The document provides an overview of the English legal system, including the sources of law and the differences between common law and civil law systems. It discusses that the UK has a common law system, where laws come from three sources: statutory law from acts of parliament, common law from judicial precedent, and equity principles. It also explains key concepts like binding precedent from the ratio decidendi of higher court rulings, and that only superior courts can create precedent that lower courts must follow.

1. INTRODUCTION
TO THE
ENGLISH
LEGAL
SYSTEM
Foundation Law 2013/14-Lecture 2

2. Lecture 1-RECAP
 Examination of what is law and why laws are
needed in society
 Public Law v Private (Civil) Law
 (Public) Criminal Law
 Standard and Burden of Proof
 Double Liability

3. Standard of Proof
 This refers to the level or degree (“standard”) of
proof that is required to prove any factual issue
 The standard of proof is the test that needs to be
satisfied to find the defendant guilty of the offence/s
for which s/he stands charged

4. Burden of Proof
 The “burden of proof” relates to the party who is
responsible for proving that the defendant is guilty
Thestandardof proof andtheburdenof proof is
different inthecriminal law andtheprivate(civil)
law

5. Criminal Law
 Burden of proof………rests ontheprosecution
 Standard of proof……. “beyondreasonabledoubt”
 Basically means that in reaching its verdict, the
judge/jury should not have any reasonable doubts
as to whether the defendant is guilty of the offence
for which s/he stands charged

6. Private (Civil) Law
 Burden of proof…….rests onthe claimant
 Standard of proof…. “onthebalanceof probabilities”
 This basically means that the judge has to be
satisfied that the defendant is most probably (likely
in light of the evidence) responsible for his actions

7. Lecture 2
Learning Outcomes:
 Explain the system of law that operates in the United
Kingdom and the fundamental difference between the
civil law and common law systems;
 Outline and explain the sources of the English law;
 Show knowledge and understanding of the history of the
common law;
 Understand the difference between the common law and
statue; and
 Explain the doctrine of judicial precedent.

8. The Civil Law & Common Law
Systems
 Most European Countries (France, Germany, Spain
& Italy for example), follow the principles of the
Roman Law
 Roman Law has two meanings:
1) The Law of Ancient Rome (The Law of the Twelve
Tables)
2) Modern form-the Civil Law
 The Civil Law is WRITTEN- originates from one

9. What is the difference between the
Common Law & Civil Law System?
 Civil Law Systems are CODIFIED: the laws are
written in a collected form. The laws written in these
codes are the main sources of law in civil law
jurisdictions
 The Common Law Systems are NOTCODIFIED: the
law does not come from one main source but from a
number of sources
 So, the key difference between the Common Law
and Civil Law System is that of codification

10. The UK has a Common Law
System
 This means that the laws of the UK come not from a
single written/ “codified” source of law but from three
different sources
 These sources are: the Statutory Law (written laws-
created by Acts of Parliament/Statutes), Common
Law (decisions of the judges-known as judicial
precedent) and the legal principles of Equity

11. Stop and check!
 Civil Law-Codified
 Common Law-not codified
 What is codified?
 The laws originate from a primary written source
 What type of system operates in the UK?
 The UK has a Common Law System
 What does this mean?
 The laws of the UK come not from a single written (“codified”)
source of law but from three sources
 What are these three sources of law?
 Statutory Law
 Common Law
 Equity

12. A brief history of the English Common
Law System
 The history of the Common Law can be divided into
three stages:
 1066-1485: the formation of the Common Law
 1485-1832: the development of Equity
 1832-present day: the modern legal system of England &
Wales
 Before 1066 laws and courts did exist in England but
each area applied a different legal system
 The main change introduced by King William I
during this period was the creation of a new system
of national government with a common legal system
which applied throughout the country....... . this is why

13. The evolution of Equity
 However, as the Common Law developed, it became too
formal and rigid
 This saw the evolution (development) of Equity
 What is Equity?
 The name given to the set of legal principles that add to
the strict rules of law where their application would be
too harsh
 Equity was defined by Lord Cowper in Dudle y v Dudle y
(1 7 0 5) as:
“....now Equity is no part of the law, but a moral virtue,
which reforms the hardness of the law; it does also
assist the law where it is defective and weak...Equity
therefore does not destroy the law nor create it, but

14. Equity continued...........
 What Equity allowed the courts to do was to act
outside the strict rules of procedure developed by
the Common Law and decide cases according to
what is fair and morally correct........Equity promotes
fairness and natural justice
 Where there is a conflict between Equity and the
Common Law, Equity prevails
 We willbe lo o king at Eq uity in m o re de tailin Te rm 2

