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Published: Fri, 02 Feb 2018
Legal Systems in English Law
English law is based upon a common law system. This developed historically because of the fact that prior to the Norman Conquest, there were various different legal systems governing different parts of the British Isles, each reflecting the influence of particular invaders (such as the Norse in northern England). Gradually, principles and practices of law that were common to each of these localities emerged, and were imposed around the country by representatives of the monarchy. The principle of stare decisis emerged, which led ultimately to the doctrine of binding precedent. The English legal system, then, is a common law system, which adapts to the changing societal needs of the age.
Common law systems (where there is something of a balance between laws made by the legislature, and those made by the judiciary) can be contrasted with civil law systems, which dominate on much of continental Europe. Civil law systems have traditionally been heavily influenced by the French Civil Code, with its Napoleonic heritage. In civil law systems, the primary source of the law is the constitution or civil code. From this stems other law. Although the English legal system is not the only common law system in the world (the system was, for example, exported to many of her colonies and territories during her imperial expansion), the English common law can be said to be a unique system, as it has historically developed in a particular way.
The advantaged of the English common law system include the certainty it affords. This was the primary reason for the historical inception of the common law (stare decisis). This means that people can have a better idea of how the courts will treat their particular case or circumstances, based on previous analogous cases. Certainty is a fundamental principle of the rule of law, and the common law therefore assists in this. Linked to this advantage is the fact that unlike a codified system of rules that have been developed in abstract, the common law is based on response to real situations with all their complexities and nuances. There will be less reliance in the common law on theory and logic than in statutory law or codified law. This assists it in being more akin to situations that litigants will find themselves in.
The major advantage of the common law system over more rigid civil systems is its relative flexibility. For the reasons outlined above, judges can (and do) develop the common law on a case-by-case basis in order to respond to the changing needs f society, and to reflect changing socio-political norms and values. It is far quicker (and easier) for a judge to make a ruling in a major case to amend the law in a particular area, than it is for Parliament to draft, debate and pass the relevant legislation. Such is the extent of this flexibility that some commentators (notably Hayek) have called for the common law (that is, made by judges) to replace statute as the primary source of the law, with as little legislation as possible coming from Parliament. He applies a rather right-wing market force analysis to his ideas, suggesting that strong robust (and correct) laws will withstand the forces of societal development, while less robust or incorrect ones will not. This reflects the degree of the perceived advantages of the common law.
Despite this, however, common law systems also have a number of disadvantages. Foremost amongst these is the sheer volume of legal material that such a system produces. There are many thousands of decided cases, many with lengthy reports. These reports must be scrutinised in detail in order to extract the relevant ratio decidendi (that is, the legal reasoning for the judgement). A major criticism of common law systems is that it can be hard to locate and extract the relevant principles due to the volume of material. A further criticism is based on the principle of binding precedent, which means that judges must follow precedent even if they disagree with it. The doctrine also leads to judges distinguishing essentially similar cases on tenuous grounds in order to use or avoid a precedent that they consider to be appropriate. This has been said on occasion to lead a high degree of unpredictability based on illogical, and often artificial, distinctions.
The common law, as has been identified, develops on a case-by-case basis, and this has been seen to be one of its principle advantages over more rigid civil law systems, affording it the flexibility to respond to changing circumstances. There is also an inherent disadvantage in this, however, based on the fact that the common law does not provide a comprehensive legal code (because of its piecemeal development). Here one can see a relative merit of comprehensive civil codes setting out the whole law relating to particular issues.
A significant difference between the common law system and civil systems is the issue of the effect of new law. Statutory law (and civil law) is based on the principle that it is unjust to have retroactive effect (that is to say it would be unfair to hold that someone was in breach of the law by doing an act that at the time, was not a breach). Changes to the law that are made by cases, however, will apply retroactively, as they will be applied to the facts of the current case (which of course, have already happened). This was an issue in the controversial case of SW v United Kingdom (1995) in which the two defendants, accused of raping their wives, brought an action before the European Court of Human Rights alleging that their rights under Article 7 had been violated by making a criminal law have retroactive effect. The Court dismissed this, however, saying there was no violation provided developments could be clearly foreseen.
This, then, represents the fundamental differences between common law systems (of which England and Wales is a prime example) and civil law systems, which tend to prevail in continental Europe, and which are usually heavily influenced by the Napoleonic French Civil Code.
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