject
• It is basic to an understanding of the other
  areas of law that you will study
• It has its own terminology and language the aim
  of this lecture is to give you a basic
  understanding of this language

12
Ways in which laws are classified
jurisdictionally

• Professor Partington divides the English Legal
  System into
• The Civil Justice System
• The Criminal Justice System
• The Family Justice System
• The Administrative Justice System

13
The Civil Justice System

• This regulates private law which involves the
  relationship between individuals as members of
  civil society
• Aims to settle disputes between individuals and
  to give them a remedy
• May be characterised as consisting mainly of
  contractual and tortious claims, or of property
  disputes

14
Civil Jurisdiction

• A civil wrong must be distinguished from a crime
• The main forms of civil wrong dealt with under
  this jurisdiction are breaches of obligations
  usually either contractual or tortious
• A civil wrong may also be a criminal offence
• Example
• Earnest knocks Lady Bracknell over in his car.
  Lady Bracknell sustains a fracture to her right
  leg and minor bruising. Earnest may have
  committed a crime.
• He may also be liable to Lady Bracknell for the
  injuries that he has caused her, and may have to
  pay damages. He could, therefore, be both
  civilly and criminally liable for his action or
  omission

15
Names of parties

• In a civil case the parties are known as the
  Claimant and the Defendant
• The Claimant is the person who brings the claim
  against the Defendant, initiates the proceedings
• In older cases you may come across this expressed
  as the Plaintiff
• The Defendant is so-called because he defends the
  claim which the Claimant brings this is the
  term also applied in criminal proceedings

16
The Criminal Justice System

• When people think of the law criminal law is
  usually what they think of, murder,
  manslaughter, etc - see Professor Partington
• The penalties if found liable or as it is more
  commonly expressed, guilty of a criminal offence
  could be imprisonment or a fine, or a range of
  other penalties that the courts have at their
  disposal
• Criminal jurisdiction involves the State much
  more closely than civil justice, it provides that
  certain conduct on the part of individuals will
  be subject to sanction
• Different courts within the hierarchy have
  different jurisdictions, the courts where
  criminal trials take place are the magistrates
  courts and the Crown Court

17
Criminal cases

• In criminal cases the case is brought by the
  State in the name of the Queen
• The case will be listed, therefore, as R v
  Bracknell
• The R stands for Regina in Latin
• In older cases the prosecution was brought by the
  police officer and at an early stage may still be
  referred to as the CPS (the Crown Prosecution
  Service v Bracknell)
• The Defendant defends the claim which is brought
  against him or her he or she may also be
  referred to as the accused

18
Burden and standard of proof

• Another key difference between criminal and civil
  cases is in the burden and standard of proof
• In criminal cases the burden is on the
  prosecution to prove all the elements of the
  offence alleged
• In a civil case the burden is on the Claimant
  he who asserts must prove

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The Standard of Proof

• The standard of proof in criminal case is
• Beyond all reasonable doubt
• The standard of proof in civil cases is
• On the balance of probabilities

20
Private prosecutions

• The prosecution of criminal offences is not the
  sole preserve of the State
• In some circumstances individuals can bring
  private prosecutions
• The burden of proof in these remains on the
  beyond all reasonable doubt
• E.g. See the case concerning Stephen Lawrence

21
The Family Justice System

• Family jurisdiction is normally grouped with
  civil jurisdiction as it governs the
  relationship between parties as members of civil
  society
• However, family law has its own procedural rules
  and courts system and so arguably should be
  regarded as separate from civil and criminal
  jurisdiction
• It also has its own remedies which is another
  reason why it may be regarded as a separate
  justice system
• The main areas of family law are divorce and
  ancillary relief (financial provisions for
  spouses), domestic violence, the private law of
  children dealing mainly with residency and
  contact, and the public law of children often
  commonly referred to as care proceedings

22
Public Law or Administrative Justice System

• This classification is more contentious, than
  dividing family law into its own justice system
• Dicey (a major constitutional theorist and lawyer
  of the 19th century) held that there was no
  separate sphere of administrative law in England,
  only the common law to which all men regardless
  of rank or public office were answerable
• The twentieth century witnessed an explosion in
  tribunals and public law which radically altered
  this traditional view
• That there has been a change is perhaps also
  attested to by the range of chambers and firms of
  solicitors which have sprung up with a
  specialisation in this area

