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Chapter 1: The English Legal System and its contents

Introduction:
 When the word of ‘LAW’ is mentioned, many people think only of the
criminal law and the personnel and courts that deal with this type of
case. In reality, law covers an enormous range of situations in everyday
life, and the legal system in England and Wales has a variety of courts,
personnel and methods for dealing with different types of cases.
Codified civil legal system:
 A codified legal system is where the laws of a country are written down
in a code or codes. The code contains all the law in an area, for example
tax law. They are arranged to avoid any inconsistency, and contain only
legislative enactments. Judges have to strictly apply the code to cases
that appear before them. They have little or no discretion in making their
decision and there is little or no precedent in the law. The code is known
to every citizen or lawyer in the country, so a judge’s final decision can
be predicted at an early stage.
 Many European countries have codified legal system like Spain, Portugal.
A country with codified system will generally have a written constitution
and a constitutional court as the highest appeal court.
Common Law:
 After the Norman Conquest in 1066 a more organised system of courts
emerged. This was because the Norman Kings realised that rule of the
country would be easier if they controlled, among other things, the legal
system. The first Norman king William the Conqueror, set up the Curia
Regis and appointed his own judges.
 As well as this central court, judges were sent to major towns to decide
cases and to dispense justice in king’s name.
 Common Law is the basis of the English law today, it is unwritten law
that developed from customs and judicial decisions. The phrase
‘common law’ is still used to distinguish laws that have been developed
by judicial decisions from laws that have been created by statute for
example, murder is the common law crime, while theft is a statutory
crime. This means that murder has never been defined in any Act of
Parliament, but theft is defined in the Theft Act 1968.
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 Judges can still create new law today. However, they can only do this
when a relevant case comes before them, and even then they can only
rule on the point in that case. This then becomes the law for the future
case. Judicial decisions cannot make wide ranging changes to the law or
set penalties. This can only be done by statute law.
Customary Law:
 A custom is a rule of behaviour which develops in a community without
being deliberately invented.
 Historically, customs are believed to have been important, as it forms the
basis of the English Common Law. Following the Norman Conquest,
judges were appointed by the king to travel around the land making
decisions in the king’s name, and they based some of their decisions on
common customs existing at the time. This caused Lord Justice Coke in
the 17th century to describe customs as being ‘one of the main triangles
of the laws of England’. However, customs in England is a historical
source and unlikely to create new laws today.
 However, in the case of EGERTON v HARDING, the court decided that
there was a customary duty to fence land against cattle straying from
the common. And in NEW WINDSOR CORPORATION v MELLOR, a local
authority was prevented from building on land because the local people
proved there was a custom giving them the right to use the land for
lawful sports.
Religious law:
 Religious laws come from sacred texts of a religion and cover most parts
of personal and contract law. They are generally based on Sharia or
Judaic law. They can apply to countries that have legal system in place,
such as a codified or common law system.
 Because they are based on religious texts, religious laws are seen to be
eternal and unchanging. They have governed a person’s behaviours and
beliefs, and issues and disputes are settled by a priest or other religious
official. However, non-religious laws can be changed by a legislature.
Mixed Legal Systems:
 Most legal systems are based on civil code, common law, statute law,
religious law or a combination of these. However, some countries, such
as South Africa, are said to have mixed legal systems:
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 They have a mix of common law and civil code rules

