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Essay Unit 23 - The English Legal System
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Unit 23: English Legal SystemThe role of the courts, their alternatives and personnel in contributing
to case outcomes.
By: Khadro Mohamed
Date of completion: 12/02/2021
Introduction:
This report will review the role of the courts, their alternatives and personnel in
contributing to case outcomes. The report will be divided into two main sections.
In sections I, the report will provide an in-depth understanding of the jurisdiction
of the courts and their alternatives. In sections II, report will investigate the role
of the legal profession and lay people in contributing to case outcomes. Lastly, it
will end with a conclusion and finally indicate the position of the arguments in
the example cases.
Section I: Learning aim A: Examine the jurisdictions of the courts, and
their alternatives, in contributing to case outcomes.
A1: Meaning, purpose and terminology of the law
The law is a collection of regulations laid down for the state by the Parliament.
Each person is bound by the law and acting illegally allows the state to prosecute
them. However, Morals, which tell us what is right and wrong, are beliefs and
values held by a community or segment of society. Violation of morality results
in dismissal or feelings of remorse. Sometimes they are drawn from faith. The
law and morals do overlap most of the times. For example, murder, theft, and
rape are generally both, whereas, on the other hand, shoplifting a loaf of bread
as you have no money to feed yourself is not considered immoral but indeed is
illegal. The law sometimes lags behind morals, as a result, many citizens believe
that the system isn’t as fair and justice as it claims to be.
Personally, I would suggest that the law may be the root of a great deal of evil,
implying that human beings cause evil, but that the law also plays a causal role
in making it happen, in promoting its occurrence. This generally means that
there is no moral authority for "legal authorities" and the law they make and
impose is not legally binding on citizens, at least not as it appears to be binding.
It helps that the law can also be a source of good in ways that fall short of having
influence.
Some of the theories that address the law vs. morals argument are:
The Natural Law Theory
The Utilitarian Theory
Natural Law Theory: This theory argues that law should reflect morality. There
is a higher law to which we can turn for our moral code. In theory, natural law is
a form of law or justice that is considered universal to all human beings and
derived from nature rather than from the laws of society or positive law.
Scholastic thinkers, including the Franciscan philosopher' John Duns
Scotus (1266–1308) and William of Ockham (c. 1285–1347/49) and the Spanish
theologian Francisco Suárez(1548–1617), emphasised divine will instead of
divine reason as the source of law.
,Utilitarian Theory: Utilitarianism is one of the most powerful and persuasive
approaches to normative ethics in the history of philosophy. Though not fully
articulated until the 19th century, proto-utilitarian positions can be discerned
throughout the history of ethical theory.
Though there are many varieties of the view discussed, utilitarianism is generally
held to be the view that the morally right action is the action that produces the
most good.
There are many ways to spell out this general claim. One thing to note is that the
theory is a form of consequentialism: the right action is understood entirely in
terms of consequences produced.
The Justice System
What is Justice
Justice is the principle of moral rightness and equality, treating individuals fairly
and ensuring that everyone gets what they owe. That being said, there is no
simple definition of justice because our conceptions of justice come from our
moral convictions and our principles, behaviours and beliefs - all of which shift
over time. However, there are common assumptions about what the
characteristics of justice are.
Some of these characteristics are:
We should treat like cases alike, and different cases differently. We cannot
apply the law equally because this can result in unjust rulings. For
example, you would not punish a child in the same way in which you
would punish an adult.
We consider a law unjust if it discriminates on the basis of irrelevant
characteristics. For example, not being allowed into a restricted movie is
ok if you can’t provide ID to prove your age; but if you aren’t allowed in
because of the colour of your eyes, hair, or skin it would be considered
unjust.
Justice should be impartial: Laws should be applied regardless of a
person’s status. For example, Someone who is a celebrity should not
receive any special treatment just because they have celebrity status, nor
should they receive undue punishments.
We expect the law itself to be just, in that it conforms to society’s values
and beliefs. For example, if the government wanted to strengthen law
enforcement by requiring all of us to give a sample of our DNA to be put
into a registry, some people might object on the basis that this is an unfair
violation of their right to privacy. The passing of this law would depend on
whether society valued protection over privacy.
Justice should apply to both Substantive and Procedural Law: Substantive
– ensures that the standard that determines whether a driver should be
subject to a breath test is the same for all drivers. Procedural – stipulates
that the police officer administering the test will proceed in the same way
no matter who the driver is.
