Various Facets of British legal system that makes it unique from rest of the world
British legal system is one of the oldest continuing legal system in the world. The history of British legal system dates back to 12th century when king Henry II established a centralized system of law across the whole country, also known as common law system.
One of the features that makes British legal system truly unique is that laws from older times are still considered effective and they are, at times re-established by passing new legislations. For example, the 4 chapters out of 29 chapters of Statute of Marlborough, passed by Parliament of England, during the reign of Henry III in 1267 are still in force making it the oldest piece of existing statute law.
Legal systems of several countries are directly followed or inspired by British legal system since Great Britain was once a coloniser. Despite this, British legal system still retains its unique features. In this article, the unique aspects of British legal system are explained.
Multiple legal systems
British legal system consists of multiple legal system. The main reason behind the existence of multiple legal system is that the country is created by the political union of previously independent countries.
British legal system, considering the vast extent, diversity and geographical location of the entire country, is comprised of four independent legal systems. They are English law, Scots law, Northern Ireland law and Welsh law. Welsh law is not considered to be a separate legal system per se, but merely a legislation passed by Welsh Parliament based on the doctrines of English common law in 2007.
Uncodified constitution
One of the most unique features of British legal system is that the existence of unwritten and uncodified constitution. Unlike the majority countries in the world, there is no single legal document in British legal system comprising of all the fundamental legal principles.
The lack of ‘written constitution’ can be explained by the history of the country. Most of the other countries in the world have experienced some sort of revolution or change of regime. So, it was necessary for them to compile all the legal principles from scratch. By contrast, due to the relative stability of the British polity, the British Constitution has evolved over a long period of time. Instead, British legal system has accumulated various statutes, judicial decisions and treaties. It is, thus, more accurate to refer British constitution as ‘uncodified’ rather than an ‘unwritten’ one.
Common law system
Another unique feature of British legal system is that it follows a common law system. The common law system, unlike civil law system, is not defined by statutes or codes. But rather while giving a verdict, case laws and precedents are followed. This makes the common law more flexible because the judges have the discretion to adapt to the case law or precedent as appropriate. The common law is the law derived by judges after following customs and precedents. There is no need to rely upon the written codes or statutes.
Adversarial legal system
Adversarial legal system refers to the legal system where the judges take decision after listening to the advocates representing all the parties in dispute or the parties-in-person. In an adversarial system, the judges are completely neutral and are not involved in finding any evidences or investigations.
British legal system follows a predominantly adversarial court system where a case is argued by two opposing sides and the parties present their own evidences and proofs.
Parliamentary form of governance
Sovereignty of parliament is another unique feature of British legal system. The Parliament is the “supreme legal authority … which can create or end any law … the court cannot overrule its legislation.”
The development of sovereignty of Parliament started from late 16th and 17th centuries and played a crucial role during the English Civil War. Parliamentary sovereignty puts the powers in the hand of many, rather than one despotic ruler.
Sovereignty seeks to put power in the hands of many, rather than in the hands of one despotic ruler. By the late 17th century, the sovereignty of the parliament was enshrined in British legal system.
Even though parliamentary sovereignty exists across many countries in the world including Finland, the Netherlands, New Zealand, Sweden, Norway, Denmark, Iceland, Barbados, Jamaica, Papua New Guinea, Israel and many more. But the only unique feature is that the existence of sovereignty of parliament in British legal system dating back to such long times.
Jury system
The jury system is an integral part of British legal system and dates back to ancient times. The concept was jury system in Britain was probably introduced after the Norman Conquest. In the Middle Ages, the jury used to comprise of 12 men who used to assess the crime, finding evidences and pronouncing verdicts. This was further developed by Henry II in the 12th century and affirmed in Magna Carta.
By the late 17th century, the juries solely used to decide whether the accused is guilty or not while the judge used to advise them on the relevant laws.
The jury system is still prominent in England and Wales after significant changes. The Criminal Law Act 1977 removed the right to jury trial and the Criminal Justice Act, 2003 allows trial by the judge alone. The juries are used in various civil and criminal cases. All criminal juries consist of 12 jurors in the Crown Court while the County Court has 8 jurors and Coroner’s Court have juries from 7 and 11 members.
In British legal system, the juries are perceived as a means to implant the law within the community and to keep the governmental power in check.
Dualist approach to international law
British legal system has a fundamental dualist approach to international law. Their international commitments are also very much based on domestic legislation. The dualist approach to international law has been confirmed in many domestic cases specifically in the case of R (Miller) vs Secretary of State for Exiting the European Union, popularly known as “the Miller case” which aptly summarises the dualist approach to international law. It states that “the dualist system is a necessary corollary of Parliamentary sovereignty.” (Para 57) It further illustrates that if a treaty requires ‘domestic implementation’, the legislative power should be engaged.
In a dualist system, the international law is first translated into national law before it is applied. If any existing national law does not conform to the international law, the law is amended.
The dualist approach to international law makes any international treaty signed by the country invalid and irrelevant unless an Act by the Parliament or any secondary legislation gives them domestic legal effect.
Independent sovereigns with British legal history
There are several independent countries in the world where the British legal system has a profound influence in their domestic law. Most of the countries, such as India and Ireland were once British colonies. They have a completely independent legal system with a spectrum of influence of British law in their own domestic law.
British legal system has also influenced the legal systems of some monarchies including Kuwait and Brunei.
Independent sovereigns with shared institutions
The Judicial Committee of the Privy Council based in UK acts as the highest court of Mauritius, Trinidad and Tobago and Kiribati by special agreement. They were former British colonies. It also has a special agreement for consultation with Brunei.
Conclusion
The various aspects of British legal system make it unique from rest of the world. The British legal system is one of the oldest continuing legal systems. The various facets of British legal system make it a country with a balanced legal system and a great trust of the common public in the legal institutions. The legal authorities are balanced by the lesser role of judges because of the adversarial legal systems, the sovereignty of the Parliament and the importance of the juries.