 The contributions of common law and civil code to the whole law of
the country are substantial and recognisable.
 Private law is likely to be dominated by civil code elements, and
public law by common law elements.
 Private law covers matter of tort and contract, whereas Public law
covers criminal law.
Adversarial and inquisitorial systems:
 Adversarial system: it is used in countries with common law
jurisdictions. In court, advocates for both sides represent their parties
interest. Each party builds a case by producing evidence and witnesses
and attempts to discredit the opposition. The case is presented to an
impartial jury or judge to decide the outcome of the case after hearing
both the sides. It could be argued that this system protects the right of
individuals and the presumption of innocence of the accused in a
criminal case. The accused has the right to remain silent, obtain a lawyer
in serious cases and remain innocent until proven guilty.
 Inquisitorial system on the other hand applies in countries with a
codified system of law. An initial investigation is often led by an
examining magistrate, whose report is presented to a trial court. The
judge acts as a fact finder, and the officers of court, the advocates, help
the judge to decide the truth, rather than to take one side over the other.
The judge takes a more active role and questions witnesses. This system
emphasises impartiality and truth finding over winning in court. It
reduces the advantage of wealth of one of the parties in a dispute and
reduces emotion and possible bias. It makes sure that no one receives
special treatment and everyone is asked the same questions by the
court. On the other hand, due to the need for a thorough investigation,
the case may be lengthy and it is often impossible for unprecedented, or
trained, defendants to defend themselves and there is no right to remain
silent.
The RULE OF LAW and its application:
 The ‘rule of law’ is a symbolic idea. It is difficult to give a precise meaning
to the concept, and academic writers tried to define it in different ways.
However, the main principle is that all people are subject to and
accountable to law that is fairly applied and enforced. Also, the process
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by which the laws of the country are enacted, administered and enforced
are fair.
 The rule of law is a safeguard against dictatorship. It supports
democracy. This is because the government and its officials are
accountable under the law. Also, authority is distributed in a manner
that ensures that no single organ of government can exercise power in
an unchecked way.
 Tony Honore, an academic lawyer, points out that the rule of law exists
when a government’ powers are limited by law and citizens have a core
of rights that the government is bound to uphold. These rights include:
i. No person shall be sanctioned except in accordance with the law
ii. There is equality before the law and there must be no
discrimination on any grounds
iii. There must be fairness and clarity of the law
PROFESSOR DICEY’S VIEWS ON THE RULE OF LAW:
 The best known Defination of the Rule of Law was given by A V DICEY
who distinguished English Law with other countries law:
i. An absence of arbitrary power on the part of the state:
The state’s power must be controlled by the law, that is the law
sets limits on what you can do and what cannot.
ii. Equality before the law:
No person is above the law. It does not matter how rich or
powerful a person is; the law must deal with them in the same
way as it would anyone else.
iii. The supremacy of ordinary law:
This is particularly true in the law of England and Wales in the
time of Dicey, as many of the main developments up to that time
were through judicial decisions rather than being created by the
Parliament.
Problems with Dicey’s views:
 A major problem with Dicey’s view of the rule of law is that it conflicts
with another fundamental principle, that is Parliamentary Supremacy.
This concept holds that an Act of Parliament can overrule any other law,
and that no other body has the right to override or set aside an Act of
Parliament.
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 Laws passed by the Parliament cannot be challenged through judicial

review. This is different from some other countries where the legislative
body is subject to the rule of law, so that laws passed by them can be
challenged in the courts.
 Another problem is that dicey referred to equality before law which
disregards the differences between people in terms of wealth, power and
connections. Real equality can only be achieved if there are mechanisms
in place to address these differences. For example, the cost of taking a
case to court is very high. In order to allow the poorest in society to be
able to enforce their rights, some sort of financial help should be given to
them.
 Lastly, Dicey’s ideas are based on abstract ideas which fail to cover real
life situations.
Other academic views on Rule of Law:
 F.A VON HAYEK, a 12th century academic economist, agreed with Dicey
that the key component of the rule of law is the absence of any arbitrary
power on the part of the state.
 However, von Hayek thought that the rule of law had become weaker,
because provided actions of the state were authorised by legislation,
then any act in accordance with this legislation was lawful. He also
pointed out that the modern state is directly involved in regulating
economic activity and this is in conflict with the rule of law.
 JOSEPH RAZ, recognised that the rule of law was a way of controlling
discretion rather than preventing it completely. He saw the rule of law as
of negative value, acting to minimise the danger of the use of
discretionary power in an arbitrary way.
 He set out a number of principles which come from this wider idea, for
example:
1. There should be clear rules and procedures for making law
2. The independence of judiciary must be guaranteed
3. The principles of natural justice must be observed, these require
an open and fair hearing, with all parties being given the
opportunity to put their case.
4. The courts should have the power to review the way in which the
other principles are implemented, to ensure that they are being
operated as demanded by the rule of law.
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THE RULE OF LAW AND LAW MAKING:

