Cecily Zamora
English law is the common law legal system of England and Wales, consisting mainly of criminal and civil law. The United Kingdom has never had a written constitution embodied in a single document. The UK constitution has evolved over time and is comprised of landmark statutes, conventions, and unwritten rules. English constitutional law has its roots in the Magna Carta, issued in 1215, and has since undergone significant changes. The nature of the language used in the constitution has been a subject of debate, with some arguing for ordinary language and others for legal terminology.
| Characteristics | Values |
|---|---|
| Language | English |
| Nature of Language | Ordinary language vs. legal language |
| Accessibility | Accessible to anyone with knowledge of the English language |
| Legal Terms | About 100 legal terms |
| Legal Interpretive Rules | Blocking certain rules and calling for the application of others |
| Originalism | Original methods originalism is the correct form |
| Richness of Idiom | Provides resources to address unresolvable interpretive questions |
| Common Law | Criminal law, civil law, and commercial law |
| Statutory Legislation | Acts of Parliament, regulations, and by-laws |
| International Treaties | Only effective when adopted and ratified by Act of Parliament |
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What You'll Learn
The UK constitution and English common law
The UK constitution is derived from various sources, including both law and other less formal documents without legal force. The UK has a 'common law' system, where judges declare the law based on custom and precedent. While the courts interpret the rules, judges can effectively create laws by identifying what the law is. This has established important features of the UK constitution, such as individual rights and limitations on public authorities.
The UK constitution is spread across numerous documents and sources, making it challenging to decipher. Interpretations by experts play a crucial role in shaping the understanding of the system. The constitution includes written and unwritten arrangements, with no official attempt to codify them into a single document, resulting in an uncodified constitution. This flexibility allows for easy modifications as there are no formally entrenched provisions.
The UK Parliament has significant power, often described as 'sovereign'. It can make or repeal laws without being constrained by a constitutional text. This sets it apart from countries like the United States, where the constitution is entrenched and requires additional steps for amendments. The UK constitution can be amended or repealed by a simple majority vote in Parliament.
The Magna Carta, an English document written in Latin in 1215, is a foundational element of the UK constitution. It established the notion of limiting the monarch's power and the rule of law, which states that everyone within a state should be subject to and benefit from the law. The Bill of Rights of 1689 further solidified parliamentary authority and the independence of Parliament from the monarch.
The UK constitution also recognises the importance of upholding international law and principles of internationalism. The country's membership in international organisations and its interpretation of domestic law reflect this commitment. The common law has evolved to align with statutory rights and international law, demonstrating the dynamic nature of the UK's constitutional framework.
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Criminal law and civil law
Criminal law involves punishing and rehabilitating offenders, and protecting society. The police and prosecutors are hired by the government to put criminal law into effect. Only the government can file criminal charges in court. Criminal defendants have more rights and protections than civil defendants, and criminal litigation is considered more serious. Criminal cases are prosecuted by state officials, and the burden of proof lies with the government to prove that the defendant is guilty. To secure a conviction, the prosecution must establish the guilt of the defendant "beyond a reasonable doubt".
Civil law, on the other hand, deals with private disputes between individuals, or between an individual and an organisation, or between organisations. Civil law deals with the harm, loss, or injury to one party or the other. A defendant in a civil case is found liable or not liable for damages, and the losing party has to reimburse the plaintiff. Civil cases are usually initiated by a private party (the plaintiff), and cases are usually decided by a judge. The burden of proof first lies with the plaintiff and then with the defendant to refute the evidence provided by the plaintiffs. If the judge or jury believes that there is more than 50% of the evidence favouring the plaintiffs, then the plaintiffs win.
It is important to note that a single wrongful act may constitute both a public offence and a private injury, and may thus give rise to both criminal and civil charges. For example, in 1995, O.J. Simpson was acquitted of murdering his wife and her friend, but in 1997, he was found liable for their killings in a civil suit for wrongful death.
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The Bill of Rights and individual liberty
The English language has played a significant role in the development of constitutional law, with the language of the law being a key factor in shaping the understanding and interpretation of constitutional documents. One such document is the Bill of Rights, which has been a crucial element in safeguarding individual liberty.
The Bill of Rights, a foundational document, comprises the first ten amendments to the US Constitution. It was written by James Madison to address the absence of explicit protections for individual rights in the original Constitution. Madison's intention was to limit government power and protect the natural rights and civil liberties of individuals. This included freedoms such as freedom of speech, freedom of religion, and the right to bear arms, as outlined in the First and Second Amendments.
