Structure of The Legal System

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1 Civil Law

• Private law

• To settle disputes between individuals

• No concept of punishment

• Objective is to compensate the wronged party

• Need to prove ‘on the balance of probability’

• Sued in court

• If liable, then compensation payable

• Claimant and defendant

• Personal action brought by the aggrieved party

• Court may award damages or an equitable remedy if damages are inadequate

2 Criminal Law

• Public law

• A wrongdoer has broken the law

• A wrong done to society

• Prosecuted in court

• If guilty, then punished

• Community service, fine, imprisonment

• Prosecutor and accused

• Need to prove ‘beyond reasonable doubt’

• the police investigate offences and may charge less serious cases; the CPS decides whether to prosecute more serious cases by applying the evidential and public-interest tests

3 Common Law

• Development started with effect from 1066

• King’s representatives attended local courts

• Then met in London on a regular basis to discuss

• Over a period of 200 years, law was commonised – “Common Law”

• Cornerstone of Common Law is judicial precedent

• Ratio decidendi and obiter dicta

• With commonisation came recognition of deficiencies

• Highlighted the need for alternative remedies – Equity

• Common Law remedy is ‘damages’ – a monetary award

• Common Law courts were separate from court of equity until the late nineteenth century

4 Equity Law

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• Grew from the recognition of deficiencies of Common Law

• If a monetary award of damages was not appropriate, there was nothing else to offer

• In fourteenth century, Aequitas

• Chancellor’s court

• Early seventeenth century, Earl of Oxford’s case

• Equity shall prevail

• Confirmed by 1873 – 1875 Judicature Acts

• Main remedies :

  • Specific performance

  • Injunction

  • Rescission

  • Rectification

• Remedies are given at Court’s discretion

• Only given if damages are inadequate

5 Ratio Decidendi

• Ratio is ‘the reason for the decision’

• Ratio is binding on future judges in similar cases

• Reversing – higher court reverses lower court decision in same case

• Overruling – higher court overrules lower court decision in different case

• Distinguishing – court avoids earlier precedent by distinguishing the facts

• Ratio not binding if made without care (per incuriam)

• Ratio not binding if in conflict with a basic principle of law

• Ratio not binding if in conflict with European law

• Ratio not binding if made in inferior court

6 Civil law system

• civil law system – comprehensive written codes, usually derived from Roman law; judges apply the code rather than develop binding precedent

7 Sharia law

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• Sharia - a way to a watering place

• Quran - primary source of Sharia law

• Sunnah - what has come to be accepted conduct

• Shia, Hanafi, Maliki, Hanbali, Shafii

  • the five schools of law

  • they provide further details / interpretation of acceptable conduct and application of the law

  • a Sharia judge may refer to these secondary schools to determine how to apply the law

• Ijtihad - methods of interpreting the law

• taqlid - the belief that no further interpretation is required

• ijma - one of two methods of interpretation open to a judge who is not a follower of the taqlid thinking

  • ijma is a consensus of opinion of legal scholars or judges

• qiyas - the Sharia equivalent of judicial precedent

  • involves the comparison of two similar situations and the application of accepted law in the first situation to the second

8 Judicial precedent

• in UK common law, judges are bound to follow decisions from earlier similar cases

• this concept does not have any true equivalent in Sharia law, the nearest equivalent is qiyas

• judges, in the UK, may avoid the earlier decision and therefore avoid having to follow the precedent decision:

  • if earlier decision was made per incuriam (without care)

  • if in conflict with basis principle of law

  • if facts are not materially similar

• rules for applying a precedent

  • must be based on a point of law, not a point of fact

  • must be part of the ratio decidendi in the previous case

  • material facts should be sufficiently similar

  • prior court must have superior status in the hierarchy of the courts

9 Separation of powers and the rule of law

• rule of law reflects the situation which exists when members of a society abide / obey a set of rules governing behaviour

• separation of powers

  • the process of making laws is separated into three distinct areas:

    • the legislature – an elected body which decides which laws need to be passed to satisfy the nation’s wishes (for example, health, defence)

    • the executive – an elected body which makes the decisions which put the law into action (for example in the UK, the elected government)

    • the judiciary – a non-elected body which rules on disputes about law

    • these disputes may be between government and individuals (criminal law)

    • or between individual and individual (civil law)