ELP - Global English for Legal Studies

Elp – Global English for Legal Studies

Law

The customs, practices and rules of conduct developed by the government or by society over a particular territory, statutes or legislation that prescribe duty or obligation in order to enforce justice. They are also rules that regulate behaviors in a community of people and are generally based on the moral principles of society. This means they are based on what society has defined as right or wrong because law and morality are related to each other. For example, in the UK, rules or laws prescribe certain actions that are imperative (“shall, must…”), prohibitive (“shall not, must not, may not…”) or permissive (“can, could, may, might…”) by law in statutes or legislation. They are enforced by the power and authority of Parliament and a system of penalties for those who refuse to obey. Additionally, since the UK is one of the Common Law countries, laws can also be made by judges through judicial precedent or influenced by a constitution.

Political and legal system of the UK

• Political system: The UK is a parliamentary democracy and constitutional monarchy. The government is voted into power by the people, and the head of state is the monarch who is politically impartial and has limited powers. The Parliament consists of two elected chambers: the House of Commons and the House of Lords. It is the Monarch who has the constitutional role in opening and dissolving Parliament and approving Bills before they become law.
• Legal system: There are three different and separate legal systems based on the different territories:
  • English Law System (England and Wales): common law system (= set of principles made by judges through the system of judicial precedent).
  • Northern Ireland Law System (Northern Ireland): common law system.
  • Scots Law System (Scotland): hybrid systems based on Civil Law and Common Law traditions.
  Even if these three systems are different from one another, they have something in common: the absence of a complete code. Why? Because in the Constitution, some of the sources are written (e.g., statutes passed by Parliament) while others are unwritten (e.g., common law rules, political conventions…).

Origin of the English Common Law

The Common Law system was created from 1066, after the Norman Conquest. The English Common Law is so called because, in the beginning, it was applied uniformly throughout the kingdom of England. Originally, English Common Law was characterized by three languages: French (= the language of legal proceedings), Latin (= the language of formal records and statutes) and English (= the spoken language of the majority of ordinary people).

Sources of law in the UK

• Legislative sources:
  • Domestic law: It includes primary legislation (= Acts of Parliament and statutes) e.g., Magna Carta 1215 (= statute enacted by Parliament that embodies the principle for which government had to be conducted according to the law and with the consent of the governed), Bill of Rights 1689 (= statute enacted by Parliament that imposes limits on the powers of the monarch), Act of Settlement 1701 (= act enacted by Parliament that establishes the constitutional independence of the judiciary).
  • Secondary or delegated legislation: Law that is enacted by the government because Parliament delegated power to a government minister through the Enabling Act. Delegated legislation is published as Statutory Instruments (SIs), By-Laws and Orders in Council. Unlike acts of Parliament, delegated legislation can be challenged in the courts and declared void when the law goes beyond the powers that were granted by Parliament in the Enabling Act (“doctrine of ultra vires”).
  • European Union legislation.
  • European Convention on Human Rights.
• Judicial sources: Judge-made law as developed through cases. They are subordinate to legislation. Acts of Parliament take priority in case of conflict between primary legislation and judicial sources. There are two types:
  • Common law.
  • Equity precedents (= Case Law).
• Textbook and Commentaries by legal writers (minor sources).

Most important principles of the UK Constitution

• Separation of powers: The power is divided into the three branches of the state (= the Legislature, the Executive and the Judiciary) in order to prevent the accumulation of too much power in the hands of one person or body (system of checks and balances). ATTENTION!! In the UK, there is only a soft separation of powers because, according to the constitution, persons and bodies must communicate with each other in order to run a state. In particular:
  • The Legislature: It is the power of the Parliament for the enactment of new law. The Parliament is composed of the Monarch, House of Lords, and House of Commons.
  • The Executive: It is the power of the Government, the Crown and the Civil Service. The government is elected from the members of Parliament and led by the Prime Minister.
  • The Judiciary: It is the power of the judges and magistrates who interpret and determine legal disputes.
• Sovereignty of Parliament: Parliament is the Supreme law-making body in the UK. On the one hand, Parliament can enact or repeal any law on any topic; on the other hand, courts cannot invalidate any act of Parliament.
• Rule of law: No one is above the law, including the government. This principle limits the exercise of arbitrary power.

Common Law trial procedure

The adversarial system where there are two opposing parties, called adversaries, who present their case before a neutral judge who moderates. Thus, the judge or jury is a neutral umpire who does not investigate the facts. This logic of Common Law contrasts with the inquisitorial system of adjudication in Civil Law jurisdictions where one or more judges try criminal cases alone without juries and they direct investigations and question witnesses.

