Characteristics of english law

The United Kingdom is a unitary State, not a federation of States. Nevertheless, it does not have a single system of law within that State. There are separate systems operating in (1) England and Wales, (2) Northern Ireland, and (3) Scotland. Due to the closeness of the association since the twelfth century between England and Wales on the one hand and Northern Ireland on the other, these countries have similar legal systems. There are, however, differences between the law of Scotland, influenced by Roman law, and that of the remainder of the United Kingdom, although since the Union with Scotland Act, 1707, these differences are now less marked on broad issues.

Two important links uniting the system are: (a) Parliament at Westminster is the supreme authority throughout the United Kingdom; (b) The House of Lords is the final court of appeal.

English law is one of the great legal systems of the world, and a substantial proportion of it is ruled today by laws that came originally from this small island. What, then, are the characteristics of English law which give it this pre-eminence? The most important are these:

2. Continuous growth

English law is traceable to Anglo-Saxon times. The common law, i.e. judge made law, which forms the basis of English law, has endured for 900 years and has continuously adapted itself to changing social and economic needs.

Old rules of law remain law despite their age, unless expressly repealed. Thus in the case of Ashford v. Thornton (1818), an appeal against alleged murder, the appellor claimed and was granted the ancient Norman right of trial by battle. In point of fact the appellor's opponent refused to fight, and the right was abolished by statute in 1819.

The Treason Act, 1351, is still good law and may be invoked today despite its age.

Whereas Continental countries have been subject to continual invasions, revolutions, declarations of independence and the like, the geographical separation of England from the Continent, coupled with the Englishman's traditional respect for law, have tended to preserve the independent and uninterrupted growth of English law.

(b) Absence of codification

A legal code is a systematic collection of laws so arranged as to avoid inconsistency and overlapping. Codification was a feature of Roman law and was adopted by nearly all Continental countries, notably France, Germany, Austria, and Switzerland. The English common law was formed from the customs of the people. Under the Norman kings these unwritten laws achieved a fairly uniform legal system. Certain parts only of English law have today been codified, e.g. the Bills of Exchange Act, 1882, and the Sale of Goods Act, 1979, though the Law Commission is working towards a codification of criminal law and contract (Law Commissions Act, 1965)

с) Judicial character of the law

The early Norman judges were important figures appointed by the Crown whose justice they administered. The common law was largely 'judge-made' from the existing customary laws. It is from the records and reports of cases tried by the judges that we derive our knowledge of early case law. Judges formed or moulded the common law, and its growth and character can often be traced to outstanding men like Bracton, Coke, and Littleton. Although judges today may develop the common law within fairly narrow limits, they are mainly concerned with interpreting and applying statute law which is now the main source of legal development.

(d) Independence of judiciary

Justice requires that a judge be impartial and independent of either party to a particular legal dispute. The Act of Settlement, 1701, provided that judges of superior courts 'hold office during good behaviour, that their salaries be ascertained and established, and that they be removed only on the address of both Houses of Parliament.

(e) Independence of lawyers

The two branches of the legal profession comprise barristers and solicitors. Each branch is controlled by an independent body which maintains high professional standards of education, training, and conduct. Lawyers are not appointed by the State and are not civil servants. They are not subject to direct political control, and, like the judges, are traditionally independent. Their relations with clients are based on confidence and protected by privilege; they cannot be compelled to disclose what passes between them during their professional dealings.

(f) Influence of procedure

Procedure has influenced substantive law. We shall see later that at one time the existence of a legal right depended on whether there was a suitable writ with which to begin the action, The writ system governed early law. Such procedural rules affected the law itself and they have left their imprint.

(g) No reception of Roman law

English common law was of native growth and little influenced by Roman Law, unlike the law of Continental countries and Scotland which was shaped by it.

(h) The doctrine of precedent

To achieve some consistency in decisions, the courts developed the practice that the lower courts are bound to follow decisions in higher courts.

(i)Practical nature of the law

It was emphasized by the House of Lords in Ainsbury v. Millington (1987) that it has always been a fundamental feature of the English judicial system that the courts decide disputes between the parties before them. They will not pronounce on abstract questions of law where there is no dispute to be resolved.

Sir Thomas More( 1478-1535)

Sir Thomas More was an English statesman and writer, known for his religious stance against King Henry VIII that cost him his life. More was born in London and was educated at one of London’s best schools. He later spent two years in the University of Oxford, mastering Latin and undergoing a thorough drilling in formal logic.

