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Chapter 2 Identifying features of the English
legal system
Contents
Introduction 29
2.1
Judging the operation of the English legal system
30
2.2
General features of the English legal system
32
2.3
The common law tradition
36
2.4
Substantive law and procedure 40
2.5
‘Adversarial’ vs ‘inquisitorial’ proceedings
45
2.6
Review of fundamental issues
47
Introduction
This chapter indicates many of the distinctive features of the
English legal system and builds on the ideas discussed in the latter
part of the first chapter. In the first chapter we emphasised the
need to be conscious of certain characteristics of legal study to
inform our particular efforts. In particular we indicated that we
could adopt a range of perspectives and that when we want to
understand the operation of law in a legal system we inevitably
face a choice as to what we include as suitable material. Do we
want to take the accepted rules and principles of legal doctrine as
given? (Some call this a ‘black-letter approach’ – ‘the law is simply
the law’). Or do we want to set these in context– and if so what
perspective should you take, what assumptions do you use to
organise the material to make sense of the diverse accounts?
Note the difference between the internal and the external, between
the participant and the ‘observer’ – the difference between:
accepting law as a normative phenomenon, where normative
precepts or ideals – statements of oughts – are appropriate
language
and the world of facts, where statements of is are the proper
expression.
There are others who appear to see law in negative terms, as
required only by the failings of human society (anarchists,
Marxists). They associate law and the operations of the legal system
closely with coercive governmental structures which compel
humans into artificial associations, where law distributes a
structure of unearned benefits and enforces unjust relationships.
Others, rejecting the coercive image of law see it as an expression
of societal ideals, as articulating principles and standards of human
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worth (human rights etc.), and the legal system as providing an
array of protective devices for citizens to use.
As examples of ‘external’ perspectives we could note those of the
sociology of law, Marxism and of many feminists or critical race
scholars who have felt excluded from the historical development of
the legal system.
Essential reading
Cownie and Bradney, Chapter 1: ‘What is “the English legal system”?’
Slapper and Kelly, Chapter 1: ‘Law and legal study’
Holland and Webb, Chapter 1: `Understanding the law’, 1.3 `What is Law?’
Learning outcomes
By the end of this chapter and the relevant readings you should be able to:
identify several key features of the English legal system that differentiate it
from others
outline the difference between common law and civil law (Roman law)
traditions
explain the difference between the adversarial legal process of English law
courts and the inquisitorial process that operates in many continental
European countries
discuss the principles and objectives which, in your view, ‘ought’ to guide
legal processes
begin to use fundamental concepts and questions as reference points in
further reading.
2.1
Judging the operation of the English legal
system
We have a pragmatic task: it is intellectually satisfying to explore
the diversity of perspectives, but we have limited time and limited
energy. Our questioning is necessarily rather limited. But, whatever
our theoretical inclinations, we accept that a legal system is a
complex of operations, processes, human actions, institutions and
ideals.
Given that it is a human creation we can ask if the legal system is a
rational enterprise and what kind of rationality is
involved. Many jurists argue that the legal system cannot be just
any kind of purposive activity: it must be rationally controllable,
and the institutional operations should be understood not simply as
ways of getting things done, but as ‘normative’. In other words,
they should express values and be ethically guided. Furthermore
the rationality that runs through it should be humane – i.e. it
should be oriented towards achieving justice.
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What criteria could we use?
Justice, however, is a contestable concept. Therefore we must ask a
series of questions and keep asking them, for example:
What principles ought to guide the legal processes?
What objectives should be kept in mind?
What ethical and professional ideals are involved?
Students are constantly asked to evaluate and think critically
about particular institutions and processes. Your evaluations and
criticisms should be made by reference to suggested objectives of the
criminal and civil justice processes and the various interests that
these systems are attempting to serve. In your reading of the
recommended materials, therefore, a fundamental question that
should always be at the back of your mind is:
To what extent to is a particular institution or process
achieving broad objectives and/or serving the interests of those
involved in the process.
Within the criminal justice process, for example, some of the
more important objectives suggested are:
to punish wrongdoers
to protect society
to deter people from breaking the law.
However, at the same time it is an important requirement that the
police, prosecutors and judiciary should act fairly and consistently.
There are also obligations:
to the accused
to victims
to the wider society to process cases speedily, but
not to interfere with civil liberties.
What of civil justice? The Victorian novelist Charles Dickens once
said that ‘the one great principle of the English Law is to make
business for itself’ (Bleak House, 1971, p. 58), and many complain
today of the excessive cost and complexity of the process. In
diagrammatic form we can suggest that:
Within the civil justice process,
key objectives are:
to provide the means by which civil
disputes can be resolved in accordance
with principles of fairness and justice.
The administration of civil
justice, however, also requires:
an efficient, cost-effective system
in which cases can be disposed
of fairly speedily.
Meanwhile, those members of
the public involved in disputes
require:
access to affordable justice of a
high quality.
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It will be clear that many of the objectives of both the criminal and civil
justice system appear to conflict and that a balance must be found
between competing requirements. For example, in criminal cases,
the desire to apprehend the guilty may conflict with the need to
protect civil liberties and observe due process considerations.
How is this balance to be found? How do we know if a satisfactory
balance is operating? This is usually difficult. In civil justice, for
example, the majority of litigants settle their cases out of court in
order to achieve a speedier and less costly resolution of their case.
Is this a success or failure of the civil justice system and how do we
evaluate the extent to which these outcomes are just and fair?
Summary
We began this chapter by looking at some of the broader issues
underlying a study of the law: in particular what the purposes of
the law are, and how we can judge whether it is achieving them.
This provides a foundation for the more detailed consideration of
the nature of the English legal system.
2.2
General features of the English legal system
Essential reading
Slapper and Kelly, Chapter 1: ‘Law and legal study’, pp. 1–9
So far we have stressed the multitude of perspectives possible and
the universality of our concerns. In later chapters, and throughout
your studies, you will be studying specific areas of operation, for
example contract and criminal law, trusts and land law, and
perhaps administrative law. Before plunging into particular topics
there are various general features and key concepts that you should
master. You should be aware of the differing sources of law and the
particular importance for the understanding of the English legal
system of the distinction between ‘common law’ and ‘civil law’
(or ‘Roman law’, as it is sometimes called) systems, and between
the adversarial and inquisitorial methods of investigation; you
should also have an understanding of the development and
meaning of ‘equity’.
Activity 2.1
Read Slapper and Kelly, Chapter 1: ‘Law and Legal Study’.
(a) What do the authors mean by ‘critical, analytical thought’?
(b) What is the distinction between common law and equity? Between common
law and civil law systems?
(c) What is the importance of the notions of ‘‘separation of powers’ and ‘rule of
law’ to legal study?
(d) What importance do the authors give to the advent of the Human Rights Act
of 1998?
Feedback: see page 56.
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2.2.1
What makes the English Common Law so distinctive?
English law has a number of distinctive features. The following list
is adapted from R.C. Van Caenegem’s Judges, Legislators &
Professors: Chapters in European Legal History.
The importance of the judges and the lack of prominence of
academics (jurists).
By contrast, in Italy, where the academic study of the Roman
digests laid the foundation for an intellectually rich study of law,
professors of law were the spokespersons of law, holding out
interpretations of the corpus juris.
In England, from the second half of the twelfth century down to the
great reforms of the nineteenth, the judges made and controlled the
common law, regarding legislation as an interference and a nuisance
and bothering very little about jurisprudence. (p. 69)
The idea that English common law reflects national identity.
This implies something greater than the mere fact that each country
has its own laws. There is something unusual about the
development of the English legal system. Sometimes this is referred
to as the common law ‘reflecting the pragmatic spirit of the
English’, or ‘the tendency to rely upon common sense’. As the
famous American scholar Laski put it in an exchange of letters with
the judge and legal scholar O.W. Holmes, the English mind:
is full of real insights, can never concentrate on any subject, never
argue about it abstractly, is always driven to the use of a concrete
illustration, is rarely logical and about eight times out of ten patently
in the right. (Holmes-Laski Letters, Harvard, 1953, p. 303)
But was this mode of thinking elitist or that of a democratic spirit of
the people? Van Caenegem says:
Was this ‘judgement-finding’ in the common-law courts and the other
central organs of justice democratic? Again the answer on the whole
must be negative, although some doors were ajar for ordinary people.
