Your guide to the English legal system: order order

Chapter 3

Your guide to the English legal system: order order

3.1 INTRODUCTION

You have obviously decided to study law for a reason, but now when it comes to it, you need to think about how to really study the law and the only way that you can do that is to ask yourself, what is the law about?

The law exists to regulate behaviour. As a society we would like to instil good values and beliefs in all of those around us. But what happens when someone does not follow those values or beliefs? Do we simply say that this person is merely someone to be shunned or do we need to go further and impose some sort of punishment upon them such as a restriction on their liberty or by imposing a fine on them? When do we know which form of punishment to use or indeed if one is suitable at all? It is only by understanding how the law has developed over the years and by questioning the current state of the law that you will start to develop an appreciation of what the law is about and of course how to apply the law. If you do not take the time to think about these issues, you may find that you are lost throughout your studies constantly trying to catch up both with your reading and intellectually. Rather than feel lost, you should feel like you are part of something and therefore try and think about the following:

3.2 HOW HAS OUR LEGAL SYSTEM DEVELOPED?

3.2.1 The common law system

If it is a common law system, does it mean it is not posh?! The common law is the law that is common to all. But that does not take us much further in understanding what it really means. Now for a quick history lesson!

Prior to 1066 when William the Conqueror came into power in England, the law across England was not unified in that different customs or laws prevailed in different areas of the country. Local customs were enforced by the local courts so the law varied across England, meaning that the law of the land was decentralised. William the Conqueror recognised that to unify the country and perhaps some might say to effectively control the country, one central set of laws was needed across the whole country. William the Conqueror, through the help of his aides, reviewed the local customs and laws across the country to decide which ones to incorporate into the central set of laws, which would be common to the land. This ultimately became known as the common law.

In terms of how the common law system developed, prior to the Common Law Procedure Acts of 1852 and 1854, it operated on the basis of what is referred to as the rigid writ system. A right only existed if there was a procedure to enforce it.

That is to say, the form was considered, rather than the substance of the claim, i.e. the substance of the claim could have been perfectly worthy of being heard in court but if an appropriate writ did not exist, it could not be taken any further. This was problematic largely because the claim could be a good one but could not proceed any further. Where is the justice in such a system that places such importance on the form and not the actual substance of the claim? Wouldn’t you be frustrated if you had a good case to put forward but were stopped because it did not fit into a category that that officials were familiar with? Seems rather unfair doesn’t it? Claimants with a good claim but without the procedure to enforce it would be left without recourse to the courts and therefore left without remedy. The common law was overly strict. You can now understand why it is referred to as the ‘rigid’ writ system.

3.2.2 Equity

The common law was not initially then perceived as flexible as it is today and was just too rigid to achieve effective justice. Something else was needed to help ease the rigidity in the system. As a result, a parallel system of rules developed under the umbrella of equity. Those who suffered through the writ system would petition the King to exercise his prerogative power in their favour. In other words, they would ask the King to make an exception for their case. The King, and later the Lord Chancellor, would deal with such petitions by referring them to the King’s Council and other justices. The Lord Chancellor was also known as the keeper of the King’s conscience and carried out administrative and judicial tasks on behalf of the King. The Lord Chancellor was also the head of the Court of Chancery, which issued the writs in the first place. It then made sense that the Lord Chancellor oversaw exercise of any discretion when dealing with such petitions. However, the petitions to the King became so numerous that this became a body of law in its own right known as equity. Equity essentially means fairness and justice.

Some examples of equitable maxims are shown on the facing page.

So the state of affairs was that there were two parallel systems at work; one was the common law system through the writ system, and the other was the equitable system. The two legal systems were at work side by side, each with their own courts, procedures, remedies and routes of appeal.

3.2.3 Common law v equity

As is often the case, when there are two competing systems at work, there will be scope for conflict and only one can win. Where there was a conflict between the common law and equity, it was decided in Earl of Oxford’s Case (1615) 1 Rep Ch 1 that given that equity is about fairness and justice, equity will always prevail and govern the situation.

Recognising the problems with the writ system, and given the way the common law and equity systems had developed, change was needed. The rigid writ system was eventually abolished by the Common Law Procedure Acts of 1852 and 1854. The effect of these statutes is that the law will instead consider the substance of the claim rather than the form or procedure for enforcing the right. It was also determined that rather than having two different legal systems, the two should fuse. This fusion was brought about by the Judicature Acts of 1873 and 1875.

The Judicature Acts led to the joining together of the two systems so that now all courts can apply both the common law and equity. Note though that there are still two forms of law but they are administered in the same legal system. You might say that there has been a fusion of administration of the rules rather than a fusion of the rules.

There ends the history lesson!

3.3 COMMON V CIVIL SYSTEM OF LAW

Now that you have understood how our legal system has developed, you may be wondering where you can find the law. You would be right to think about this.

A unique feature of the common law is that it is not written down in one place, in that it is an uncodified system. You have various places where you can find it, such as statutes and cases. Judges therefore have a strong hand in shaping the law of the country in a common law system. Compare this with the legal systems on the continent, which are known as civil legal systems where the law, both substantive and procedural, is codified and can be found in a single civil code. The key differences between a common law and civil law system are that the common law system operates on an adversarial basis whereas a civil system operates on an inquisitorial basis. In an adversarial approach, both sides of the case, i.e. the claimant or prosecution and the defendant argue their case before the judge and the judge acts as referee. Think of a US television drama that you may have seen where one party raises an objection before a judge and you will soon get the idea of an adversarial system. Compare this with a civil law system, which usually operates using an inquisitorial approach. This involves the judge making a decision by applying the relevant civil code, which enables them to inquire and ascertain what the relevant facts in the case are. Judges in a civil law system do not therefore have such a strong hand in shaping the law of the country.

