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Published: Fri, 02 Feb 2018

The Foundations of the English Legal System

The aim of this work is to produce a report explaining the foundations and workings of the English legal system. Throughout this essay, I will be explaining the nature and purposes of the distinctions between criminal and civil law. The essay will also consist of some explanations of different courts and the appeal structure, as well as the principal sources of law.

The dissimilarities between criminal and civil Law can be seen clearly when looked at. In criminal law the Crown can take legal action against individuals for criminal offences. Criminal law is made by the Crown, even though it is drafted by Government and passed by Parliament before it goes to the monarch for acceptance. In civil law there is a claimant, which is someone who applies to a court for their case to be heard, and a defendant, someone who the claimant requires some sort of redress. A claimant or defendant can be a private individual or any other single legal entity such as a company. Civil law relates to the guidelines of common law, however in civil actions, the Crown does not take any sides. In order to comprehend how Consumer Law affects our everyday lives, it is vital to realize the disparity between Civil and Criminal Law. Our legal system in general divides our laws into two groups; civil and criminal. Each serves a very diverse principle. Firstly Civil Law deals with the human rights and duties of one person to another. One of the key areas of civil law that applies to clients is the law of agreement. The law will decide if a promise is legitimately enforceable and what its legal consequences are. For example if a consumer made a contract with your commerce and then you let them down, possibly by not delivering goods on an arranged date, then they would look to the civil law to assist you. Likewise if you did work for a consumer and then had difficulty getting expenses from them this would be a civil affair. An infringement of the civil law will be dealt with by an act being brought by the plaintiff in opposition to the defendant in the County Court or the High Court.

In a civil action the burden of evidence is upon the plaintiff who must establish their case “on the balance of probabilities”. You will see that this is a lower burden of proof than in criminal case. On the other hand Criminal Law is concerned with establishing social order and defending the community as a whole. It gives us a set of regulations for serene, secure and organized living. People that break these laws can be prosecuted and if found culpable they could be fined and/or sent to prison. Most prosecutions are brought by the law enforcement, for offences like murder and robbery but they are not the only ones who enforce the criminal law. Trading Standards Officers, Environmental Health Officers and Customs and Excise Officers can also take legal action against offenders.

A large amount of UK consumer laws are unlawful in nature, for instance traders can be prosecuted for serving short measure, or charging more than the advertised cost.

Certain issues like these would be examined by local Trading Standards Departments on behalf of all the people living in the region. A defilement of the criminal law could lead to a prosecution in the Magistrates Court or the Crown Court. In a criminal case if there is any ambiguity in the minds of the Magistrates, the offender must be found ‘not guilty’. An additional way of viewing the dissimilarity between the two is that by looking at criminal law, it can be said that it deals with something of public awareness. For example, the community has awareness in seeing that individuals are protected from being mugged or beaten. These are legal issues that fall into the criminal law. Criminal law includes punishing and acclimatizing offenders, and defending the community. Since the public has an interest in having criminal law, we give the government the authority to put it in place and impose it. The police and Crown Prosecutors are employed by the government to put the criminal law into effect. Public funds are used to pay for these amenities. If you are the injured party of a crime, you report it to the police force and they have the responsibility to examine. They arrest and charge the suspect. Laws concerning homicide, rape, and burglary are substantive in that they define unlawful acts. Procedural law contains rules stating how the government proceeds against an individual suspected of committing a crime. Trial by jury, the right to counsel, the right to appeal, is just a few instances of procedural law. Defilements of these rights by the government are violations of due process. If the government violates procedural law, that violation can be grounds for appeal and for a reversal of a criminal conviction. [1] 