Certainly in the English judicial tradition there was nothing like the
mass assemblies of the Athenian democracy. Popular justice like the
people’s courts of the agora was unknown. Nor were the judges ever
elected by the people. They were appointed from the ranks of the
successful serjeants at law, an intellectual elite who had gone through
many years of training and success at the bar and whose recruitment
was at certain times limited to the sons of the aristocracy and the
gentry. There was, however, a popular element in the jury (even
though it was limited to landowners), for the judges had to put the
important questions of fact to them, at least in the common law
courts, and this had to be done in terms that were understandable to
the layman and free from the esoteric jargon that judges and serjeants
used among themselves. Another democratic element was the
openness of the proceedings, although it should not be forgotten that
the dealings of the court were held in a very strange language – a
medieval provincial French dialect – and were therefore quite
inaccessible to all except a few dozen initiates. Also the very high cost
of litigation to this day has been a severe hurdle for those who decide
to take their case to law. Nor was justice easily accessible in
geographical terms because of the excessive centralisation of the
courts and their activities in London… Another criterion of the
democratic nature of a legal system is, of course, its cognoscibility. On
this point, the common law scored very badly, for it was and is
uncodified, buried in a “myriad of precedent, that wilderness of single
instances”, and even worse, in the bosom of the judges who guarded
serjeants at law – ancient term for senior
lawyers
cognoscibility – capability of being
understood
patriciate – aristocracy
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the unwritten fundamental principles of the common law, against
whom not even clearly formulated statutes stood a chance – a
situation remindful of the Roman patriciate who kept the formulae of
the law secret. Might the justices of the peace have provided a
democratic element? Hardly…’
English law as a ‘seamless web’
– the idea that there was always an answer, that law existed even if
you could not immediately find it.
The rule of exclusion.
In interpreting statutes or legislation, the English judiciary adopted
a rule that specified that one could not look at material beyond the
legislation to determine its meaning.
The lack of a written constitution.
Note the theory of parliamentary sovereignty, i.e. that Parliament is
an absolutely sovereign legislature (but is this now compromised by
EU and International Conventions?). Van Caenegem expressed the
traditional view in 1987:
The theory of parliamentary sovereignty, i.e. that Parliament is an
absolutely sovereign legislature, is built on two pillars. The first is that
no parliament can bind a future parliament or be bound by a previous
one. There are no laws that parliament cannot make or unmake and
no consideration of morality or natural law can prevail against a clear
statute emanating from Westminster. The second is that no judge can
condemn a law and refuse to apply it on the ground that it is
incompatible with the constitution or the fundamental principles of
the common law; that would be a usurpation of the legislative
function by the judiciary. (Judges, Legislators & Professors, pp. 21–22)
Another consequence of this was the relative lack of judicial review.
In the broad sense judicial review means control by a higher
judicial body (such as in appeal cases or review of executive
discretion). In the narrow sense it means the control exercised by
the courts over the constitutional character of legislation, implying
the power of judges to annul laws (or stop their application) as
being contrary to some article of the constitution.
Prosecution and verdict in criminal trials.
The jury trial became the most distinctive aspect of the common-
law world. Historically the prosecution of offenders in the English
system lay not with any state official but with the jury of the venue,
a jury of peers of the accused. The jury decided whether there was
enough prima facie evidence to warrant a criminal procedure
against the accused. Two juries were involved: one – a grand jury –
decided whether to prosecute or not, while another, the petty jury,
decided whether the prosecuted person was guilty or not. The 20th
century saw a marked decline in the role of the jury, the almost
total disappearance of the jury from civil trials and a reduction in
the number of criminal trials that involve a jury.
An uncodified law.
This is the clearest difference between English law and the
continental or civil law system. There have been numerous
movements to codify English common law but they have never
succeeded.
You may note that the choice between
interpreting a statute by reference to the
language contained in the statute alone, or
by using extrinsic sources, such as records
of debates in the Parliament or committees,
or records of what the framers of the bill
intended it to means, is a fundamental
tension in all common law systems. It has
particular resonance in the questions of
interpreting a written constitution. Should
we interpret by reference to what we can
historically show the framers had in mind,
or should we give the words only the
meaning that they can bear on their own?
But then which time frame does one
consider? The time the constitution was
written or now?
peers – equals
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A tradition dominated by judges
Legal education was seen as a practical affair, a matter of skilled
pleading and learning the ways of the courts. In part this was a
consequence of the minor role that jurists played in the common
law. In the English tradition the judges are the oracles of
the law (to use Blackstone’s phrase). Jurists – professors of law
and of the theoretical study of law – have a marginal role. The
English common law was the handiwork of judges and judges gloss
it in future judgements.
The continental European situation is the result of the central role
of the interpretation of the code of the Emperor Justinian. Roman-
based legal science was the province of professors. By contrast with
the Continent’s Roman-based legal scholarship, English law was
based on custom, revealed by precedent; the judges, reconciling
precedents in the practice of the courts, and not the jurists, were
the oracles of the law. Young people who wanted a career in law
did not go to a university to learn law-book texts and hear the
professors’ interpretation of the meaning of those texts. They went
instead to live in one of the Inns of Court, where they listened to
barristers and judges and learnt the law by seeing it in action in the
courts. To learn the law was to engage in an apprenticeship,
witnessing the practice of the courts and learning the pleas.
As late as 1882 (when he became the Vinerian Professor at Oxford)
Dicey set out his inaugural lecture in the form of a question: ‘Can
English law be taught at the universities?’ He meant the question
rhetorically, for he believed that not only could it be so taught, but
that it must be in order to make it more rational, consistent and
adaptable to new social developments. But there were many, and
there still are some individuals, who consider that the common law
is best learnt in practice and that university level courses are only a
gloss on the real learning process. The issue is apparent in a variety
of guises: is a law degree to be seen as a preparatory course for
entering the legal profession and therefore it should concentrate on
the particular needs of the profession? Or should it emphasise
wider more general skills and be seen as a branch of liberal
education?
You may note that the University of London was the first university
to create a Bachelor of Laws as an undergraduate degree in the
common law in the 1890’s. From the beginning, external students
have been able to sit for its examinations.
Summary
The English legal system is the original common law system. The
common law of England has come out of hundreds of years of
development, beginning with Anglo-Saxon customs (in the period
up to 1066) and the impact of the Norman rationalisation and
centralisation of authority. Over the subsequent centuries it grew
through complex processes of recognising and rationalising the
multitude of judicial decisions that the judges of the central courts
created. In studying the common law it is important to appreciate
that it is a complex historical product with a number of distinctive
features.
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2.3
The common law tradition
The English legal system is the original common law system, so an
understanding of the nature of the common law is vital. The
common law is often referred to as a tradition (it has also been
referred to as a ‘mystery’, as ‘growing organically’, as ‘inherently
irrational’, as ‘defying logic’, as ‘particularistic’, as a ‘lady’, and as
‘chaotic’). Certainly the contemporary common law system can only
be understood as a historical creation, with features that may
reflect the contingencies and accidents of history, rather than any
rational design.
Different meanings have been attached to the expression ‘common
law’.
2.3.1
The historical perspective
The development of the law of England and the
distinction between the common law and equity
The traditional picture of the development of English law begins
with the customs of Anglo-Saxon society. Custom is said to have its
roots in the life of the people and reflect the social structure of that
way of life. The daily conditions of life were rather grim: most of
England was covered by dense forests and the population was
largely illiterate. Hence law was local custom, largely unwritten
and understood as a set of orally transmitted rules. As a body of
rules their content seems to have been directed at preventing
bloodshed by recognising elementary rights to property and
personal freedom and substituting compensation for the rigours of
blood feud as revenge for injury. Stating who had what rights to
occupy and use land was a crucial task. Christianity had also been
introduced, and was having an impact.
In 1066 the Norman French baron William defeated the Saxon King
Harold at the battle of Hastings and conquered England, becoming
King William I. The historians Pollock and Maitland (History of
English Law, 2nd edn Vol. I, p. 79) said:
The Norman Conquest is a catastrophe which determined the whole
future of English Law. We can make but the vaguest guesses as to the
kind of law that would have prevailed in the England of the thirteenth
century or the nineteenth had Harold repelled the invader.
