Saturday, March 13, 2010

English Law 1.

Common law and civil law

Since English law is so different from other continental law systems I attempt to summarize the fundamental differences in a nutshell. As opposed to Continental civil law in case of English Law there is no Civil Code at all.
[Note: Civil Law means the legal system contrast to common law, civil law refers to the opposite of criminal law!]

The essence of English common law is that it is made by judges sitting in courts, applying their common sense and knowledge of legal precedent to the facts before them. Therefor, precedent is the basis of the common law instead of a written Act of Parliament. It is also called "case law". The doctrine of binding precedent is known as the doctrine of stare decisis. In English law there is no statute making murder illegal. However, murder is illegal by virtue of the constitutional authority of the courts and their previous decisions.

What is English law?
It is the legal system of England and Wales. In a broader context it is the basis of common law system which is used in Commonwealth countries and in the US.
Scottish law is based on Roman law and there is common law in Northern Ireland.

What are the Commonwealth Countries?
Commonwealth countries - previously British Commonwealth -are the former parts of the British Empire. These countries are bond in the Singapore Declaration to co-operate within a framework of common values and goals as democracy, human rights, free trade, common law, etc. It is not a political union but an intergovernmental organization. The symbol of the Commonwealth is The Head of the Commonwealth which is a ceremonial position and is currently held by Queen Elisabeth II. At the same time, but independently she is also monarch sixteen of the Commonwealth members which are informally referred as 'Commonwealth Realms'. The most significant Commonwealth countries are India, Pakistan, Bangladesh, Nigeria, UK, Australia, South Africa, New Zeland, Canada, altogether 2.1 Billion People.


Where applies English low? What does "England" mean?
The United Kingdom is a state consisting of three legal jurisdictions: 1. England and Wales, 2. Scotland and 3. Northern Ireland.
1. England and Wales are the territory of England and Wales and the adjacent islands: Isle of White, Anglesey and Lundy. In terms of jurisdictions England and Wales are interpreted as an undivided judiciary.
2. Great Britain means England (incl. Wales + islands) and Scotland including its adjacent territorial waters and the islands of Orkney and Shetland, the Hebrides, and Rockall.
3. The United Kingdom means Great Britain and Northern Ireland and their adjacent territorial waters. It does not include the Isle of Man; nor the Channel Islands.
4. The British Islands means the United Kingdom, the Isle of Man, and the Channel Islands.

The United Kingdom consist separate states in the British Islands: England, Scotland, Northern Ireland, the Isle of Man, Jersey, Guernsey, Alderney, and Sark. These are separate countries in the sense of the conflict of laws, though not one of them is a State known to public international law.

Conflict of laws in common law refers to the same term then "private international law" or "international private law" in civil law countries. Conflict of laws is a general term to refer disparities among laws, regardless whether the relevant legal systems are international or inter-state.

England and the EU
England and Wales are constituent countries of the United Kingdom, which is a member of the European Union. Hence, EU law is a part of English law. The European Union consists mainly of countries which use civil law and so the civil law system is also in England in this form. The European Court of Justice can direct English and Welsh courts on the meaning of areas of law in which the EU has passed legislation.

English civil law within the common law legal system
Civil law, as opposed to criminal law, is the branch of law dealing with disputes between individuals and/or organizations, in which compensation may be awarded to the victim.
Civil law court provide forum for deciding disputes involving torts (such as accident, negligence and libel), contract disputes, property disputes, commercial law, etc.

English criminal law (or penal law)
The term criminal law refers to the body of law in England which deals with crimes and their consequences. Criminal law is enforced by the state against individuals (including incorporated organizations), unlike the civil law, which may be enforced by private parties. The state relies on the power given it by statutory law.
Criminal punishment, depending on the offense and jurisdiction, may include execution, loss of liberty, government supervision (parole or probation), or fines.

In London, the Old Bailey, the Central Criminal Court in England is one of the most identical building housing the Crown Court. The Crown Court sitting at the Central Criminal Court deals with major criminal cases from Greater London and, in exceptional cases, from other parts of England.

Court hierarchy in English civil law:
1.1 On the lowest level the tribunals deal with minor civil issues (tax, pension, social security, lands). I can appeal to High Court if I disagree.
1.2. On the lowest County Court (it is also called Small Claims Court) deals with majority of civil litigation subject to nature of the claim. I can appeal to High Court if I disagree.
2.1. On High Court level Divisional Court deals with appeals from the county courts on bankruptcy and land.
2.2. On High Court level Chancery Division deals with equity and trust, contentious probate, tax partnership, bankruptcy and Companies Court, Patents Courts issues.
3. On Court of Appeal level Civil Division deals with appeals from High Court, tribunals and certain cases from county courts.
4. On the top of the hierarchy, is the Supreme Court of the United Kingdom which represents the highest appeal court in England and Wales and Northern Ireland. The Supreme Court's decision is binding on every other court in the hierarchy, and they will follow its directions.

On the top picture, which I took on the weekend, we can see The Royal Court of Justice in London. This building accommodates both the Court of Appeal and the High Court.
The Court of Appeal consists of two divisions:
  • the civil division which hears appeals from the High Court
  • the criminal division which hears appeals from the Crown Court

The High Court deals with higher level civil disputes. There are three divisions of the High Court:

  • the Queen's Bench Division
  • the Chancery Division
  • the Family Division

Who can override the previous decisions?

House of Lords' decisions are binding on all other courts in the legal system, except the House of Lords itself. The House of Lords used to be bound by its own previous decisions until it changed this practice in 1966.
The idea behind the previous system was that the decision of the highest court in the land should be final so that there would be certainty in the law and finality in litigation.
The argument for the current practice is that it enables the House of Lords to adapt English law to meet changing social conditions.
The possibility of the House of Lords changing its previous decisions is a recognition that law, whether expressed in statutes or cases, is a living and changing institution which must adapt to the circumstances to which it applies if it is to retain practical relevance.

"Distinguish" is the phrase to be used if a new case law had been set up.

The Court of Appeal
The Court of Appeal is always bound by previous decisions of the House of Lords and generally also bound by its previous decisions.
Overruling and conflicts of two previous decisions: Where there is a conflict between two previous Court of Appeal decisions, the latest court must decide which decision to follow and which to overrule.