The Law
Although Britain is a unitary state, England and Wales, Scotland and Northern Ireland all have their own legal systems, with considerable differences in law, organisation and practice. However, a large amount of modern legislation applies throughout Britain. The law is divided into criminal law and civil law; the latter regulates the conduct of people in ordinary relations with one another. The distinction between the two branches of the law is reflected in the procedures used, the courts in which cases may be heard and the sanctions which may be applied.
The legal system of England and Wales comprises both an historic body of conventions known as common law and equity, and parliamentary and European Community legislation; the last of these applies throughout Britain. Common law, which is based on custom and interpreted in court cases by judges, has never been precisely defined or codified. It forms the basis of the law except when superseded by legislation. Equity law consists of a body of historic rules and principles which are applied by the courts.
The English legal system is therefore distinct from many of those of Western Europe, which have codes derived from Roman law.
European Community law, deriving from Britain's membership of the European Union, is confined mainly to economic and social matters; in certain circumstances it takes precedence over domestic law. It is normally applied by the domestic courts, but the most authoritative rulings are given by the European
Court.
The Judiciary
The Lord Chancellor is head of the judiciary in England and Wales. His responsibilities include court procedure and, through the Court Service, the administration of the higher courts and many tribunals in
England and Wales. He recommends all judicial appointments to the Crown - other than the highest, which are recommended by the Prime Minister - and appoints magistrates. Judges are normally appointed from practising lawyers. They are not subject to ministerial direction or control.
THE COURTS
Criminal Courts:
Summary or less serious offences, which make up the vast majority of criminal cases, are tried in England and Wales by unpaid lay magistrates - justices of the peace (IPs), although in areas with a heavy workload there are a number of full-time, stipendiary magistrates. More serious offences are tried by the Crown
Court, presided over by a judge sitting with a jury of citizens randomly picked from the local electoral register. The Crown Court sits at about 90 centres and is presided over by High Court judges, full-time
'circuit judges' and part-time recorders.
Appeals from the magistrates' courts go before the Crown Court or the High Court. Appeals from the
Crown Court are made to the Court of Appeal (Criminal Division). The House of Lords is the final appeal court in all cases.
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Civil Courts
Magistrates' courts have limited civil jurisdiction. The Y70 county courts have a wider jurisdiction; cases are normally tried by judges sitting alone. The 80 or so judges in the High Court cover civil cases and some criminal cases, and also deal with the appeals. The High Court sits at the Royal Courts of Justice in
London or at 26 district registries. Appeals from the High Court are heard in the Court of Appeal (Civil
Division), and may go on to the House of Lords, the final court of appeal.
The Home Secretary
The Home Secretary has overall responsibility fbr the criminal justice system in England and Wales and for advising the Queen on the exercise of the royal prerogative of mercy to pardon a person convicted of a crime or to remit all or part of a penalty imposed by a court. The Home Secretary can also send a case back to the Court of Appeal if fresh evidence emerges after a conviction has been made.
Scotland
The principles and procedures of the Scottish legal system (particularly in civil law) differ in many respects from those of England and Wales.
Criminal cases are tried in district courts, sheriff courts and the High Court of Justiciary. The main civil courts are the sheriff courts and the Court of Session.
The Secretary of State for Scotland recommends the appointment of all judges other than the most senior ones. He or she also appoints the staff of the High Court of Justiciary and the Court of Session, and is responsible for the composition, staffing and organisation of the sheriff courts. District courts are staffed and administered by the district and islands local authorities.
Northern Ireland
The legal system of Northern Ireland is in many respects similar to that of England and Wales. It has its own court system: the superior courts are the Court of Appeal, the High Court and the Crown Court, which together comprise the Supreme Court of Judicature. A number of arrangements differ from those in
England and Wales. A major example is that those accused of terrorist-type offences are tried in nonjury courts to avoid any intimidation of jurors.
Tribunals
Tribunals are a specialised group of judicial bodies, akin to courts of law. They are normally set up under statutory powers which also govern their constitution, functions and procedure.
