INTRODUCTION TO THE ENGLISH LEGAL SYSTEMFoundation Law 2013/14-Lecture 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

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

Burden of Proof

The “burden of proof” relates to the party who is responsible for proving that the defendant is guilty

The standard of proof and the burden of proof is different in the criminal law and

the private (civil) law

Criminal Law

Burden of proof………rests on the prosecution

Standard of proof……. “beyond reasonable doubt”

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

Private (Civil) Law

Burden of proof…….rests on the claimant

Standard of proof…. “on the balance of 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

Lecture 2Learning 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.

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 primary (written) source

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 NOT CODIFIED: 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

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

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

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 we speak of the common law!

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 Dudley v Dudley (1705) 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 assists it”.

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 will be looking at Equity in more detail in Term 2

Lets now examine each of the 3 sources of English Law………1. Statutory Law2. Common Law3. Equity

The sources above, collectively make up the unique English Common Law System that we

have in the UK today

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:

“Parliament...has...the right to make or unmake any law whatever; and further, that no person or body is recognised by the law of England as having a right to override or set aside the legislation of

Parliament”.

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 will look at the role of parliament and the legislative process in more detail next week

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

The Doctrine of Judicial Precedent

This source of law is also referred to as “case law”

The doctrine of judicial precedent, also known as stare decisis, is what makes the Common Law system different from most systems

Stare decisis translates as “stand by what has been decided”. 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.

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 superior and which courts are inferior?

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.Of these three parts, only the ratio decidendi will bind future courts. That is why it is also called binding precedent

Ratio Decidendi

The ratio decidendi of a case is the “reason for the decision”

The ratio decidendi is the part of the judgment that creates law (or precedent) for future judges to follow

This is called “binding precedent”

Obiter Dicta

Means- “other things said”

Persuasive in nature

“Persuasive precedent”

Which courts are superior and which are inferior?

Lets take a look at the tables on pages 2 & 3 of the hand-out..............

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

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

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

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

Equity-legal principles

Seminar 2 Preps.

Hand-out Reading:

Jacqueline Martin, “GCSE Law”, 5th edition, chapters 2 & 15

Glanville Williams: Learning the Law, 15th edition, pages 21-25 (“Common Law and Equity”)

Preparatory Questions