Subsequent legal mythology often presents a narrative that claims
that William was a political conqueror but left the local laws alone.
In reality, after the Norman conquest local laws, however slowly,
gave way to a general law of the country, which became known as
the common law. Immediate effects involved:
the introduction of the official languages of continental Europe,
namely Latin and the official and popular hybrids known as
Norman-French and Anglo-Norman
separate Ecclesiastical courts (dealing with religious matters
and people in religious service)
a general principle of landholding.
William insisted that all land was held by his grace (which still
persists in the notion of ‘free-hold’, where the owner still holds of
the crown). As communications improved so did the spread of
central administration and a centrally administered ‘law’. The fact
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that a central body was attempting to develop law as a means of
administering the country changed the character of law and the
legal institutions.
Over time the King’s courts became the most important forum for
the resolution of disputes between citizens (as we see in Chapter
3). The law of the King’s Judges became the Common Law
(Commune Ley) as distinct from the local customs. The Judges,
however, tried to recognise ‘general’ customs, a wise move in terms
of getting acceptance of their decisions. Where there was no
general custom the decisions of these Judges came to form new law
(as indeed was the case when they adopted custom). The
development of the common law was linked to procedure. An
action could only be brought in these courts by obtaining
(purchasing) a writ. Soon, however, the forms of such writs
became fixed, and only Parliament could approve a new type of
writ designed to meet a claim that could not be accommodated
within the existing writs and forms of action. If there was no writ to
cover your precise problem, unfortunately it was very difficult for
the courts to listen to you. (This was recognised by the Latin phrase
ubi remedium ibi jus, which translated in practice as no right could
be recognised in the common law unless a writ existed that
provided a remedy for its breach). This created a rigid legal system
and caused considerable hardship to many individual litigants. In
response a practice grew of petitioning the King (as the ‘fountain of
justice’) for justice in the individual case. The petitions were dealt
with by the chancellor, who in this period was a man of the church
and who was regarded as the ‘conscience’ of the King. In due course
a formal procedure for such petitions evolved, culminating in a
Court of Chancery, presided over by the Lord Chancellor, applying
a system of rules known as ‘equity’ rather than the common law of
the ordinary courts.
2.3.2
The development of equity
The Court of Chancery was often called a ‘court of conscience’
(there was and still remains a key phrase that a man must come to
equity ‘with clean hands’, that is not himself guilty of wrongdoing
in the case). It is true that it was often effective in remedying
injustices, but the existence of parallel jurisdictions brought
problems and injustices of its own. Chancery developed procedures
separate from, but at least as complex as, those of the common law
courts. It also accepted the operation of its own precedents. Hence
it is actually wrong to consider that equity depended on a free
discretion by the particular judges; instead it is best to see judges
dealing in equity exercising a particular aspect of the normal
‘judicial discretion’ (see Chapter 5). Certainly procedure again
became important and a litigant had to be sure of the classification
of the rule he sought to have applied, in order to commence his
action in the right court. The equity of the Chancery Court became
a set of rules almost as precise as those of the common law. In the
case of conflict between the two systems, the rules of equity
prevailed. Parliament sought to put an end to these divisions with
the Judicature Acts 1873-1875, which established a unified system
of courts that were charged with applying both the common law
and equity.
Writ: a document carrying the royal seal
that was, in effect, an order of the
sovereign commanding the performance of
some act.
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Students who later come to study equity as a particular module
sometimes confuse ‘equity’ with the idea of natural justice.
Although that was the origin of the Chancery jurisdiction, it has
long since disappeared from the rules of equity. The rules of equity
are just as capable today as those of the common law of producing
resolutions of disputes that may be viewed as just or unjust.
Indeed the Court of Chancery has been historically an object of
great criticism. Take the words of C.K. Allen (from Law in the
Making, 6
th
ed. 1958, p. 403).
The history of the Court of Chancery is one of the least creditable in
our legal records. Existing nominally for the promotion of liberal
justice, it was for long corrupt, obstructive, and reactionary,
prolonging litigation for the most unworthy motives and obstinately
resisting all efforts at reform… Charles Dickens did not exaggerate
the desolation which the cold hand of the old Court of Chancery
could spread among those who came to it ‘for the love of God and in
the way of charity’.
Today, since the two types of rules are applied by the same courts,
it may be apt to see equity as simply another form of the law.
There are, nevertheless, certain distinctive features. Firstly, while
common law rules are available to plaintiffs as of right, equitable
remedies are discretionary in the sense that they are subject to
some general conditions of availability. For example, there is no
absolute right to specific performance of a contract. Secondly, the
existence of parallel systems of rules, the one based on formal
procedures, the other based originally on the idea of substantial
justice, has allowed some judges to invoke the tension between the
two systems as a source of judicial creativity in developing the law
to meet new situations. For example, Lord Denning has used this
device in relation to the enforceability of promises and in relation
to contracts affected by mistake.
2.3.3
Common law and statute law
distinguished
The phrase common law is also used to denote the law applied by
the courts as developed through the system of precedent without
reference to legislation passed by Parliament. Statutes have only
relatively recently become the most prolific source of law in
England and Wales. For most of the development of the common
law system the majority of the law was applied by the courts
independently of any statutory source. The constitutional fiction
was that the judges merely declared what the law was, as though it
was already there and merely needed to be discovered. It is more
usual today to admit that the courts create law, although there are
jurisprudential scholars, such as Ronald Dworkin (Law’s Empire,
1986), who hold to complex arguments that judges evolve the law
out of existing principles and constructive interpretation of existing
sources. An important aspect is the argument that the common law
is a tradition of judicial responsibility and a barrier to arbitrary
decision-making.
Common law as a ‘family’ of legal systems
As explored further later in this chapter, a wider meaning still of
‘common law’ is a description of a group of related legal systems.
The English legal system was exported around the world during the
colonial period. The legal systems, for example, of the USA,
Famous nineteenth century novelist Dickens
was himself a court reporter for some years.
He was extremely critical of many aspects
of the legal and prison system, and the
Court of Chancery comes in for a particular
battering in his great novel
Bleak House
.
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Australia, New Zealand, Singapore, Malaysia and most of the
Commonwealth countries, are all based on English common law
although they may mix in local customary law, religious based law
or other influences. What makes them all part of the common law
legal family is not exactly similar rules or propositions but rather a
working jurisprudence. As Justice Story declared in Van Ness v
Pacard (1829, 2 Pet. at 137):
The common law of England is not taken in all respects to be that of
America. Our ancestors brought with them its general principles, and
claimed it as their birthright: but they brought with them and
adopted only that portion which was applicable to their situation.
In the view of Chief Justice Shaw of Massachusetts, in Norway
Plains Co. v. Boston & Maine Railroad (1845, 1 Gray, at 263) the
flexibility of the common law ensured its adaptation:
It is one of the great merits and advantages of the common law, that
instead of a series of detailed practical rules, established by positive
provisions, and adapted to the precise circumstances of particular
cases, which would become obsolete and fail, when the practice and
course of business, to which they apply, should cease or change, the
common law consists of a few broad and comprehensive principles,
founded on reason, natural justice, and enlightened public policy.
We may not necessarily agree with his precise listing of the basis of
the common law but we may accept this image of flexibility.
Today we can talk of two great secular legal families for the legal
systems of continental European countries, which were also
exported around the world. One of these is the common law
system. The other family is usually described as the civil law
system, of which the most influential has been that of France,
because by producing the Code civil Napoleon gave to France the
first modern European legal system, which was copied elsewhere.
In practice each jurisdiction may mix their secular legal tradition
with local customary or religious traditions.