Tribunals often consist of lay people, but they are generally chaired by a legally qualified person. They tend to be less expensive, and less formal, than courts of law. Some tribunals settle disputes between private citizens. Industrial tribunals, for example, play a major role in employment disputes. Others, such as those concerned with social security, resolve claims by private citizens against public authorities. A further group, including tax tribunals, decide disputed claims by public authorities against private citizens. Tribunals usually consist of an uneven number of people so that a majority decision can be reached.
Members are normally appointed by the government minister concerned with the subject, although the
Lord Chancellor (or Lord President of the Court of Session in Scotland) makes most appointments when a lawyer chairman or member is required. In many cases there is a right of appeal to a higher tribunal and,
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usually, to the courts. Tribunals do not normally employ staff or spend money themselves, but their expenses are paid by the government departments concerned. An independent Council on Tribunals exercises general supervision over many tribunals.
English law
English law, the law of England and Wales (but not Scotland and Northern Ireland), also known generally as the common law (as opposed to civil law), was exported to Commonwealth countries while the British
Empire was established and maintained, and persisted after the British withdrew or were expelled, to form the basis of the jurisprudence of many of those countries. English law has also greatly influenced
American law, and still provides the basis for many American legal traditions and policies.
Actually part of the English legal system has always been considered to be based upon the civil law,
(although it has little to do with it), namely the ecclesiastical courts and the courts of admiralty.
The essence of common law is that it is made by judges sitting in courts, applying their common sense and knowledge of legal precedent to the fact before them. Because common law consisted of using what had gone before as a guide, common law places great emphasis on precedents. Thus a decision of the highest court in England and Wales, the House of Lords (the judicial members of which are referred to as
Law Lords ) is binding on every other court in the hierarchy, and they will follow its directions.
Precedent continues to be applied across both civil and criminal law to this day allowing for decisions made in one Court regarding a set of facts and their interpretation in law to be applied to like circumstances in the future.
It is also for this reason that there is no Act of Parliament (the normal method for creating laws in the UK) making murder illegal. It is still a common law crime - so although there is no written Act passed by
Parliament making murder illegal, it is illegal by virtue of the constitutional authority of the courts and their previous decisions. Common law can be amended or repealed by Parliament, for example, murder carries a mandatory life sentence today, but had previously allowed the death penalty.
However, while England and Wales retains the common law the UK is part of the European Union and
European Union Law is effective in the UK. The European Union consists mainly of countries which use civil law and so the civil law system is also in England in this form, and the European Court of Justice, a predominantly civil law court, can direct UK courts on the meaning of EU law.
The oldest law currently in force is the Distress Act, 1267, part of the Statute of Marlborough, (52 Hen.
3). Three sections of Magna Carta, originally signed in 1215 and a landmark in the development of
English law, are still extant, but they date to the reissuing of the law in 1297.
Many jurisdictions which were formerly subject to English law continue to recognize the common law of
England as their own - subject, of course, to statutory modification and judicial revision - and decisions from the English Reports continue to be cited from time to time as persuasive authority in present day judicial opinions.
Britain's Legal System
England and Wales, Scotland and Northern Ireland all have their own legal systems, with minor differences in law, organization and practice.
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Criminal Justice
Law enforcement is carried out by 52 locally based police departments with about 160,000 police officers. The police are normally unarmed and there are strict limits to police powers of arrest and detention. Firearms must be licensed and their possession is regulated.
In British criminal trials the accused in presumed innocent until proven guilty. Trials are in open court and the accused is represented by a lawyer. Most cases are tried before lay justices sitting without a jury.
The more serious cases are tried in the higher courts before a jury of 12 (15 in Scotland) which decides guilt or innocence.
Civil Justice
The civil law of England, Wales and Northern Ireland covers business related to the family, property, contracts and torts (non-contractual wrongful acts suffered by one person at the hands of another).
