юридическая система Британии

Some features of law and English legal system might be too complicated for common people to understand. So right now I will try to explain you some features and some specials of English legal system.

  1. Categories Of Law

Jurisdiction is the power of the State to regulate affairs pursuant to its laws. Exercising jurisdiction involves asserting a form of sovereignty. This fact causes difficulties when jurisdiction is exercised extraterritorially.

There are various ways of categorising law, which initially tend to confuse the non-lawyer and the new student of law. It is impossible to avoid the confusing repetition of the same terms to mean different things and, indeed, the purpose of this section is to make sure that students are aware of the fact that the same words can have different meanings, depending upon the context in which they are used(Pic. 1).

  1. 1.      Common law

All those legal systems have adopted the historic English legal system. The common law system tends to be case-centered and hence judge-centered, allowing scope for a discretionary pragmatic approach to the particular problems that appear before the courts. The common law has been romantically and inaccurately described as the law of the common people of England. In fact, the common law emerged as the product of a particular struggle for political power.

  1. 2.      Civil law

Those other jurisdictions have adopted the European continental system of law derived essentially from ancient Roman law, but owing much to the Germanic tradition. The civil law system tends to be a codified body of general abstract principles which control the exercise of judicial discretion. In reality, both of these views are extremes, with the former over сemphasing the extent to which the common law judge can impose his discretion and the latter underestimating the extent to which continental judges have the power to exercise judicial discretion.

  1. 3.      Private law

Deals with relations between individuals with which the State is not directly concerned or is involved in. Public law, on the other hand, relates to the interrelationship of the State and the general population, in which the State itself is a participant.

  1. Human rights

In an article published in the London Review of Books and The Guardian newspaper in May 1995, three years before the enactment of the Human Rights Act, the High Court judge, as he then was, Sir Stephen Sedley, made explicit the links and tensions between the doctrine of the rule of law and the relationship of the courts and the executive, and the implications for the use of judicial review as a means of controlling the exercise of executive power.

As is evident in the quotation from Sir Stephen Sedley above, some judges, at least, saw their role in maintaining the rule of law as providing protection for fundamental human rights. In attempting to achieve this end, they faced a particular problem in relation to the way in which the unwritten English constitution was understood, and was understood to operate. The freedom of individual action in English law was not based on ideas of positive human rights which could not be taken away, but on negative liberties: that is, individual subjects were entitled to do whatever was not forbidden by the law.

The Labour opposition, however, was committed to the incorporation of the ECHR into UK law and, when it gained office in 1997, it immediately set about the process of incorporation. This process resulted in the Human Rights Act (HRA) 1998[1].

The Human Rights Act (HRA) has profound implications for the operation of the English legal system. However, to understand the structure of the HRA, it is essential to be aware of the nature of the changes introduced by the Act, especially in the apparent passing of fundamental powers to the judiciary.

The 1998 Act reflects a move towards the entrenchment of rights recognised under the Convention, but, given the sensitivity of the relationship between the elected Parliament and the unelected judiciary, it has been thought expedient to minimise the change in the constitutional relationship of Parliament and the judiciary.

Anti-social behavior orders (ASBOs) were introduced under the Crime and Disorder Act[2] 1998 and were extended in the Police Reform Act (PRA)[3] 2002 and the Anti-social Behavior Act[4] 2003.

Rights Provided Under the European Convention on Human Rights

The Articles incorporated into UK law, and listed in Sched. 1 to the Act, cover the following matters:

• the right to life. Article 2 states that ‘Everyone’s right to life shall be protected by law’;

• prohibition of torture. Article 3 actually provides that ‘No one shall be subjected to torture or to inhuman or degrading treatment or punishment’;

• prohibition of slavery and forced labour (Art 4);

• the right to liberty and security. After stating the general right, Art 5 is mainly concerned with the conditions under which individuals can lawfully be deprived of their liberty;

• the right to a fair trial. Article 6 provides that ‘everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law’;

• the general prohibition of the enactment of retrospective criminal offences. Article 7 does, however, recognise the post hoc criminalisation of previous behavior where it is ‘criminal according to the general principles of law recognised by civilised nations’;

• the right to respect for private and family life. Article 8 extends this right to cover a person’s home and their correspondence;

• freedom of thought, conscience and religion (Art 9);

• freedom of expression. Article 10 extends the right to include ‘freedom . . . to receive and impart information and ideas without interference by public authority and regardless of frontiers’;

• freedom of assembly and association. Article 11 specifically includes the right to form and join trade unions;

• the right to marry (Art 12);

• prohibition of discrimination in relation to the enjoyment of the rights and freedoms set forth in the convention (Art 14);

• the right to peaceful enjoyment of possessions and protection of property (Art 1 of Protocol 1);

• the right to education (subject to a UK reservation (Art 2 of Protocol 1));

• the right to free elections (Art 3 of Protocol 1);

• the right not to be subjected to the death penalty (Arts 1 and 2 of Protocol 6).

III.           The English Legal system

It should not be forgotten that although prosecution of criminal offences is usually the prerogative of the State, it remains open to the private individual to initiate a private prosecution in relation to a criminal offence. It has to be remembered, however, that even in the private prosecution, the test of the burden of proof remains the criminal one requiring the facts to be proved beyond reasonable doubt.

As the rule of law already is an existing constitutional principle of the UK and one that may be more contentious in the future, it becomes imperative to attempt to define what it actually means. It was the exact task that Lord Bingham set by his own in the lecture under consideration and he suggested that at its core was the idea that ‘all people and authorities within the State, whether public or private, should be bound by and entitled to the benefit of laws publicly and prospectively promulgated and publicly administered in the courts’.[5]

Bingham has expressed his basic understanding of John Locke’s dictum that ‘Wherever law ends, tyranny begins’. He also was the man, who made the prediction: The law must be accessible and so far as possible intelligible, clear and predictable. Without challenging the value or legitimacy of judicial development of the law, have been taken to extremes, such judicial creativity can destroy itself the rule of law.

References:

  1. “Human Rights Act”, 1988 (72 pages). Pages 4 – 7, 17 – 19
  2. “Anti-Terrorism, Crime and Security Act”, 2001 (172 pages). Pages: 3 – 8
  3. “Crime and Disorder Act”, 1998 (228 pages). Pages: 3, 35,
  4. “Police Reform Act (PRA)”, 2002 (254 pages). Pages: 72, 86 – 89
  5. “Professional English in use. Law”, 2007 (126 pages); Cambridge University Press;

 


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