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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 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

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 peoples
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?