The main sources of English Law consist of three grounds, which are Legislation (Statue Law), Common Law (Judge-made Law) and the European Communities law. English Law was factually based on customs and social traditions. Today Custom Law is a part of Common Law, particularly being in cases where there was no judicial precedent but which were known to exist since time memorial (i.e. since 1189). Several of these laws like the Fisherman’s Case [1894] in Criminal law the actual law of user in Land Law are still good law. Custom law can still be used to dispute a case provided the circumstances set out by law are seen. Now when it comes to Case law, the legal systems within the United Kingdom were founded mainly on judge-made law, also known as common law, up until around the seventeenth century. Every jurisdiction recognized its own methods of common law, with Scotland being particularly dissimilar from the rest. Since that time, new regulations and law reform have progressively been carried about through Acts of Parliament, typically enthused by guidelines of the Government of the day. Even so, the growth of case law still remains a significant source of law. A declaration of law made by a judge in a case could very well become binding on later judges and could also in this way develop into the law for everybody to shadow. Whether or not a specific precedent by a judge sitting in court when deciding a case does develop binding, conferring to the doctrine of “stare decisis” on later judges depends on two main factors. One being that the precedent has to be completed by a court of adequate superiority. Essentially, judges at the lowest ranks when it comes to making decisions are not permitted to issue out binding precedents at all. Regularly, the cases are not completely reported anyhow, so it is unclear what has been decided. Furthermore these judges may not be hearing complete legal arguments but are focussed on factual findings. Consequently, it is the higher courts which issue binding rulings and the inferior courts have to follow them. In these courts there has been a scheme of official recording and reporting since 1865. There are also countless commercial law reports, however most again are limited to the decisions of higher courts.

The other factor which should be mentioned is that the pronouncement must have shaped the ratio decidendi of the case, meaning reason for decision in Latin. The reasoning must be a matter relating to the law and not relating a factual decision. Additionally, the pronouncement should not be obiter dictum (which means something stated either about the law or the evidences of the case which is “by the way”, which basically means not strictly essential for the legal basis for the decisions). It will include the legal values and rules which are essential to resolve the problem before the court. Obiter dicta are not binding, nonetheless they may be treated as of “persuasive authority”, later judges are permitted to read them and be inclined by them; however they are not obliged to follow these certain parts of judicial pronouncements.

In summery these rules are the doctrine of precedent. A later judge will have to regulate what pronouncements from prior decisions are binding and whether any is pertinent – the later judge may also state that the case before the court is discernible from the prior case.

Precedent has an enormously imperative role in the common law. It guarantees certainty and reliability and logical advancement and development in the law. At the same time it can be inflexible and also difficult to sometimes understand – what is “the law” on a subject may be very problematic to discover or to state as it is spread through numerous cases. Therefore, countless countries mainly in Europe favour a codified system in which laws are set out in legislation and cases which apply them might be descriptive but do not become binding. The law is also easier to discover and to state and is judiciously prospective rather than founded on the chance event of litigation, which could give growth to laws created on extreme or uncommon situations or unequally debated cases.

Legislation or statutory laws have become the commonest foundation of law reform since the Seventeenth century. Statutes can be applied to any mixture of jurisdictions within England, although the common law authorities are more restricted (a few examples of some statues are, Education (Schools) Act 1997, School Inspections Act 1996, Disability Discrimination Act 1995. Acts of Parliament which relate to everyone through one or more jurisdictions are named public general Acts. However Acts may likewise be limited to geographic locations within a jurisdiction or to precise individuals or corporations. The utmost significant legislation is Acts of Parliament also known as primary legislation. This becomes lawful through being accepted in the House of and then receives the Royal Assent from the Queen. A larger size of legislation is currently made under the authority of primary legislation by Government Ministers, and it doesn’t have to be approved in advance by Parliament. This is called delegated legislation. Delegated legislation is distributed under a precise authority in the “parent” or “enabling” Act. Such legislation is issued in the method of statutory instruments and may be titled “regulations’’ (with one instance being the M42 Motorway Scheme 1998). One reason for the use of delegated legislation is to save time in Parliament. Another reason is to allow flexibility in answering to proceedings and representations. When it comes to comparing legislation with common law, statutes usually have the authority to alter the recognized common law; however the common law cannot override or modify statues. A statute can only be overridden or revised by an alternative, later statute. This association echoes the legal and political doctrine known as Parliamentary Sovereignty, the acknowledgment and approval that Parliament is the ultimate law-making authority in the land. Nevertheless, that authority cannot be complete, it has been limited by the association with the European Union, and the prominence of principles such as the recognition of individual liberties, equality and governmental liability may place additional limits on its exercise.

There are several concepts as to how the judge should construe statutes. This is not a simple job. The legislation will initially have been produced by specialists (draftsmen) who write in defined and technical language. Furthermore there are three key rules which are used by the judges in understanding Acts of Parliament. One being the literal rule which construes the statue literally, according to its basic meaning. An example of this rule can be seen in the case of Fisher v Bell [1960] 3 All ER 731. Another key rule is the mischief rule, meaning to define the issue that the Act was intended to remedy and select the interpretation which specifically deals with the issue. Additionally to determine what the problem before the Act was, the courts could look at reports from the Law Commission.

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