English Legal System Common Law Tradition

Front 1

What is Law?

Back 1

- Formal mechanism of social control
- Also backed by the coercive power of the state
- Law is the articulation of the rules by which communities agree to live

Front 2

Purpose of legal system

Back 2

- Just resolution of disputes
- Maintenance of social order
-Common law and civil law systems have same basic objective (the establishment of system for the just resolution of disputes & the maintenance of social order)
- Difference lies in means & structuring of processes to achieve these objectives
- Most legal systems are a hybrid of these two traditions

Front 3

Common Law v Civil Law

Back 3

- Common law = legal systems which case centred and judge-centred
- Civil law = codified body of general principles which control exercise of judicial discretion

Front 4

Common Law character

Back 4

- Disputes resolved by judge made law
-Decisions in individual cases
-Applied to all including state
-Inductive reasoning
-Trial distinct
-Adversarial process and emphasis on orality
-Cost of litigation falls on parties

Front 5

Civil Law character

Back 5

-Disputes resolved according to pre-determined principles
-Source of law = code
-Separation of public law from private law
-Deductive reasoning
-No rigid separation between pre-trial and trial
-Lawyers less conspicuous
-Emphasis on written submissions
-Costs borne by state

Front 6

Adversarial v Inquisitorial proceedings

Back 6

- Adversarial: judge sits to hear and determine the issues raised by the parties
- Inquisitorial: Conduct an investigation or examination on behalf of society

Front 7

Adversarial v Inquisitorial proceedings (cont)

Back 7

- Difference in who controls content and pace of proceeding
- Role of court
-Trial is a distinct and seperate climax to litigation process
- Courtroom practice has rigid technical rules
- Expense and effort of determination of disputes falls on parties.

Front 8

Is there a convergence?

Back 8

-Changing role of the judge
-Changs to court procedures.

Front 9

Different meanings of Common Law

Back 9

- Common Law as distinct from Roman Law (Civil Law) system - the family of common law legal system
- Common Law as distinct from Statute Law (common law not "written" in same way as Statute Law)
- Common Law as distinct from Equity

Front 10

Major Division of Law

Back 10

- Criminal law
- Civil law (all that is not criminal)
-> Private Law (Citizen v citizen)
- Contract
- Tort
- Family law
- Succession
- Land Law
-> Public Law (Citizen v State)
- Administrative
- International
- Family

Front 11

Substantive Law v Adjectival Law

Back 11

- substantive law : the rules which judges apply when they resolve disputes between parties e.g. contract law
- Adjuective law: the law creating the Institutional Structure of the law e.g Courts and Judges

Front 12

What makes English common law distinctive?

Back 12

- Prominence of judges
- Reflects national identity - English pragmatism?
- English law as seamless web
~ Always an answer even if difficult to find
- Approach to statutory interpretation
~Legalistic and detailed - interpretation must be based on words contained in statute
- Lack of written constitution
~ Parliament sovereign and judges cannot question statutes

Front 13

What makes English common law distinctive? (Cont)

Back 13

- Use of juries in criminal and civil trials to give verdict ~~ But declined in 20thC
- Uncodified law
- Tradition dominated by judges
~~ "In the Enlish tradition the judges are the living oracles of the law" (Blackstone)
- Adversarial v Inquisitorial proceedings
~ search for proof not truth
~ Responsibility of advocates is not to mislead the court ~ not to ensure that justice is done.