Common Law Chapter 2

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The English legal system and the common law tradition

Introduction 22

2 1 Judgingtheoperationofthelegalsystem 23 2 2 2 3 2 4 2 5 2 6 ThecommonlawtraditionanditsinfluenceupontheEnglishlegalsystem 27 Haveweseenthehistoricalriseandfallofthecommonlawtradition? 31 Substantivelawandprocedure 35 ‘Adversarial’v‘inquisitorial’proceedings 39 Reviewoffundamentalissues 41 Reflectandreview 48


University of London External Programme

This chapter covers considerable ground and refers to a wide range of features and concepts. Do not be concerned if it appears disjointed or seems to require an immersion in history: return to these features later in your study and they will become clearer.

Learning outcomes:
By the end of this chapter and the relevant readings you should be able to:  

identify several key features of the English legal system that differentiate it from others discuss the principles and objectives which, in your view, ‘ought’ to guide legal processes begin to use fundamental concepts and questions as reference points in further reading have an opinion on the importance of history in understanding modern common law systems outline the difference between common law and civil law (Roman law) traditions explain the difference between the adversarial legal process of English law courts and the inquisitorial process that operates in many other European countries.

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Common law reasoning and institutions 2 The English legal system and the common law tradition



Judging the operation of the legal system
The key task is ‘understanding’ Any legal system is a developing and changing social arena. The key institutions and processes of civil and criminal justice that comprise the contemporary English legal system have developed and changed over time. What orientates our perspectives? What knowledge, for example, of history is required – do you need to know lots of legal history? The common law mode of adjudication is, of course, inescapably historical, working with past decisions to find an appropriate outcome. The development of the common law tradition has reflected social, economic and cultural forces. The structure, organisation, and decision-making processes involved in the English legal system were the product of a diversity of social and economic forces. But there have also been a set of cultural norms, rules and regulations which strive to create and maintain a specifically ‘legal’ arena for decision-making and dispute handling. At any one time there are obvious trade-offs: objectives may clash and goals may be pragmatically refocused. For example, you may see it argued that ‘the goals of promoting justice and fairness must be considered within the constraints of available resources’; in other words to make the economic cost of justice a crucial factor. However, what does that mean for arguments that citizens should have a ‘right’ to access justice, and if, for instance, they can not afford to pursue their (assumed) rights against a wealthy corporation (or the Government), then they ‘ought’ to have ‘legal aid’ to help enable them to do so? The legal system is an area of normative† human activity and many people think that justice should not have a price tag. One important aspect of the legal system is its relationship to governmental power. The concepts of judicial review of government and the...
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