Most of the societies around the world must possess the most obvious characteristics and nature of an orderly society. An orderly society is that which would permit healthy interaction and way of life of its citizens for a long period. Nevertheless, different societies have different form of order (Darbyshire, 1995, p. 27). Some societies are structured with clear regulations that allow them to work in abidance to the set rules, while other societies operates in what can be considered an unstructured way with apparently very few strict rules and regulations to be followed.
In every society, order is mandated to be maintained, but there lacks a universally agreed manner in which order has to be maintained. In our today’s society, the rule of law is the main mechanism that brings and maintains social order. Different countries have different ways of defining their law that govern them. Some countries have most of their laws written in a formal document while other countries have unwritten laws. Moreover, we have civil and criminal law. It has been noted that there are countries that rely on criminal or civil law and/or both. However, the mode of law used, the core objective of each country is to maintain and sustain a good social order for sustained growth and development (Darbyshire, 1995, p. 33).
Therefore, many judicial precedents characterize the English legal system and national assembly legislations made over a long period. The United Kingdom has been characterized with so many reigns ranging from the roman invasions, the French, and the Norman invasion, which has left various statutes that have been consolidated to form the current legal system (Darbyshire, 1995, p. 34). Most commonly, the English legal system refers to the law of England and wales. It should be clarified that the English legal system has developed separately from other countries forming the United Kingdom and Scotland. Moreover, there have been changes in the legal system between England and Wales that has also brought about differences in the legal system between these two countries. The changes have been taking effect since the enactment and devolution of the government of Wales act of 1996 to 2006. This act has brought about a change that has empowered the Welsh national assembly (Darbyshire, 1995, p. 39).
1.2 Sources of English Law
Just to recap on what had been stated earlier, Northern Ireland and the United Kingdom of Great Britain consists of four countries namely; Wales, Scotland, England, and Northern Ireland. Due to this division and composition of different countries, some of the laws run in the whole of the UK, and others in one, two, or three of the countries depending on their individual legislations (Eddy, 1987, p.13). There are only four sources of the English law. The four principle sources include legislation, European Union law, common law, and the European convention on human rights. It should be understood the English legal system is a classic example of an unwritten form of legal system. There lacks a series of documents claimed to contain the whole content of the UK law (Eddy, 1987, p. 49).
Legislation is that part of law that is created by legislature. The parliament or national assembly is the only organ that is entitled to carry out legislation. The principle legislature is the UK national assembly, which is based in London (Eddy, 1987, p. 71). It is only at this level that this body is mandated and empowered to pass laws that are used in all the four countries. The UK national assembly comprises of the House of Lords and the House of Commons. The House of Commons comprises a total number of 650 members of parliament, each elected from a defined geographical area called a constituency. Each MP is elected into the House of Commons after garnering a majority number of votes in a contested general election or in a by-election (Eddy, 1987). On the other hand the House of Lords consist of 800 peers most of them being appointees of the queen. The queen formally appoints 600 lords on recommendation by the prime minister. The other 200 lords are people who have the birthright to be called lords, woman, or those from prominent families or powerful leaders from prominent Churches of England. Moreover, the Scottish parliament, the northern Ireland national assembly, and the parliament of wales each have the mandate and powers to pass laws on matters regarding devolved government (Eddy, 1987, p. 83). Such devolved law only applies to each individual country it has been formed in.
1.2.2 Common law
The legal system of England and Wales mostly relies on common laws. The decision of other senior appellate courts just comes in to supplement the common law.
1.2.3 European Union law
The UK being a member of the European Union is obliged to comply with the laws of the union. In this reference, the European Union law takes precedence to the UK laws.
1.2.4 The European Union convention on Human rights
The United Kingdom being a member of the state council of Europe, it is a signatory member to the European Union Convention on Human Rights. This status is enforced through the human right act of 1988 that came into effect in 2000. This act enables the United Kingdom courts to protect the rights identified in the European Union Convention on human rights (Kiralfy, 1990, p. 61).
1.3.0 How United Kingdom Law is classified
The law of a given country can be classified using different criteria and formulation. There are two types of law, namely the public and private law. The public law governs the individual citizens and the state. On the other hand, private law governs the relationship between the individual citizens and the private organizations (Walker, 1985, p. 112).
