Foundation in Law Unit 2

| January 16, 2020

Title: Foundation in Law Unit 2

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In the English legal system, the House of Lords is law making institution whose decisions are  binding on all courts in the country’s legal system, except the institution (The House of Lords) itself. Prior to 1966, the House of Lords used to be completely bound by all its own previous decisions. According to the current practice, the House of Lords can adapt the English Law to changing social and cultural conditions as well as to pay attention to decisions that have been made by superior courts in the commonwealth.

The ability by the House of Lord to change its own previous decisions is a fundamental recognition that law, as expressed in both cases and statutes, is a living institution that changes as well as adapts to changing circumstances to which it must apply all the time in order to retain practical relevance.

            The law of appeal is an important institution in the English legal system and it is always bound by the decisions made by the House of Lords. This institution is also bound by all its previous institutions. However, there are some exceptions to this rule. These exceptions include: when a conflict arises between two decisions that were previously made by the Court of Appeal; where a decision made previously by the Court of Appeal has been overruled, either impliedly or expressly; where the previous decision was made per incurian or through an error; through the provisions of the European Communities Act 1972, which provides grounds for the court to ignore its previous decision; and finally, the Court of appeal may overrun its previous decisions through the provisions of Human Rights Act 1998.

            The High Court is made up of three Divisional Courts, each of which deals with different types of cases. The Family Division deals with family cases, the Chancery division deals with money and property cases while the Queen’s Bench Division deals with cases relating to matters such as negligence and contracts.

            In the High Court, judges have many opportunities of making developments in the common law. This court abides by the decisions made by superior courts. On the other hand, the decisions made by individual High Court judges are binding on the courts inferior within the hierarchy, although such decisions are not binding on any other High Court judge. However, in practice, these decisions are a very strong persuasive authority and they tend to be followed by other High Court Judges.

It is possible for High Court judges to disagree and reach different conclusions in certain areas of the English law. On the issue of how later High Court Judges select the precedent that they will follow. It is acceptable, though it is not a rule of law, that when a later decision has considered the previous one and even given a reason why it was not followed, then the decision that has been adopted becomes the judgment which should be followed by later High Court Judges.

            Whenever conflicting decisions arise at the High Court level, they can be referred upwards to the Court of Appeal, and then, if need be, to the House of Lords. When the costs of appeals are taken into consideration, even solely on economic grounds, it is very important for High Court judges not to use their discretion to destabilize the law. In cases where there are conflicting judgments at the Court of Appeal level, the High Court Judge should follow the later decision.

            Magistrate Courts, County Courts and Crown Courts never create a precedent and the decisions made in these courts can never be considered anything more than persuasive authority.

            The crown court is responsible for trying more serious criminal cases as well as hearing appeals referred here from magistrate cases. There are over 90 permanent centers in England and Wales where the crown sits. Each center is ranked as first, second or third tier, in reflection of the seriousness of the offences being tried there.

            District and county boundaries have no statutory significance in terms of where a criminal case should be heard and determined. In most Crown Courts, cases are heard in centers that are of most convenience to the magistrates’ court that initially committed the cases for trial.

            The County Court primarily handles civil law; therefore, it does not fight crime in a similar manner as criminal courts in Wales and England. Despite their name, no single County Court fits in within the set county boundaries in either England or Wales. In fact, all the 230 County Courts are scattered around the cities and towns where these services are needed. All property cases involving sums of up to 30,000 pounds, bankruptcy matters and personal injury claims of less than 50,000 pounds are heard and determined by a district judge who sits in the County Court.

            About 96% of all Criminal cases in England are dealt with by the magistrates’ court. These cases are sometimes tried by at least two, usually three, lay magistrates. Alternatively, they are tried by a district judge who always sits alone. Prior to 2000, district judges were referred to as stipendiary magistrates, but they had to be renamed in a move to give them recognition as professional judiciary members, since they are legally qualified to be regarded as such as well as to be salaried as members of the judiciary.

                        The main theoretical perspectives that guide the English law making process are the concepts of rule of law and human rights. The fact that the concept of ‘rule of law’ is difficult to define has not prevented theorists from attempting to do precisely that. For this very reason, the meaning of the concept keeps on changing from time to time. It is an undeniable fact that the form and content of both the law and legal procedure have changed significantly between the 20th and 21st centuries. In usual cases, such changes are interpreted as the extent to which the modern state intervenes into the citizens’ way of life, both economically and socially.

            According to AV Dicey in his 1885 book An introduction to the Study of the Law of the Constitution, the U.K did not have an administrative law as distinct from ordinary law. In its most chauvinistic form, the term ‘rule of law’ as Dicey understood it, stood for three main concepts: (a) absence of an arbitrary power within the state, (b) equity before the law and (c) supremacy of ordinary law. Any biases that exist in this definition arise because Dicey understood the term from the perspective of the era in which he was living.

