English Legal System

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

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

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)

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)

Aims of this lecture

• The aims of this lecture are to: 1. To look at the approaches to the study of law; 2. Introduce basic legal concepts and terminology; 3. To look at the jurisdiction of the courts in different areas of law; 4. Explore the different ways in which laws are classified; 5. To briefly overview the history of the English Legal System and how this influences the legal system today.

Learning Outcomes

• By the end of this lecture you should be able to: 1. Explain what is meant by civil and criminal jurisdiction and how family and administrative law structures fit into this model; 2. 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; 3. Explain how civil or Roman law systems differ from common law systems and identify states which use this different classification;

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.

Approaches to the Study of Law

• There are different approaches to the study of law: 1. 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

• 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

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

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

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

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

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

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

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

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

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

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

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

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

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

Other classifications: Common Law and Equity

• Common Law Traditionally seen as judge made law made by the King’s 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 King’s Justice Over time their influence became more significant

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

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

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

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

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

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

Substantive and adjectival law

• Substantive – ‘lays down people’s rights, duties, liberties and powers’ • Adjectival – the rule of procedure and evidence by which those rights are enforced

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

Summary of lecture

You should now have an appreciation of elementary legal classifications and be able to explain: 1.

2.

3.

4.

5.

6.

7.

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?

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)

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?