The other distinction of law in the United Kingdom is between the criminal law and the civil law. Civil law is the legislation that covers such issues as contracts, land laws, employment, family matters, negligence, and probate. Civil law can therefore be categorized as more or less as a private form of law as it deals mostly with relationship between individuals but not with the state (Walker, 1985, p. 113).
Criminal law is a branch of law that deals and defines boundaries of the generally accepted conduct. It is also categorized as public law, as an individual who breaks such laws are considered to have committed an offence against the state as a whole.
1.3.1 Hierarchy of the UK court system
In comparison to other countries, the court system and particularly the hierarchy is very complicated in the UK. The complication in the hierarchy in the UK court system mostly stems from the fact it comprises of four countries. It is also further complicated with the addition of the European Union laws where the UK is a member and a signatory to its laws. Even with these complications, the UK court system is hierarchical in nature.
At the top of the hierarchy we have the senior courts of England and Wales. At the top we have the Supreme Court which replaced what were earlier the functions of the House of Lords, the court of appeal and then the high court (Radcliffe, 1977, 19). The hierarchical nature of these courts is exhibited in the system of judicial precedent, which states that courts lower in the hierarchy are bounded by decisions made by higher courts in the hierarch.
The hierarchy may be able to be demonstrated as follows:
The Supreme Court- the court of appeal-the high court-courts of special jurisdiction-upper tribunal and then lastly the county courts.
3.2.0 Civil jurisdiction
Over the years since the revision of the UK court system, the main courts that deal with civil disputes are the county courts and the high court. These courts have overlapping jurisdictions, in most instances than not these courts are assigned cases not by the definition of the financial value of the matter being tried or the direction to a specific type of court by a statute. There is a wide power transfer between the high court and the county court. In deep analysis, the high court comprises of three sections: the Queen’s Bench, the chancery division and the family division (Radcliffe, 1977).
The Queen’s Bench deals with a wide range of matters such as cases involving contracts or tort. In additional it has super visionary powers executed by the administrative division of the Queen’s Bench. On the other hand, the chancery division deals with matters relating to land, insolvency and trusts and the general corporate world. Lastly, the family division deals with matters strictly relating to family such as marriage, children, divorce and other family related matters (Radcliffe, 1977, p. 56).
The Queen’s Bench and the family division also have limited roles relating to appeals from the magistrates courts and the family courts in that order. Appeals from both of these courts are handled by the court of appeal civil law division. It is only when matters of national or public importance are concerned that appeals cases from this courts are forwarded to the Supreme Court. In addition to these courts, there exist a number of courts of special jurisdiction. In the chancery division, we have the patent courts, in the queens division we have the commercial court, the admiralty, the technology and the competition court (Kiralfy, 1990, p. 127).
3.3 Criminal jurisdiction
Criminal offences fall in three categories. The first category defines criminal offences as only offences. The second category categorizes criminal offence as indictable only offences. The last category defines either criminal offence as offences that may be tried summarily or indictment (Radcliffe, 1977, p. 69). In this case, most of the cases are usually tried summarily in the magistrate courts or the youth courts for cases regarding children or young persons. For those offences that are tried on indictment, the proceedings are carried out before a jury in a crown court.
Most appeals from the magistrate court lies on the matters of law hence are referred to the divisional court of the Queen’s Bench. The appeals on retrieval of facts are mostly handled by the crown court. In addition, the appeals from the crown court and the divisional court are referred to the court of appeal in the criminal division. On point of law of public importance, an appeal from the court of appeal lies to the Supreme Court in the criminal division (Radcliffe, 1977). The hierarchy of the criminal law English court system can be summarized as follows.
The supreme court - court of appeal (criminal division) - Queen’s Bench divisional court or high court- crown court – magistrate courts
Regarding the piecemeal way the English legal system has develop, no single institution takes responsibility of its administration. The creation of ministry of justice in 2007 went some steps in addressing this but other government agencies and an increasing number of executive agencies and other bodies continue to play a role (Radcliffe, 1997, p. 4).
The English legal system being so complex requires deep understanding and objective interpretation of the law for a fair judgment and consequential ruling. There were some instances when the rule of law was in conflict with the social justice forcing the king to device a way to bring harmony between these two institutions. Most rulings that were made by the court ended up being revised when presented to the king.
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