Updated: Jun 3
Part two of this article, continues looking at the history of the English Legal system. We have observed in the earlier article that senior judges from a British court comprehend existing legal framework and then they create law based on legal decree. This is unlike most European countries, where judges comprehend the legal code itself and they do not go about creating a new improved version of the existing law. Further, in the United Kingdom, the work of senior judges is used by junior judges in the lower courts, even after decades of established legislation, to take legal decisions, and pass a ruling on individual cases. This is especially important because in a way English judges have created a trail of legal reference points which came together to form the robust ‘British legal framework’ in its entirety.
In the ancient times, the monarchy used to issue a summons for the Defendant to appear in the court. The law suit (writ) or legal proceedings in the court would take place according to the summons. Hence, in a way the scope of legal proceedings was pre-decided. Lawyers from those times were serving the monarchy as professionals who were more concerned about ‘maintaining the knowledge about the scope of legal proceedings’, rather than the ‘law’ itself. For instance, if a Defendant ‘A’ was accused of robbery at the Plaintiff B’s shop, then the summons would contain first-hand information about the committed robbery. This information may be about the time of robbery, definition of the crime, the defendant’s motivation to do the crime and so on. But there would be no scope for making the necessary amendments as the law suit progresses in the court.
This is similar to current scenario in which, unless a case has established legal grounds, the case will be ruled out as a lawsuit. For instance the plaintiff’s appeal towards a murder trial may be ruled out if there is not the slightest possibility of intent, motive or even the presence of Defendant at the murder scene. At Private Law Tutor, our law tutor is specifically keen on teaching this aspect of making the case stronger or weaker. In a way, each side is trying to make their case stronger and the opponent’s case weaker.
In the old monarchical times, both sides the Defendant and the Plaintiff played as opponents and fought a battle and then justice was said to be done to the side which won. Now, the iron shield and sword of the opponents is replaced by lawyers and their arguments that can form the basis of a case. The Defendant’s lawyer tends to represent their side of the story by fighting against the Plaintiff’s lawyer, and trying to prove the other side to be wrong.
For instance, if the Defendant is accused of a murder then she may represent an Alibi, or other matters of fact that will prove that she was not present at the murder scene. Other types of defences could be she was being a victim of her own mind, and that she was influenced by a mental disorder while committing the murder crime. Then the opposing side that is Plaintiff’s lawyer would try to prove that she does not have a mental disorder by getting other witnesses and that’s how the fight goes on!
The side with the most convincing argument will win. The judge usually only controls the decorum of the court and rarely intervenes during the legal proceedings. Hence, in the U.K. legal system, the entire case is conducted by lawyers from both the sides. The judgment is bypassed by the jury in case of a Crown Court and by a bench of Magistrates in case of the Magistrate’s Court. The British legal system offers the right of giving the final judgment of the Defendant being ‘guilty’ or ‘not guilty’ to the jury and not to the judge.
This is unlike other European Nations such as France where the judge has the right to present witnesses for the Plaintiff’s or Defendant’s side as the case may be. Other rights of the judge in a French Courts includes: the right to interrogate, the right to command the police to stop investigating and hand over the case to the judge, and the judge can also make it mandatory for the witnesses to provide evidence or truth that could help in resolving the case.
Our Law tutors at Private Law Tutor believe that this practice of differentiating the uniqueness of English legal system by taking references from its history and present is an effective way of studying the English law. In the upcoming articles, we will study the classification of English Law and the detailed orientation of the legal terminology.