2.3.4
Criminal law, civil law, and public law
Criminal law
We all tend to have some understanding of what criminal law is. It
is the embodiment of the power of the state to punish people for
actions, or failures to act, which are deemed contrary to the
interests of society as a whole or the powerful interest groups that
have assumed control of the legislative process. As early liberal
writers, such as Thomas Hobbes (1651), agreed, there is a basic
controversy about criminal law in that it is the infliction of evil
(punishment) in the name of the state’s duty to protect its citizens
from wrongful harm. We can see criminal law as a species of public
law, in the sense that prosecutions of those accused of committing
crimes are (with rare exceptions) brought by public officials in the
name of the state. Today the state has the dominant role in
investigating and prosecuting crime, but in the past crimes were
much more usually seen as a particular loss or injury to an
individual. There is a close connection between civil wrongs (called
‘torts’) – for which the individual would be able to claim
compensation – and crimes. In many legal systems the two actions
take place concurrently, but they are usually separated in the
English legal system. Therefore any such compensation would
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normally be claimed by civil action in the civil courts, though in a
criminal trial the courts have power to award compensation to
persons injured, payable by a person convicted at trial (s 35,
Powers of Criminal Courts Act 1973, as amended by the Criminal
Justice Acts of 1982, 1988 and 1991).
Civil law
The term civil law is used to refer to the continental European
family of legal systems (also known as Roman law systems because
of their heritage in legal reasoning and centrality of the use of
codes dating back to the codes of the Roman Empire), civil law is
also the title of one category of English law. In one sense civil law is
all law other than criminal law, and thus by civil law, today we
often mean English private law.
Public law
The expression public law has existed for some time, but had little
significance other than to indicate that the subject-matter in some
way involved a public authority. Continental European legal
systems, on the other hand, had developed the idea of public law
into a separate and specialised body of rules applicable only to
cases involving the administration. English law has not yet taken
such a radical step. In many cases the term public law is loosely
used to refer to Constitutional and Administrative law.
Summary
In understanding the common law there are a variety of uses of key
terms that you need to understand. These need to be carefully
distinguished and will provide a structure to guide further study.
2.4
Substantive law and procedure
2.4.1
The importance of procedure
The distinction between substantive law and procedure is, in simple
terms, the distinction between the rules applicable to the merits of
a dispute (substantive law) and the rules governing the manner of
resolution of a dispute (procedure). For those who practise law the
rules of procedure are very important, but at the academic stage of
legal studies the focus is on the substantive rules. It is nevertheless
important to have some understanding of procedure, because
procedure can affect the application of the substantive rules. In
fact, the rules of procedure were in the past of great significance in
shaping the substantive rules, since English law, from the time
when it was necessary to frame one’s action within the form of an
existing writ, has proceeded from the existence of a remedy to the
establishment of a right. It might almost be said that procedure
came before substantive rights.
Activity 2.2
Consider the following extract on the nature of common law
thought. From Roger Cotterrell, The Politics of Jurisprudence,
(Butterworths, 1989, pp. 23–25).
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Having described the common law developing as the law of
common jurisdiction applied by the royal courts, as distinguished
from various kinds of special or local law, Cotterrell acknowledges
that much later, the term came to refer frequently to judge-made or
judge-declared law in contrast to legislation. He then asks general
questions about the nature of this law.
As you read the extract, make notes on whether Cotterell sees this
law as easily discoverable, or whether it is a rather more mysterious
process.
No feedback provided.
The character of common law thought
But how far is this common law an affair of rules? Here, as in many
other inquiries about classical common law thought, it is important to
avoid imposing on the common law tradition modern interpretations
reflecting views about law derived from wholly different theoretical
premises… To write of common law as a system of rules […] is to
impose just such an alien conception on it. A commentator remarks
on the surface ‘chaos’ of judicial decisions, underlying which is,
however, ‘an internally coherent and unified body of rules’. But he
goes on to note that principles of law stand behind these rules and, in
common law thought, are more important than them […]. In fact,
however, it is probably more true to common law tradition to see its
essence not in rules at all. ‘To represent it as a systematic structure of
rules is to distort if, it is to represent as static what is essentially
dynamic and constantly shifting’ […]. The idea of common law as
principles of law seems more appropriate for capturing this shifting,
dynamic character, if only because principles suggest flexible
guidelines for legal decision-making rather than rules which control.
Much more lies behind all this than a terminological quibble. As
Brian Simpson has noted, if common law’s existence is thought of in
terms of a set of rules ‘it is in general the case that one cannot say
what the common law is’ […]. This is because it is impossible to mark
out conclusively such a rule-set corresponding to common law. While
some continental writers have interpreted the common law as a
‘complete, closed and logically consistent’ system […], Simpson seems
on much firmer ground in saying: ‘As a system of legal thought the
common law is inherently incomplete, vague and fluid’ […]. Thus for
Jeremy Bentham, the great English legal reformer, who insisted that
law should be a matter of clear rules, common law was no more than
‘mock law’, ‘sham law’, ‘quasi-law’. Judicial development of law
exemplified ‘power everywhere arbitrary’ […]
Issues of the clarity and completeness of law therefore arise.
Common law resides in judicial decisions rather than rules. But
something stands behind the decisions, justifying them, guiding them
and giving them authority as law. For the American jurist Pound,
common law is ‘a mode of treating legal problems’ rather than rules.
But principles of common law shape rules […] Pound also identifies
the spirit of common law in distinctive institutions: ‘supremacy of
law, case law and hearing of causes as a whole in open court’.
Associated with these are the institution of trial by jury and ‘judicial
empiricism’ […] – pragmatic case-by-case decision-making guided by
past judicial precedents; a method of working that, for Pound,
‘combines certainty and power of growth [of law] as no other
doctrine has been able to do’. But still it can be asked what, if
anything, unifies these institutions and what gives them legal
authority or legitimacy.
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Common law’s unity has been attributed to ‘the fact that law is
grounded in, and logically derived from, a handful of general
principles; and that whole subject-areas such as contract or torts are
distinguished by some common principles or elements which fix the
boundaries of the subject. The exposition and systematisation of these
general principles, and the techniques required to find and to apply
them and the rules that they underpin, are largely what legal
education and scholarship [in the common law environment] are all
about’ […]. Indeed, a long tradition of thought sees the classical
essence of common law in broad legal guidelines, as much concerned
with how to reach proper judicial decisions […], as with the specific,
content of them. On this view it is best seen as ‘a method of legal
thinking […] or of deciding disputes. A. V. Dicey using terms similar
to those of the eminent eighteenth century jurist Sir William
Blackstone […], wrote at the end of the nineteenth century of
common law as a ‘mass of custom, tradition or judge-made maxims’
(Dicey 1959, p. 23-4).
Maxims of common law symbolised the broad guidelines which
could be considered to underlie and direct loosely individual
decisions.
One writer examining a crucial period of common law development
in the first half of the seventeenth century remarks that maxims ‘were
the essential core of the common law, woven so closely into the fabric
of English life that they could never be ignored with impunity’; as
‘high level general principles or fundamental points of the law’ they
were used in interpreting the past decisions of the courts – evaluating
their significance – as precedents to be applied to new cases
(Sommerville 1986, p. 94). Maxims, indeed, were far more important
than precedents themselves. In modern times, as legal doctrine
became more detailed and complex, these maxims lost their force and
have ceased to be of much practical significance. But they point to the
enduring idea that the heart of common law is not in specific
decisions or in rules distilled from them but in broad notions which
are difficult to unify or systematise, but which may, indeed, in some
way, be ‘woven into the fabric of life’.
Because many of these notions are extremely hard to pin down, the
unifying element of common law often seems mystical. Sometimes in
classical common law thought it is portrayed as a vague historical
destiny, a working out in history of an obscure but immanent logic of
the law, or a kind of superhuman wisdom reflected in the collective
work of the common law judges throughout the centuries but
impossible for any single person to possess. Thus, for Blackstone, law
is ‘fraught with the accumulated wisdom of ages (quoted in Postema
1986: 63). And Coke CJ, early in the 17th century, wrote: ‘we are but
of yesterday… our days upon the earth are but as a shadow in respect
of the old ancient days and times past, wherein the laws have been by
the wisdom of the most excellent men, in many successions of ages,
by long and continual experience… refined, which no one man (being
of so short a time) albeit he had in his head the wisdom of all the
men in the world, in any one age could ever have effected or attained
unto. And therefore… no man ought to take upon him to be wiser
than the laws’ (Calvin’s Case 1608 7 Co Rep 1, 3.).
This extract may be hard to grasp at first reading but repays re-
reading several times. What Coke is saying, in modern English, is
this: ‘The law has been developed over a very long period by a lot
of very wise people, and we should not assume that we know better
than them’. There are many who disagree with this cosy picture.