Classifications of law

• Public Law: It is concerned with the relations between the state and its citizens. Aim: promotion of social objectives by protecting collective interests. Several branches:
  • Constitutional Law: It regulates the institutions of government, including the internal governance of supranational legal orders (e.g., EU).
  • Administrative Law: It is concerned with the relationship between government bodies and individuals. Administrative law allows the courts to rule on the legality of decisions made by government bodies under the judicial review.
    • Judicial review: Procedure in which people who have been affected by unlawful decisions can appeal against those decisions if they have a sufficient interest in the disputed cases (“prima facie case”) and have the right to bring the case (“locus standi”). Judicial review is a mechanism by which the Judiciary can have control over the Executive.
  • Criminal/Penal Law: It deals with the crimes against the state or society and it regulates the apprehension, charging and prosecution of suspected criminals by fixing penalties.
    • Legal wrongs:
      • Criminal wrongs: A wrong where the State and the public have a shared interest.
      • Civil wrongs: A private wrong done to a property or a person.
• Private Law: It is concerned with the rights and duties of private individuals towards each other. Aim: protection of private/individual interests. Several branches:
  • Contract Law: It deals with the interpretation and enforcement of legally binding agreements, the nature of the obligations undertaken by the parties, and the legal consequences of breaking contractual promises.
  • Tort Law: It deals with civil wrongs or wrongful acts. Unlike criminal law, punishments don’t include a fine or imprisonment, but the usual punishment is by damages (= financial compensation).
  • Property Law: It deals with the rights that may arise regarding ownership in real property (= land and the things that go along with land) and personal property (= what people possess that is moveable).
• National Law: It is the law operative within a country.
• International Law: It is the law operative outside a country. It is created in two ways:
  • By treaties: Political agreements between states.
  • By custom: When states have adopted the same practices consistently towards a specific matter in the absence of a legal obligation.
• Substantive Law: It deals with the rules that govern individual rights and duties under the law.
• Procedural Law: It defines the practice and procedure by which the rules are to be enforced when bringing a case to court.

Legislative process in the UK

The Bill normally comes from the government (= government-sponsored Bill) or an ordinary member of Parliament (= private member’s Bill). The Bill is preceded by a White Paper, which sets out definite government proposals on topics of current concern, or a Green Paper, which sets out tentative proposals for discussion. The consultation process is followed by the drafting process in which the Bill is set out in draft legislation by Parliamentary draftsmen (= the Parliamentary Counsel to the Treasury). Then the Bill goes through several parliamentary readings (= formal stages of enactment) by both the House of Commons and the House of Lords. In particular:

1. First reading: First debate in one House.
2. Second reading: Second debate in the same House with a final vote.
3. Committee stage: The Bill is debated in detail by a small group of members of Parliament and can be amended in each clause.
4. Report stage: MPs who were not part of the Committee may consider any of the amendments.
5. Third reading: Final debate on the Bill in the first House; no amendments are possible.
6. Moving to the other House: The Bill moves to the other House and goes through a similar process to the first House. The Bill may move backwards to the first House if this House doesn’t agree. The “ping-pong” process: The Bill may move backwards and forwards between the two Houses until the agreement is reached.
7. Royal Assent: The Bill is presented to the monarch for approval. Once Royal assent is given, the Bill becomes an Act of Parliament and is law.

UK system of Courts

• Superior courts (= appellate courts): They review decisions of an inferior court on important points of law and public interest.
  • European Court of Justice: It deals with preliminary ruling procedure. Usually, the Supreme Court refers some cases to the European Court of Justice for a ruling on the interpretation of a point of European Law.
  • Supreme Court: It is the final court of appeal in civil and criminal cases on points of law of public general importance.
  • Court of Appeal: It hears criminal and civil appeals from the Crown Court and the High Court and it deals also with permissions to appeal to the Supreme Court.
  • High Court: It is the court of appeal from the inferior courts. It has three divisions: Queen’s Bench Division, Family Division, Chancery Division.
  • Crown Court: It has jurisdiction only above criminal cases, but it hears the most serious cases (= indictable offences) by judge and jury.
• Inferior courts (= Trial Courts/first-instance courts): They decide the majority of the cases at first instance.
  • Magistrates’ Courts: NO jury trial, to deliver justice in a speedy manner. Although they can hear a limited number of civil cases relating to family law and licenses, most criminal cases start and finish here.
  • County Courts: They only hear civil cases.

