Transcript THE LANGUAGE OF A LEGAL SYSTEM

THE LANGUAGE OF A LEGAL
SYSTEM
Laws, courts and constitutions
Alison Riley
• Legal English and the Common Law
(Cedam, Padova 2008)
Chapter 2 :
The Language of a Legal System
Laws, courts and constitutions
What is a constitution?
Consider:
• The Italian Constitution
• The Constitution of the United States of
America
• The Constitution of South Africa
• The French Constitution
•
… and the British constitution?
Does the UK have a
constitution?
• Of course – it’s not an anarchy!
• The British constitution is unwritten:
i.e. there is no single constitutional text
X “the Constitution” X
• BUT: many written constitutions in the world today have
been shaped by the Westminster model of government
A constitution is …
• the system of rules defining the composition,
powers and relations of the state organs:
• the legislature, the executive, the judiciary
• the head of state: (UK) the monarchy
• The system of rules regulating relations between
the state and individuals:
• civil liberties, individual rights and duties
• the scope and limits of state powers in relation to the
individual
What are the sources of
the British constitution?
A variety of different sources:
– Statute law
– Common law (judicial precedent)
– Constitutional conventions
Also:
• EU law, ECHR law, legal treatises, the law and customs
of Parliament, the Royal Prerogative
–
Examples
• Statute law:
– Human Rights Act 1998
• A common law ‘constitutional statute’ (see Book page 86
• Common law:
– Entick v Carrington 1765
• Placed limits on the power of the Crown to interfere with
citizen’s person or property without lawful authority
• Constitutional conventions
– The Queen must act on the advice of her ministers
Suggested reading on sources
• The Constitution of the United Kingdom. A
Contextual Analysis
by Peter Leyland
(Hart Publishing, Oxford, 2007)
Chapter 2: The sources of the constitution (pages 19-33)
Historical landmarks
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1066 William I ‘The Conqueror’ - the Duke of Normandy
invaded from France.
Land was recorded in the Doomsday Book
Control was established through castle building
Feudal system, duty to provide knights in exchange for
land.
Henry II important legal reforms relating to application
of common law and circuit judges etc.
King John Magna Carta 1215 (and subsequent
versions) limitations on Royal authority imposed by the
Barons.
Some significant steps in history …
•
Henry VIII broke away from the Roman Catholic Church 
head of the Church of England
•
Elizabeth I ruled with advice from her ministers but also with reference to
Parliament
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James I, son of Mary Queen of Scots, was James VI of Scotland. Thrones
of Scotland and England united when Elizabeth died without an heir
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Charles I believed in the divine right of kings.
He tried to rule without Parliament  constitutional crisis
•
Civil war between King and Parliament (1642-1649)
– the ‘Roundheads’ (Parliament creates New Model Army)
– and the ‘Cavaliers’ (loyal to the King)
The trial of Charles I
• Parliament tried the king for:
– waging war against his people and against Parliament
• Westminster Hall, 20th January 1649 :
– Trial commenced before 50 Members of Parliament
– King refused to recognise legality of proceeding – he
claimed to be above the law
– 27th January: King found guilty
– Sentenced to death by execution
– 30th January: King’s execution in Whitehall
The King’s last words
• “For the people I truly desire their liberty and
freedom as much as anybody whatsoever;
• but I must tell you that their liberty and freedom
consists in having government, those laws by
which their lives and goods maybe most their
own.
• It is not their having a share in the government;
that is nothing appertaining to them;
• a subject and sovereign are clean different
things …”
An interlude
• 1649-1653 The Commonwealth (Republic)
• 1653-1659 The Protectorate:
– a ‘monarchy’, but not in name
– Lord Protector - Oliver Cromwell (then his son, Richard)
– Cromwell ruled with:
• A Council of 15
• A Parliament of 400
• 1660 Restoration of the monarchy:
– Son of Charles I, Charles II (1660-1685)
– James I (Catholic rule) (1685-1688)
1689: a new
constitutional settlement
Glorious revolution/English revolution
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William III and Mary II offered the throne in 1689 “to rescue the nation and
the religion”
BUT strict conditions were attached
BILL OF RIGHTS 1689 - shift in the balance of power
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No army could be raised without parliamentary approval;
Taxation required parliamentary approval;
no special courts for political ends;
free elections and annual parliaments;
freedom of speech inside Parliament;
protestant monarchy guaranteed, reinforced by Act of Settlement 1701
Looking back at a
dramatic period in history
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Revolution and civil war (1642-1649)
the legal execution of a King (1649)
an interlude of republican government
(1649-1660)
Restoration of the monarchy
The glorious revolution (1689)
Between 1649 ad 1659 England had
four constitutions
Revolution or evolution?
• In modern times:
– no single event has created the need for
comprehensive revision of the constitution
• The British constitution:
– ‘has evolved in phases reflecting the political, social,
and economic experiences of many centuries’
Peter Leyland, op.cit.
• It is a flexible constitution: it is not entrenched
The United Kingdom
• Today: the United Kingdom of Great Britain and Northern Ireland
(UK or GB) –
– England – Scotland – Wales – Northern Ireland (Ulster)
– London – Edinburgh – Cardiff - Belfast
• Wales: annexed to England in 1536. Became a separate
administrative state with devolution in 1999.
• Scotland: Scottish and English thrones united on death of Elizabeth
I in 1603. Act of Union 1707 created a single Parliament for Great
Britain at Westminster. Devolution legislation established a Scottish
Parliament (2000) and executive.
• Ireland became part of the UK in 1801; the South separated again
in 1922 - today the Republic of Ireland (Eire). But Ulster remains in
the UK and has its own Assembly and executive thanks to
devolution.
Suggested follow-up
• Legal English and the Common Law Chapter 2,
in particular pages 49-69)
– 2.1 Introduction
• Including Bill of Rights 1689
– 2.2 Legislation and the legislature
• Including 2.2.3 Constitutional monarchy
• Task 3
– 2.3 Consulting legislation: British constitutional reform
(Scotland Act 1998)
• Tasks 4 and 5
– 2.6.1 Legislation as a source of constitutional law
Further reading
• Rodney Brazier (1999) ‘The Constitution of the United Kingdom’ in
Cambridge Law Journal, 58(1), March 1999, pp. 96-128
– investigates the devolution legislation and its constitutional impact in
depth (Advanced level reading)
• Leyland, Peter (2007) Constitution of the United Kingdom. A
Contextual Analysis
– many parts of the book (see Legal English and the Common Law page
96 for ideas)
• Alison Riley (1991) English for Law
– Unit 2: United Kingdom, UK constitution, powers of state organs
– Unit 4: State organs, constitutional conventions
Now examine
• The Bill of Rights 1689
– See selected extracts in Legal English and
the Common Law page 49
• Suggested website for historical
documents: www.britannia.com