15. Lets now examine each of the 3
sources of English Law………
1. Statutory Law
2. Common Law
3. Equity
The so urce s abo ve , co lle ctive ly m ake up the uniq ue
Eng lish Co m m o n Law Syste m that we have in the
UK to day

16. Statutory Law
 This type of law comes from the UK Parliament in the
form of an Act of Parliament (“Statute”…….. “Statutory
Law”)
 The UK parliament is the legislative body of the UK`s
constitution-the “law making body”
 The political philosopher, Dicey in 1885 described
parliament’s law making powers as follows:
“Parliam e nt. . . has. . . the rig ht to m ake o r unm ake any law
whate ve r; and furthe r, that no pe rso n o r bo dy is
re co g nise d by the law o f Eng land as having a rig ht to
o ve rride o r se t aside the le g islatio n o f Parliam e nt”.

17. Statutory Law
 This is referred to as the doctrine of Parliamentary
Supremacy –The Legislative Supremacy of
Parliament
 However, arguably this doctrine as come under
threat, following the UK`s membership of the EU and
its obligation of under EU Law and the European
Convention of Human Rights
We willlo o k at the ro le o f parliam e nt and the
le g islative pro ce ss in m o re de tailne xt we e k

18. Common Law
 Common Law is the law made by judges
 The function of judges is to find the law by analysing
statutory law and previous judgments and apply
them to the facts of the case before them
 In this way, decisions of the courts are a
fundamental source of the law and can be found in
the Law Reports, which record decisions

19. The Doctrine of Judicial Precedent
 This source of law is also referred to as “case law”
 The doctrine of judicial precedent, also known as
staredecisis, is what makes the Common Law
system different from most systems
 Staredecisis translates as “stand by what has be e n
de cide d”. This means that once a principle of law
has been established by a superior court, future
cases with the same material facts must be decided
in the same way by inferior courts.

20. Judicial Precedent
 Judgements-the decision/speech made by the
judge(s) at the end of a case
 What is a judgement and what part of a judgment is
binding on future courts?
 Which courts are superiorand which courts are
inferior?

21. What is a judgement and what part of a
judgement is binding on future courts?
 Judgements are the speeches made by judges at
the end of a case, which explains their decision of
the case
A judgement consists of:
1) A summary of the facts;
2) Principles of law, of which there are two types:
 Ratio decidendi (“the reason for the decision”)
 Obiter dicta (“other things said/ said by the way”)
3) the decision between the parties, in other words the
final decision as to which party wins or loses.
O f the se thre e parts, onlytheratiodecidendi will bindfuture

22. Ratio Decidendi
 The ratio decidendi of a case is the “re aso n fo r the
de cisio n”
 The ratio decidendi is the part of the judgment that
creates law (or precedent) for future judges to follow
 This is called “bindingprecedent”

23. Obiter Dicta
 Means- “o the r thing s said”
 Persuasive in nature
 “Persuasive precedent”

24. Which courts are superior and which
are inferior?
Lets take a look at the tables on pages 2 & 3 of the
hand-out..............

25. Types of precedent
 Binding Precedent: similar material facts
 Original Precedent: e.g.. R v R (1991)
 Persuasive Precedent: originates from the obiter
dicta of a judgement

26. However, a court can refuse to follow a
binding precedent.........
 It is by refusing to follow a binding precedent that judges
contribute to the development of the law. The judges
have four methods of refusal:
1) By distinguishing the material facts of the current case
from previous cases
 A case is distinguished when a court believes that there are
important differences in the material facts.
2) By overruling the ratio decidendi
 A binding precedent is overruled when a court decides that
the law in a previous case was wrongly decided. However,
only a higher court, than the court in which the original
precedent was set, has the power to overrule a precedent.
 By reversing the ratio decidendi

27. Equity
 Equity is the name given to the set of legal principles
which assist the law
 The primary objective of Equity is to promote
fairness and justice
 Equity is not law but assists the law, where the law
would otherwise be too harsh
 Where there is a conflict between the Common Law
and Equity, Equity will prevail

28. Recap
 Three sources of law
 Statutory Law-Acts of Parliament/Statute
 Doctrine of Parliamentary Supremacy
 Common Law-judge made law
 Through the process of Judicial Precedent
 “stare decisis”-stand by what has been said
 “Case law”
 Binding precedent- future cases with similar material
facts
 “Ratio decidendi”-reason for the decision
 Only superior courts can create precedent

29. Seminar 2 Preps.
 Hand-out
 Reading:
 Jacqueline Martin, “GCSE Law”, 5th
edition, chapters 2 &
15
 Glanville Williams: Le arning the Law, 15th
edition, pages
21-25 (“Common Law and Equity”)
 Preparatory Questions