English legal System

Definition of Law

There are several definitions of law given by different writers . Some are described
below :

Law is a set of rules that plays an important part in the creation and maintainance of
social order .

John Austin Definition : Law is a command issued from a sovereign power to an inferior
and enforced by coercion .

Sir John Salmond definition definition :Law is the body of principles recognised and
applied by the state in the administration of justice .

Law then is about rules of conduct imposed by a state upon its members and enforced
by the courts .The social purpose of law is to regulate human behaviour .Law exists to
establish social order in a manner defined by the interest of the rules of society .

Function and Purpose of Law

The following are the functions and purposes of law:
1. To Deliver Justice
 Delivering justice through the law means ensuring that everyone is treated fairly and
equitably. It involves holding individuals and institutions accountable for their actions
and ensuring they face appropriate consequences.
 Justice means that no one, regardless of their status or power, is exempt from the
law. It requires upholding the rights of individuals and giving them a fair opportunity to
present their case.
 Justice isn’t just about punishment; it also involves restoring balance and addressing
the harm caused by wrongdoing. It’s about giving a voice to victims and addressing
their grievances.
2. To Provide Equality and Uniformity
 Ensuring equality and uniformity through the law means that everyone gets treated
fairly, no matter their background or status. It’s about making sure the rules apply
equally to everyone, without any exceptions.
 Whether someone is rich or poor, powerful or not, they should be subject to the same
laws. By promoting equality and uniformity, the law builds trust in the system and
fosters a sense of fairness and justice in society.
 It ensures that nobody gets special treatment based on things like wealth or
influence, making the community more inclusive and united.
3. To Maintain Impartiality

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 Maintaining impartiality through the law involves making decisions and judgments
without showing favoritism or bias. It means being fair and neutral in all
circumstances, regardless of personal relationships or feelings.
 Impartiality ensures that everyone receives equal treatment under the law, regardless
of their background, wealth, or status. It guarantees that justice is served based on
evidence and facts, rather than personal opinions or external influences.
 Upholding impartiality fosters trust in the legal system and ensures that individuals
have confidence in its fairness and integrity.
 It’s crucial for preserving the credibility and legitimacy of the law, as well as for
promoting a just and equitable society where everyone can trust in receiving fair
treatment and equal protection under the law.
4. To Maintain Law and Order
 Maintaining law and order means ensuring that society remains peaceful and orderly.
It involves enforcing laws and regulations to make sure people follow the rules and
respect others’ rights and safety.
 Law enforcement agencies play a critical role in this by patrolling communities,
investigating crimes, and arresting those who break the law.
 The legal system also provides a framework for resolving disputes and holding
individuals accountable for their actions through fair and impartial judicial processes.
 When law and order are maintained, society can function smoothly, and people can
feel safe and secure in their homes and communities.
 It builds trust and stability, allowing everyone to go about their daily lives without fear
of violence or chaos.
5. To Maintain Social Control
 Maintaining social control involves setting and enforcing rules within a society to
guide people’s behavior and prevent disorder.
 This includes using various methods such as laws, customs, and informal social
pressures to encourage individuals to follow accepted standards of conduct.
 By doing so, society can regulate behavior and discourage actions that could disrupt
harmony or harm its members. Social control helps keep order by promoting
adherence to shared values and norms, which fosters cooperation and unity among
people.
 It also helps prevent and address behaviors that go against these norms, ensuring
that the community can function smoothly. Ultimately, social control is crucial for
preserving social cohesion, building a sense of belonging and respect among
members, and maintaining peace and stability in society.
6. To Resolve Conflicts
 Resolving conflicts means finding peaceful solutions to disagreements or disputes
between people or groups. It involves communication, negotiation, and sometimes
mediation or arbitration to reach an agreement that satisfies everyone involved.
 Conflict resolution aims to address the underlying issues, find common ground, and
restore harmony or cooperation among the conflicting parties. It may require
compromise, where each side gives up something to reach a mutually acceptable
outcome.
 Effective conflict resolution techniques include active listening, empathy, and creative
problem-solving to find solutions that benefit all parties.

