Comparative Law Spring 2002 Professor Susanna Fischer CLASS 35 ENGLISH LEGAL SYSTEM ENGLISH LEGAL HISTORY April 12, 2002

ENGLISH LEGAL SYSTEM You should understand these basic distinctions: Public law/private law Substantive law/procedural law Domestic law/international law Civil law/criminal law Also note the correct terminology for civil and criminal cases – see p. 7

ENGLISH LEGAL SYSTEM Is the English legal system applicable to courts and tribunals in: Wales? Scotland? Northern Ireland?

ENGLISH LEGAL SYSTEM Is the English legal system applicable to courts and tribunals in: Wales? yes Scotland? No – separate law and own court system except has the House of Lords as court of last resort Northern Ireland? No – separate law and own court structures except has the House of Lords as court of last resort

English Legal System: A Common Law System Why does Penny Darbyshire, the author of your book, describe the English legal system as a “heap of Lego bricks”? What is “common law”? (See p. 137)

Traditional Hallmarks of Common Law Systems Judge-made law Adversarial procedure Oral argument Jury trial What elements of these do the English system have? What about the U.S. system? The French system? The German system?

English Legal System: An Adversarial System? Is the English legal system adversarial in its trial procedure?

Changes to English Trials Inquisitorial elements are being introduced – remember the theme of civil law and common law systems moving closer together Jury trial has become rare in English civil cases and limited to most English serious cases Principle of orality is disappearing. Skeleton arguments are now required (since 1995) in civil cases. Considerable reforms since 1985 – we will study these in more detail

An Important Recent Reformer: Lord Mackay of Clashfern Lord Chancellor during Tory government ( ) Scottish – is the fact that he is an outsider significant? Spearheaded many changes to English system

England as the “Mother of All Common Law Systems” The English legal system has been very influential across the world as a result of the British Empire U.S., Canada, Australia, New Zealand, Trinidad and Tobago, Grenada, Virgin Islands, Fiji, Has also influenced other mixed systems, such as South Africa, Namibia, Malta, Scotland, Philippines, Sri Lanka, Qatar, Ghana, Hong Kong, India, Malaysia, Singapore, Iran, Jordan, Saudi Arabia

French Law: Also Very Influential Also as a result of colonization, the French system has influenced many world legal systems, including: Belgium, Netherlands (in turn influential on Dutch colonies such as Suriname and South Africa) Louisiana, Quebec, Turkey, Egypt, Iran, Syria, Japan, Taiwan, Vietnam, Cambodia, Benin

Influence of German System Very strong in Scandanavia, e.g. Denmark Other world legal systems are based on German law e.g. Burundi, Rwanda, North Korea German Basic Law has also been influential elsewhere, e.g. Africa and Eastern Europe

Survival of Old English Law in U.S. What are some examples of how the English legal system has survived in an older form in the U.S. than in the U.K.?

Survival of Old English Law:U.S. What are some examples of how the English legal system has survived in an older form in the U.S. than in the U.K.? Property law – English law was vastly reformed in the 1920s and the old feudal estates were eradicated from the law Criminal law – distinction between felonies and misdemeanors were eradicated in English law Felony murder rule – exception to law requiring specific intent to murder if kill someone during commission of felony

Some important comparisons with civil law systems England no written constitution (though Human Rights Act 1998 has recently incorporated European Convention on Human Rights into English law) No separate public law courts and slow development of separate body of public law Importance of case law in English law; focus on individual case Reasoned judgments with dissents Tradition of orality – which is changing