LAWS41712 English Legal System

Lecture One – Introduction to the English Legal System

 Module assessment
• A ten minute presentation and viva worth 60% of the
overall mark for the module

• A one hour multiple choice exam worth 40% of the

overall mark for the module (40 questions)
Recommended text:
Alisdair Gillespie and Siobhan Weare,
The English Legal System (8th edn,
OUP 2019)
You may also consider purchasing:

John McGarry, Acing the LLB: Capturing

your Full Potential to Improve your Grades
(Routledge 2016)
 LAWS41712 English Legal System
The English Legal System module will introduce students to the
fundamental elements of the English legal system.

It will also help them understand:

- where laws come from and how they are created;

- the people who work in the English legal system; and

- how both the civil and criminal justice systems operate.

 The Constituent Parts

The United
Kingdom
consists of
four
Then what is
countries.
Great
Britain?

England,
Wales, and
Scotland
The United Kingdom

• If an Act of Parliament is silent as to its extent of

application, then it applies only to England and Wales.

• If the Act is to apply to either Scotland or Northern Ireland then

a section within the Act will expressly state this and the stated
provisions will apply.
CLASSIFYING LAW
 Substantive or Procedural

Substantive Law Procedural Law

The set of laws that set out The set of law that govern the
rights, duties, and obligations. proceedings of the court in
criminal lawsuits as well as
civil and administrative
proceedings.
SUBSTANTIVE LAW PROCEDURAL LAW
 Civil or Criminal law
Civil Law Criminal Law

Effectively anything that is Laws prosecute crimes

not criminal.

• In criminal matters the state will ordinarily be the prosecutor (Crown Prosecution
Service)
Will these situations
be governed by
criminal or civil law?
 Private or Public Law

Private Law Public Law

Disputes that exist between Disputes that exist between

private individuals or the state and citizens.
organizations
 Pronouncing cases

• Criminal cases
– Written as: R v McGarry

– Pronounced as: The Queen (or the Crown) AGAINST McGarry

• Civil cases
– Written as: Cowen v McGarry
– Pronounced as: Cowen AND McGarry
 Common Law System
• The English Legal System is an example of a common-law-based system.

• Accordingly, those areas of the world that were parts of the British Empire have all
tended to follow the common-law-based system of law.

(eg the United States of America, Canada, Australia, New Zealand, and certain African
states)

• One of the principle characteristics of such a system is that one of the sources of law
is common law.
 Common Law
• In England and Wales law is not only passed by Parliament (known as
statutory law) but also can develop from the previous decisions of
courts.

• Common law, though forming a large part of the law in

England, is subject to modification by the Parliament
(the supreme law-making body of England).

• Where there is a ‘gap’ in the law the superior courts will

sometimes continue to rely on their common-law powers.
 The Origins of Common Law

• Following the Norman Conquest and that King Henry II played a pivotal role in its
development.

• Before the Conquest, different areas of England were governed individually by local
laws and customs, rather than by a national legal system.

• Local courts were governed by the King’s stewards, with

the King himself presiding over the King’s Court (the Curia Regis),
which followed him as he travelled around the country.

• In 1154, Henry II became the king and institutionalized

common law by creating a unified system of law "common" to the country.
• Henry II developed the practice of sending judges from his Curia Regis to hear the
various disputes throughout the country, and return to the court thereafter.

• They would then resolve disputes on an ad hoc basis according to what they
interpreted the customs to be.

• The King's judges would then return to London and often discuss their cases and the
decisions they made with the other judges. These decisions would be recorded and
filed.

• In 1178, he appointed five members of the Curia Regis to sit permanently at a court in
Westminster ‘to hear all the complaints of the realm and to do right’. This court was the
origin of the Court of Common Pleas.
• By the thirteenth century three senior courts existed, those of the Common Pleas, the
Kings Bench, and the Exchequer.

• The judicial decisions in these cases produced ‘common’ law, applicable to all in the
country.

• To help facilitate the newly developed common law a rule, known as stare decisis (also
commonly known as precedent) developed, whereby a judge would be bound to follow
the decision of an earlier judge.
 Common Law vs Equity

• The common-law courts were restricted to granting damages.

• Furthermore, its strict rules of law sometimes created unfairness.

• People began to petition the King (as Sovereign) for justice

• He began to delegate these matters to the Lord Chancellor and eventually created a
separate series of courts, the courts of Chancery, to resolve such matters.
• The courts of Chancery proceeded on the principles of justice and they could
dispense equitable rather than legal resolutions, based on fairness.

• Such equitable remedies include injunctions, specific performance, trust, and restitution
among others.

• In a dispute between the common law and equity,

equity would prevail.

• The Judicature Acts of 1873 and 1875 resolved this

tension by unifying the jurisdictions and creating one court.
 Civil Law System
• The civil law system (also known as, continental systems) differs from a common-law
system in that it is based on the primacy of written laws.

• Such systems tend to be codified, meaning that the laws are all set out in a document.
(known as the constitution)

• Accordingly, if there is a ‘gap’ in the law then it cannot be filled by the judges.
One other way to categorise legal systems

Adversarial v Inquisitorial

This refers to how cases are adjudicated.

 Adversarial System
• The adversarial approach to law is where the adjudication is seen as a contest
between two or more sides and it is fought out before a neutral umpire (the judge
and/or jury).

• The judge, whilst able to ask questions, should not seek to

become an investigator.

• A central plank of the adversarial process is

the fact that the parties, not the court, call witnesses.
• The opposing party is able to challenge this evidence.

• The other key principle of the adversarial system is that of the importance of orality.

• In both the criminal and civil systems of justice there is still the assumption that
providing live oral evidence is the best way of arriving at the facts.
 Inquisitorial approach

• The continental system tends to adopt an inquisitorial approach.

• In this sense the court becomes the investigator itself.

• Rather than the judge being a neutral umpire, he is

given the authority to seek out the truth by asking questions of
the witnesses.
• It has been suggested that one advantage of this model is that it ensures that all
relevant witnesses are heard whereas in the adversarial system, if a witness’s evidence
is not helpful to a side, he or she may not be called.

https://www.youtube.com/watch?v=GeCIUm7aHXw
 REVIEW!

1. Which countries compose the Great Britain and which compose the United
Kingdom?

2. If an Act of Parliament extends to Scotland and Northern Ireland what will it contain?

3. What is the difference between:

- Private Law and Public Law

- Criminal Law and Civil Law
- Common Law and Statute
- Common Law and Equity
4. What are the central characteristics of an inquisitorial and an adversarial system?

5. Which of the following is most accurate?

A) England is a civil law country and the legal system is generally inquisitorial.

B) England is a common law country and the legal system is generally adversarial.

C) England is a common law country and the legal system is generally inquisitorial.

D) England is a civil law country and the legal system is generally adversarial.
6. Which of the following best describes public law?

A) The law that governs the relationship between private individuals or organisations.

B) The law governing the behaviour of public corporations.

C) The law that governs matters that may be publicly heard (and so excludes things like
family law matters).

D) The law that governs the relationship between different parts of the state and between
state and citizen.
THANK YOU