Legal profession in the UK

• Solicitors: A lawyer who gives legal advice on the appropriate course of legal action, prepares legal documents and cases, drafts contracts and has the right of audience in the inferior courts. They can also appear as advocates in the superior courts (= “solicitor-advocates”) if they have appropriate experience to do so. How to become a solicitor? Gaining a qualifying law degree, completing the Legal Practice Course, gaining experience of the litigation process, and then the name will be entered on the Society’s Rolls (= a list of solicitors permitted to practice) and they will receive a practicing certificate by the Law Society.
• Barristers: A lawyer who gives specialist legal advice and can argue a case in both higher and lower courts. Unlike the solicitors, barristers do not have direct contact with their clients. In fact, it is the solicitor who needs to instruct/brief the barrister to advise in writing through an Opinion or appear in courts as an advocate. In the case of a request for an Opinion, the solicitor only asks questions to the barrister to be able to advise the client, and then the barrister will answer these questions in a series of reasoned arguments. The cab-rank rule: Barristers are obliged to accept any cases sent to them by solicitors that are within the field of their competence and are irrespective of the identity of the client. How to become a barrister? Law degree, vocational training and then they are Called to the Bar and are authorized to practice as barristers. Top barristers who have produced work of high quality are appointed by the Crown to the rank of Queen’s Counsel.
• Magistrates: They are judges appointed to sit in inferior Magistrates’ Courts dealing with less serious cases, most criminal cases. Different types: Lay magistrates, district judges.
• Judges: They sit in superior courts and are appointed from the ranks of barristers and some senior solicitors.
• Jury: Often used in criminal proceedings in the Crown Court. The jury elects a foreperson who represents and speaks for the jury announcing the final verdict.
• Arbitrators
• Mediators
• Legal Cashiers
• Notaries
• Ushers
• Paralegals
• Legal Assistants

Legal system of the US

Political system

The Constitution establishes a federal democratic republic form of government. There are 50 states that are separate sovereigns with their own state constitutions, governments and courts. There are three branches:

• The legislature = the Congress. The Congress is composed of the House of Representatives and the Senate.
• The executive = the President.
• The Judiciary = the Federal courts.

Sources of law in the USA

• US Constitution: It is the Supreme Law of the US. Federal and state statutes, judicial opinions and administrative laws must all comply with the Constitution.
• State constitutions.
• Federal and state legislation (= statutory law): Federal statutes are enacted by the Congress and apply in all 50 states while state statutes are enacted by the 50 state legislatures and apply only within the state.
• Case law: Judicial interpretations of the Constitution or a statute or common law. ATTENTION!! In case of conflict between federal law and state law, federal law must be applied because it is superior to state law.
• Administrative regulations.

Legislative process in the US

The Bill is introduced by a representative sponsor or a senator to a House of Congress. Then it is assigned to the appropriate committee for study. The committee can accept, amend or reject the Bill. Once the Bill is accepted, the members of the House debate the Bill, proposing amendments and then they vote. If the Bill is passed by majority voting, it moves to the other House and goes through a similar process. The Bill needs to be agreed on the same version by both chambers of the Congress for the enrollment. Then the Government Printing Office prints the final text, and then the official text is presented to the President. The President can:

• Approve and sign the Bill into law, then the law is codified and published in the United States Code.
• Veto the Bill by refusing to sign it and return it to Congress. Of course, the veto needs to be reasoned. However, the Congress can override the veto by voting again on the same text and this time the President is obliged to sign the Bill into law.
• Take no action on the Bill and the Bill dies (“pocket veto process”).

Legal system of the EU

Sources of law in the European Union

• Primary legislation: Treaties that contain statements of principles and policies pursued by the Union.
• Secondary legislation: Law made by the Council, Parliament and Commission under the authority of the treaty articles. Secondary legislation includes:
  • Binding legal acts:
    • Regulations: They have general, binding and direct applicability in all member states. Thus, the provisions of these regulations become part of the law of the member states immediately, without the need for the member states to enact their own law, and the member states cannot vary or amend the regulations (they are self-executing provisions).
    • Directives: They have general and binding applicability but are not directly applicable in member states. They need to be transposed into national law before they are applicable in each member state.
    • Decisions: They are binding legal acts and have a specific addressee.
  • Non-binding legal acts: They do not confer rights or obligations but provide guidance as to the interpretation and content of Union Law.
    • Recommendations
    • Opinions
• Case law: Judicial interpretations of the European Court of Justice.

The EU institutional system

The European Union's institutional system consists of various bodies that enact, implement and interpret EU law. The major institutions include the European Commission, the European Parliament, the Council of the European Union, and the European Court of Justice. These institutions work together to ensure the consistent application and enforcement of EU law across all member states.