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 By resolving conflicts peacefully, societies can prevent violence or hostility and
maintain positive relationships among their members.
 It encourages understanding, cooperation, and respect, creating a healthier and
more harmonious community where differences can be addressed constructively.
7. To Bring Orderly Change through Law and Social Reform
 Bringing orderly change through law and social reform involves using legal and
institutional methods to make positive improvements in society.
 It means identifying areas that need change, such as outdated laws or social
injustices, and working within the legal framework to address them.
 This process often includes passing new laws or amending existing ones through
legislative action. Social reform also involves grassroots initiatives and community
organizing to tackle systemic issues and promote social justice.
 By working through established channels and fostering dialogue and collaboration,
orderly change can be achieved in a way that respects the rule of law and creates a
fairer and more equitable society for everyone.

Classification of Law

Law may be classified into various ways . The four main divisions are as follows :

Criminal law and Civil law

Public Law and Private Law .

Substantive Law and Procedural Law

Public International Law and Private International Law .

Criminal Law

Criminal Law is that part of the law which characterises certain kinds of
wrongdoings as offences against the state , not necessarily violating any private
right , and punishable by the state . Crime is defined as an act of disobedience
of the law forbidden under pain of punishment . The punishment for crime
ranges from death or imprisonment to a money (fine ) or absolute discharge .

In criminal case , the state is the prosecutor because it is the community as a

whole which suffers as a result of the law being broken .

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 Generally , the police take the initial decision to prosecute , but this is then
reviewed by the Crown Prosecution Service . Some prosecutions are started
by the Director of Public Prosecutions who is the head of the Crown Prosecution
Service .

In a criminal trial , the burden of proof to convict the accused rests with the
prosecution which must prove the case beyond reasonable doubt .

Civil Law

Civil Law is primarily concerned with the rights and duties of individuals of
individuals towards each other . It includes the following :

Law of contract , dealing with that branch of the law which determines whether a
promise is legally enforceable and what are its legal consequences

Law of Tort . A tort is defined as a civil wrong for which the remedy is a common-law
action for unliquidated ( i.e unspecified or unascertained ) damages and which is not
exclusively the breach of contract or breach of trust or other merely equitable
obligation .( Salmond : Law of Torts .) Examples of torts are: nuisance , defamation ,
and trespass .

Law of Property is that part of the law which determines the nature and extent of the
rights which people may enjoy over land and other property . For example , right of
‘ownership ‘ of land ,or rights under a lease of land .

Law of succession is that part of the law which determines the devolution of property on
the death of the former owner and in certain other events . For example , the identify of
persons and the rights of such persons who may succeed to property under a will .

Family Law is that branch of the law which defines the rights , duties and status of
husband and child , and other members of a household

Civil law is a form of private law . In civil proceedings , the case must be proved on the
balance of probability . The claimant must convince the court that it is more probable
than not that their assertions are true .

There is no concept of punishment , and compensation is paid to the wronged person .

Both parties may choose to settle the disputes different to that of criminal cases ute out
of court should they wish .

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Terminology in civil cases . A claimant sues a defendant . A civil case would therefore
be referred to as , for example , Smith v Megacorp plc .

Public Law comprises (i) Constitutional Law , (ii ) Administrative law and (iii)
Criminal Law .

Constitutional law are the rules which regulate the structure of the principal organs of
government and their relationship to each other , and determine their principal
functions . This subject includes : choice of Monarch , his powers and prerogatives ; the
constitution of the legislature ; powers and privileges of members of Parliament ; the
status of Ministers ; the Civil service ; the armed forces ; the police ; the relations
between the central government and of

Administrative Law is that body of legal principles which governs the activities of
administrative agencies of government. Govennment agency action can include
rulemaking , adjudication , or the enforcement of a specific regulatory agenda . AS a
body of law , it deals with the decision – making of administrative units of government
like tribunals ,boards or commissions .

Criminal is explained above .