The poet Tennyson said of the common law in Aylmer’s Field:
Mastering the lawlesss science of our law, -- That codeless myriad
of precedent, The wilderness of single instances…. He seemed to
According to Blackstone I
Commentaries
p.
68,
Maxims in Law
were somewhat like
axioms in geometry. They are principles and
authorities that become part of the general
customs or common law of the land and
bind judges when it is argued that they
apply to a case. Examples: 1.
Actore non
probante reus absolvitur
(When the plaintiff
does not prove his case the defendant is
absolved
)
. 2.
Argumentum ab impossibili
plurmun valet in lege
(An argument
deduced from authority is the strongest in
law Co. Litt. 92). 3.
Bona fides non patitur,
ut bis idem exigatur
(Natural equity or good
faith does not allow us to demand twice
the payment for the same thing. Dig. 50,
17, 57). 4.
Caveat emptor
(Let the
purchaser beware). 5.
Cogitationis poenam
nemo patitur
(No one is punished for
merely thinking of a crime). 6.
Commodum
ex injuri su non habere debet
(No man
ought to derive any benefit from his one
wrongdoing. Jenk. Cent. 161.). Hundreds
of maxims developed over time.]
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indicate that the lay person could not understand the process and
that it was irrational. Many share his view!
2.4.2
The role of the common law judge
Historically, the common law tradition has always placed the
judiciary at the centre of things. Judicial decisions are seen as
constituting the written law – as a body of precedents and reported
decisions that constantly need to be rationalised and developed into
a coherent ‘system’.
The authority of the common law is found in the judgments of
courts deliberately given in causes argued and decided. As Lord
Coke put it in the preface to his 9th Report,
“it is one amongst others of the great honors of the common law that cases
of great difficulty are never adjudged or resolved in tenebris or sub silentio
suppressis reationibus, but in open court: and there upon solemn and
elaborate arguments, first at the bar by the counsel learned of either party,
(and if the case depend in the court of common pleas, then by the
sergeants at law only;) and after at the bench by the judges, where they
argue (the presiding judge beginning first) seriatim, upon certain days
openly and purposely prefixed, delivering at large the authorities, reasons,
and causes of their judgments and resolutions in every such particular case,
(habet enim nesio quid energia viva vox:) a reverend and honorable
proceeding in law, a grateful satisfaction to the parties, and a great
instruction and direction to the attentive and studious hearers”.
This bedrock of judicial activity is contrasted to the legislative
process of making statute law and those decisions that constitute
judicial interpretations of statutes and other forms of legislation.
The common law tradition entails a particular approach to the
discovery, interpretation, and (where necessary) the making of law
as practised in contra-distinction to the jurisprudence of countries
influenced by Roman law and the later European codes (such as the
Code Napoléon).
Consider this further extract from Cotterrell, p. 25:
According to the declaratory doctrine of common law, judges do
not make law. They are in Blackstone’s words, ‘the depositories of the
laws, the living oracles who must decide in all cases of doubt’ […].
The authority of law is seen as a traditional authority. The judge
expresses a part of the total, immanent wisdom of law which is
assumed to be already existent before his decision. The judge works
from within the law which is ‘the repository of the experience of the
community over the ages’... Thus, even though he may reach a
decision on a legal problem never before addressed by a common
law court, he does so not as an original author of new legal ideas
but as a representative of a collective wisdom greater than his own.
He interprets and applies the law but does not create it, for the law
has no individual authors. It is the product of the community
grounded in its history. Judicial decisions according to Matthew
Hale writing in the seventeenth century do not make law ‘for that
only the King and parliament can do’, but are evidence of law, and
‘though such decisions are less than a law, yet they are a greater
evidence thereof than the opinion of any private persons, as such,
whosoever’ […]. Thus the judge is spokesman for the community
about its law – but a particularly authoritative spokesman.
Blackstone differentiates the role of the
legislator versus the role of judges and the
courts in Book I, Sect. III of
Commentaries
on the Laws of England
: "How are these
customs and maxims [i.e. common law
WM] to be known, and by whom is their
validity determined?" The answer is, by the
judges in the several courts of justice. They
are the depositories of the laws; the living
oracles, who must decide in all cases of
doubt, and who are bound by an oath to
decide according to the law of the land…
not delegated to pronounce a new law, but
to maintain and expound the old one…
And indeed, these judicial decisions are the
principal and most authoritative evidence
that can be given of the existence of such a
custom as shall form a part of the common
law.
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2.4.3
How legal doctrine is built up in
common law cases
The common law is said to be ‘inductive’ and ‘empirical’ in nature.
Thus it proceeds (at first) in an incremental way, laying down its rules
on a case-by-case basis, inferring a general principle only after a
plenitude of precedents justify that inference; it is reluctant to
extend its chains of reason or principle beyond what actual
experience has demonstrated to be wise.
In older textbooks the common law is often presented as a specific
form of rationality which is democratic in its composition, in that it
has come out of the resolution of countless small and large scale
disputes. Its statements thus succeed as ‘good law’ because they
retain public support over time, are particularly logical in their
relations to real life (because they are a response to legal argument
which has taken place in the resolution of real disputes concerning
actual parties argued before specific courts), and disdainful of legal
theory (because it looks backwards to its precedents, not forwards
to hypothetical instances). Historically, the common lawyer
operating within English legal system was suspicious of statutes.
Although recognising the supremacy of Parliament, the common
lawyer sought to restrict legislative intent by interpreting the
wording of statutes strictly and precisely and was openly disdainful
of codification.
The common lawyer valued the certainty of the law as a great goal;
though historically this certainty often produced injustice in
individual cases. As noted above, the more conscience-based set of
outcomes called ‘equity’, arose which sought to ameliorate the
harshness of the common law. Equity, however, has not sought in
modern times to replace the doctrine of precedent and the rules of
recorded discretion with unpredictable ad hoc decision making.
2.4.4
The civil law tradition
In contrast with the common law, the continent of Europe has been
directly or indirectly influenced by Roman law (civil law), with its
emphasis upon a code. Civil law is said to be ‘deductive’ in nature
because it proceeds from an exhaustive code of propositions in
accordance with which all subsequent experience must be judged.
In this picture, the civil lawyers of Europe are said to favour
accessibility over certainty. They stress that the law should be
available to all, easily understandable, and kept (so far as possible)
out of the hands of a priestly class. Precedent is not dispensed with
but its hold is looser than in the English legal system.
Civil law systems tend to use a career judiciary who operate more
courts, including inexpensive tribunals (staffed by younger judges)
which can informally hear disputes involving smaller amounts than
the English system. A broad ‘purposive’ approach is encouraged
towards the interpretation of enacted words and phrases, and
consistency is considered less important than doing justice to the
individual parties. It is not uncommon for Codes to be deliberately
vague and general in their choice of language, the better to allow
individual cases to be decided upon their merits.
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Self assessment questions
1 What does it mean to say that law is a ‘normative’ phenomenon?
2 When did the Anglo-Saxon period of English legal history come to an end?
3 Has there ever been a successful attempt to codify English law?
4 State five characteristic differences between the common law (English) legal
systems and the civil law (Roman law) systems.
5 Why has it been argued that the common law system is ‘democratic’?
No feedback is provided, as you can find the answers to all these questions by
looking back in the text.
2.5
‘Adversarial’
vs
‘inquisitorial’ proceedings
Essential reading
Zander, Cases and Materials on the English Legal System, Chapter 4: ‘The
trial process’
Many commentators have remarked that if any one feature could
be taken as the cornerstone of English legal procedure it is the
adversarial (or accusatorial) nature of the proceedings as contrasted
with the inquisitorial nature of civil law systems.
2.5.1
Proceedings of an English court
At the apex of this adversarial system lies the traditional picture of
the English court – an arena wherein a contest is waged between
parties in which one emerges the winner. In the inquisitorial
procedure the court takes charge of the case even to the extent of
framing the legal and factual issues to be disputed. In the
adversarial system the parties dictate, within the constraints of
traditional forms and packages – such as writs, forms of action and
pleadings – the form, content and pace of proceedings. The pre-trial
proceedings are arranged such that by the time of the trial each
side should have gained as much information as possible both to
support their own case and to exploit any weaknesses in the
opposition’s arguments. The agent of the court (i.e. the judge)
should stand back and wait for the case to proceed to trial. During
the trial the judge in civil cases and the judge and jury in criminal
cases should allow him/herself to be guided, at least initially, as to
the relevance of questions of fact and law by the parties’ advocates.
