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UNIT 1.1 PRINCIPLES AND SOURCES OF ENGLISH LAW

The English Legal System and Its Context

Law profoundly influences our lives, yet many individuals lack a thorough understanding of the legal system and their rights. Most people's knowledge of law is shaped by media representations, including press coverage, television, radio, online articles, and social media. Common perceptions often reduce the notion of law to criminal jurisprudence, despite law encompassing vast and varied aspects of daily life.

1.1 Legal Systems Around the World

1.1.1 Codified Civil Legal System

• Characteristics: Laws are systematically written in codes.

• Purpose: Prevent inconsistencies and include legislative enactments only.

• Judges: Required to strictly interpret and apply the code; little discretion allowed.

• Examples: France, Germany, Holland, Spain, Portugal.

• Rigidity: Requires significant legislative majority to modify, making it less flexible than common law.

1.1.2 Common Law

• Emergence: Developed post-Norman Conquest (1066) for uniformity.

• Reliance: Initially on local customs; judges interpreted customs into broader laws.

• Nature: Unwritten, derived from judicial decisions.

• Example: Murder as a common law crime, theft defined by statutory law.

• Role of Judges: Create new laws through rulings; address specific cases without enacting broad changes.

1.1.3 Customary Law

• Definition: Practices evolving within communities without formal legal enactment.

• Historical Relevance: Important in developing English common law; lesser relevance today.

• Example: Egerton v Harding (1974); custom recognized, yet obsolescence has occurred in modern courts.

1.1.4 Religious Law

• Basis: Derived from sacred texts, governing personal and contractual matters.

• Nature: Immutable; contrasts with evolving secular legal systems.

• Example: Sharia law impacts various facets of life, alongside secular legal principles.

1.1.5 Mixed Legal Systems

• Description: Integrates common law and civil code elements.

• Examples: South Africa, Cyprus.

• Features: Private law inclined towards civil code; public law affected by common law.

• Notable Instances: Malta and Jersey's legal evolution influenced by multiple legal traditions.

1.2 Adversarial and Inquisitorial Systems

1.2.1 Adversarial System

• Definition: Opposing advocates present cases before an impartial judge/jury.

• Purpose: Protect individual rights, uphold presumption of innocence.

• Criticism: Potential for wrongful outcomes due to procedural nuances favoring one party.

1.2.2 Inquisitorial System

• Nature: Emphasizes truth-seeking, judges take an investigative role.

• Prevalence: Common in codified law jurisdictions.

• Strengths: Reduces resource disparities.

• Weaknesses: May result in lengthy proceedings and restrict self-representation rights.

1.3 The Rule of Law and Its Application

1.3.1 The Rule of Law

• Definition: All individuals and authorities equally subject to law.

• Purpose: Safeguards against authoritarianism, ensures fair application of law.

• Justice: Entails equal treatment under law, certain rights upheld by government.

1.3.2 Prof. A.V. Dicey's Views

• Focus: Absence of arbitrary powers, equality before law, supremacy of ordinary law.

• Contradictions: Supremacy of Parliament can enact laws against rule of law principles.

• Modern Reflection: Legislative reforms (e.g., Constitutional Reform Act 2005) emphasize judicial independence.

1.3.3 The Rule of Law and Law-Making

• Process: Involves scrutiny by both Houses of Parliament; more checks with statutory instruments to ensure accountability.

1.3.4 The Rule of Law in Legal Systems

• Importance: Underpins fair trials, access to justice, denial of arbitrary detention, upholding rights.

1.4 The Difference Between Civil and Criminal Law

• Civil Law: Deals with disputes between private parties, focuses on compensation claims.

• Criminal Law: Concerns offenses against the state.

• Key Differences: Objectives, initiating parties, types of courts, standards of proof.

1.5 The Relationship Between Law and Morality

• Interconnection: Legal system reflects moral values affecting societal norms.

• Challenges: Arise in multicultural societies with diverse moral frameworks.

1.6 Law and Justice

• Accessibility: Justice requires fair access within legal frameworks.

• Procedural Justice: Shows disparities in legal aid/representation; reforms often necessary for equitable access.

• Evolution: Continuous evaluation required to align laws with core societal values and morals.