The English Legal System - Essay Example

The English Legal System is described as a 'common law system' with the Modern Doctrine of Precedent operating within this system. This is a ment no doubt, but to understand this statement we will have to examine: i. * What is common law ii. * How does the doctrine of precedent fit in the system iii. * Strengths and weakness of the system Common law is a law created by judges, as opposite to laws authorised by a legislative body. When a case is decided by a judge then his decision and the basis of the case becomes a precedent which other courts follow while deciding a case which is similar in nature. The systems of rules of Common law is dependent more on judicial decisions and less on civil law systems which in turn is dependent mainly on written laws and statutes. The main feature of the English legal system is that it is living and constantly evolving to work in the future as well as it did in the past1. Thus the single most unique feature of the English legal system is its inheritance from common law2. Most of the characteristics commonly linked to English law and its management of righteousness are traceable to the early on growth in Western Europe of the civil and common law customs. According to Goodman (1995), "several characteristic consequences flow from the fact that law did not emanate from one centralised authority such as papacy, king or parliament. The odd growth of the common law in England developed it appears from a coincidence resemblance of the implementation after the Norman take-over by consecutive monarchs of native customs as the foundation for the governance of justice. Conflict assessment, chiefly concerning land title, was a key function for justice. Judges were nominated by the king to tour the country and decide controversies, aided by a local adjudicator included by the Normans into operational royal courts. The trial accepted a key role in the settlement of disputes. Wilson (1995) states that "Everyone takes for granted the fact that law and legal systems differ in different countries. But it is also true of legal scholarship. One reason for this is the different responsibilities legal scholars have in different countries for the maintenance and development of the local law...One result is that legal scholars in different countries may have different agendas and this may affect the subject matter, scope and even the form and style of the local legal scholarship." (Source: http://www.chriswallis.com/uni/cnlaw231l01.pdf accessed on November 5 2009). To bring about a faith to the law the courts followed the principle of stare Decisis.3 This is referred to as the doctrine of precedent. The courts are divided into two (IALS Conference, Learning from Each Other: Enriching the Law School Curriculum in an Interrelated World). They are: i. Superior courts; ii. Inferior courts. The House of Lords is the superior court but it is a UK court since it practices appellate authority for all the three legal systems.4 The Superior Courts are known as the Supreme Court from November 2009. The Supreme Court consists of the High Court, the Crown Court and the Court of Appeal (IALS Conference, Learning from Each Other: Enriching the Law School Curriculum in an Interrelated World). The doctrine of precedent's role in the English legal system is very important since common law is a vital basis of law in the English legal system. This is opposite to the European legal system as it is founded on legal examples and possibilities. A lot of stages of study have to be conducted under a common law jurisdiction so that it can be understood as to what the law is. The facts of the law have to be understood first and then any relevant statutes or legal cases have to be located. Finally the principles 3. Meaning "let the decision stand". 4. However the jurisdiction is not universal. For example, whilst there is a right of appeal to the House of Lords against civil actions in Scotland no such right exists for criminal matters. and the decisions used in the case are used for the future cases. In reality the legislations and the rulings of higher courts have more weight in cases which are decided in lower courts.5 Actually the common law is more flexible than statutory law. It is because the common law courts are not completely bound by precedent6.They are actually reinterpreted and revised devoid of any legislative interference and then adopted to the new cases. This would help to bring in some considerable changes and that too without any a quick break, which might reduce or unsettle the effects. Solicitor General Murray, in the case of Omychund v. Barker, put forward that "a statute very seldom can take in all cases; therefore the common law, that works itself pure by rules drawn from the fountain of justice, is for that reason superior to an act of parliament." (I Atk. 21, 33, 26 Eng. Rep. 15, 22-23, Ch. 1744). An instance of the slow changes that took place in common law is with reference to the liability of negligence. The general rule in case of negligence was that a plaintiff was not allowed to recover for the negligence of a defendant. The case of (Winterbottom v. Wright, 10 M&W 109, 152 Eng.Rep. 402, 1842 WL 5519 (Exchequer of pleas 1842) explains all this. The substance of precedent is known as "common law" and it bonds future determinations. When parties are in disagreement in the future and if the nature of the conflict is similar then the common law court bases its decision with the help of 5.(e.g., see case Ex parte Holt, 19 USPQ2d 1211, 1214 (Bd. Patent App. & Interf. 1991, which explains the chain of command of precedent compulsory on courts of the United States Patent Office). 