Applied Law Systems: Understanding Their Practical Functionality

A legal system is the framework of rules, procedures, and institutions that a community uses to interpret and enforce its laws. There are two main types of legal systems in the world: common law and civil law. Common law systems, used in most former British colonies like the US, rely heavily on judicial precedent and case law. Civil law systems, on the other hand, are found on all continents and cover about 60% of the world. They are based on concepts derived from Roman law and are governed by statutes and codes. While there is variation within each type, this paragraph provides an introduction to the topic of applied law systems, highlighting the key features of common law and civil law as the most prevalent legal systems globally.

Common Law vs Civil Law

A legal system is the framework of rules, procedures, and institutions that a community uses to interpret and enforce its laws. While there is no uniform legal system across the globe, the U.S. Department of Justice categorizes different legal systems into four main types: common law, civil law, religious law, and customary law systems. The first two are the most widely used legal systems in the world.

Common Law

Common law, rooted in England and practiced in the United States and other former British colonies, is a legal system created by the judiciary. It prioritizes judicial decisions and precedents along with legislation. In a common law system, the law comes from case law rather than statute, so it has a strong focus on judicial precedent, stare decisis, and the rule of law. When a senior court makes a ruling on a contested issue of law, this establishes a standard that other courts are required to follow or apply in similar subsequent instances. This is known as the doctrine of binding precedent.

Civil Law

Civil law, sometimes called Napoleonic law, is practiced in much of Europe and elsewhere in the world, including Belgium, the Netherlands, Mauritius, Italy, Egypt, Algeria, Tunisia, Morocco, Sub-Saharan Africa, Spain, Latin America, and territories that were once European colonies. It is a legal system governed by statutes rather than case law, and thus, in a civil law system, the judge takes a more active role in the investigation. Civil law countries lean on codes. However, civil law does not exclude the use of precedent.

Despite their differences, common law and civil law systems are not entirely distinct. Many countries employ legal systems that are influenced by both civil and common law. For example, South Africa and Sri Lanka have legal systems based on the older uncodified civil law of Holland, but their long contact with Britain means that their public law and systems of court procedure owe much to common law. Other examples include Louisiana and Quebec, which use civil law on the subnational level but are subject to a common law system for federal law.

UK Law Application

The UK's legal system is a common law system, which means that it is created by the judiciary and based on case law and judicial precedent. When a case is applied by a UK court, it means the court is using the legal principles and decisions made in that case to reach a decision in a similar case. This is known as the doctrine of binding precedent, where lower courts are bound by the decisions made by higher courts. This ensures consistency and predictability in the legal system as decisions build upon one another and create a body of law known as common law.

The doctrine of binding precedent is a key feature of the UK's common law system. It means that when a senior court makes a ruling on a contested issue of law, it establishes a standard that other courts are required to follow or apply in subsequent similar cases. This ruling has the potential to amend or clarify the law. The rationale behind a decision is referred to as the "ratio decidendi", which is the statement of law that is applied to the facts of the case that are deemed relevant. When a court applies a previous case, it indicates that it has regarded itself as bound by that earlier case and has employed the same reasoning.

The UK's common law system is just one of the four main types of legal systems recognised by the US Department of Justice, the others being civil law, religious law, and customary law systems. Each jurisdiction uses its own legal system, which dictates what laws will govern a given case, the role of the judge and attorneys, the rights of the accused, the standard of evidence, and the burden of proof, among other things. While the US, like most former British colonies, uses a form of the common law system, most of the world uses a form of the civil law system, where the law is governed by statutes rather than case law, and the judge takes a more active role in the investigation.

In the UK, students can apply to study law at university through UCAS (the Universities and Colleges Admissions Service), the UK's shared admissions service for higher education institutions. Applications require personal information, a personal statement, bank details, and a teacher's reference. Students can choose up to five courses and must pay an application fee. For those wanting to qualify as a solicitor, the new route is the SQE (the Solicitors Qualifying Exam).

Judicial Precedent

The doctrine of stare decisis ensures that the law is applied consistently and predictably across similar cases. It also means that lower courts are bound by the decisions of higher courts. For example, in the US, a federal district court is bound by the rulings of the Court of Appeals for the circuit in which it sits.

