The three most important characteristics of the English legal system: accidents of geography as much as history

This article from the Spring 2008 issue of Directions is a summary of a paper presented by Roger Burridge (University of Warwick) at the International Association of Law Schools conference in October 2007. Conference participants were asked to write a short paper on the most important characteristics of their country’s legal system – Roger’s choices for discussion were the common law inheritance, participation in the EU and the UK’s dependency on international trade.

Access the full version of Roger’s paper, plus over 70 further papers from contributors around the world on the legal system in their country, from the delegate papers section of the IALS conference website.

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Contemplating the essence of one’s legal system is a daunting task. In the case of England it is particularly problematic. Perhaps more than for those from elsewhere, the initial hesitation is one of stance. What is ‘my country’? The question induces a mild crisis of identity afflicting all those in the United Kingdom or Great Britain or England. The UK as a unitary sovereign constitutional body is most evident in the composition of its parliament and most absent in football and rugby grounds during international competitions.

Common law inheritance

The single most distinctive characteristic of the English legal system is its common law heritage. Most of the features popularly associated with English law and its administration of justice are attributable to the early development within western Europe of the civil and common law traditions. As Goodman observes, “several characteristic consequences flow from the fact that law did not emanate from one centralised authority such as papacy, king or parliament”.

The peculiar development of the common law in England evolved it seems from a happenstance congruence of the adoption after the Norman conquest by successive monarchs of indigenous customs as the basis for the administration of justice. Dispute adjudication, particularly relating to land title, was a primary function for justice.

Judges were appointed by the king to travel the country and resolve arguments, assisted by a local jury incorporated by the Normans into workings of royal courts. The trial assumed a pivotal role in the resolution of disputes.

In the wake of the courts came growing significance of lawyers, and with the lawyers emerged a distinctive approach to legal education. Roman and canon law was taught at Oxford and Cambridge, but neither judges nor lawyers had need of either. An emerging non-clerical profession in the 13th century developed its own education in the Inns of Court. The universities in England limited themselves to Roman law.

Nowadays the universities have assumed the primary role for legal education. The UK has followed the rest of Europe in treating legal scholarship as a subject for intellectual and theoretical enquiry suitable for undergraduate study. In the UK law schools have traditionally concentrated on the substance and principles of its legal systems, focusing particularly on the decisions of its appellate courts and their reasoning. The nature of English scholarship was therefore peculiar to the common law.

Technical legal expertise is delivered in separate one year vocational programmes validated by the professions and taught universities or by private providers. Change is an ongoing process, however, and recent years have brought major innovations into the established order. One provider has merged the technical, vocational stage with the undergraduate stage. Private providers have been allowed to grant degrees. The professions are investigating further reforms and mechanisms for introducing more work-based learning and alternative pathways for obtaining legal training. European Union responsibilities for harmonising the processes and educational standards for legal practice are affecting higher education at undergraduate and particularly postgraduate level.

European partnership

The participation of the UK in the European Union signals its second dominant characteristic. The impact of membership has refocused its legal system, introducing a new level of legal authority, fresh laws, novel approaches to regulation and additional court systems. The implications are extensive and profound.

For the purposes of this article I shall concentrate on the implications for legal education. Entry into the EU has resulted in new courses for the undergraduate curriculum and revision to the subjects that the professions require students to take to qualify for entry. Wilson recognised the freedom that membership of the EU promised for legal scholarship:

Everyone takes for granted the fact that law and legal systems differ in different countries. But it is also true of legal scholarship. One reason for this is the different responsibilities legal scholars have in different countries for the maintenance and development of the local law…One result is that legal scholars in different countries may have different agendas and this may affect the subject matter, scope and even the form and style of the local legal scholarship.

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Wilson, 1995

International dependency

It is a truism to remark that a national legal system is only comprehensible in the context of other systems. At the empirical level the English legal system has a specific international resonance. Most obviously this lurks in its imperialist interventions along with other European nations across the globe. The common law legacy of British rule is matched by civil law conquests.

One of the most powerful economic features of the English legal system in recent years which is illustrative of its dependence upon the wider international community is its success as a centre for international dispute resolution. Dominance of the legal services market along with New York has produced, along with the contributions to GDP for the UK, a strong dependency on international trade.

Concluding observations

A seemingly innocuous request to identify and prioritise within one’s native legal system its ‘most important’ characteristics presented a big challenge. At the root of the quest lay an understanding of the notion that the processes and values underpinning different communities’ experiences of law are capable of explanation by the idea of a legal system. I approached the task as one of describing the operation of law in one’s society by reference to characteristics that are sufficiently widely shared but exclusively privileged as ‘legal’ to be ascribed a particular organisational form. The English experience, along with all others, only has meaning in an international context and can only be understood by reference to its international location both historically and geographically.

This particular account may hold some reflections for a wider discussion:

1. Features of legal systems are invaluable tools for a comparative appreciation.
2. The English legal system is illustrative of the variety and complexity of institutions, principles, processes and personnel involved in the governance and the administration of justice.
3. Legal systems are constantly changing, and there is a strong obligation on scholars to investigate the process of change and the development of legal cultures in order that we can better understand how to change legal systems.
4. Legal systems are both culturally specific and mutually inter-dependent, whatever their pedigree or longevity.
5. Whilst the concept of legal system can be a useful tool for comparative analysis and practical development, its ambiguities and uncertainties suggest the limits of its usefulness.

References

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• Goodman E (1995) The origins of the western legal tradition Sydney: Federation Press
• Wilson G (1995) ‘Enriching the study of law’ in G Wilson (ed) Frontiers of legal scholarship Chichester: Wiley (p229)

Last Modified: 4 June 2010