The English Legal System - Case Study Example

The English legal System 22nd December 2009 Introduction It has been said that the foundationsof the English Legal System are no more believable than 'Alice in Wonderland' because the entire English legal system is based upon a series of unconvincing myths. One such myth is that judges are bound by previous precedents, but in reality, the judges have no difficulty in ignoring these precedents whenever the precedents do not suit their will and they thus do not wish to follow them. The initial advantage of precedent is that is serves as a time saving device of convenience. This is because when a problem has already arisen before and has been solved in the past, then it would be easy to reach a similar conclusion without too much consideration. Precedent brings consistency to the English legal system, in that two cases with similar material facts will be treated in the same manner. No legal system can be perceived as fair unless everyone receives equal treatment. Predictability allows lawyers to advice their clients with some degree of certainty. Certainty is an important advantage from the existence of precedent. A judge may be prevented from making a mistake, which he or she might have made if there were not any guidance available. However, some may feel that treating two cases alike doesn't allow for much freedom and rigidity is formed, inhibiting the development of the law and therefore giving the impression that the law of precedent is strict and inflexible. A criticism against the law of precedent is the fact that it can actually lead to a degree of rigidity in the system. Nevertheless, a judge may avoid following a previous decision in various ways. A judge may be able to distinguish an earlier case from the present case on its facts and thus avoid following it. No two cases will ever be identical in every way. The cases of Jordan (1956) 40 Cr App R 152 and Smith (1959) 2 A11 ER 193illustrate a 'real life' example of distinguishing two separate cases from one another. They may seem at first to be alike in many ways, but when the facts are investigated fully, its becomes obvious that they are actually different. This indicates that separate precedents would need to be used. A judge could avoid using a precedent because he or she found the ratio too obscure or the previous decision was per incuriam i.e. by mistake and without all the facts. Reversing occurs where a court higher up in the hierarchy overturns the decision of a lower court on appeal in the same case. The House of Lords has since 1966 indicated that it is actually prepared not follow its previous decisions if they feel that injustice will occur or there will be unreasonable restriction of the development of the law. Its own previous decisions as well as those by the House of Lords will bind the Court of Appeal, but there are two main exceptions to this rule. The court will choose which decision to follow if there are two conflicting decisions and will not follow one of its own decisions if it is inconsistent with a decision of the House of Lords or the Privacy. Miliangos v George Frank (Textiles) Ltd (1975) 3 A11 ER 801.Where a judge can actually avoid using a precedent it can be seen that the law of precedent is not as strict and inflexible as the title and some peoples opinions may suggest. However some judges (particularly in the Lords) have been, at times (and to an extent still are - holding decisions to be wrong, but not refusing to overrule them) very strict in their adherence to stare decisis i.e. they do not care whether a decision is 'right' or 'wrong', just or unjust. This can be seen as a big disadvantage as it means to say that judges have too much power at times and a bad precedent can be ignored which would make the law strict and inflexible at times. Other advantages include; how it is applicable to all future cases and is immediately operational. It is said that the legal system is "regulated" by constitutional conventions, whereas the truth is that those conventions may be ignored or adapted whenever it suits the person supposedly "bound" by them. The law is continuously updated to new events, inventions etc and unforeseen circumstances that allow for growth within the English Legal system. These advantages prove that the law of precedent has room for scope and is not just fixed. There is the ability for change and updating within the law and the sense of inflexibility is not so strong. The law of precedent has been investigated to find out whether or not it would seem that it is both strict and inflexible. In conclusion, it has been seen via this essay that the law of precedent does have both its advantages and disadvantages that you will probably find with most laws or statutes within all different law systems throughout the world. However, from my own personal view I feel that that this law is not as strict and inflexible as one might first think. My main reasoning for feeling this way is from the point that there are ways in which a judge can avoid using a precedent if he or she needs to. Flexibility is gained via a number of different ways, including distinguishing, perincuriam, overruling, conflicting decisions and through the House of Lords Practice Statement 1966. In the case of Rondel v Worsley (1967) 3 A11 ER 993 the precedent which was previously set was you cannot sue you are your barrister if you lose your case in court. The courts were concerned that that if you were allowed to sue it would 'open the floodgates'. However, the point of mentioning this case is the fact that in the year 2000, the precedent was qualified and now in certain situations it is now possible to sue your barrister. This shows that it is possible to review precedents and change them if there is the need to do so. Not all the disadvantages have been mentioned as only the relevant ones for this essay were picked out. Some believe that treating two cases in the same way can lead to the law being inflexible and rigidity and a lack of freedom is formed. This to a certain extent is true but I feel that if two cases are very alike with just material facts being different i.e. one case was at night whereas the other was in the day, and then they should be treated in the same way. This leads to fairness and certainty as mentioned previously It is said that Parliament "became" supreme by virtue of the Crown and Parliament Recognition Act 1689 whereas this ignores the reality that a non-supreme body cannot simply declare itself one day to be supreme. The English court system dates back to 1200, the longest running within European