 The rule of law is important when it comes to law making. The process
by which laws are made must be open and fair.
 Acts of Parliament have to be passed by Both the Houses of the
Parliament. In practice, the government of the day usually has a majority
in the House of Commons, so most laws proposed by the government
will be passed by the House of Commons.
 The House of Lords exercises a check on the law making process, as all
new laws also have to be agreed by it. One area where the House of
Lords has consistently voted against change in the law has been in
relation to allowing serious criminal trials without jury.
 Government ministers can make the laws by statutory instruments. As
these regulations do not always have to be considered by Parliament
before they come into force, there are several checks on this method of
law making. First the Parliament can keep the check than the courts
through judicial review, to make sure that the minister has not gone
beyond the powers granted by the Parliament.

THE RULE OF LAW AND THE LEGAL SYSYTEM:

 The rule of law also covers the way in which the legal system works. One
of the most important points is that every defendant in a criminal case
must have a fair trial. Trial by jury is seen as an important factor in
maintaining fairness and protecting citizen’s rights.
 Another important point is that no person can be imprisoned without a
trial.
 The rule of law is also important in the civil justice system, where
ordinary people need to be able to resolve their disputes effectively. This
means that the system should be free from discrimination, free from
corruption and not improperly influenced by public officials.
 The civil justice system should be accessible and affordable. This point is
open to debate, as there have been major cuts to public funding of cases
over 20 years and so.
The rule of law and substantive law:
 Substantive law means different areas of law as set out below:
1. Substantive criminal law:
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Substantive criminal law sets out the definitions of criminal offences.

Criminal laws serve several purposes:
 To protect people, for example laws concerning murder,
manslaughter
 To protect people’s property
 To prevent disruptive behaviour and protect public order.
The difference between civil and criminal Law:
 Civil law is very different from criminal law:
 Civil law is called private law, because the issues it deals with are
generally between two individuals, though it could be between an
individual and a business or between two businesses.
 Criminal law is part of the public, because crime is regarded as an
action against the state and society as a whole.
The difference between law and morality:
 Morality is defined as values and principles of conduct, especially one
held by a specified person or society.
 It is defined as acceptable and non-acceptable behaviour and is
influenced by religious beliefs.
 It touches our behaviour towards fellow beings, money and property.
 Moral attitudes can change overtime depending on the code of conduct.
 Sociologist EMILE DURKHEIM identified a range of factors as potentially
contributing to the breakdown of a common morality, including:
 Increasing specialisation of labour
 Growing ethnic diversity within society
 Fading influence of religious beliefs
 Throughout law there is an overlap between law and morality as every
society sees theft as wrong and thieves are always punished in the
writings of religions.
Law and justice:
 Justice is described as fairness and equality.
The role of law in society:
 The rule of law cannot exist without transparent legal system. Law
attempts to control society through regulation. This requires:
 A clear set of laws that are freely and easily accessible to all
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 Strong enforcement structures

 An independent judiciary, to protect citizens against the abuse of
power by the state, individuals and any other organisation.
In 2010, Lord Bingham published THE RULE OF LAW, in which he identified the
core principle of the rule of law:
‘…. All persons and authorities within the state, whether public or private,
should be bound by and entitled to the benefit of laws publicly and …. publicly
administered in the courts’.
 He set out the rule of law through eight principles, which society, the
state and judiciary must embrace:
a) The state must abide by both domestic and intentional law.
b) People should only be punished for crimes set out by law
c) Questions on the infringement should be subject to the application
of law, not discretion
d) The law should be accessible, clear, precise and open to public
scrutiny
e) All people to be treated equally
f) There must be respect for human rights
g) Courts must be accessible and affordable and cases should be
heard without excessive delay
h) There must be means for resolving disputes without cost or delay
 These principles result in certain roles for law in society:
I. To protect people from harm
II. To ensure common good by providing facilities like education and
healthcare
III. To settle arguments and disputes