The Bill of Rights also ensures due process and trial by jury, protecting individuals from unreasonable government intrusion. For instance, the Fourth Amendment requires a warrant for searches and seizures, while the Fifth Amendment provides several protections for the accused, including the right against self-incrimination and the right to just compensation for property taken. The Sixth Amendment further guarantees a speedy and public trial, and the right to an impartial jury.
The importance of the Bill of Rights in protecting individual liberty is evident in its establishment of checks and balances on government power. It ensures that certain powers are reserved for the states and the people, rather than the federal government. This distribution of powers was a point of contention between Federalists and Anti-Federalists during the drafting of the Constitution. The Bill of Rights reflects the Anti-Federalist desire to safeguard individual liberty and maintain power at the state and local levels.
The UK, on the other hand, has a different constitutional framework. The UK Parliament is considered sovereign, with the power to make and unmake laws without being constrained by a written constitution. The UK's constitution consists of various sources, including Acts of Parliament, the Magna Carta, and other legal and non-legal documents. While the UK does not have a single Bill of Rights, it has enacted laws that uphold human rights, prohibit discrimination, and ensure the right to vote and hold elections.
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The Human Rights Act and the state
The UK Constitution is a collection of sources, including laws and other less formal documents without legal force. The UK Constitution can be altered by a simple majority vote in Parliament, unlike countries like the US where the constitution is "entrenched".
The Human Rights Act 1998, which came into force in the UK in October 2000, is a part of UK constitutional law. The Act sets out the fundamental rights and freedoms that everyone in the UK is entitled to. It incorporates the rights set out in the European Convention on Human Rights (ECHR) into domestic British law. The Act sets out these human rights in a series of 'Articles', each dealing with a different right.
The Human Rights Act protects everyone in the UK – young and old, rich and poor. It gives further effect to rights and freedoms guaranteed under the European Convention. It means that judges must interpret laws in a way that is compatible with Convention rights. It also means that it is unlawful for a public authority to act in a way that is incompatible with a Convention right. For example, the right to life protects an individual's life, and the state is required to investigate suspicious deaths and deaths in custody. The prohibition of torture and inhuman treatment means that no one should be tortured or treated in an inhuman or degrading way, regardless of the situation. The right to liberty and freedom means that the state can only imprison someone with a very good reason.
The Human Rights Act allows individuals to defend their rights in UK courts and ensures that public organisations respect and protect human rights. It provides a means to hold the government accountable for its actions.
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The Magna Carta and parliamentary sovereignty
The English constitution is based on parliamentary sovereignty, which means that Parliament can make or amend any law without being limited by a constitutional text. This is in contrast to countries like the United States, where the constitution is entrenched and can only be amended by satisfying additional requirements. The UK constitution, on the other hand, is relatively flexible and can be altered by a simple majority vote in Parliament.
The Magna Carta, or "Great Charter," is a historic document that was signed in 1215 by King John and a group of English barons who had been part of a rebellion against the King. The charter was drafted to make peace between the two parties and promised the protection of certain rights and liberties, including church rights, protection for the barons from illegal imprisonment, access to swift and impartial justice, and limitations on feudal payments to the Crown.
One of the most significant aspects of the Magna Carta was that it established the principle that the king and his government were not above the law. This marked a shift from monarchical absolutism to parliamentary supremacy, with the charter serving as a fundamental part of the constitution. The Magna Carta also provided the foundation for individual rights in Anglo-American jurisprudence by declaring that the sovereign was subject to the rule of law and documenting the liberties held by "free men."
Over time, the Magna Carta was reissued multiple times, with alterations, as different monarchs sought to build political support or raise funds. Despite this, the charter became entrenched in English political life and was considered a fundamental law by many. The influence of the Magna Carta extended beyond England, with American colonists interpreting it as guaranteeing trial by jury and habeas corpus. When the American colonists fought against Britain, they saw themselves as preserving liberties and rights that they believed were enshrined in the Magna Carta.
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Frequently asked questions
The UK Constitution is an unwritten constitution, which has evolved organically over time in response to political, economic, and social changes. It encompasses landmark statutes, such as the Bill of Rights of 1689, as well as unwritten rules and conventions.
English Law is the common law legal system of England and Wales, comprising criminal law and civil law. The judiciary is independent, and legal principles like fairness, equality before the law, and the right to a fair trial are foundational to the system.
The English Constitution and English Common Law grew up together gradually, more as a result of the accumulation of customs than through deliberate, rational legislation.
There is a debate surrounding the nature of the language used in the US Constitution. One view holds that the Constitution is written in ordinary language and is accessible to anyone with knowledge of the English language. The other view is that the Constitution is written in the language of the law, like many other documents with legal force.
