Sample Notes: English Legal System And Its Context

AS Level Law – Detailed Notes

Topic 1.1: Principles and Sources of English Law

1.1.1 English Legal System and Its Context

1. Legal Systems Around the World

A. Civil Law Systems (Codified)

• Based on written statutes and comprehensive legal codes.
• Judges apply the law, not interpret it.
• Origin: Roman Law.
• Example countries: France, Germany, Spain.

B. Common Law Systems

• Based on judicial decisions (precedents) and unwritten traditions.
• Judges play an active role in shaping the law through interpretation.
• Stare decisis (let the decision stand) ensures consistency.
• Example countries: UK, USA, Canada, Australia.

C. Customary Law Systems

• Rooted in long-standing customs and societal traditions.
• Often unwritten and varies by region or tribe.
• Example countries: parts of Africa and indigenous communities.

D. Religious Law Systems

• Based on sacred texts or religious doctrine.
• Applied in personal law areas (e.g., marriage, inheritance).
• Example: Sharia (Islamic Law) in Saudi Arabia; Halakha in some Jewish communities.

E. Mixed Legal Systems

• Combine elements from two or more systems.
• Example: South Africa (Roman-Dutch + Common Law); India (Common + Customary + Religious law).

2. Adversarial vs. Inquisitorial Systems

Adversarial System (Used in England and Wales)

• Court acts as a neutral referee.
• Parties (defense and prosecution) present evidence and arguments.
• Judges ensure procedural fairness.
• Emphasis on oral advocacy and cross-examination.

Inquisitorial System (Used in Civil Law countries)

• Judges actively investigate facts and question witnesses.
• Less reliance on lawyers to build the case.
• Written evidence and judge-led inquiries are key.

3. The Rule of Law

Definition:

• Principle that law applies equally to all, including the government.
• Key philosopher: A.V. Dicey.

Dicey’s 3 Pillars:

1. Supremacy of regular law – no arbitrary power.
2. Equality before the law – even officials and ministers.
3. Rights secured by ordinary law – not by a written constitution.

Modern Application:

• Ensures fair trials, protection from abuse of power, judicial independence.
• Enshrined in: Human Rights Act 1998, Constitutional Reform Act 2005.

4. Civil vs. Criminal Law

5. Relationship Between Law and Morality

• Law: Enforceable rules by state.
• Morality: Personal/social values and beliefs.

Overlap Examples:

• Murder, theft = both immoral and illegal.
• Adultery or lying = immoral but not illegal.

Key Theories:

• Natural Law (Aquinas): Law must be moral to be valid.
• Legal Positivism (Hart): Law is separate from morality.

6. Law and Justice

Justice Concepts:

• Distributive Justice: Fair distribution of resources (e.g., welfare).
• Retributive Justice: Fair punishment (e.g., criminal sentencing).
• Procedural Justice: Fairness in legal processes.

Is Law Always Just?

• Not necessarily – law can be applied unequally.
• Example: Mandatory sentences may ignore individual circumstances.

7. The Role of Law in Society

• Maintains order: Deterrence through penalties.
• Protects rights: Enshrines civil liberties.
• Resolves disputes: Courts and tribunals.
• Regulates conduct: Sets acceptable behavior standards.
• Promotes justice and fairness: Though imperfectly.

8. Importance of Fault in Civil and Criminal Law

Fault (Definition):

• Legal responsibility or blameworthiness.

In Criminal Law:

• Fault determines culpability (mens rea + actus reus).
• Higher fault = more severe penalty.

In Civil Law:

• Fault linked to negligence, breach of duty.
• Determines liability and damages.

Strict Liability Offences:

• No need to prove fault (e.g., speeding).

Checklist for Essay/Exam Answers

• ✅ Define each legal concept clearly.
• ✅ Use case law/examples where appropriate.
• ✅ Compare legal theories (e.g., natural law vs. positivism).
• ✅ Contrast civil vs. criminal law features.
• ✅ Discuss societal implications of each principle.
• ✅ Reference relevant UK statutes (e.g., HRA 1998, CRA 2005).