23
Other classifications Common Law and Equity

• Common Law
• Traditionally seen as judge-made law made by the
  Kings judges who were sent out into the country
  after the Norman Conquest to formalise and make
  uniform the laws across the kingdom
• In its modern sense it means the law which is
  made by judges through case law as opposed to
  statutory law
• Itinerant judges would tour the country to
  dispense the Kings Justice
• Over time their influence became more significant

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Problems with the common law

• As the common law developed it became more
  inflexible
• In order to be a successful litigant you had to
  fit within an existing writ in order to gain a
  remedy, by 1300 there were 300
• The common law also did not recognise certain
  rights, such as the trust
• Further difficulties were highlighted in the
  redemption of mortgages on property

25
Equity

• The court of equity was established in the 14th
  century to mitigate some of the harshness of the
  common law
• Originally the King was the dispenser of
  equitable relief in his role as the fountain of
  justice
• However, the role was eventually delegated to the
  Lord Chancellor, hence areas of law which derive
  from equitable jurisdiction are dealt with in the
  Chancery division
• The Court of Chancery was established by at least
  1474

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Problems with equity

• Equity became a rigid system of rules in much the
  same way as the common had
• This could be viewed as a positive or negative
  development
• The existence of the common law and equity side
  by side meant that litigants had to choose which
  remedy to seek
• This is illustrated in Dickens novel Bleak House

27
What does equity mean today?

• The distinction between common law and equity was
  diminished somewhat by the Judicature Act
  1873-1875
• Under these acts the jurisdiction of the High
  Court to grant common law or equitable relief
  were merged one no longer had to choose were to
  issue proceedings
• You still need to know whether a form of relief
  is based on the common law or equity, however, as
  the former is available as of right, while the
  latter is discretionary
• Common law remedies are normally damages, whereas
  equitable remedies include injunctions and orders
  for specific performance

28
Civil or Roman Law Systems

• Civil or Roman law often contrasted with the
  common law system
• It has its origins in the Pax Romana and the
  spreading of Roman culture and civilisation
  across Europe, although has not been an unbroken
  tradition
• In its modern guise it was spread across Europe
  by Napoleon, and the French Civil Code is still
  called the Code Napoleon
• It relies on interpretation and the spirit of the
  legislation much more than English law does, what
  is sometimes called the purposive approach
• It is important because it influences the
  jurisprudence of the European Court of Justice
  and the European Court of Human Rights

29
Adversarial and Inquisitorial

• Again a distinction between English Law and
  continental law
• The adversarial model places the emphasis on the
  parties to present their case deciding whether
  the individual accused is guilty of this
  particular offence
• In the inquisitorial model much more emphasis is
  placed on the investigation of the case by the
  tribunal
• Obviously this is mainly in criminal proceedings,
  and the best example of the French examining
  magistrate

30
Substantive and adjectival law

• Substantive lays down peoples rights, duties,
  liberties and powers
• Adjectival the rule of procedure and evidence
  by which those rights are enforced

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Technical terms

• The English Legal System has been influenced by
  both the Roman or Civil System of Law
• Law French was the language of the Courts
  following the Norman Conquest
• The influence of these languages remains in
  phrases like habeas corpus, ultra vires,
  autrefois acquit, laches
• Woolf reforms eliminated many of the terms used
  in the courts for procedure

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Summary of lecture

• You should now have an appreciation of elementary
  legal classifications and be able to explain
• What is meant by civil and criminal jurisdiction?
• How public and private laws are distinguishable?
• What common law and equity are and how they
  developed?
• What is mean by civil or Roman law traditions?
• How adversarial and inquisitorial systems differ?
• What is the difference between substantive and
  adjectival law?
• How technical terms borrowed from Latin and Law
  French are used in the courts?

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Further reading for this lecture

• Smith, A.T.H, Glanville Williams Learning the Law
  (London Sweet and Maxwell, 2002), the whole of
  chapter 1 apart from the court chapters, pp.4-18
• For a historical overview see Baker, J.H., An
  Introduction to English Legal History (2002, 4th
  edition)

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Further reading for this lecture

• Partington, M., Introduction to the English Legal
  System (Oxford Oxford University Press, 2003,
  2nd edition), chapter 1 Knowledge, themes and
  structure, chapter 11 Conclusion Is the
  English Legal System fit for its purpose?, have
  a look also at the chapters on administrative
  justice and family justice
• Do you think that Partington is right to contend
  that this division gives a better understanding
  of the structure of the English Legal System for
  the beginner?