Among his important thoughts was that the reasons for crime were to be found in economic and social conditions. He believed that if people lived in a more just and humane society they would behave better. He also thought that punishment should be sensible and that people found guilty should be made to work for the good of the community. His views were far ahead of the time, so that it was only in later centuries that his book Utopia was really understood.

More’s Utopia describes a pagan and communist city-state in which the institutions and policies are entirely governed by reason. The order and dignity of such a state provided a notable contrast with the unreasonable policy of Christian Europe, divided by self-interest and greed for power and riches, which More described in Book 1, written in England in 1516. Among the topics discussed by More in Utopia were penology, state-controlled education, religious pluralism, divorce, euthanasia, and women’s rights. The resulting demonstration of his learning, invention, and wit established his reputation as one of the foremost Humanists. Soon translated into most European languages, Utopia became the ancestor of a new literary genre, the Utopian romance.

More’s History of King Richard III, written in Latin and in English between about 1513 and 1518, is the first masterpiece of English historiography. Though never finished, it influenced succeeding historians. William Shakespeare is indebted to More for his portrait of the tyrant.

More attracted the attention of King Henry VIII. The King made More one of his favourites and often sought his company for philosophical conversations. More became Lord Chancellor in 1529; he was the first layman to hold the post. His fortunes changed, however, he refused to support Henry’s request for a divorce from Catherine of Aragon.

As a strict Roman Catholic he disapproved of Henry VIII’s attempt to break away from the church in Rome and set up his own Church of England. For failing to accept Henry as the head of the English church he was tried for treason in 1535 and beheaded at the Tower of London. He was made a saint by the Roman Catholic Church.

John Locke ( 1632-1704)

The ideas and writing of the seventeenth-century English philosopher John Locke deeply influenced the political outlook of the American colonists. Locke spelled out his political ideas in Two Treatises on Civil Government, first published in 1690. His writings were widely read and discussed in both Europe and America. Locke’s ideas seemed to fit the American colonial experience. Colonial leaders such as Benjamin Franklin, Thomas Jefferson, and James Madison regarded these ideas as political truth. Locke’s ideas became so influential that they have been called the “textbook of the American Revolution”.

Locke reasoned that all people were born free, equal, and independent. They possessed natural rights to life, liberty, and property at the time they lived in a state of nature, before governments were formed. People contracted among themselves to form governments to protect their natural rights. Locke argued that if a government failed to protect these natural rights, the people could change that government. The people had not agreed to be governed by tyrants who threatened their rights but by rulers who defended their rights.

Locke’s ideas were revolutionary in an age when monarchs still claimed they had God-given absolute powers. Locke denied that people were born with an obligation to obey their rulers. Rather, in his Second Treatise on Civil Government, Locke insisted that freedom of people under government is to have a standing rule to live by, common to every one of that society, and made by the legislative power vested in it.

Government, then, was legitimate only as long as people continued to consent to it. Both the Declaration of Independence and the Constitution, written nearly a century after Locke, reflected Locke’s revolutionary ideas.

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CLASSIFICATION OF LAW IN GREAT BRITAIN

There are two main branches of the law -criminal and civil. Criminal law is concerned with acts contrary to the order, peace and security of society which are punishable by the State. Civil law is concerned with disputes between individuals about their rights, duties and obligations. It also covers dealings between individuals and companies and between one company and another. Contract law, for example, is essential to trade between companies and the smooth running of the market economy.

Various government committees are responsible for reviewing the law and making recommendations for its simplification and modernisation. Any changes resulting from this activity are made by legislation.

Criminal Law

The aims of the criminal justice system are to:

• prevent and reduce crime where possible;

• help victims;

• ensure that those suspected, accused or convicted of crimes are dealt with fairly, justly and with the minimum of delay;

• convict the guilty and acquit the innocent; and

• punish suitably those found guilty and discourage further offending.

The effectiveness of the system in England and Wales was examined by a Royal Commission on Criminal Justice between 1991 and 1993 and a number of significant recommendations for change were made. Some of these were addressed by the Criminal Justice and Public Order Act which, together with the Police and Magistrates' Courts Act, formed a major part of the Government's legislative programme in 1994.

Further important legislation introducing a Criminal Cases Review Commission in England, Wales and Northern Ireland, and enhancing the powers of the criminal justice agencies in Scotland was enacted in July 1995.