Substantive Law defines rights and duties , such as crimes and punishments in the
criminal law and civil rights and responsibilities in civil law . It is codified in legislated
statutes , can be enacted through the initiative process , and in common law systems it
may be created or modified though precedent .

Procedural law is that rules of law by which a court hears and determines what
happens in a civil lawsuit , criminal or administrative proceedings .

Public International Law . This branch of law is concerned with law between sovereign
nation-states , hereinafter ,states , especially within the context of the law of war ,
peace and security , and protection of territories. , While these concerns of
international law remain paramount among states , today ,the classic definition of
public international law has expanded to include a more diverse group of subjects and
a broader scope of activities .

Private International Law is the legal framework composed of conventions ,

protocols ,model laws , legal guides ,uniform documents ,case laws, practice and
customs, as well as other documents and instruments ,which regulate relationships
between individuals in an international context .

Legal systems around the world

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1. Codified civil legal system .
A codified legal system is where the laws of a country are written down in a code or
codes . The code contains all the law in an area, for example taxlw . They are
arranged to avoid any inconsistency , and contain only legislative enactments .Judges
have to strictly apply the code to cases that appear before them .The code is known to
every citizen or lawyer in the country , so a judge’s final decision can be predicted at an
early stage .

Many European countries have codified legal systems including France ,Germany ,
Holland , Spain , and Portugal , and they are also found in former colonies of these
countries ,

A country with a codified system will generally have a written constitution and a
constitutional court as the the highest appeal court .Its role is to interpret the constitution
and code , not to make new laws .

In contract law ,for example , a code will imply various terms into a contract , so there
will be less need to set out all the terms as any inadequacies or ambigiuties will de
settled by operation of law .

Common Law

Common law originated in Anglo Saxon times , there were local courts which decided
disputes and it was until after the battle of Norman Conquest in 1066that a more
organised system of courts emerged .William the Conqueror set up the Curia Regis
( King’s Court) and appointed his judges . The judges or nobles were sent to discuss the
cases in counties , boroughs and parishes . the judges were known as circuited judges
as they went on tour to do justice and they had to report to the King on their
judgements . The king also made judgements on cases presented before him in his
chambers .there were so many cases ,both civil and criminal , and the king had to make
a selection of the judgements . The final selection made by the King is known as
Common Law as it had universal applicatiom all over England and wales.One feature of
common law is that it is rigid rules of law.Common law is the of English law today :it is
unwritten law that developed from customs and judicial decisions .

Customary Law

A custom is a rule of behaviour which develops in a community without being

deliberately invented ,Customs are believed to have been important as the have been
formed in the reign of English common law following the battle of Norman Conquest ,

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judges were appointed by the King to travel around the land to make decision in the
name of the King .The decisions were said to be known as judge made law .

Religious Law

Religious law comes from the sagred texts of a religion and cover most parts of
personal and contract law .They are generally based on Sharia or judaic law .They can
apply in countries that have another legal system in place , such as a codified or
common law system .

Mixed Legal system

Most legal system are based on civil code , common law , statute law , religious law or a
combination of these .However ,some countries ,such as South Africa and Cyprus , are
said to have a mixed legal system because :

 They have a mix of common law and civil code rules .

 The contributions of common law and civil code to the whole law of the country are
substantial and recognisable , and
 Private law is likely to be dominated by civil code elements , and public law by
common law elements .
Private law covers personal matters of tort and contract , where as public law covers
criminal law . Many countries with mixed legal systems were originally colonies of
European countries such as France and Spain but then taken over by Britain , which
imposed its common law system on top of the code . .For example , The Channel
Island of Jersey has a mixture of Norman customary law , English common law and
modern French civil law .

Adversarial and inquisitorial systems

The adversarial system is used in countries with common law jurisdictions .In court
advocates for both sides represent their parties’ case or interest , Each party builds a

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case by producing evidence and witnesses and attempts to discredit the
opposition .The case is presented before an impartial judge or jury to decide the
outcome , after hearing both sides .

