BCAS

Legal System Batch No 05 Reference No LS/05/05/05

Explain the Operation of Legal Systems

Lecturer: Ms. H.K.C Hapuarachchi LL.B (Lon) (Hon.) Diploma in Human Rights (Institute of Human Rights) Attorney-at-Law

Legal system Batch No 05 Reference No LS/05/05/05

Learning

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Introduction
Why should I obey the law? This is one of those strange questions that we may ask ourselves from time to time when we suddenly choose to question something that seems both an obvious and a given part of the social order. We grow up with a notion of the law and often, its presence can seem as pervasive and constant as the air we breathe. At the same time, we take the existence of the law, the making of the law, the interpretation of the law and the application of the law for granted. The United Kingdom of Great Britain and Northern Ireland consists of four countries forming three distinct jurisdictions each having its own court system and legal profession: England & Wales, Scotland, and Northern Ireland. The UK joined the European Economic Community (now the European Union) in 1973, since when it has been a requirement to incorporate European legislation into UK law, and to recognise the jurisdiction of the European Court of Justice in matters of EU law. The United Kingdom has three different judicial systems one for England and Wales, another for Scotland and a third for Northern Ireland. The following are some basic information about each system.

Criminal law Criminal law covers the most serious crimes, such as murder, robbery and assault. These laws are enforced by the police and the courts, and anyone who breaks them can be prosecuted in court. If they are found guilty, they can then be fined, sent to prison etc. In criminal law each person is innocent until proven guilty. For someone to be found guilty of breaking the law, the evidence must show that their guilt is beyond reasonable doubt.

Civil law Civil law mostly involves disputes between people, companies or other organisations. In civil law, cases must be proved by what the law calls the balance of probabilities. In other words, there has to be more than a 50 per cent probability that the defendant is responsible. Decisions made in court In both criminal and civil cases, the prosecution and defence try to prove to the court that they are right and the other side is wrong. In criminal cases a jury decides whether they are guilty, and the judge issues their sentence. In civil and family cases, the judge decides who is right based on the evidence presented.

Civil justice Criminal justice

The judicial system in Northern Ireland Northern Ireland's legal system is similar to that in England and Wales. The Lord Chancellor is responsible for court administration through the Northern Ireland Court Service. The Northern Ireland Office deals with policy and legislation concerning criminal law, the police and the prison system.

The judicial system in Scotland The Scottish Executive Justice Department deals with issues involving civil and criminal law. The Scottish Parliament makes laws on issues where it has the right to act independently. In those matters, it can change or reject acts of the UK Parliament, and pass new, separate legislation for Scotland.

Human rights
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The European Convention on Human Rights is now built into UK law. It protects your right to a fair trial, freedom of thought and expression, and respect for your family and private life. All public authorities, including the courts, must comply with these rights. However, if they conflict with an act of Parliament, the courts can make a declaration of incompatibility and Parliament must then decide what to do.

The Legal System of England

The classical understanding of Britains unwritten constitutional tradition is that it rests on three pillars, namely: parliamentary sovereignty; the separation of powers; and the rule of law.

To place the English legal system in its proper context, it is necessary to have some understanding of these concepts and particularly the rule of law. Briefly, parliamentary sovereignty refers to the legislative supremacy of the UK Parliament. It means that there is no limit (apart from any self-imposed limit) on the capacity of the House of Commons, the House of Lords (as it was known then) and the Crown to enact laws in the UK. The UK Parliament is the principal source of UK law. The separation of powers refers to the idea that there is some degree of independence in the exercise of the different functions of government. Conventionally, these functions are described as the legislative, executive and judicial functions of government and can be seen most clearly in the work of Members of Parliament and the House of Lords (the legislature), the Cabinet (the executive) and the Judges (the judiciary). This separation is understood as being beneficial to the healthy operation of democratic government as, in theory at least, it provides a system of checks and balances that prevent too much state power being concentrated in the hands of one group. The new Supreme Court1, will practically and visibly strengthen the constitutional separation between the legislature and the judiciary, primarily by taking judges out of the House of Lords. The rule of law is something of an allusive notion that is difficult to pin down.
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Created by the Constitutional Reform Act 2005 and came into effect in 2009.

The International Bar Associations Rule of Law Resolution (2005) states that: The Rule of Law is the foundation of civilised society. transparent process accessible and equal to all... It establishes a

The truth, of course, is that everyone does not always obey the law, nor is there always a consensus on what the law is or should be. However, the maintenance of life in a modern democracy requires a willingness from most citizens for most of the time to observe the laws, even when individually they may not agree with them. The rule of law, therefore, concerns the nature of the legal relationships between individuals and between the individuals and the state. It also concerns the range of processes through which the law governing those relationships can be enforced and administered. Principal themes that have grown out of the concept of the rule of law as it has developed in the UK are, for example:

that the law should not be arbitrarily or capriciously administered by those in power; that all people are equal before the law; that there should be a system to apply and interpret the law fairly and for all citizens.

A Legal System is often identified and with the institutions and processes of civil and criminal justice. Aubert in in search of law (1983) offers six functions of law; A means of governance A way of shaping the behavior of the citizens A devise for distributing resources and burdens in society A method of safeguarding expectations A method of dealing with conflicts and contributing to their solution An expression of ideals and values

But it is in the legal system that these functions receive their institutional reality. A legal system is a complex of operations, processes, human actions, institutions and ideals. Many jurists argue that a legal system must be rationally controllable and the institutional operations should be understood not simple as ways of
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getting things done but as normative. In other words they should express values and be ethically guided. Furthermore the rationality that runs through it should be humane. i.e it should be oriented towards achieving justice.

There are a number of law making institutions: Institutions within the European Union (EU); The UK Parliament and government; The courts; Regulatory bodies; and International institutions Within the criminal justice process some of the more important objectives are: To punish wrongdoers To protect society To deter people from breaking the law At the same time it is important that the police, prosecutors and judiciary should act fairly and consistently Within the civil justice process the key objectives are to provide the means by which civil disputes can be resolved in accordance with principles of fairness and justice It also requires that an efficient, cost-effective system in which cases can be disposed of fairly speedily. Also those members of the public involved in the disputes require access to affordable justice of a high quality Further Reference; -An Invitation to the Law, C.G. Weeramantry