Principles and Sources of English Law

The English legal system affects many aspects of life.
Common awareness comes from media, leading to public perception being often limited to criminal law.

Definition: A codified legal system has the laws of a country compiled into codes, which contain all rules and legislative enactments in particular areas, e.g., tax law.
Features:
- Laws are arranged to avoid inconsistencies.
- Judges apply the code strictly, with little discretion.
- Predictability in court decisions, as the code is known to all citizens and lawyers.
Examples: Common in Europe (France, Germany, Holland, Spain, Portugal) and former colonies in Central and South America.
More challenging to change, requiring significant legislative agreement (e.g. 75% majority).
Often includes a written constitution and a constitutional court for interpretation.
In contract law, a code may imply terms automatically, thus simplifying contracts by reducing needs for detailed terms.

Definition: Common law developed historically through customs and judicial decisions in England and Wales; it remains unwritten.
Historical Background:
- Emerged after the Norman Conquest of 1066, leading to a more organized court system established by William the Conqueror.
- Henry II regularized judges' circuits throughout England, leading to uniform laws across jurisdictions.
Distinctions:
- Common law is distinct from laws created by statute.
- Example: Murder (common law crime) vs. Theft (defined by the Theft Act 1968).
Judges' Role: They can create new common law but only in specific cases and these rules apply only to future similar cases, not broadly adjusting the law.

Definition: Customs are behavioral rules in communities, evolving without being deliberately structured.
Historical significance: Important to the basis of English common law post-Norman Conquest.
Modern Usage: Rarely recognized in courts today, but examples exist in case law (e.g., Egerton v Harding (1974) and New Windsor Corporation v Mellor (1974)).

Definition: Laws deriving from sacred texts, governing personal and contract law based on Sharia or Judaic law.
Characteristics: Seen as unchanging and eternal, covering aspects of personal behavior, beliefs, and a wide range of life topics including crime and etiquette.

Definition: Countries (e.g., South Africa, Cyprus) employing elements of multiple legal systems such as civil code and common law.
Characteristics:
- Significant contributions from both common law and civil code to the legal framework.
- Clear demarcation between private and public law; private law often dominated by civil code.

Definition: Predominant in common law jurisdictions where advocates represent opposing sides before an impartial judge or jury.
Emphasis: Protection of individual rights, presumption of innocence, and the right to legal representation.
Criticism: Can lead to injustices, such as procedural failures or inequalities in legal representation.

Definition: Common in codified legal systems, judges take an active role in investigating cases.
Characteristics: Focus on truth-finding rather than winning, with judges questioning witnesses.
Criticism: Can result in lengthy proceedings, potential bias, and difficulty for unrepresented defendants.

Definition: Concept that everyone is subject to law, promoting fairness in law enforcement.
Importance: Protects against dictatorship and maintains democracy by holding officials accountable.
Key Elements Defined by Tony Honoré:
- No sanctions without law.
- Equality before the law without discrimination.
- Laws should be clear and fair.

A.V. Dicey's Three Elements:
1. Absence of arbitrary power by the state.
2. Equality before the law.
3. Supremacy of ordinary law over parliamentary acts.
Critique: Conflicts with parliamentary supremacy, which can grant arbitrary powers.

Process: Must be open and fair, usually passed by a majority in Parliament.
Parliamentary Checks: House of Lords reviews new laws and government power limits.

Fair Trials: Essential in criminal justice.
Imprisonment Procedures: Cannot occur without trials.
Civil System: Should resolve disputes effectively without discrimination or corruption.

Civil Law: Deals with disputes between individuals (private law).
Criminal Law: Actions against the state affecting public interest (public law).

Morality Definition: System of values guiding behavior; influenced by religion and social norms.
Overlap with Law: Laws reflect the morality of society; criminal offenses are often also immoral acts.
Evolution: Morality changes over time and influences laws, particularly during crises.

Principle: Restoring balance between involved parties through sanctions.
Factors in Sentencing: Judges consider various factors including deterrence and rehabilitation.

Criminal Law: Proportionality in sentencing reflects societal expectations.
Case Examples: Show the complexity in determining justice within the confines of law; judges weigh public sentiment against legal norms.

Clear Laws and Transparency: Necessary for maintaining order.
Role of Law: Protect from harm, ensure common good, resolve disputes effectively.

Principle of Causation: Essential in both branches; establishes liability based on causation of loss or injury.
Fault in Civil Law: Finding of fault often necessary for liability in tort law.