English Common Law Justice - Essay Example

LAW The sources of law in the English legal system have developed from a common law type of system. Common law justice, the definition goes back to relate nature and activity from a perspective of antiquity. England operates under a system of common law, in which legal precedent is regarded as the way in which the law builds on itself over time as a natural or organic process. Therefore this type of law is customary and provides the basic framework for a constantly changing legal paradigm that adjusts itself to new cases and appeals, but is still based on the principles of natural law combined with principles of civil law. "Civil law rests upon justice as its foundation, and hence civil law does not establish justice, but rather accepts it as the guiding light of legislation. It should be clear that if a ruler violates justice by enacting a legal edict or document, that edict cannot be properly called a law and this is because law aims for the common good" (Likhovski, 1991). This is often complicated however because what is good for some is bad for others. Because of its mutable nature and its ability to be questioned, the English system of law is sometimes, as in the case of England, challenged quite often, resulting in a highly litigious society, but also a progressive one. The Welsh, for example, are no longer sold openly at slave markets, because law has evolved to forbid this. When this perspective is taken externally and applied to international law and antiquity examples, it becomes measured more in terms of cost and risk, as international law differs from region to region and can become very time-consuming and expensive to those involved. In this environment, arbitration is considered to be better than litigation in almost all cases. English common law is basically put on the assumptions that judges can make decisions, from the perspective of the court in which they sit, based on their knowledge of affairs and their common sense. Applied to common sense are also the principles of knowing about the law, and the history of the law, through representative cases which have established precedent, based on the concept of stare decisis. These cases are then applied to the facts of the current case in England and Wales, where English law is practiced in majority. In England and Wales, the Supreme Court of the United Kingdom is the highest court, but there are a lot of other courts as well in a hierarchical relationship, from local to national levels. The highest court in the hierarchy "is binding on every other court in the hierarchy, and they will follow its directions. For example, there is no statute making murder illegal. It is a common law crime" (English, 2000). Parliament is in charge of common law, and can adjust the laws to suit the times. For example, there is no more death penalty. #2 It is important to think about, using relevant case law, how the European Court of Justice has maintained a uniform interpretation of community law across European States. A lot of this has to do with the interstices between the relatively recent formation of the EU and the valuation of law in society. Randomness and chaos rule both systems. "The rotation of the presidency entails a lack of continuity in the agenda-setting procedure; the Summit agendas are overloaded with gritty details and each presidency pursues more or less specific topics ('shopping lists'). This is why the Council currently fails to fulfill its original strategic purpose. Thus, the EU definitely needs a reform of its institutions" (Bilefsky, 2005). Other issues are also dividing European law in the present can be seen in the case example of subsidies, or government help, offered to agricultural interests. Recently, before the government of Brown, "The issue of farm subsidies has also divided the European Union into nations favoring more open markets and those who want to maintain protection for their domestic industries. Prime Minister Tony Blair of Britain called the summit meeting Thursday in the hope of persuading European Union countries to adopt a more modern, liberalizing approach" (Bilefsky, 2005). Of course, policies differ over time. To define and explain English law, it is important to give a very good example in this analysis. Therefore, hypothetically the reader should imagine what would happen if everyone with a car in the present modern day society decided to do whatever they wanted, not paying attention to signals, stop signs, traffic, lines painted on the roadways, etc. The result would be chaos. This is a good null example of how the English system works: it is for the common good that people pay attention to these factors when they are driving. The same concept can be applied to the natural world and be used to explain common law. "Radical Protestantism inspired demands for the rationalization of English law, and while not successful in bringing about the concrete changes advocated, that central features of Weber's notion of rational legal thought were also central in the theology of the radical Protestants" (Likhovski, 1999). England and Wales are constituent countries of the United Kingdom, operating within the further satellite control of the European Union, and this also means that EU law is a big influence on the policy of English law. The European Union mainly is made up of countries that use civil law procedures, and as a result, the European Court of Justice can influence decisions made in English courts with legislation. #3 In terms of the UK approach to community law, the general principle can be posited that what is good for the society, is good fror the individual. This differs internationally; although the UK is currently strong in terms of diplomatic agendas, it is perhaps more chaotic when it comes to establishing strong economic leadership. Overall, the level of conflict in the UK approach to community law presently can be traced to many factors: political interests, economics, free trade vs. protectionism, big vs. small community divisions, and especially, leadership. The example given above, about French agriculture and protectionism, is a good example to clarify how conflict works in the UK and how it is keeping the nation governed by criminal common law, based on case law concepts, as mentioned above. "Common law (also known as case law) - made by judges, evolved over centuries from the judgment of cases appearing before the courts. These judgments set precedents against which future cases are judged" (Elliot, 2005). It is important to view historical factors proactively as well. "Examining the legal thought of two groups that appeared during the English Revolution-the Levellers and the Diggers- theology provided these groups with a model for a more predictable law, offered them a source for the norms of their proposed legal system, and motivated the desire for law reform" (Likhovski, 1999). English criminal law, like other types of law in the country, are based on principles of common law. "Certain defences may exist to crimes, which include self defence, necessity, duress, and in the case of a murder charge, under the Homicide Act 1957, diminished responsibility, provocation and in very rare cases, the survivor of a suicide pact" (Elliot, 2000). Codification of law has been avoided in England generally. A good example of the relationship between UK courts to common law would be its implied ethical standards. "The "United Kingdom" means Great Britain and Northern Ireland and their adjacent territorial waters. It does not include the Isle of Man; nor the Channel Islands, whose independent status was discussed" (Elliot, 2000). Just because the general rule seems to denote an initial period of slow reaction to the utilization of the theoretical framework of community law in terms of ethical imperatives and dynamism versus stasis, this does not mean that all are having the same trouble reacting slowly to community law's dictates. Common law realizes the dynamic and proactive system is going to have a distinct advantage in its better ability to change with the external environment. These sorts of systems are able to become agents of change instead of reactors to change, and are thus able to stay one step ahead of change in society, as a system of power. As community law represents a significant change in the external political environment, it is recommended by many sources that, despite the initially slow reception of community law, its immutability as law provokes and predicts a strong and lasting change that is better taken advantage of proactively than looked at and reacted to passively by the government. And many governments are taking the initiative to change internal policies in a way that embraces a change-affective attitude towards community law principles, including the UK. REFERENCE Bilefsky, D. (2005). E.U. Offers New Tariff Cuts, but Internal Conflicts Remain. New York Times. Elliot, C (2000). The English Legal System. London: Pearson Longman. Likhovski, A (1999). Protestantism and the rationalization of English law: A variation on a theme of Weber. Society Review. The English Legal System (2000). Encyclopedia Britannica. Read More