Actions brought to court are usually tried without a jury. Higher courts deal with more complicated civil cases. Most judgements are for sums of money, and the costs of an action are generally paid by the losing party.
Administration of the Law
The Lord Chancellor is the head of the judiciary branch of government. The administration of the law rests with him, the Home Secretary, the Attorney General and the Secretaries of State for Scotland and
Northern Ireland. The courts of the United Kingdom are the Queen's Courts, the Crown being the historic source of all judicial power.
Judges are appointed from among practicing lawyers. Barristers or advocates advise on legal problems and present cases in the lay justices' and jury courts. Solictors represent individual and corporate clients and appear in the lay justices' courts. Lay justices need no legal qualifications but are trained to give them sufficient knowledge of the law.
A person in need of legal council may qualify for public funds assistance.
The Law Making Process
Statute law consist of Acts of Parliament and delegated legislation made by Ministers under powers given to them by Act. While the law undergoes constant refinement in the courts, changes to statute law are made by Parliament. Draft laws take the form of parliamentary Bills. There are generally three types of
Bills.
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Public Bills are those which change the general law and which constitute the significant part of the parliamentary legislative process.
2.
Private Bills are those which affect the powers of particular bodies (such as local authorities) or the rights of individuals (such as certain proposals relating to railways, roads and harbours).
3.
Hybrid Bills are public Bills which may affect private rights. The passage of private Bills and hybrid Bills through Parliament is governed by a special form of parliamentary procedure which allows those affected to put their case.
Public Bills can be introduced, in either House, by a government minister or by an ordinary member.
Most public Bills that become Acts of Parliament are introduced by a government minister and are known as 'government Bills'. Before a government Bill is drafted, there may be consultation with organizations which are interested in the subject. Proposals for legislative changes are sometimes set out in government
'White Papers', which may be debated in Parliament before a Bill is introduced. From time to time
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consultation papers, sometimes called 'Green Papers', set out government proposals which are still taking shape and seek comments from the public.
Private Members' Bills
Individual MPs have a number of opportunities to introduce Bills. Such Private Members' Bills often do not proceed very far, but a few become law each session. Peers may introduce private Members' Bills in the House of Lords at any time. A Private Members' Bill passed by either House will not proceed in the other House unless it is taken up by a member of that House.
Passage of Public Bills
A draft law is given a first reading in the House of Commons without debate; this is followed by a thorough debate on general principles at second reading. It is then given detailed consideration, clause by clause, by a Commons committee before report stage in the whole House, during which further amendments may be considered. At the third reading a Bill is reviewed in its final form and may be debated again. The House of Lords has similar procedures. Bills must normally be passed by both
Houses. They must then receive the Royal Assent before becoming Acts. In practice this is a formality.
Delegated Legislation
In order to reduce unnecessary pressure on parliamentary time, primary legislation often gives ministers or other authorities the power to regulate administrative details by means of 'delegated' or secondary legislation. To minimize any risk that delegating powers to the executive might undermine the authority of Parliament, such powers are normally delegated only to authorities directly accountable to Parliament.
Moreover, the Acts of Parliament concerned usually provide for some measure of direct parliamentary control over proposed delegated legislation, by giving Parliament the opportunity to affirm or annul it.
A joint committee of both Houses reports on the technical propriety of these 'statutory instruments'. In order to save time on the floor of the House, the Commons also uses standing committees to debate the merits of instruments; actual decisions are taken by the House. The House of Lords has also appointed a
Delegated Powers Scrutiny Committee which examines the appropriateness of the powers to make secondary legislation in Bills as they come before that House.
The common-law legal system forms a major part of the law of many countries, especially those with a history as British territories or colonies. It is notable for the inclusion of extensive non-statutory law reflecting a consensus of centuries of judgements by working jurists.