6 For not all precedents are binding (for instance decisions of Scottish courts normally do not bind English Judges, however they may have persuasive power, decisions from other Commonwealth jurisdictions may be of persuasive power as well). Presidential decisions of applicable courts7. The court is bound to follow the reasoning of a past similar disagreement in which the issue was resolved. This principle is called 'stare decisis'. But if the present disagreement is different from all other previous cases then the judges have the right and responsibility to formulate new law which thus creates a precedent as in Marbury v. Madison, 5 U.S. 137 (1803); "It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each". From then on, the new verdict became precedent, and is binding on future courts. The English legal system is based on the common law and the precedents. Thus the main strengths and weakness of the English legal system based on both common law and precedent are: i) Equity: The greatest power of English legal systems is that it has democracy as its base. This only means that every citizen is equal politically and legally. They have the freedom of opinion, speech, belief, and relationship. This legal system allows the voting citizens to change the laws. Since precedents are also followed in almost all the cases all people in the eyes of law are treated equally. There is no difference between people based either on wealth, position or even power (http://socyberty.com/law/role-of-doctrine-of- precedent -in-the-english-legal-system/retrieved 9 November 2009) 7 The time play its role as well, the judges may over years ascribe a broad ratio to a case, or conversely a very narrow one which is than difficult to apply in the future, for material facto of every case are almost never the same. ii) Expedient: Since the decisions of previous cases are followed it is possible that the cases based on this judgment can be completed within a lesser time. Also people can find an element of predictability. The procedure becomes easier and more sensible since no rigid, extensive rules have to be followed only a real situation which was already resolved is followed (http://socyberty.com/law/role-of-doctrine-of-precedent-in-the-english-legal-system/ retrieved 9 November 2009) iii) Efficient: Since there is a foundation of judgment to be followed the judicial process is quicker. Also the element of efficiency is more since the decisions are founded on a precedent thus giving it a stronger footing (http://socyberty.com/law/role-of-doctrine-of-precedent-in-the-english-legal-system/retrieved 9 November 2009) i) Maintenance of bad decisions: When a decision based on similar circumstance is followed it may result in a bad decision. When later on the same precedent is followed the bad decision will continue to be upheld. Changes may come in but will surely take time (http://socyberty.com/law/role-of-doctrine-of-precedent-in-the-english-legal-system/retrieved 9 November 2009). ii) If no precedent is found then difficulty arises Since judgments are taken based on precedent and if there is no precedent the system will come to a stop (http://socyberty.com/law/role-of-doctrine-of-precedent-in-the-english-legal-system/retrieved 9 November 2009). iii) Necessity for maintaining records As precedents are followed by all other courts in many cases, prolonged, elaborated records have to be preserved. Also if these cases are to be accessed then a method of indexing has to be followed to make accessing of these cases easier (http://socyberty.com/law/role-of-doctrine-of-precedent-in-the-english-legal-system/ retrieved 9 November 2009). Thus it can be concluded that the Common Law makes use of the conception of precedent. It can be said that no case will have any meaning when it stands by itself but when compared to other cases it contains some meaning. Actually a complicated principle would have emerged from a simple case and it would be interesting to see how it had evolved. In reality the changes is evolutionary and not revolutionary. Sometimes an influential case might have deduced its principle from a mix of other cases which are related in their principles like the case of Rylands v Fletcher (1868) LR 3 HL 330. The views on law by scholars who have their works written have being accepted by judges in later cases. This has been later on set as legal doctrine and thus judicial precedent evolved, thus followed the concept of stare decisis. One of the greatest values of this precedent of stare decisis is that it renders certainty. Alternatively, there are risks: first, if the courts have to avoid the decisions of stare decisis then they have to find differentiations between cases; secondly, the doctrine restricts suppleness and can make unquestionable some rationales which ought to have been deserted long ago. An unusual instance of a confirmed legal theory being inverted can be seen in R v R [1991] 3 WLR 767; [1991] 4 All ER 481. [Words: 1,567] Reference 1. Goodman E. The origins of the western legal tradition Federation Press, Sydney 1995. 2. Wilson G "Enriching the study of law" in G Wilson (Ed) Frontiers of legal scholarship Chichester (1995): Wiley (p229) 3. Daniels, John D, et al (2007). International Business: Environments and Operations. Upper Saddle River, NJ: Pearson Prentice Hall, pp. 102-103 4. Malleson, Kate. The Legal System. Oxford University Press (2007): 120-167 5. "England Legal systems." encyclopedia farlex. July 19, 2007. . March 10, 2008. . 6. College of Law (2008). The English Legal System. College of Law of England and Wales. Retrieved November 5 2009, from 7. http://socyberty.com/law/role-of-doctrine-of-precedent-in-the-english-legal-system/ retrieved 9 November 2009 Read More