The judge should take a procedural ‘back seat’ and intervene only
to ensure that fair play is operating – or where the public interest is
at stake.
The proceedings are dominated by the advocates for the parties
with, as in the case of criminal cases, the prosecution trying to build
a strong case against the defendant and the defence, in turn,
endeavouring to demolish the prosecution’s case. Throughout this
procedure witnesses are examined and cross-examined using a
variety of tactics available to the skilled advocate. Some use subtle
means to cause witnesses to react in a certain way, others use
bullying tactics to obtain the same result from nervous participants.
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The success of a case, therefore, often rests upon the ability of an
advocate to manipulate proceedings and not just the weight of
evidence. As the eminent English commentator, Jacob (The Fabric
of English Civil Justice, 1987, p. 16) stated with respect to civil
cases, the adversarial system ‘introduces an element of
sportsmanship or gamesmanship into the conduct of civil
proceedings, and it develops the propensity on the part of lawyers
to indulge in procedural manoeuvres.’
The system rests upon a number of assumptions – specifically that:
both parties are represented
the lawyers representing each party are efficient and equally
matched
the lawyers will promote their clients’ interests.
English lawyers do not owe a general duty to ensure that justice is
done or to enable the court to find the truth. Their only obligation
to the court is not to mislead the court on questions of law or fact.
How then does the truth emerge? Only as a consequence of the fact
that each side is intent on winning the case.
But the adversarial system often produces unexpected and, according
to some observers, unjust results due to the manner in which
evidence can be presented. The outcome, therefore, hinges upon
the events of the trial itself as much as the gathering of evidence
beforehand, since the courts only judge what is presented before
them and, especially when juries are present, the way it is
presented. With the exception of the Coroner’s Court, proceedings
in the English courts do not take the form of investigations into the
matters brought before them, unlike the inquisitorial system which
basically entails an examining judge conducting his or her own
investigation, often in conjunction with organisations such as the
police, before any trial takes place. The inquisitorial procedure
appears more obviously oriented as a search for the truth, taking
into account all aspects of the matter, and consequently a
substantial number of cases do not reach the trial stage. Those that
do go to trial often reach that point with far greater certainty as to
the outcome than in courts using the adversarial system.
For an understanding of how important it is to grasp the
fundamental issues consider Zander, Cases and Materials, Chapter
4: ‘The trial process’. This chapter deals with the trial and the
particular characteristics of the common law tradition, i.e. the
adversarial method, as compared to the inquisitorial system
adopted in civil law jurisdictions.
Summary
The adversarial nature of the English trial is characteristic. It places
control over the direction of the trial in the hands of the parties and
their advocates, and the judge has limited grounds for intervening.
The system has been criticised, not least for its reliance on the
assumption that the parties’ advocates are reasonably well-matched
in terms of skill, and that they perform their task conscientiously.
This compares with the civil law systems, in which the judge
actively controls the proceedings and makes his or her own
inquiries (hence this is known as an ‘inquisitorial’ system). Both
systems have their ‘pros and cons’ and it is up to you to make your
own judgement of their relative merits.
All lawyers are officers of the court and are
under a number of general duties as a
consequence. Ethically, there is only one
overriding duty, that of candour. A Lawyer
must never knowingly deceive or mislead
the court. This serves the crucial role of
binding together the lawyers and the
judges in a common trust. But although
some commentators may wish to argue
that this gives the lawyers a positive duty to
strive for justice, in fact it only gives a
negative and procedural duty, not to strive
for creating injustice.
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Reminder of learning outcomes
By this stage you should be able to:
outline key features of the English legal system that differentiate it from
others
outline the difference between common law and civil law (Roman law)
traditions.
explain the difference between the adversarial legal process of English law
courts and the inquisitorial process that operates in many continental
European countries.
2.6
Review of fundamental issues
These fundamental notions of the common law and the
adversarial/inquisitorial distinction need to be understood when
studying particular topics, such as judicial reasoning, or the nature
of the civil or criminal justice process. It cannot be stressed enough
how important it is to strive for an integrated and coherent
overview of the subject matter. All too often the examiners receive
answers which demonstrate that candidates have taken an
isolationist or topic-picking approach which does not enable them
to show the depth of understanding required for good marks. All
the questions asked reward answers that reveal a student’s ability
to show interconnections and ‘foundational’ knowledge; although
the examiners may ask questions that directly test such
‘foundational’ or interactive understanding. Take two questions
from the May 2000 exam paper:
•
Question 1
What do we mean when we speak of the ‘common law?’
•
Question 2
‘The adversarial system lies at the root of all problems of
the English civil justice system. Real reform can only be
achieved by abandoning the adversarial system.’ Discuss
this statement in the context of the Woolf reforms of civil
procedure.
The first of these questions invites a discussion that would reveal
the student’s basic understanding of the identity and range of legal
study. Students are studying for the LLB degree via the External
Programme of the University of London in more than 70 countries
throughout the world. Why? Part of the answer lies in the role the
common law plays as one of the two great secular legal families.
2.6.1
What are legal ‘families’?
The term legal families refers to coherent similarities that group
together the various legal systems in the world into distinguishable
‘traditions’ or ‘families’. Some of these families derive from religion
(for example, the Islamic and Talmudic legal systems); others are
associated with particular political and social ideologies (for
example, common law, civil law or Roman law, and the now
declining socialist law). These families are not rigidly distinguished
from each other but there are sufficient significant differences to
define them, based on the following basic characteristics:
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objectives of the legal system
sources of law
legal reasoning and methodology
structure of pre-court and trial proceedings.
2.6.2
The distinction between the common
law and the civil law traditions
We have already noted that the two legal families that have
dominated, and continue to dominate, ‘western’ legal systems are
the civil law and common law systems. The origins of the first lie in
Roman Law and the code civil of nineteenth century France, while
the common law derives from medieval English civil society. The
transplantation of both legal families throughout the western world
and beyond was assured by the French and British empires.
History is of vital importance in explaining why many of the
cardinal features of the two legal families are different: their
separate developments spanned many centuries. However, even as
‘ideal types’ they are far from polar opposites. Both have as their
overall objective the establishment of systems for the just resolution of
disputes and the maintenance of social order. The differences lie in
the means and structuring of the process whereby such ends are
achieved.
In the legal systems of today there is no pure example of either the
civil law or common law system. All relevant legal systems in the
western world are to greater or lesser degrees hybrids of these two
models or of other legal families. While New Zealand and Australia,
for example, may be seen as predominantly common law
jurisdictions there are demands for both to recognise the traditional
law ‘law’ of their pre-European inhabitants; Malaysia combines the
common law with Islamic law, particularly with respect to family
law for its Malay citizens; South Africa combines the civil and
common law with allowance for local customary laws.
Here are some of the features that distinguish the common law and
civil law families (derived from David and Brierley, 1985).
Characteristics of common law systems
The common law family is usually defined by reference to the
following characteristics:
A concern to determine legal disputes according to their
individual circumstances and the relevant judge-made case law,
rather than applying general statements of legal principle.
A traditional picture of common law that presents the source of
law as being found in the texts of individual judgments. There
was never, therefore a single authoritative statement of the
common law. It was thus, in important aspects, always
‘unwritten’ yet ‘written’.
What does it mean to talk of law being both written yet
unwritten? It is crucial to keep emphasising the nature of the
common law tradition. In his Commentaries on the Laws of
England (1765-9) Blackstone was careful to describe the
common law as ‘unwritten law’ as contrasted to the written law
of statutes or codes. He was familiar with the common law as a
form of oral tradition derived from general customs, principles
and rules handed down from generation to generation by the
As a key feature of their tactics of rule, the
British established the rule of law in their
colonies. Although not officially recognising
that the societies they took colonial control
of had ‘legal systems’, under British rule
the courts used a mixture of English law
and local customs and traditional belief.
The British avoided interfering with local
customs. They banned practices deemed
contrary to natural justice, such as human
sacrifice or infanticide. But they respected
local beliefs, particularly in disputes about
land, debt, marriage and inheritance. It was
generally felt that the jurisprudence of the
common law helped in this flexibility of
recognising different sources and practical
decision-making.
