English Legal System: Characteristics and Sources

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English Legal System: Characteristics and Sources

Task

Critically assess the different sources and characteristics of the English Legal System. To what extents have external influences affected its development.

Introduction

The United Kingdom (UK) is one of the longest living monarchies in Europe and has the longest Parliament. In legislative terms, the UK is a non-federal state that is composed of three countries (England, Scotland and Northern Ireland) and one principality (Wales) (Slapper & Kelly, 2008). Surprisingly, UK is one of the few countries that do not have a written constitution: however, UK has a body of law that is of constitutional significance. Furthermore, UK law is also not codified, process that brings a degree of certainty to the law as it allows citizens to clearly identify whether something is unlawful and how the investigation process will develop. Lack of codification leads to the legal system being inflexible as technological developments precede beyond that which the legislators contemplated (Slapper & Kelly, 2008).

Nevertheless, despite its flaws and stiffness, the English common-law, as a representative of the common-law of the UK, is one of the most prolific ones: during the British Empire all colonies had to adopt the same or slightly modified legal system. Today, countries such as Canada, New Zealand and Australia have legal systems similar to the ones used in the UK.

This essay sets to analyze the components of the English legal system by looking at its history, development and interaction with other international law systems, especially the European Union (EU).

History of law

The common law was created after Henry the 8th wanted a more unified and national law affecting the whole of England.(Slapper & Kelly, 2008).

Throughout the history, the English legal system has been a very dynamic entity as each ruler tried to leave his legacy: following William’s initial success in establishing a unitary common low, the next important stage in the history of the English law system was King John’s Magna Carta, which, together with the reform of King Henry II, offered protection to land tenants against their lords, by allowing them to speak to the lord’s superior, the king. Furthermore, these reform set the foundation for the current English system as it promoted the existence of a third party and witnesses in dealing with confrontations or misunderstanding between two parties (Slapper & Kelly, 2008).

In cases where the parties disagree on what the law is, an idealized common law court looks to past precedential decisions of relevant courts. If a similar dispute has been resolved in the past, the court is bound to follow the reasoning used in the prior decision (this principle is known as stare decisis) (Fafinsky & Finch, 2009). If, however, the court finds that the current dispute is fundamentally distinct from all previous cases (called a matter of first impression), judges have the authority and duty to make law by creating precedent. Thereafter, the new decision becomes precedent, and will bind future courts (Slapper & Kelly, 2008).

Civil and criminal law

This section of the essay will develop upon the concept of civil and criminal law by comparing and contrasting the two terms. First of all, in the case of criminal cases, the plaintiff is the State, represented by state official or authorized authorities, while the defendant is either an individual or a corporate entity (Slapper & Kelly, 2008). On contrast, under civil law, the case is brought by an individual or a body against a similar party. When it comes to civil cases, the State has limited intervention in the sense that it provides the courts and personnel so that the litigation can be judged (Molan, 2007).

Civil and criminal cases differ in outcomes as well. In a criminal case, if the prosecutor (the equivalent of a plaintiff) is...
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