A precedent is established when a senior court makes a ruling on a contested issue of law. This ruling has the potential to amend or clarify the law and establishes a standard that other courts are required to follow in similar cases. The rationale behind a decision is referred to as the 'ratio decidendi' and is made up of the statement of law that is applied to the facts of the case.

There are two types of legal precedent: binding and persuasive. Binding precedent refers to previous rulings that a court must follow when deciding a case. Persuasive precedent is precedent that a court may rely on but is not required to.

A higher court can overrule a previous decision by a lower court if it is deemed to have been decided per incuriam (ie. through carelessness or mistake). A lower court may not rule against a binding precedent, even if the judge disagrees with it. However, a lower court may distinguish a case on its facts or on the point of law, thus limiting the scope of the precedent.

Judge's Role

The role of judges varies depending on the type of legal system in place in a jurisdiction. The US Department of Justice categorizes legal systems into four main types: common law, civil law, religious law, and customary law systems. The type of legal system used in a jurisdiction will dictate the role of the judge, among other things.

In common law systems, such as the one used in the United States, the law is created by the judiciary through case law, giving it a strong focus on judicial precedent. In these systems, judges are responsible for presiding over trials, maintaining order, and reviewing the evidence for any illegality issues. They provide instructions to juries and decide the facts of the case and make a ruling in bench trials. Additionally, judges are responsible for sentencing convicted criminal defendants. They lead court proceedings and use established laws and guidance to determine sentencing. They also rule on the constitutionality of laws and legal precedents.

In civil law systems, which are the most common globally, the law is governed by statutes rather than case law. Here, judges take a more active role in the investigation. They decide a variety of cases that come before the courts, including civil suits, criminal cases, and family law matters. Judges apply the law to the facts of the case and ensure that cases are conducted following the rules of the court and the rules dealing with evidence. They act as independent and impartial decision-makers, ensuring that both sides have a fair opportunity to present their case. After deciding the outcome of the case, judges determine the sentence in criminal matters or the remedy in civil cases.

In both common law and civil law systems, judges play a crucial role in establishing precedents. When a senior court makes a ruling on a contested issue of law, it sets a standard that other courts are required to follow in similar cases. This ensures consistency and predictability in the legal system.

Attorney's Role

The term "applied law" can refer to a few different things. In general, it refers to the application of a particular law or set of laws to a specific situation or context. In the UK, "applied law" can refer to the use of legal principles and decisions made in a previous case to inform the decision in a similar case. This is known as the doctrine of binding precedent, where lower courts are bound by the decisions made by higher courts. For example, a decision made by the UK Supreme Court on a property dispute would be applied by lower courts when faced with similar disputes.

Now, within the legal system, attorneys play a crucial role in guiding their clients through this complex framework of rules, procedures, and institutions. Attorneys are responsible for:

• Advising Clients: Attorneys provide legal advice and counsel to their clients, informing them of their rights, obligations, and the potential legal implications of their actions. They help clients understand the complexities of the law and how it applies to their specific situation.
• Legal Research and Document Drafting: Attorneys conduct thorough legal research to support their client's case. They also draft and review legal documents, ensuring that their client's interests are protected.
• Negotiation and Settlement: Attorneys represent their clients in negotiations and work towards reaching a settlement that respects the laws in effect. They can help resolve disputes outside of court, saving time and resources for all involved parties.
• Court Representation: When necessary, attorneys represent their clients in court. They present the facts of the case to the judge, taking into account relevant laws, procedures, and evidence. They question witnesses, present evidence, and make arguments to protect their client's interests.
• Ethical Practice: Attorneys are bound by ethical standards and professional codes of conduct. They must respect the confidentiality of their client's information and always act in the best interests of their clients.
• Promoting Justice: Beyond their duty to their clients, attorneys also play a role in promoting justice and upholding human rights. They ensure that their clients receive a fair trial, that their rights are protected, and that they have access to competent legal representation.

The role of attorneys is essential in ensuring that individuals have access to justice and that their rights are protected within the legal system. Attorneys provide guidance, representation, and counsel to their clients, navigating the complexities of the law on their behalf.

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