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court lawyers and judges who participated in a common life by
eating and drinking in one of the Inns of Courts to which all
had to belong. Eventually this oral tradition was reflected in
the reports of the decisions of the important court and the
‘knowledge’ was then stored in a ‘written’ form, namely the
Law or Case reports. You should note, however, that there was
no organised system of court reporting until the late nineteenth
century and prior to that all reports were private initiatives
(made by barristers who were in the courts and circulated
privately for a fee to supplement the barrister’s income).
Moreover, the relationship of the Law Reports and the common
law is not straightforward. For it is not said that the words of the
Law Reports are the common law, but that the decisions of the
courts as reflected in the law reports provide authorities for what
the common law can be argued to be. In other words, and this is
the ‘mysterious’ bit, the common law is always something more
than what is written down! What is written down are
pragmatic instances of judges articulating what they take the
law to be. So when one is looking for the law in a case one
reads the words, but the law is always something more than
the words that one reads! It is always accepted that the law is
open to development and better articulation.
In addition, modern common law legal systems have
substantial bodies of highly detailed legislation, which
comprise another primary source of law.
Common law applies to all legal persons including the state.
Traditionally there is no division between public and private
law.
The adoption of an inductive form of legal reasoning whereby
legal principles are derived from the texts of many single
judgments.
A litigation system in which the trial is the distinct and separate
climax to the litigation process.
Courtroom practice which may be subject to rigid and technical
rules.
The fact that the parties to the dispute essentially control
proceedings and there is an emphasis on the presentation of
oral argument by counsel. The role of the judiciary is more
reactive than proactive. Given the parties’ opportunity and
responsibility for mounting their own case the system is more
participatory.
The fact that the judiciary possesses an inherent power to
adjudicate separate from the executive or political process.
While the judiciary may be paid by the state, they exercise a
separate power free from political interference.
The fact that the expense and effort of determination of
disputes through litigation falls largely on the parties.
Characteristics of civil law systems
The civil law family is usually defined by reference to:
A concern to determine legal disputes according to pre-
determined legal principles established to maintain social
order.
The source of law being found in authoritative statements of
basic legal principles – for example, the Civil and Criminal
Codes – issued by the state and propounded upon by legal
scholars.
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The separation of public law (concerning relations between the
individual and the state) and private law (between
individuals).
The adoption of a deductive form of legal reasoning whereby
pre-existing general statements of legal principle are applied to
the specific circumstances of individual cases.
In litigation, the fact that no rigid separation exists between the
stages of the trial and pre-trial in court cases. Legal proceedings
are viewed as a continuous series of meetings, hearings and
written communications during which evidence is introduced,
witnesses heard and motions made.
Rules relating to courtroom practice which are intended to be
minimal and uncomplicated.
A less conspicuous role played by lawyers, with an emphasis on
written submissions rather than oral argument. The judiciary in
theory and practice play a more organisational and inquisitive
role. The greater directorial role of the judiciary allows less
room for the parties to direct their own case. In this sense the
system is more hierarchical than participatory.
The fact that as officers of the state the judiciary possesses no
separate and inherent power to adjudicate.
The fact that a greater proportion of the effort and expense of
dispute determination through litigation falls on the state.
It is the combination of these elements within each of the two
families of common law and civil law and their respective court
procedures and practices which permit the shorthand descriptors of
‘adversarial’ and ‘inquisitorial’ to be used. In the classical
adversarial form of trial:
… the judge sits to hear and determine the issues raised by the
parties, not to conduct an investigation or examination on behalf of
society at large … So firmly is all this established in our law that the
judge is not allowed in a civil dispute to call a witness whom he
thinks might throw some light on the facts. He must rest content with
the witnesses called by the parties. (See Jones v National Coal Board
[1957] 2 QB 55, 63-64 per Denning LJ.)
2.6.3
Has there been a gradual convergence of legal
systems?
Key words currently are globalisation and interdependency. They
denote the economic, technological and social trends that have
made the idea of discrete and impervious national states, societies
or legal systems seem over-simplifications, if not actually
redundant. As the barriers separating societies have dissolved so –
it is argued – have the identifying features of the common law and
civil law families been weakened. Legal systems are exposed to, and
sometimes actively seek out alternative practice and procedure as
well as the jurisprudence of other systems. In the English legal
system we think of the daily impact of European Union Law and
now we see the incorporation into English law of the European
Convention on Human Rights by the Human Rights Act 1998,
which came fully into force in October 2000. Generally speaking,
International law, including international commercial
environmental and human rights law, are amalgams of the
principles, substance and practice of both common law and civil
law systems.
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According to this view, characteristics of the legal systems
associated with the two families have gradually converged. Others,
however, argue that certain fundamental presumptions and
essential structural features of the legal families are so divergent
that there are ‘irreducible differences’ between them. Any common
law system may well have adopted non-adversarial features and
there is currently great interest in adopting alternative practices
and concepts (such as customary forms of dispute resolution, or
‘restorative justice’).
In a number of respects, the distinctions between the common law
and civil law systems seem to be weakening.
The pre-eminence of legislation
Statutes that are comprehensive and detailed in style and content
now comprise a highly significant source of law in common law
systems. While case law still dominates in certain areas, such as tort
law, a vital aspect of the common law lies in the way common law
judges engage in the interpretation and application of legislation.
Judicial use of legal principle
Especially in the superior courts judges refer to legal principles –
whether framed in statutes or ‘found’ in common law – when
interpreting or applying the law. Legal principles that may
originally have been induced in classical common law style are now
applied to the circumstances of individual cases in a deductive
fashion. Such principles include for example:
the neighbourhood principle in tort law
natural justice in administrative law
implied terms in contract law
constructive trusts in property law.
Judicial activism in trial and pre-trial court practice
Traditionally the common law judge had limited power over the
direction or substance of the case, in reaching a conclusion and
writing a judgment, was limited by the facts presented and the
arguments raised by the parties. In comparison, the judge in a
conventional civil law inquisitorial model is expected to pursue
actively whatever avenues will result in resolution of the disputes,
in a continuous process of inquiry encompassing trial and pre-trial
stages. Judges in several common law jurisdictions – such as those
of New Zealand and Australia – are becoming more active in
defining the issues in dispute and moving cases forward to a
hearing. As we shall see when we look at reforms in the civil justice
process (see Chapter 11 of this guide and associated reading), there
has recently been a development of process management discourse
and case management techniques in common law courts. In part
these are reactions to the procedural excesses of adversarial
litigation.
Assisted and alternative dispute resolution processes
The development of judicial activism has been mirrored by an
increased use of court related alternative dispute resolution (ADR)
processes. The main forms of ADR are:
arbitration
conciliation/mediation, and
early independent evaluation and report.
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Arbitration and expert referral are adjudicative in nature. With
arbitration the parties to the dispute choose an arbitrator to
determine their dispute. The process is private and does not result
in the legal announcing of principles to guide parties not involved
in the proceedings. Other processes are facilitative and involve
assisting parties to reach a decision. Some processes, such as
conciliation, may be facilitative in the information gathering stages
and adjudicative or evaluative in the final stages. Sometimes these
processes are regarded as external to the court system as an
additional system; but often they are used to resolve disputes
commenced within the court system. Some commentators believe
that the growing use of these processes has an additional effect, in
that exposure to these processes may be changing the model of
judicial determination so that there is more emphasis on facilitative
communication.
2.6.4
Problems with the adversarial system of litigation
To emphasise an earlier point, in broad terms, the present
adversarial system of conducting proceedings refers to a system in
which the parties, and not the judge, have the primary
responsibility for defining the issues in dispute and for carrying the
dispute forward. The system is based not only on substantive and
procedural law but also on an associated legal culture and ethical
base. The base in legal culture is important. In reviewing the merits
of the adversarial method. Farrar and Dugdale (1990, p. 68) drew
upon American research to suggest two direct advantages:
it may reduce the element of bias in the decision maker (in the
adversarial process such a person may make up his mind later
and on fuller evidence than he would in an inquisitorial process
it may lead the lawyer for a party with a weaker factual case to
put forward a fuller version of the facts than he would in an
inquisitorial context.