It could be argued that this system protects the rights of individuals and the
presumption of innocence of the accused in a criminal case .The accused has the right
to remain silent ,obtain a lawyer in serious cases and remain innocent until proved
guilty .Before a criminal trial , the investigation is run by the police who have to follow
certain procedural rules ( police powers ) .

The system is not necessarily designed to arrive at ’ the truth’ in a case . In civil
cases , it allows both parties to consider the strength of each other’s case and to come
to a pretrial settlement , or indeed to use other methods of dispute resolution .

Inquisitorial system

The inquisitorial system often applies in countries with a codified system of law ,an initial
investigation is often led by an examining magistrate , whose report is represented to a
trial court .The judge acts as a fact finder , and the officers of court - the advocates -help
the judge to decide the truth , rather than to take one side over the other , The judge
takes a more active role and questions witnesses .

This system emphasises impartiality and truth - finding over ‘winning’ in court . It
reduces the advantage of wealth of one of the parties in a dispute and reduces emotion
snd possible bias . It makes sure that no one receives special treatment and everyone
is asked the same questions by the court

The Rule of Law

The Rule Of Law

The concept known as the “ Rule of Law “ is that no-one is above the law , not even the
government itself , ministers or public bodies . Remember the saying , ‘be you ever so high ,
the law is above you ‘ . This in accordance with the principles of justice . Dicey in the nineteenth
century stressed that ‘ absolute supremacy of regular law ‘ , with all classes of persons being
equal before the law . In some ways the law acts to ensure this equality , e.g by protecting
certain vulnerable groups through legislation , such as the Sex Discrimination Act 1975 and the
Race Relations Act 1976 . On the other hand , it may not be possible to ensure total equality ,
and the law actually gives some people special status for the purposes of enforcement , e.g
the police .

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Where there is a written constitution , such as in the USA , this supremacy of law can be seen
very clearly , but even without one there is control over such bodies , in the form of scrutiny by
the courts . This has been increasingly true since the European Convention on Human
Rights . Not even a government body can act in a totally arbitrary way , but must be
consistent , although the main body of government has more freedom than other agencies . If ,
however , a minister or a local authority acts outside its powers it is subject to judicial review ,
and can be declared to be acting ultra vires , or beyond its powers , the action being declared
void .

A consequence of the rule of law of the rule of law is a set of safeguards against such things
as the power to arrest and detain a person . Police need to function to protect society , but
must be subject to limits , so that individual liberty is in turn protected . Powers given to a
person or body of people , then must be subject to a system of checks and limitations . The
possible consequences of acting above the law were identified as :

An excess of power

Acting unlawfully

Acting beyond jurisdiction

in the case Anisminic v Foreign Compensation Commission (1969) .

An example of a limitation being implied into a given power is found in the case of Congrave
v Home Office ( 1979) where the Home Secretary was given power to revoke licences but
not allowed to use this power except for ‘ good cause’ . He was not therefore allowed to
revoke the licenses of those who bought early to avoid an increased fee.

The main principle is that all people are subject to and accountable to law that is that all
people are subject to and accountable to law that is fairly applied and enforced .Also ,
the process by which the laws of the country are enacted, and administered and
enforced must be fair .

The rule of law is safeguard against dictatorship. It supports democracy .This is

because the government and its officials are accountable under the law . Also, authority
is distributed in a manner that ensures that no single organ of government can exercise
power in an unchecked way .

One way is the police power of arrest . the police may only arrest a suspect if thet have
authority to do so by a statutory rule , such as th police and Criminal Evidence Act 1984

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,or common law ,such as the ability of an ordinary member of the public to arrest a
person they know has committed an offence .

Tony Honore ,an academic lawyer , points out that the rule off law exists when a
government’s powers are limited by law and citizens have a core of rights that the
government is bound to uphold .These rights that the government is bound to
uphold .These rights include:

 No person shall be sanctioned except in accordance with the law( both civil and
criminal matters ).
 There is equality before the law and there must be no discrimination on any grounds
.
 There must be fairness and clarity of the law .