The way in which a country has developed has determined whether it has adopted a common law system or a civil law system. Each appears to be appropriate for the country’s constitutional set up and each has its advantages and disadvantages. For example, in a country with a common law system there is flexibility because the law is not written down in a strict code, whereas in a civil legal system there is little scope to take a broad interpretation of the law because it is written down. Having said that, one may argue that there is greater certainty in a civil legal system precisely because the law can be found in a civil code, whereas it cannot be found in one place in a common law system, which relies on being able to decipher what the precise law is in each case.

3.4 WHO CREATES THE LAW AND WHAT ARE THE DIFFERENT SOURCES OF LAW?

The primary law of this country comes from legislation and case law. Who creates either of these and why are these so important? Not all areas of law will be covered by legislation and may instead be covered by case law. Some decisions in cases are deemed to be so important that legislation may be passed on the same matter to give effect to political will and give the issue greater recognition and certainty. Such legislation will then be interpreted and understood using the cases on which is based.

Different areas of the law depend on legislation and case law in varying quantities and this is because they have different functions to perform.

3.4.1 Public v private

Public law is said to rule the nature of the relationship between the individual (e.g. you) and the state (England and Wales).

Private law governs the relationship between individuals or private organisations.

Thinking about the modules you might study or areas of legal practice – Constitutional law, Human Rights and Criminal law fall within the public sphere and Contract, Tort, Land and Equity within the scope of private law. Commercial law has some elements of both, as does EU law, which concerns relationships both between individuals and between states.

3.4.2 Civil v criminal

Criminal law falls within the public sphere because that law sets out how reasonable people should behave and the boundaries in which they operate. Anyone stepping outside this is said to have committed an offence against the whole of society, and sanctions must be applied.

Civil law on the other hand, kicks in when issues arise between individuals (e.g. neighbours arguing over trees growing too tall) or between an individual and a business (e.g. damage done to a dress at a dry cleaner), or between businesses (e.g., dispute over the right to use a particular brand name).

Civil cases are brought in the County Court, with those where the money involved is more significant or the issues complex commencing at the High Court. Criminal cases kick off at the Magistrates’ Court, with indictable offences (the most serious) going straight to the Crown Court. Appeals follow different routes but can go to the Court of Appeal and Supreme Court.

3.4.3 European law

Then there is law that comes from the European Union. This too is a source of law and is divided into two areas, primary and secondary. Primary EU law is generally the law contained in the various EU treaties whereas secondary EU law consists of regulations, directives and decisions delivered by the Court of Justice of the European Union. There are three main institutions based in Brussels. There is the European Commission, which represents the interests of the EU as a whole, the Council of the European Union, which represents the interests of the Member States, and the European Parliament, which represents the interests of EU citizens. The Court of Justice of the European Union is however based in Luxembourg. Confusingly, there is also the European Council, which is an institution that comprises the heads of each Member State, which usually meets around four times a year to set the overall agenda of the EU. Phew! You can take a quick breather now – you will need it!

3.4.4 Human rights law

Ever heard someone say: ‘but that’s my human right to . . .’? Well there are some rights that are considered to be so very important that they should never be compromised. We are not talking about your right to have a lie in until the afternoon on a Saturday to nurse your hangover, but rather we are talking about the important stuff, which is sometimes taken for granted. So for example, the right to life, the right not to be tortured, the right to have a fair trial or the right to have a private and family life. These, as well as some other rights, are deemed to be so important that a convention was created after the atrocious events of both World Wars called the European Convention on Human Rights (ECHR) in order to recognise the rights to which all human beings should be entitled. This was a real turning point in making the world aware that these important rights must be protected for not to do so is inhumane.

A word of warning here, this is unrelated to the EU or the Court of Justice of the European Union. The institution that drafted the Convention is known as the Council of Europe and there is a separate court called the European Court of Human Rights, which hears cases concerning violations of human rights and is based in Strasbourg. Those countries that have signed up to the Convention/Council are called Member States. Remember though these countries may or may not be in the European Union! Some countries are members of both; some are not. That said, the EU will usually require its Member States to adhere to the rights contained in the Convention. Now go and take another breather!

There may, however, be occasions where English law is not compatible with a provision contained in the ECHR in which case the English court may make a declaration of incompatibility. This option is set out in s 4 of the Human Rights Act 1998:

3.5 SOURCES OF LAW

There are two principal sources of law. These are primary and secondary sources of law. Pay attention here because we shall keep coming back to this distinction especially when discussing legal research.

Primary sources are the real deal. These are the sources from which most secondary sources derive. Legislation and cases are primary sources of law. Take for example, the casebooks that you have been told to buy; they usually contain a short excerpt of a law report together with the author’s interpretation or comment on the case. But is someone else’s interpretation better than yours? What could be better than reading the case itself and coming up with your own interpretation of the case? This is why it is so important for you to understand the distinction. Do you want to use something that someone else has interpreted or do you want to provide your own interpretation of the law?

Often this will come down to a question of confidence. Do you feel confident enough to read a case or legislation for yourself and apply it or do you need to read someone else’s view to make sure that you are on the right lines before you apply it? Most of us use both approaches. We might read some commentary of the case before we read the case in full or read some notes on a piece of legislation because it helps us to stay on track. This is why both