However, they considered the most significant aspect of the
research was that:
the adversarial process was more acceptable to the parties
and this was true for both sets of people in the study, i.e. those
brought up in the American system and those brought up in the
French.
The term ‘adversarial’ does not have a precise meaning. Litigation
and other dispute resolution processes used in common law systems
are a blend of adversarial and non-adversarial elements and
processes that do not fall into any particular category of legal
system. In its simplest form the adversarial system of litigation is
claimed to have a number of consequences, which have been
challenged as counterproductive or inefficient. For example, it has
been said that:
the system, due in large part to its emphasis on the final
hearing, is about winning and losing – each party has
responsibility for advocating its own case and attacking the
other party’s case. This puts an emphasis on confrontation;
moreover under this ‘sporting’ theory of justice the result may
be (as with competitive sport today) a result of the level of
financial resources that a team can deploy. Those with the
highest–paid lawyers (or who can bring in highly specialised
‘teams’) may win the game
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the lawyer’s role is strictly partisan – the lawyer has a duty to
represent the interests of his or her client and is not ethically
accountable for the client’s goals or the legal means used to
attain them, although the lawyer does have certain
countervailing duties to the court – this gives lawyers an
incentive (and perhaps even an obligation) to exploit any
advantages the legal system allows for their clients
the evidence supplied by ‘expert witnesses’ may be ‘fashioned’
to suit a particular line of argument
the judge is responsible for ensuring that the proceedings are
conducted fairly – this makes judges sensitive about limiting
the issues and arguments raised by parties and putting other
controls on proceedings, in case that is considered biased or
unfair
the judge is not responsible for how much evidence is collected,
how many different arguments and points are put to the court
or how long the proceedings take
the judge adjudicates questions of fact and questions of law
submitted to the court, but is not responsible for discovering
the truth or for settling the dispute to which those questions
relate
giving the parties control of proceedings may be a cause of
expense and lead to great delay; sometimes this is used as a
tactic by one side to ‘force’ a settlement out of court, but
sometimes just a consequence of both sides analysing and
complicating the materials produced by the other side in a
continual cycle.
These and other features of the adversarial system have been
criticized as contributing to (among other things) excessive costs
and delays, over-servicing, a lack of accountability and an unduly
confrontational approach to dealing with disputes. Lord Woolf in
his final report to the Lord Chancellor (1996) on the civil justice
system in England and Wales identified defects in the adversarial
system of litigation, as practised in those jurisdictions as follows:
it is too expensive – costs often exceed the value of the claim
it is too slow in bringing cases to a conclusion
it is too unequal – there is a lack of equality between the
powerful, wealthy litigant and the under-resourced litigant
it is too uncertain – it is difficult to forecast what litigation will
cost and how long it will last
it is incomprehensible to many litigants.
Paradoxically, some of the same features of the adversarial system
of litigation which some would identify as problems are defended
by others as benefits of the system.
For example, in response to the criticism that the judge’s power to
find the truth is limited, others maintain that ‘truth is best
discovered by powerful statements on both sides of the question’
(Denning LJ in Jones v National Coal Board [1957] 2 QB 55, 63,
citing Eldon LC in Ex parte Lloyd [1822] Mont 70, 72) as provided
for in adversarial proceedings or that, in any case, the ultimate
purpose of the adversarial system is not to determine the truth but
to resolve the dispute between the parties.
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Control of litigation by the parties and the strictly partisan role of
the lawyer, seen by some as causing problems through adversarial
excesses, may be seen by others as producing significant benefits by
contributing to an open and participatory form of dispute
resolution consistent with the traditions of libertarianism and
democracy. Most lawyers can point to cases where their ‘point
scoring’ or full discovery uncovered the ‘smoking gun’ in the case
or, at least, gave litigants the satisfaction of their day in court.
Similarly, the passive role of the judge in adversarial litigation may
be seen as an appropriate means of ensuring that judicial
impartiality and neutrality, upon which the legitimacy of the
process is largely based, are preserved as paramount. The trial
focus of the adversarial system may have benefits in providing a
date, once fixed, by which the matter will be resolved. This may be
an advantage compared to European systems where the dispute
resolution process does not have such a distinct focal point and can
drift.
The adversarial system has also been criticised for its indirect
effects. Strictly, the adversarial system relates only to a small part
of dispute resolution – trials in courts. However, it has a wide–
ranging impact and affects all other stages of proceedings in courts,
the role and proceedings of tribunals, other dispute resolution
procedures used by courts and tribunals, and forms of dispute
resolution outside courts and tribunals.
Self-assessment questions
1 In what circumstances can a judge in an English trial be expected to intervene
in the proceedings?
2 What is the distinction between the ‘inductive’ reasoning used in common law
systems and the ‘deductive’ reasoning of civil law systems?
3 Give three arguments in support of the adversarial system of proceeding in
trials.
4 Give two examples of alternative dispute resolution (ADR).
5 Sum up what you understand by the ‘common law’ in no more than 50 words.
6 In the English legal system, only one kind of court carries out investigations into
the matters before it. Which kind?
7 In the adversarial common law trial, what duties are the parties’ advocates
under?
8 State three grounds for thinking that there is convergence between common
law and civil law approaches.
Summary
Enough has been said above that it should seem obvious to repeat
that studying English law is joining a tradition, that of the common
law with its own language and ways of doing things. However,
many of the features of your legal study will remain a dark mystery
without this fundamental awareness!
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Given the centrality of courts to the development of the common
law the next chapter will look at the role of courts before moving
on to ideas of precedent and the interaction of the court hierarchy.
Reminder of learning outcomes
discuss the principles and objectives which, in your view, ‘ought’ to guide
legal processes
begin to use fundamental concepts and questions as reference points in
further reading.
Sample examination questions
Remember the questions mentioned towards the end of Chapter 1, for example:
‘What do we mean when we speak of the common law?’
The complexity of the answer should be clear! It is perhaps unwise at this stage
of reading to demarcate a separate examination question on the common law as
it can not be repeated enough that is essential to appreciate the tradition of the
common law as the foundation of all your legal studies on English law!
References
Allen, C.K. (1958)
Law in the Making
. Oxford, Oxford University Press, 6th edition.
Cotterrell, R. (1989)
The Politics of Jurisprudence
. London, Butterworths.
Dickens, Charles (1971)
Bleak House
, Harmondsworth, Penguin.
Dworkin, R. (1986)
Law’s Empire.
Harvard University Press.
David, R. and Brierley, J. (1985)
Major Legal Systems in the Word Today.
London, Stevens
& Sons, 3rd edition.
Farrar, J.H. and Dugdale, A.M. (1990)
Introduction to Legal Method
. London, Sweet &
Maxwell, 3rd edition.
Holmes, O.W. (1953)
The Holmes–Laski Letters.
Harvard University Press.
Jacob, J.I.H. (1987)
The Fabric of English Civil Justice
. London, Sweet & Maxwell.
Pollock, F. and Maitland, F.W. (1923)
History of English Law
. 2
nd
edition, Cambridge,
Cambridge University Press.
Thompson, E.P. (1990)
Whigs and Hunters: Origin of the Black Act
. London, Penguin
Books.
Woolf Report (1996)
Access to Justice: Final Report to the Lord Chancellor on the Civil
Justice System in England and Wales.
London, HMSO.
Van Caenegem, R.C. (1992
) Judges, Legislators & Professors: Chapters in European Legal
History
. Cambridge: Cambridge University Press.
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Feedback to activities: Chapter 2
Activity 2.1 It is important to get used to using foundational concepts. They can
provide frames of reference that you then use to criticise or defend certain
practices and processes. As the noted social historian E.P. Thompson put it in
Whigs and Hunters: Origin of the Black Act (Penguin Books 1990, p. 266)
‘I am insisting only upon the obvious point, which some modern
Marxists have overlooked, that there is a difference between arbitrary
power and the rule of law. We ought to expose the shams and
inequities which have been concealed beneath this law. But the rule of
law itself, the imposing of effective inhibitions upon power and the
defence of the citizen from power’s all-intrusive claims, seems to me to
be an unqualified human good. To deny or belittle this good is, in this
dangerous century when the resources and the pretensions of power
continue to enlarge, a desperate error of intellectual abstraction.’