History of the common law
The common law originally developed under the auspices of the adversarial system in historical England from judicial decisions that were based in tradition, custom, and precedent. The form of reasoning used in common law is known as casuistry or case-based reasoning. Common law may be unwritten or written in statutes or codes. The common law, as applied in civil cases (as distinct from criminal cases), was devised as a means of compensating someone for wrongful acts known as torts, including both intentional torts and torts caused by negligence and as developing the body of law recognizing and regulating contracts.
Today common law is generally thought of as applying only to civil disputes; originally it encompassed the criminal law before criminal codes were adopted in most common law jurisdictions in the late 19th century. The type of procedure practiced in common law courts is known as the adversarial system; this is also a development of the common law.
Before the institutional stability imposed on England by William the Conqueror in 1066, English citizens were governed by unwritten local customs that varied from community to community and were enforced in often arbitrary fashion. For example, courts generally consisted of informal public assemblies that
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weighed conflicting claims in a case and, if unable to reach a decision, might require an accused to test guilt or innocence by carrying a red-hot iron or snatching a stone from a caldron of boiling water or some other "test" of veracity (trial by ordeal). If the defendant's wound healed within a prescribed period, he was set free as innocent; if not, execution usually followed.
In 1154, Henry II became the first Plantagenet king. Among many achievements, Henry institutionalized common law by creating a unified system of law "common" to the country through incorporating and elevating local custom to the national, ending local control and peculiarities, eliminating arbitrary remedies, and reinstating a jury system of citizens sworn on oath to investigate reliably criminal accusations and civil claims. The jury reached its verdict through evaluating common local knowledge, not necessarily through the presentation of evidence, a distinguishing factor from today's civil and criminal court systems.
Henry II's creation of a powerful and unified court system, which curbed somewhat the power of canonical (church) courts, brought him (and England) into conflict with the church, most famously, with
Thomas Becket, the archbishop of Canterbury. Things were resolved eventually, at least for a time, in
Henry's favor when a group of his henchmen murdered Becket. For its part, the Church soon canonized
Becket as a saint.
As early as the 15th century, it became the practice that litigants who felt they had been cheated by the common-law system would petition the King in person. For example, they might argue that an award of damages (at common law) was not sufficient redress for a trespasser occupying their land, and instead request that the trespasser be evicted. From this developed the system of equity, administered by the Lord
Chancellor, in the courts of chancery. By their nature, equity and law were frequently in conflict and litigation would frequently continue for years as one court countermanded the other, even though it was established by the 17th century that equity should prevail. A famous example is the fictional case of
Jarndyce and Jarndyce in Bleak House, by Charles Dickens.
In England, courts of law and equity were combined by the Judicature Acts of 1873 and 1875, with equity being supreme in case of conflict. In the United States, parallel systems of law (providing money damages) and equity (fashioning a remedy to fit the situation) survived well into the 20th century in most juridictions: In the federal courts there is no separation between law and equity; Delaware still has separate courts of law and equity, and in many states there are separate divisions for law and equity within one court.
Common law legal systems
The common law constitutes the basis of the legal systems of: England and Wales, the Republic of
Ireland, the states of The United States (except Louisiana), Canada (except Quebec private law),
Australia, New Zealand, South Africa, India, Malaysia, Singapore, Hong Kong, and many other generally
English-speaking countries or Commonwealth countries. Essentially, every country which has been colonised at some time by Britain uses common law except those that had been colonized by other nations, such as Quebec (which follows French law to some extent) and South Africa (which follows
Roman Dutch law), where the prior civil law system was retained to respect the civil rights of the local colonists. India's system of common law is also a mixture of English law and the local Hindu law.
The main alternative to the common law system is the civil law system, which is used in Continental
Europe, and most of the rest of the world. The former Soviet Bloc and other Socialist countries used a
Socialist law system.
Basic principles of common law
Statutes which reflect English common law are understood to always be interpreted in light of the common law tradition, and so may leave a number of things unsaid because they are already understood
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from the point of view of pre-existing case law and custom. This can readily be seen in the area of criminal law, which while remaining largely governed by the common law in England, has been entirely codified in many US states. Codification is the process where a statute is passed with the intention of restating the common law position in a single document rather than creating new offences, so the common law remains relevant to their interpretation. This is why even today American law schools teach the common law of crime as practiced in England in 1750, since the colonies (and subsequently the states) deviated from the common law as practiced in England only after that date.