            The rule of law provides that there should be clear procedures and rules for making laws, the independence of the judiciary should be guaranteed, the principles of natural justice must be observed through openness and fairness in all proceedings and the courts should possess the power to review the manner in which principles are implemented so as to ensure that it is carrying out its mandate as required by the rule of law. Additionally, it provides that the courts should be easy to access as they are always at the heart of the noble idea of maintaining discretion subject to various forms of legal control and that the discretion of crime prevention agencies should never be allowed to pervert the law.

            The rule of law system as applied in English law can easily be distinguished from the existing social order in that it is autonomous and it also possesses the generality feature.  The autonomy of the rule of law system manifests itself through its ability to maintain its own sphere of authority as well as the ability to operate independently without any reference to any external authority.

Unger (1976 cited in Slapper & Kelly 2009, p. 19) views the autonomy of the rule of law in the English legal system as exhibiting substantive autonomy, institutional autonomy, methodological autonomy and occupational autonomy. Substantive autonomy is the fact that the law does not exhibit explicability in other terms that are non-legal. In other words, law is self-referential. It can never act as a means to and end; rather, it is an end in itself.

            In terms of institutional autonomy, legal structure or in other words, the courts, are separate from other state institutions and are always highlighted within the principle of judicial independence. Through methodological autonomy, the law is considered to possess it own distinct form of justifications and reasoning to which it lays claim to having and on which its decisions are based. In terms of occupational authority, access to law is not immediate but it is through legal professions where gatekeepers are found, whose work is to exercise a very large degree of independent control over how the legal system works.

According to legal theorists, the English legal system possesses the generality feature in that it applies to all people regardless to personal or class status. Everyone is equal before the law and is treated in that manner. Although Anger (1976) recognizes the advantages of a rule of law system as opposed to a system that is guided by arbitrary power, he is skeptical about the reality of the equality that this system promises, to the extent that he doubts its future continuation.

The rule of law may be viewed as a product of capitalist societies of the West. Within this line of thinking, one of the characteristics that set a capitalist society from other types of social formations is a formally rational system, which in this case is typified by Unger’s description of legal autonomy. In a capitalist society, the state’s role is only to establish and safeguard a clear framework within which social order is maintained. Individuals are left to make use of a free market system in order to determine their own destinies.

However, in the course of the 20th century, there was a transition from free market economies in many societies, including capitalist societies, to planned economies, whereby the state was a role player in economic activities. These economic changes brought about many changed in both form and content of the law. These changes, for the most part, have coincided with alterations in the concept of rule of law in the English legal system as a way of updating the law and adapting it to changing times.

The problems that arise in the efforts by the English law to separate the state and the civil society are addressed through the provisions of human rights. While performing a regulatory role in the economy, the state, acts within the legal provisions created by the law, while at the very same time exercising discretionary powers whenever the law seems to be creating tension in matters of the requirements of social activity regulation

            The Constitutional Reform Act (CRA) 2005 fails to formulate any definition of the concept of rule of law, owing to what academicians say is difficulty of coming up with a definition that is succinct and accurate enough to be included in a statute. Nevertheless, the act recognized the rule of law as an existing fundamental constitutional principle and care was taken in order to ensure that no infringements were made on the existing principles relating to human rights.

            The rule of law within the English law is subsumed to encompass all basic tenets of human rights as provided for in the country’s constitution. By being accessible, intelligible, predictable and clear, the law gives all citizens an opportunity of seeking redress and getting a fair hearing whenever they feel that infringements on that their human rights have been made.

            Although the principle of precedence is often emphasized in the English law, it is very difficult to follow since there are so many cases that have been heard and determined in the past, that judges cannot manage to go through all of them within a reasonably short time. This is one of the principles in the law that exists in statutes and is seldom applied in real judicial situations.

            In every judicial system, judges are always on the limelight and their conduct is always a subject of heated public debate. In the English legal system, things are not any different. It is often an acknowledged fact that judges, especially at the highest level, often create legal uncertainty by creating complexities and prolixity in modern common law judgments.

            In order for complexities and uncertainties by judges to be avoided in the English law, scholars have proposed three provides for three main caveats that judges should always follow while shaping the law. First, whatever the diversity that judges may display through opinions, they should recognize a duty of ensuring that a clear majority ratio is maintained. In the absence of such a ratio, the truth remains unknown until a later case or parliament lays down a clear rule. Secondly, adventurism and excessive innovation should be avoided; judicial creativity destroys the law rather than building it. Thirdly,  all these points should apply with fierce, redoubled force in criminal cases, the implication here being that judges should feel free to create new offences or even widen existing ones in order to make punishable conduct that was previously not subject to punishment.

            In conclusion, the English legal systems are efficient although some challenges that arise whenever cases are being heard and determined. Nevertheless, it would be unfair to say that magistrates are a waste of time, they belong to the middle class, or that they are always biased towards the police. Magistrates, district judges, high court judges, court of appeal judges and indeed, all members of the judiciary are an absolute necessity if justice is to exist in England.


Slapper, G, & Kelly, D, 2009, The English Legal System, Ninth Edition, Routledge-Cavendish, New York.

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