Professor Dicey’s views on the rule of law

Professor Dicey thought that the rule of law was an important feature that distinguished
English law in other countries in Europe . He said that there were three elements that
created the rule of law .

 An absence of arbitrary power on the part of the state’s power must be

controlled by the law , i.e the law sets limits on what the state can or cannot do .
 Equality before the law :no person is above the law . It does not matter how rich or
powerful a person is , the law must deal with them in the same way as it would
anyone else .

 The supremacy of ordinary law :this is particularly true in the law of England and
Wales in the time of Dicey , as many of the main developments up to that time were
through judicial decisions rather than being created by Parliament .

Problems with Dicey’s views

A major problem with Dicey’s view of the rule of law is that it conflits with another
fundamental principle , that of parliamentary supremacy .This concept holds that an Act

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of Parliament can overrule any other law , and that no other body has the right to
override or set aside an Act of Parliament .

So under the rule of law there should be no arbitrary power on the part of the state ,yet
under parliamentary supremacy , Parliament has the right to make any law it wishes
and this can include granting arbitrary powers to government ministers .

Also laws passed by Parliament cannot be challenged through judicial review . This is
different from some other countries where the legislative body is subject to the rule of
law , so that the laws passed by them can be challenged in the courts.

Another problem is that equality before the law in Dicey’s theory refers to formal equality
. It disregards the differences between people in terms of wealth ,powers and
connections , Real equality can only be achieved if there are mechanisms in place to
address these differences .For example , the cost of of taking a case to court is very
high . In order to allow the poorest in society to be able to enforce their rights , and so
be equal under the law , it is necessary to have some form of state help in financing
their case .

Dicey’s view of the rule of law is based on abstract ideas , which makes it difficult to
apply in real life situation .

Other academic views on the rule of law

F.A. Von Hayek , a twentieth -century academic economist , agreed with Dicey that the
component of the rule of law is the absence of any arbitrary power on the part of the
state . However , Von Hayek thought that that the rule of law had become weaker ,
because provided actions of the state were authorised by legislation , then any act in
accordance with this legislation was lawful . He also pointed out that modern state is
directly involved in regulating economic activity and this is in conflict with the rule of
law .

What are Rules

Law in its sense is based on rules , and these are old as mankind itself . Whenever people have
lived together in any kind of community , there has been some kind of code of
behavior ,although this would obviously not take the form of the law as we know it today . Such

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a code may be little more than an unspoken understanding that on the whole people do-not kill
others , take their possessions , etc. as society has become more developed and complex ,
rules have grown accordingly , and are found in most of our institutions . Consider , for example
, how many rules , most unwritten , are obeyed when a person belongs to a school ,takes part
in a football match , goes to the cinema , etc .
These rules provides a basic standard of behaviour to others , and broadly define the norm for
the group . Within the larger framework of society , such rules help to prevent to prevent a
state of anarchy , which would arise if everyone did whatever they wanted and there was total
confusion and conflict .

Law and Morals

Some rules form the law merely to enable things to run smoothly , and are largely
administrative in nature , such the requirement to tax a motor vehicle . This does not involve
moral judgements , it is simply a matter of raising money to pay for such things as building and
maintaining roads . However , we have seen that some rules arise out of a sense of moral duty ,
and many of these rules also form the laws of a country .
i Many laws are directly in line with the religious ideas prevalent in that country , e.g the law
relating to murder and theft , and these will be broadly similar whether based on , for example ,
the Christian principles of the Bible or the Muslim principles of the Koran . Most people would
be in agreement on the moral wrong of many of these major crimes , but with other less
fundament issues there may be conflict , particularly from country to country , as to what really
is right or wrong . Examples include the law relating to marriage and divorce , consumer
protection and drinking alcohol . Clearly there is a lot of overlap between morality and legal
rules , but they do not always coincide completely . Some things may be considered to be
morally wrong , such as lying , or not keeping a promise , when there may no legal wrong
involved . On the other hand , the law may be greatly concerned with morality , as was seen in
the Bland case , and in legislation concerning issues such as abortion or the scientific issue of
a foetus .
Where society’s views on a subject on a subject like this changes over a period of time , then
the law should eventually change to reflect those views . Examples include the law relating to
homo-sexuality and to Sunday trading . The Abortion Act 1967 , now modified by the Human
Fertilisation and Embryology Act 1990 , is a result of the law changing to reflect changes in
moral views of society . However , there is not always a direct correlation between the number
of people who subscribe to a view and the law on that particular matter . There have been , at
some times ,according to poll surveys , a slight majority of the population in favour of death
penalty in certain circumstances . However , here the law has taken a paternalistic approach ,
actually leading society’s views . The law in such circumstances can only go so far ., because if it
oversteps a certain boundary anarchy would result .

