Jesús Lorenzo VieitesThe UK Legal SystemA SERIES OF GRAPHIC SKETCHES TO UNDERSTAND HOW THE UK LEGALSYSTEM IS STRUCTURED NOWADAYS. Based on G. Slapper & D. Kelly’s The English Legal System, 11th ed.
Law is a formal mechanism of social control. If we want to tackle satisfactorily the study of the legal system we must always bear in mind that this study is not merely learning legal rules and acts but considering the English legal system as a social institution of fundamental importance.What relationship exists between law and morality?, or just put it in another way, can laws be detached from moral arguments? It goes without saying that there is not an easy answer; best approach seems to treat both abstract concepts from an ideological viewpoint as they both are manifestations of particular social and economic relationships which they also are trying to explain and justify.
At first sight it might appear that law and morality are inextricably linked: there appears to be a rather similar useof concepts in both and, what is more worth mentioning, there also seems to exist an “invisible” relationship interms of rights and duties and much of law’s ideological justification comes from the claim that it is essentiallymoral.However, opinion about this relationship between law and morality is reflected in two schools of thought: Natural law approach The legal positivists approach Law must be moral in order to be law, therefore, Law has no neccessary basis in morality and “immoral” law is a contradiction in terms. Natural it is simply imposible to assess law in terms of lawyers usually base their ideas of law on underlying morality. religious beliefs and texts which are “sacrosanct”
What about the morality of the law maker? Judges have the power not just of make and mould law but , and this is really relevant to legal issues in general, but to make and mould law in line with their own ideological values, that is to say, their attitudes, prejudices, own personal views, in other words, their moralities. So, what can law do about this unsolvable problem? Not much. Why is this so? Simply, because morality in itself constitutes an external environment which interacts with the lawmaking process due to the fact that laws tend to be based on value-loaded information which percolates to the lawmakers. This amount of information is, so as to say, running in our ancestral past as human beings. We can even add that the lawmakers’ own individual values do influence –although we might agreed that in most cases, unintentionally- upon the process of lawmaking.
and Sys tems mo n Law Systems: 2. Com 1. Com ivil Law ms. l syste e Two his mon Law C t lega toric and istinc llow th united al sources o Equity: wo d Wales fo stem in the E f nglish claw, now ribe t & Desc England on Law sy ourts. m Co m Categorising law 4. Private Law and Public Law:3. Common Law and Statute: Private law regulates the relationship between ordinary Common Law = judge-made; citizens, while public law isStatute = enacted by Parliament. addressed to public bodies. 5. Civil Law and Criminal Law: Civil law regulates disputes between individuals, while criminal law allows the State to regulate the behaviour of citizens.
1. Common Law & Civil LawThe use of the term “common law” refers to all those The term “civil law” refers to all other jurisdictions thatlegal systems that have adopted the historic English have adopted the European continental system of lawlegal system: the US and former Commomwealth derived basically from ancient Roman law, but owingcountries much to the Germanic tradition. Codified body of general abstract Case-centred principles which control the exercise Judge-centred of judicial discretion
1. Common Law & Equity The terms refer to a particular division within the English legal systemIt emerged as the product of a particular struggle for political power. Prior to the Norman Conquest of 1066 there was nounitary legal system in England. The emerge of the common law represents the imposition of such a unitary system underthe auspices and control of a centralised power in the form of a sovereign King.By the end of the XIIIth cent, the central authority had established its precedent at least partly through the establishmentof the common law.Originally, courts had been no more than an yadjunct to the Curia Regis or King’s Council. quitGradually, however, the common law courts dE di wbegan to take on a distinct institutional existence t ho op?in the form of: , bu vel ine st de f ir t’s f The Courts of the Exchequer T ha Common Pleas King’s Bench
Equity So, plaintiffs who could not get Access to the three common law courts (the Court of the Exchequer, the Common Pleas court and the King’s Bench) mightRefusal to respond satisfactorily in a most effective and directly appeal toquick way to queries raised by the citizens in thepreviously mentioned courts lead to a series of injusticesnot properly dealt with in those courts and,consequently, a new need to remedy those injustices the king,was felt to be neccessary; this perceived weakness in thecommon law system was the source of the establishmentof equity. who will pass the pleas for consideration and decision to the setting up of new Equity courts to deliver “equitable” or “fair”decisions in cases that the common law courts declined to deal with. The Lord Chancellor, who acted as the King’s conscience. As the common law courts became more formalistic and more inaccesible, pleas to the Chjancellor increased with the consequence of By way of the Judicature Acts 1873-75 the division between the common law courts and the Courts of Equity reached its end.
3. Common Law & Statute LawThe common law here refers to the substantive Statute law, on the other hand, refers to the lawlaw and procedural rules that have been that has been created by Parliament in the form ofcreated by the judiciary through the decisions in legislation.the cases they have heard.4. Private Law & Public Law Public law is the main concerned of the Private law is deals with relations between State as it is a participant in the legal individuals with which the State is not issues. The State and the citizens are directly concerned nor involved in. interrelated.
5. Civil Law & Criminal LawIt is a form of private law and involves the relationshipsbetween individuals. It helps to facilitate the interaction It is an aspecto of public law and relates to conductbetween individual citizens and the law. which the State considers with disapproval and which itBy way of Civil law the citizens can assert claims against seeks to control and/or eradicate.others and have those rights adjudicated andenforced. It settles disputes between individuals The State enforces compliance of the law It provides remedies It is not concerned with punishment as such Criminal cases are brought by the State in A claimant sues or brings a claim against a the name of the Crown (and cases are reported in the form of Regina v….) defendant A prosecutor prosecutes a defendant /the accused)
5. Civil Law & Criminal LawIn distinguishing between criminal and civil actions, it has to be remembered that the same eventmay give rise to both.A crucial distinction between criminal and civil law is the level of proof required in the different typesof cases. The prosecution is required to prove that theThe degree of prove is much lower and has only defendant is guilty beyond reasonable to be on the balance of probabilities. doubt den of the b ur The need for the person making an is t he o f ? allegation, be it the prosecution in a What p ro criminal case or the claimant in a civil case, to prove the facts of the case
In certain circumstances, once the prosecution/claimant has demonstrated certain facts, the burden of proof may shift to the defendant/respondent to provide evidence to prove their lack of culpability. The reverse burden of proof may be either legal or evidential, which in practice indicates the degree of evidence they have to provide in order to meet the burden they are under. c e? en of f Those situations in which distinction b rid between civil & criminal responsibilities a hy are blurred; that is to say, situations in t ’s which a court awards a civil order ha against an individual, but with theW attached sanction that any breach of the order will be subject to punishment as a criminal offence.
It should not be forgotten that although prosecution of criminal offences is usually the prerrogative of the State, it remains open to the private individual to initiate a private prosecution in relation to a crime offence. Even in the private prosecution, the test of the burden of the proof remains the criminal one requiring the facts to be proved beyond reasonable doubt. What possible approaches are there to the study of law? Various posible approaches, each of which has its own implications for how law is understood, located and studied.The traditional or formalistic (also The contextualist approach: Law as a social phenomenon which operatescalled “the black letter” approach: within a social context.Concerned with establishing a knowledge ofthe specific legal rules that regulate socialactivity. The critical/theoretical approach:Study centred on legal issues without Law in context is an object of study and thereference to the social activity to which the context within which law functions is itself anlegal rules are applied. object of study too.
This work hasbeen a compilationof severalhandbooks oncurrent Englishlegal system beingcarried out byJesús LorenzoVieites, being themain one TheEnglish LegalSystem, by G.Slapper and D.KellyMálaga, ChristmasEve, 2012