secular court records. It is a common law system. The court system started as a concept of justice, a matter of the crown. The court system works on a hierarchy. This proves to be a tried a tested system which is centuries old, the hierarchical system means there is always a court of appeal, thus a second chance for justice.The main backbone of the English court system is the doctrine president, this plays a very important part of the English judicial system. The doctrine president means that courts are "bound by an earlier decision on the same point made by the same court or a higher court." For this reason lawyers who argue in courts started publishing collections of important decisions, to remind the courts of its previous decisions .The doctrine president is one of the main reasons as to why the English system is deemed to be one of the fairest in the world.English Court system and businessTo this day more international contracts are drawn up in London than any other place in the world. London attracts many overseas business men and is seen as the best place to settle contract dispute. If anything this proves that England is renown around the world to have a fair legal system, this is because the English president system is deemed to have more of a stable and predictable outcome when compared to those of the European courts, where precedent has lesser of an impact on the outcome. This makes the English system more desirable to the business world; especially dealing with aviation and shipping, banking and the international sale of goods. Most international trade contracts made in England are negotiated and enacted without any dispute. The most disputes derive from insurers dealing with large claims. It is said that the international world of insurance prefers the professionalism and predictability of the English president system. One of the special features of the English court system is our specialty courts I.E. the admiralty court, the commercial court, etc. The specialty courts, all of which are presided over by a judge who has expertise in the matter at hand. This also gives the English court system an edge of fairness as the judge is deemed to be educated within the subject matter. In 1971 the administration of the courts were placed under the control of the Lord Chancellors Department of civil servants and the treasury. This caused the cost of access to the court system to rise for the litigator and the quality of service to somewhat drop. The evolution of the English court system. It is important to point out the English court system is a product of evolution not revolution. Firstly the main purpose of the court was for the king to be the supreme lawgiver and the judge. This system has continually evolved to give us the well respected system which we work from today. In the 13th century the King sat with the Lords to form the curia Parliament (the high court of parliament) This in turn resulted in The House of Lords. It could be argued that the English Law system is also a product of culture and tradition. The house of lords is the final court of appeal in criminal and civil matters. The main purpose of the house of lords is that petition which has previously been reviewed may be taken to the house of lords to be reviewed again Before Her Majesty the Queen in Her Court of Parliament. It has also been pointe out that parliament remains supreme, whereas this ignores the reality that the British legislature and courts are now firmly under the control of those responsible for implementing EU law and the European Convention of Human Rights. Equally, the British judiciary is now able to question statutes in a way which makes it ridiculous to speak of Parliamentary sovereignty. Decision made by a judge in a particular case are "blinding" on the decision of future judges when the fact or same. This procedure is known as "judicial precedent" which is a very important part of the common law in English legal system. Concept of precedent is based on the Latin saying "stare decisis et non quieta movere" which means "standby what has been decided and do not change the established". The English legal system follows the rules of judicial precedent very rigidly while comparing with other countries, this means the courts in England and Wales must fallow decisions already made in higher or superior courts. In order to reduce pressure on parliamentary time, Acts of Parliament often give government ministers or other authorities the power to regulate administrative details by means of 'delegated' or secondary legislation. This mostly takes the form of Orders in Council, Regulations and Rules known as Statutory Instruments (SIs). These are as much the law of the land as are Acts of Parliament. SIs is normally drafted by the legal department of the ministry concerned and may be subject, when in draft, to consultations with interested parties. About 3,000 SIs are issued each year. To minimize any risk that delegating powers to the executive might undermine the authority of Parliament, such powers are normally only delegated to authorities directly accountable to Parliament. The relevant Acts sometimes provide for some measure of direct parliamentary control over proposed delegated legislation, by giving Parliament the opportunity to affirm or annul it. Parliament always has the right to consider whether the SI is made in accordance with the powers that it delegated. "Despite the fact that England represents itself as a country that is seeking to engage it self in some active role as far as the current global environment is concerned, it also comes out as a nation with history of rich legal system." (Terrett, 2009) References Barrie Axford (1997) Politics: An Introduction, RoutledgeJanet Morrison (2002) The International Business Environment, PalgraveSteiner, J. and Woods, L. (2000) Textbook on EU Law, 7th edition, London, Blackstone Press. 2006-2007 English Legal System Assignment Report. English Legal System .2009. Retrieved on Dec. 14, 2009 from http://academia-research.com/files/instr/346988_2006-2007_ELS_Examiners_Report_Moodle_Version Munro, W. B. 1936. The Government of the United States (4th Ed). London: Rautledge Publishers pp. 80-8. Terrett, S. 2009. Workbook 1: English legal History and the Source of English Law. Retrieved on Dec 14, 2009 from http://academia-research.com/files/instr/346988_2009-2010_-_ELS_Workbook_1.pdf 2006-2007 English Legal System Assignment Report. English Legal System .2009. Retrieved on Dec. 14, 2009 from http://academia-research.com/files/instr/346988_2006-2007_ELS_Examiners_Report_Moodle_Version Read More