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So ,which rules form the law ?

The rules which form the law are generally the most formal rules . They are normally written in
statutes ( Acts of Parliament ) or in case judgements . Sir John Salmond defined law as the body
of principles recognised and applied by the state in the administration of justice .. This
encompasses the mass of law created by statute , through Parliament , and also the law either
decided by judges or interpreted by them . It covers wide areas of law , from dealing with
behavior thought to be outside acceptable boundaries ,i.e crime , to settling of disputes
between individuals . It also deals with relationships ,e.g in marriage ,ownership of property ,
commerce and employment , and many aspects of life . This inevitably involves a degree of
paternalism , or the laying down of laws by some for the general good of society or of groups
within it .

Natural Law and Positivism

Natural law is based on the coincidence of law and morality . It looks for its for its justification
from some divine source and is concerned with what ought to be taking place . Some believers
of this principles , such as Sir Thomas Aquinas , would even suggest that there could be
occasions when breaking the law would be justified , if the law did not coincide with morality .
On the other hand , positivists believe that if law through the correct procedures , then it is the
law to be obeyed , even if it is not liked . It is up to the individual whether to obey or not , and
to consider the consequences of disobedience .
Many leading jurists have put forward in their writings views on how law is formulated .
 Jeremy Bentham extrapolated on the conflicting roles of law and religion , but
in a different direction , away from natural law . He felt that law which conflicted
with divine law was not law at all or at least need not to be obeyed . His theory
was a utility theory , in that he said that the law should be rational and codified .
His felt that the role of the judge should be inquisitorial rather than formulating
the law .
 Professor H L Hart continued this theme by separating morals and law as two
distinct concepts . He felt that a legal system should be based on logical ideas ,
producing ‘ correct ‘ decisions from rules .
 Hans Kelsen followed a scientific approach to the theory of the law . He felt that
law was the norm of the human conduct , and that force should be used to make
people conform to it .
 Emile Durkheim felt society to be held together by social structures ., with law as
an integral part of the structure .

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  Karl Marx viewed law as oppressive and an expression of the domination of one
class by another . It was a product of a capitalist society .
 Max Weber was a positivist who saw law as an imposition of some kind of order
from the leaders of the country , with defined consequences for those who
chose to disobey .
 Professor L L Fuller is a modern follower of the natural law school . In his work
The Morality of Law ,he talks of an ‘inner morality ‘ with various features . Hart
following positivist view , Fuller following natural law theories .
 Lord Devlin follows the Fuller line , stating that the law is based on morality and
to some extent religion .
 John Stuart mill wrote in his Essay on Liberty of the ‘harm principle’ as the only
valid reason for interfering with freedom . His view was that what was good for
someone should not form the basis of law . The only reason for interfering with
a person’s liberty is to prevent to others , Of course , ‘ harm ‘ can be interpreted
widely . The Wolfenden Committee followed this theme in 1957 ., with the view
that there is an area of private morality which is not the concern of the law .
This resulted in the recommendation that homosexuality between consenting
adult males in private should no longer be an offence , but that activities in
public , which may affect others , such as soliciting and running a brothel , ought
to be illegal .
 Stephen J criticised Mill in that it could be very difficult to divide acts which
harmed only an individual from acts which harmed others . He advocated that
the ‘grosser forms of vice ‘ should be punishable in their own right . This is in line
with Lord Devlin’s view that the law should tolerate , what the reasonable man
would tolerate , and ban what would disgust the reasonable man .
It is argued that however much Parliament rules along the lines of clinically formulated
principles , neither they nor the judges can avoid having to make decisions which involve moral
judgements . The question to be considered is whether morality does largely form the law , and
whether it should do so .
Examples of Judgements concerning morality :
 The Wolfenden Committee Report of !967 on homosexual offences , and the
case of R v Brown (1992) .
 Shaw v DPP( 1957) thw famous ladies / directory case involving advertisement
of prostitution and the alleged conspiracy ‘ to corrupt public morals ‘
 RvR ( a husband )(1991 ) involving rape within marriage .
 The Bland Case and Re J ( a minor ) (medical treatment (1992) concerning the
continuing of life support equipment .

