34. The Legal System. The legal profession

The Legal system

The law is one of the most traditional areas of national life in Britain. Its main virtue is its independence from the system of government and a safeguard of civil liberties. Its main vice (недостаток) is said to lie in its resistance to reform and any interference from outside, and its maintenance of its own privileges.

There is a single system of law and courts in England and Wales, while Scotland and Northern Ireland have their separate systems.

There is no civil code and no criminal code in Britain. The law as a whole is founded upon two basic elements:

1. Acts of Parliament or statute law,

2. Common law which is made up of past decisions of judges. Common law, or case law systems, particularly that of England and Wales, differ from Continental law in having developed gradually throughout history, not as a result of government attempts to define or codify every legal relation. Customs and court rulings have been as important as government legislation - statutes. Judges do not merely apply (применяют) the law, in some cases they make law.

Some history

Before William of Normand England in 1066, there had existed no class of professional lawyers.

Starting with William the Conqueror, the Norman kings sent traveling judges around the country and gradually a ‘common law’ developed.

From the reign of Henry II onwards (передовые) royal judges began to hold local sessions Kings for a long time were responsible for law and order. The real change came in 1166 with the Assize of Clarendon, reinforced in 1176 by the Assize of Northampton. These assizes introduced regular measures for the trial by royal judges of people suspected of serious crimes.

And today the most important feature of the common law is tradition. In 1873, the two systems were unified, and nowadays a lawyer can pursue common law and equitable claims the same court.

Civil and public law

One important distinction is made between civil and public law. Civil law concerns disputes among citizens within the country, and public law concerns disputes between citizens and the state, or between one state and another.

The main categories of English civil law are:

1. Contracts: binding agreements between people or companies;

2. Torts: wrongs committed by one individual against another individual’s

person, property or reputation;

3. Trusts: arrangements whereby a person administers property for another

person’s benefit as long as the latter is not old enough to use it;

4. Probate: arrangements for dealing with property after the owner’s death;

5. Family Law.

The main categories of public law are:

1. Crimes: wrongs which, even when committed against an individual, are

considered to harm the well-being of society in general;

2. Constitutional Law: regulation of how the law itself operates and of the relation between

private citizen and government;

3. International Law: regulation of relations between governments and also between

private citizens of one country and those of another.

The legal profession

There is no ministry of justice in Britain. The things are shared between a number of authorities: 1. the Home Office, which administers prisons and supervises (наблюдает) the police,

2. the office of the Lord Chancellor, which oversees (наблюдает) the appointment of judges,

3. magistrates and other legal officers.

There is no Minister of Justice, though the Lord Chancellor, who is effectively the head of the legal profession, is always a member of the Cabinet.

The Lord Chancellor combines three distinct functions.

1. head of the legal hierarchy (selects judges, Queen’s Counsels and magistrates and may preside over the Law Lords if he so wishes).

2. He is Speaker of the Lords (responsible for discipline in the House).

3. He is a member of the Cabinet and the government’s chief legal adviser.

In theory, the authority of the legislature and executive in Britain are not separated. However, it is a firmly understood tradition, that while judges may not declare an Act of Parliament void, their independence from government is a fundamental duty.

Traditionally the legal profession has been divided into two distinct practices, each with rights:

1. solicitors (адвокаты, дающий советы клиенту, подготавливающий дела для барристера и выступающий только в судах низшей инстанции) could until recently deal directly with the public,

2. barristers (professional advocates) could fight a case in the higher courts (Crown Courts and the High Court).

In general, it can be said that a barrister spends most of his time either in a courtroom or preparing his arguments for the court; and a solicitor spends most of his time in an office giving advice to clients, making investigations and preparing documents. Many people believe that the distinction between barristers and solicitors should be eliminated(ликвидировано).

How can one become a judge?

There is no judicial profession in Britain. All judges are appointed by the Lord Chancellor, after many years’ work in the courts as barristers (very rarely solicitors). Once appointed they cannot be dismissed (уволен) except by a joint address of the two Houses of Parliament – and very few have ever been removed from office. Some become circuit judges, above these there are about fifty High Court judges, who deal with more important or difficult cases around the country, and about thirty other judges, all of whom belong to one of the divisions of the High Court of Justice.

England has fewer professional judges than most countries, eight per million compared with thirty-four per million in the United States. Most of the high court judges are aged over fifty, and some over sixty on appointment. Some are continuing to work at seventy-five or more before retiring. They also get very high salaries. These things are considered necessary in order to ensure their independence from interference, by the state or any other party.