English legal system - Essay Example

?ENGLISH LEGAL SYSTEM Critically assess the different sources and characteristics of the English Legal System. To what extent have external influences affected its development? The problem in this question relates to the development of the English Legal System and what were the different sources and characteristics of the legal system. Furthermore, the external elements and influences also need to be taken into account when answering the question. The initial and primary aspect that requires consideration for any legal system is the fact that it changes constant and is developing all the time and this is said to be a vital characteristic of any legal system. In lieu of the characteristic cited above it would be an incorrect notion to say that any legal system has attained its finality. As far as a legal system is concerned the major influences that tend to play a part in respect of its development are the changing social, economic and cultural forces that tend to surround the system and are thereby prevailing. An important evaluation in this respect can be drawn from the decision-making processes, structure and organisation of the English legal system, and its relation with the differing social and economic forces that had been prevailing in that period of time. As far as culture and the so called cultural rules are concerned, it can be said with ease that these have played an important role in respect of decision-making, which can be seen from the period of William the Conqueror who introduced the concept of custom based rules and laws. The important thing that needs to be done at this point in time is to define the legal system, and for that a definition of law must also be presented. One vital point that needs to be mentioned here is that the term law and legal system have been used by many writers interchangeably but this can clearly be said to be a flawed concept. Aubert in his text ‘search of law’ (1983) stated the six functions of law to be “a means of governance; a way of shaping the behaviour of the citizens; a device for distributing resources and burdens in society; a method of safeguarding expectations, a method of dealing with conflicts and contributing to their solution; and an expression of ideals and values” This definition clearly requires the existence of a legal system per se as there would be no point in having such a definition in a non-existent legal system. As far as a comparison of English Legal System and other legal system is concerned it is necessary to differentiate between what is known as the ‘common law’ and ‘civil law’ the formed defines the English Legal System, the ‘adversarial’ and ‘inquisitorial’ process whereby investigation is made and the meaning of ‘equity’ and the reason for development of equity. There are number of things which tend to make the English Legal System stand out when compared with other systems, even though these might now only be on paper and not in implementation, these were and had played an important role in respect of the development of the English Legal System. The first and foremost distinguishing factor was the fact that since common law was existent in England, it had been to a maximum level if not totally in control of the judges and existed very little or no interference of legislation and the other fact was that the judges did not specifically take into account the differing jurisprudence. The second distinguishing factor for the English Legal System is that it has been thought to have its basis on common sense and is based on logic. The third distinguishing factor is the fact that the English Legal System is that arguably the system has law in respect of each and every situation, problem that is encountered in the legal system. Another important point that needs to be raised is that statutory interpretation was restricted to the statutes and nothing else that is not looking beyond the statute, however, it has been argued and clear that other sources have been used. The important feature which makes the English Legal System stand out is that there was and is no written constitution and this has played the important part of development of the English Legal System. Furthermore, the jury trial and its use till today even though restricted to criminal trials only is a differentiating and crucial point in respect of development of the legal system. Lastly, the English law being uncodified has said to be a fundamental characteristic which clearly makes it to stand out when compared with other legal systems, even though it had been argued by many that there was uncertainty due to the uncodified nature and efforts were made to codify the same, but the position remains the same and thus the uncodified nature has prevailed till now. The Anglo-Saxon society and its customs is where the evolution and development of the English Legal System occurred. It is necessary to define custom at this point in time. Customs basically stem from the life of people and their social structure and law in England were primarily based on customs which were unwritten. The change was introduced when William the conqueror ordered evaluation and codification of customs and hence forming the basis of common law. This exercise continued and with time the courts of the king had formulate what is known as common law and were used for resolution of disputes of citizens and thereby keeping the common law distinct from customs. It is important to point out that the judges did take into account the customs that prevailed and decided accordingly and when there was no custom they would create a law. The procedure for common law was by the usage of writs which were issued. The problem in respect of the writ was that there were times when a dispute could not be categorized in writs and the power to approve a new writ vested with the Parliament. The result was that there were a lot of problems and hardships faced by people because of the rigidness of the legal system, thus a procedure of petitioning to the king was used for individual cases, which, in turn, were dealt by the Chancellor. Subsequently a Court of Chancery was formed and the evolution of equity began, being contrary to the principles of the common law of the ordinary courts. Over the years, the Court of Chancery, also called the court of conscience, solved the problem to extent of remedying the injustices caused by the stringent common law, but the problem in respect of operation of parallel system was existent. The problem in this respect was the different procedures and this required resolution which were brought about by the Judicature act 1873-1875 which established a unified system. The use of common law was often in respect of how the courts used the doctrine of precedent to develop the law and therefore no reference in respect of legislation of Parliament was made. It is only a recent development that is considerable time after the development of common law that that statutes became an important aspect and categorized as a source of law. Thus it can be said with ease that the development of the English Legal System was to a very minimal level by way of statute. Another important aspect in respect of the English Legal System and precedent is the power of the House of Lord’s power to overrule its decision being in the 1966 Practice Statement thereby allowing significant time for development of the principles of precedent. The Human Rights Act 1998 is an important development in respect of the English Legal System, which has introduced the concept of fundamental rights. Even though this is a recent phenomena it can be said to be an important development. Finally the all important membership of the European Union and its effect need to be discussed. The development of the English Legal System was based on the fact that it was sovereign and independent and was therefore not accountable to anybody, however, this has arguably been changed by the membership of European Union. Thus the Courts of England can now, arguably be said to be subject to the European Court of Justice. The other minor aspects that need to be taken into account is that of international conventions and the effect that they have on the English Legal System. Furthermore, the International Convention to which agreement has been made also allows for review and scrutiny by the International Court of Justice thereby affecting the original position of the English Legal System. Finally the Human Rights Act 1998 and the limits placed by the act also need to be taken into account and therefore the statutes have led to a limit being placed on the traditional practice of common law. References SLAPPER, G., & KELLY, D. (2006). The English legal system. London, Cavendish Publishing Ltd. MALLESON, K. (2007). The legal system. Oxford, Oxford University Press ZANDER, M. (2004). The law-making process. Cambridge, Cambridge University Press COWNIE, F., BRADNEY, A., & BURTON, M. (2007). English legal system in context. Oxford, Oxford University Press ZANDER, M. (2007). Cases and materials on the English legal system. Cambridge, Cambridge university press Read More