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 Concept Of Justice
The main purpose of a modern system of law , then , is to create an orderly society , and to
provide a remedy for a person who has suffered a wrong .. This is the aim of justice in society . ,
but is most closely linked with the law . This is clearly seen in the model of ‘scale of justice ‘ on
the top of the Old Bailey ( The Central Criminal Court in London ). The whole question of the
process of law , including a trial in court , the procedure before and during it , and the
consequences , must be seen to be fair . Recently , there have been a number of difficulties in
this area , some of the most notorious being the Guildford Four and the Birmingham Six .

NATURAL SCIENCE

In order to bring about the general aim of justice , or basic fairness , two main rules have been
developed :
 Nemo judex in resua – no one should judge his own
cause .
 Audi alterem partem – there is a right to be heard
for both sides

The first rule against bias prevents a person with an interest in the subject matter being
involved in a decision making process regarding it . It was said in R v sussex Justices ,ex parte
Mc Carthy (1924) that ‘justice should not only be done , bur should …….be seen to be done ‘ .
The second rule of a right to a fair hearing is illustrated in the case of Ridge v Baldwin ( 1924)
where it was held that a police officer should be given an opportunity to present his defence
before being dismissed .
Further examples (1) Council of Civil Service unions V Minister for Civil Service (1985) – the
GCHQ case where a ban was placed on the joining of unions . It was said that a requirement of
natural justice was a duty to act fairly .
(2) R v Lord Chancellor , ex parte The Law Society (1993) about a
challenge to the legal aid provisions .

CHARACTERISTICS OF ENGLISH LAW

1.Continuity . English law has developed since 1066 without any major changes in the system .
Two factors have led to this :

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 (a) England has not been conquered since 1066 , and
(b) Acts of Parliament and case law do not become inoperative merely due to
old age . For example , the Treason Act 1351 was considered in Joyce v DPP (1946) .
2.Absence of codification . In some countries most of the law has been reduced to written
codes which contain the whole of the law on a particular subject . Generally this is not the case
in England .

3.The system of precedent . This means that a judge is bound to apply rules of law formulated
in earlier cases provided the facts of the case before him are sufficiently similar , and the
earlier case was heard in a court of superior ,or ( subject to exceptions 0 equal status .
4.The judiciary –English judges are independent of both Parliament and the Civil Service . This
is evident from the fact that they often give judgement against the Crown or Government
Department . In addition ,a judge will be immune from liability provided he acts honestly in the
belief that he is within his jurisdiction . The judiciary is important because the judges of the
superior courts have a great effect on development of the law . They do not merely apply
statutory rules, they make law when interpreting statutes and by developing the doctrine of
judicial precedent .
5. Common law and equity . English law is based on two complementary systems of law
known as common law and equity . Common law was the first system to develop . Its rules
were rigid and sometimes harsh . Equity evolved to supplement the common law with more
flexible rules based on principles of good conscience and equality .
6.The accusatorial procedure – In both civil and criminal cases the court remains neutral and
hears the arguments presented by each side . In countries where an inquisitorial procedure is
used the court plays a more active part ,itself questioning the witness .
Features of the British constitution