By contrast to the statutory codifications of common law, some laws are purely statutory, and may create a new cause of action beyond the common law. An example is the tort of wrongful death, which allows certain persons, usually a spouse, child or estate, to sue for damages on behalf of the deceased. There is no such tort in English common law; thus, any jurisdiction that lacks a wrongful death statute will not allow a lawsuit for the wrongful death of a loved one. Where a wrongful death statute exists, the damages or compensation available are limited to those outlined in the statute (typically, an upper limit on the amount of damages). Courts generally interpret statutes that create new causes of action narrowly -- that is, limited to their precise terms -- because the courts generally recognize the legislature as being supreme in deciding the reach of judge made law unless such statute should violate some "second order" constitutional law provision (compare judicial activism).
Where a tort is grounded in common law, then all damages traditionally recognized historically for that tort may be sued for, whether or not there is mention of those damages in the current statutory law. For instance, a person who sustains bodily injury through the negligence of another may sue for medical costs, pain, suffering, loss of earnings or earning capacity, mental and/or emotional distress, loss of quality of life, disfigurement, and more. These damages need not be set forth in statute as they already exist in the tradition of common law. However, without a wrongful death statute, most of them are extinguished upon death.
Works on the common law
The definitive historical treatise on the common law is Commentaries on the Laws of England , written by
Sir William Blackstone and first published in 1765 - 1769. Since 1979 a facsimile edition of that first edition has been available in four paper-bound volumes. Today it has been superseded in the English part of the United Kingdom by Halsbury's Laws of England that covers both common and statutory English law. The U.S. Supreme Court judge Oliver Wendell Holmes Jr. also published a short volume called The
Common Law which remains a classic in the field. In the United States, the Corpus Juris Secundum is a compendium of the common law and its variations throughout the various state jurisdictions. The
American Law Institute publishes Restatements of the common law which are often cited by American courts and lawyers when they need to invoke uncodified common law doctrines.
Civil law is a legal system derived from Roman law and commonly used in Europe. It is mainly contrasted against common law.
Overview
Civil or civilian law is a legal tradition which is the basis of the law in the majority of countries of the world, especially in continental Europe, but also in Quebec (Canada), Louisiana (USA), Japan, Latin
America, and most former colonies of continental European countries. The Scottish legal system is usually considered to be a mixed system in that Scots law has a basis in Roman law, combining features of both uncodified Civil law dating back to the Corpus Juris Civilis and common law with medieval sources, further influenced by English law after the Union of 1707.
In the United States, civil law is formally the basis of the law of Louisiana (as circumscribed by federal law and the U.S. Constitution), although in western and southwestern parts of the U.S., laws in such diverse areas as divorce and water rights show the influence of their Iberian civil-law heritage, being
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based on distinctly different principles from the laws of the northeastern states colonized by settlers with
English common-law roots.
History
The civil law is based on Roman law, especially the Corpus Juris Civilis of Emperor Justinian, as later developed through the Middle Ages by mediæval legal scholars.
Originally civil law was one common legal system in much of Europe, but with the development of nationalism in the 17th century Nordic countries and around the time of the French Revolution, it became fractured into separate national systems. This change was brought about by the development of separate national codes. The French Napoleonic Code and the German and Swiss codes were the most influential ones. Around this time civil law incorporated many ideas associated with the Enlightenment.
Because Germany was a rising power in the late 19th century when many Asian nations were introducing civil law, the German Civil Code has been the basis for the legal systems of Japan and South Korea. In
China, the German Civil Code was introduced in the later years of the Qing Dynasty and formed the basis of the law of the Republic of China which remains in force in Taiwan.