, The administration of justice deals with distributive justice – the idea that
there should be a fair distribution of honours and rewards by the state to
the people according to merit. This concept applies to the idea of reward
and punishment. We assume that the fundamental role of law and justice
should be to reward good and punish evil. Difficulties come from
determining what the person deserves as their reward.
Law and Justice: Two completely different concepts
Law:
Provides order in a society.
The Rule of Law is a supreme value.
Incorporates a way of resolving disputes.
Role is to defend persons, property and rights.
Justice:
Provides fairness and equity.
Civil disobedience is valid if the laws are unjust and contrary to what is
fair.
Judges can depart from the law to do what is just and set new precedent.
To be just, law must be consistent with moral law.
Law defined: There are two kinds of law that need to be taken into account
when considering how an individuals’ case is managed when it gets to court.
Procedural law: the methods and processes that are in place to ensure law
making and its application to each case is fair, eg Why is the bill and act process
seen as a fair process, why is judicial precedent fair?
Substantive law: The statutory or written rules that defines rights and duties in
each case, e.g. Dishonesty needed for theft to be proved and which case defines
the word?
Distributive Justice: Distributive justice is concerned with the fair allocation of
resources among diverse members of a community. Fair allocation typically
takes into account the total amount of goods to be distributed, the distributing
procedure, and the pattern of distribution that results.
Principles of distributive justice tell us how these benefits and burdens ought to
be shared or distributed. Because societies have a limited amount of wealth and
resources, the question of how those benefits ought to be distributed frequently
arises. The common answer is that public assets should be distributed in a
reasonable manner so that each individual receives a "fair share." But this leaves
open the question of what constitutes a ‘’fair share’’.
Various principles might determine of how goods are distributed. Equality,
equity, and need are among the most common criteria. If equality is regarded as
the ultimate criterion determining who gets what, goods will be distributed
equally among all persons. (In other words each person will get the same
amount.)
Sources of Law
There are a variety of sources from which law is made in England and Wales.
These sources include legislation, common law and European Union law.
, Differences between civil law, common law and European Union Law:
Civil Law: A system commonly used to underpin the legal systems of many
European countries. It is based on a series of written codes or laws, which
originates with the Roman concept of ius civile (Latin for `citizen’s law’). It was
further developed by the French Napoleonic Code of 1804. Civil law holds
legislation as the primary source of law; the court system is usually inquisitorial,
unbound by precedent, and composed of judicial officers with a limited authority
to interpret law. Independent juries are not used, although sometimes volunteer
lay judges do participate.
Civil law has an inquisitorial system, whereby one or more judges try criminal
cases alone, without juries; they try to get at the truth by inquiring into the case,
directing investigations and questioning witnesses. Defendants entering a
criminal trial are considered guilty until proven innocent.
Common Law: A system commonly used in many English-speaking parts of the
world, it has been established by the subject matter heard in earlier cases and so
is law co-created by judge.
It originated during the reign of the English King Henry II (1154-89), when many
local customary laws were replaced by new national ones which applied to all,
and were thus `common to all’.
Judges who work in a common law system have more authority to interpret law
but are bound by precedent. Indeed, apart from the authority ceded to the
European Union following the European Communities Act 1972, Parliament is
supreme, because it is the only body that has the right to enact a new law, or
alter or reverse a law which it itself has passed. Any law passed by Parliament
which clashes with, alters or reverses any part of the common law automatically
takes precedence, and becomes the law of the land. Juries are used in criminal
and some civil cases.
Common law has an adversarial system, whereby the parties involved
investigate their own cases
and call their own evidence. A case is thus argued by two opposing sides who
have the primary responsibility for finding and presenting facts. The prosecutor
tries to prove the defendant is guilty, and the defendant’s lawyer argues for their
acquittal. The case is then decided by a judge (or a jury) who does not
investigate the facts but acts as an umpire. Defendants entering a criminal trial
are considered innocent until proven guilty.
European Union law: European Union Law has had a major impact on domestic
law. The European Community was first created in 1957 when six countries
signed the Treaty of Rome. The United Kingdom signed up in 1972, and formally
joined the European Community
(now called the European Union) on 1 January 1973. European law was
incorporated into United Kingdom law by the European Communities
Act 197210. Since then, European law has been considered to be a valid and
binding source of United Kingdom law. Sometimes Community law and domestic
law sit side by side and the litigant (the party to a case) can use either. The
Treaty on European Union in 1992, (often referred to as the Maastricht Treaty),
and the Lisbon Treaty of 2009, respectively revised the Rome and Maastricht
Treaties and strengthened the European Union’s internal functions. The treaties
are the primary source of European law. With each treaty the United Kingdom
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