The English Legal System - Essay Example

The English Legal System The Natural law content is set by nature and thus it is valid everywhere. Natural law opposes the concept of the positive law of a certain political community, or nation-state, and therefore can function as a standard to criticize that law. However the content of positive law should be known with some reference to the natural law. Thereby natural law is used to criticize decisions about the statutes, but less so to criticize the law itself. In Fact the Natural law theories have exercised a profound influence on the development of English common law. When the UK joined the European Economic Community (now the E U), as a consequence the UK is subject to Community law, and the secondary legislation of the EU institutions. The European law consists of three forms: regulations, directives and decisions. Regulations are effective without UK legislation, Directives require specific legislation for implementation, and Decisions take precedence over any domestic law. The UK parliament is the sovereign authority of legislation i.e. is responsible for the creation of Acts of Parliament. Before enactment, an Act is referred to as a Bill, both Houses of Parliament have to consider Bills and finally receive the Royal Assent. The most importantly is delegated legislation that is considered as a source of law.The next source of law is case law, the effective creation and refinement of law during judicial decisions: The judiciary main function is interpreting the actual meaning of legislation providing it with further creativity. The final source of law is custom. The common law represents a crystallization of common customs, distilled by the judiciary in the course of its travels round the land. A second possible customary source of law its rules are derived form specific local customs. In the English legal system restraints on judges are that the Judicial decisions are subject to modification by legislation; And the final authority to dismiss a judge resides in Parliament but this can only be done by the consent of both Houses. However jurisdiction of courts supervises the use of statutory and prerogative powers by government ministers. Moreover "The validity of actions and decisions for which there is no legal authority or source or which are taken in flagrant abuse of the requirements of procedural fairness (natural justice) may be challenged through an application for judicial review." Carroll, a. 2007. In addition There are rules that underpinning judicial independence: By convention ministers do not criticize judges or their decisions - although in recent times some see it can't be applied on parliamentary questions relating to controversial cases. According to the rules of the House of Commons it is forbidden to criticize a judge unless pursuant to a substantive motion for dismissal. It is permitted to propose adverse comment on judicial decisions providing this does not reflect on a judge's character or competence. For explaining the power of precedent Judicial precedent means that judges must follow the rule of law established in the previous decided cases of the court of equal status or higher, if they are of the same legal principle and facts. Judicial precedent is a system of law-making by judges rather than by parliament. The decisions made by the judges, called precedents, are used as models for future cases. This causes certainty due to the prediction of outcome of a case on which applied previous rules of a similar case however due to discretion of judges to make law and over rule precedents and conflicting rules may also produce uncertainty. The precedents of the Higher courts are binding on lower courts and the court structure is hierarchical and the House of Lords is the highest court. With R v R - rape within marriages - wife no longer a property of husband. A court higher up in the hierarchy in a different later case can set aside a legal ruling established in a previous case. Overruling refers to the ratio of a case and not its decision. It has to be emphasized the courts will not shrink from overruling authorities where they see them as no longer representing an appropriate statement of law. This was in the case of R v R [1992] which recognizes the possibility of rape within marriage.In another example in the case of R v R (Marital rape), the House of Lords abolished husband's 250 year-old immunity from criminal liability for raping his wife. This decision was an example of the ability of the common law to evolve in the light of changing social, economic and cultural development. Before the enactment of the Human Rights Act 1998, the European Convention was directly relevant to statutory interpretation. The Human Rights Act 1998 has imposed on the courts an obligation to interpret domestic legislation according to European Convention rights. However the Human Rights Act 1998 allows Parliament to enact legislation violating European Convention rights if it wishes to do so. When a claimant bring a case to court. The power passed to the court under the act takes two forms: Fault in primary legislation: If a case is brought and a piece of "primary legislation", i.e. an Act of Parliament, is in conflict with the convention then a designated court may issue a "declaration of incompatibility". The incompatible law will continue to apply and the court issuing the declaration must comply with its provisions, but the declaration's role is to make ministers amend the law in Parliament. If ministers failed to do so, the complainant may take the case to the European Court. If the European Court finds in favor of the claimant, the UK Government is obligated to amend the legislation. Fault in secondary legislation: If any Secondary Legislation is found to be incompatible with the Convention, the court must provide a remedy, provided doing so does not conflict with any primary legislation. The Government considers that a declaration will almost certainly lead to a change in legislation but, of course, this is not a certainty. However, when the House of Lords issues an incompatibility and the Government refuses to act the following action would not be expected ; it is assumed that the European Court of Human Rights, must accept the UK court's judgment in declaring the incompatibility and find against the Government. In addition the Human rights act completely abolished the death penalty in the UK law. I believe that the aforementioned applications prove that human rights come from inside the law. The human rights act intends to promote human rights that are already exists in law. It is not a big deal to propose regulations and directives but the real fair is applying them in an adequate manner and equity that is the real function of human rights. and The concept of universal jurisdiction however is not widely accepted, authorizes any nation to prosecute and punish violations of human rights wherever and whenever they may have occurred. It is clear that The English legal system has been developed over a period of many centuries, to accommodate changes in society. The body of law is divided into primary legislation that is interpreted by judges and a large amount of case law. The judges are largely independent of the legislative and the executives. References 1. Natural law, Wikipedia, the free encyclopedia, [Accessed on 22/12/2008] 2. Carroll, a, Constitutional and Administrative Law ( 4th ed), London Pearson, Longman.2007 3. Slapper, G. and, Kelly, D., The English legal system, (6th ed), 2006-2007, Q&A series, (Online) [accessed on 22/12/2008] 4. Human Rights Interpretation and Application in UK Law, Law Teacher Press, [Accessed on 22/12/2008] 5.Judicial Precedent-ELS , Mavrky Law Student Centre, Oct. 24, 2006 < http://mavrkylawcenter.blogspot.com/2006/10/judicial-precedent-els.html > [accessed on 23/12/2008] 6. Human Rights Act 1998, Solar Navigator website, [accessed on 23/12/2008] Read More