Some authors consider that civil law later served as the foundation for socialist law used in Communist countries, which in this view would basically be civil law with the addition of Marxist-Leninist ideas.
Civil vs Common law
Civil law is primarily contrasted against common law, which is the legal system developed among Anglo-
Saxon peoples, especially in England.
The original difference is that, historically, common law was law developed by custom, beginning before there were any written laws and continuing to be applied by courts after there were written laws, too, whereas civil law develops out of the Roman law of Justinian's Corpus Juris Civilis proceeding from broad legal principles and the interpretation of doctrinal writings rather than the application of facts to legal fictions.
In later times, civil law became codified as droit coutumier or customary law that were local compilations of legal principles recognized as normative. Sparked by the age of enlightenment, attempts to codify private law began during the second half of the 18th century ( see civil code), but civil codes with a lasting influence were promulgated only after the French Revolution, in jurisdictions such as France (with its
Napoleonic Code), Austria ( see ABGB), Quebec ( see Civil Code of Quebec), Spain, the Netherlands and
Germany ( see BGB). However, codification is by no means a defining characteristic of a civil law system, as e.g. the civil law systems of Scandinavian countries remain largely uncodified, whereas common law jurisdictions have frequently codified parts of their laws, e.g. in the U.S. Uniform Commercial Code.
There are also mixed systems, such as the laws of Scotland, Namibia and South Africa.
Thus, the difference between civil law and common law lies less in the mere fact of codification, but in the methodological approach to codes and statutes. In civil law countries, legislation is seen as the primary source of law. By default, courts thus base their judgments on the provisions of codes and statutes, from which solutions in particular cases are to be derived. Courts thus have to reason extensively on the basis of general principles of the code, or by drawing analogies from statutory provisions to fill lacunae. By contrast, in the common law system, cases are the primary source of law, while statutes are only seen as incursions into the common law and thus interpreted narrowly.
The underlying principle of separation of powers is seen somewhat differently in civil law and common law countries. Common law countries, especially the United States, see judges as balancing the power of the other branches of government. By contrast, the original idea of separation of powers in France was to
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assign different roles to legislation and to judges, with the latter only applying the law (the judge as la bouche de la loi ). Today, it is widely recognized that this is unworkable in practice. Case law (or, more properly, jurisprudence), plays a considerable role in virtually all civil law countries, even though the development of "judge-made law" through the rule of stare decisis is not formally recognized. As a practical matter, the dichotomy should thus not be overemphasized.
It should not be overlooked that there are considerable differences between the legal methodologies of various civil law countries. For example, it is often said that common law opinions are much longer and contain elaborate reasoning, whereas legal opinions in civil law countries are usually very short and formal in nature. This is in principle true in France, where judges cite only legislation, but not prior case law. (However, this does not mean that judges do not consider it when drafting opinions.) By contrast, court opinions in German-speaking countries can be as long as American ones, and normally discuss prior cases and academic writing extensively.
There are, however, certain sociological differences. Civil law judges are usually trained and promoted separately from attorneys, whereas common law judges are usually selected from accomplished and reputable attorneys. Also, the influence of academic writing by law professors on case law tends to be much greater in civil law countries.
Subgroups
The term "civil law" as applied to a legal tradition actually originates in English-speaking countries, where it was used to lump all non-English legal traditions together and contrast them to the English common law. However, since continental European traditions are by no means uniform, scholars of comparative law and economists promoting the legal origins theory usually subdivide civil law into three distinct groups:
 French civil law: in France, the Benelux countries, Italy, Spain, Portugal and former colonies of those countries;
 German civil law: in Germany, Austria, Switzerland, Japan, South Korea and the Republic of
China (Taiwan);
 Scandinavian civil law: in Denmark, Sweden, Finland, Norway and Iceland.
Economic implications
According to the legal origins theory promoted by some economists, civil law countries tend to emphasize social stability, while common law countries focus on the rights of an individual; in this theory, this has a considerable impact of different countries' financial development.
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