1 .Mostly Unwritten and Partly Written

By far the most important feature of British constitution is its unwritten
character. There is no such thing as written, precise and compact document,
which may be called the British constitution. It was really this aspect of the
British constitution that led De Tocqueville to remark that English
constitution does not really exist. The main reason for this is that it is based
on conventions and political traditions, which have not been laid down in any
document. However, it has some written parts too which includes Historical
Documents, Parliamentary Statues, Judicial Decisions and Constitutional
Characters, e.g. Magna Carta (1215), Petition of Rights (1628), Bill of Rights
(1689), Parliamentary Act of 1911 & 1949

2.British Constitution is Evolutionary

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The British constitution is a specimen of evolutionary development. It was never framed by any
constituent assembly. No precise date of its birth can be given and no definite body of persons
can claim to be its authors, because it is the product of gradual growth and development. It has
an unbroken continuity of development over a period of more than thousand years. Its sources
are several and the course of its development has been sometimes guided by
accidents and sometimes by high designs.

3.Flexible Constitution
The British constitution is a classic example of flexible constitution. It can be
passed, amended and repealed by simple majority of Parliament since no
distinction is made between a constitutional law and an ordinary law. Both
are treated alike. The element of flexibility has length the virtue of
adaptability and adjustability to the British constitution. This quality has
enabled it to grow with the needs of time.

4. Unitary
The British constitution has unitary character as opposed to a federal one. All
powers of the government are vested in the British Parliament, which is a
sovereign body. The executive organs of state are subordinate to it and
exercise delegated powers and are answerable to it. There is only one
legislature. England, Scotland, Wales etc. are administrative units and not
political autonomous units.

5 .Parliamentary Executive
England has a Parliamentary form of government. The King who is sovereign
has been deprived of all his powers and authority. The real functionaries are
Ministers who belongs to the majority party in Parliament and remain in
office so long as they retain its confidence. The Prime Minister and his
Ministers are responsible to the legislature for their acts and

policies. In this system the executive and legislature are not separated as in
the federal form of government

6.Sovereignty of Parliament
A very important feature of the British constitution is sovereignty of
Parliament. Parliament is the only I4slative body in the country with
unfettered powers of legislation can make, amend or repeal any law it likes.
The courts have no purer to question the validity of the laws passed by
British Parliament. It can also amend constitution on its own authority like
ordinary law of the land. It can make illegal what is legal and legalize what is
illegal.

7.Rule of Law
Another important feature of the British constitution is the Rule of Law. It
implies equality or all before supremacy, uniformity and universality. It has
three implications:

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 All persons are equal before jaw irrespective of their position or rank.

This doctrine emphasizes the supremacy of the law and not of any

individual.
 No one can be detained or imprisoned without a fair and proper trial by
a competent court of law. Nor can a person he punished or deprived of
his life, liberty or property except for a specific breach of law proved in
an ordinary court of law by an ordinary procedure. A corollary to this
principle is the doctrine that, “the King/Queen can do no wrong”.
8.Mixed Constitution
The British constitution is a queer mixture of the monarchical, aristocratic
and democratic principles. The institution of Kingship shows that there is
monarchy in England. The existence of House of Lords gives an idea
that .England has an aristocratic type of government. The House of Common
reflects actual working of a Full-fledged democracy in this country. But all
these diverse political elements have been beautifully welded together to
produce the final effect of perfect representative democracy.

9.Role of Conventions
A necessary corollary to the unwritten character of the constitution is that
the conventions play a vital role in the British political system. For example,
while the Queen has the prerogative to refuse assent to a measure, passed
by Parliament, but by convention, she cannot do so and the same has
become a rigid principle of the constitution itself. By Convention, again, the
Queen cannot go against the advice of the cabinet. Likewise, there are
dozens of conventions, which do not have any force of law yet they are
scrupulously adhered to and constitute the very blood and flesh of the
constitution.

10.Independence of Judiciary
The Rule of Law is safeguarded by the provision that judges can only be
removed from office for serious misbehavior and according to a procedure
requiring the consent of both the houses of the Parliament. So, the judges
are able to give their judgments without any fear or favour .

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