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Introduction to the English Legal System

Introduction to the English Legal System (15th edn)

Martin Partington
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date: 03 October 2022

p. 21. Aims, themes, and structurefree

p. 21. Aims, themes, and structurefree

  • Martin Partington

Abstract

This chapter sets out the basic aims, themes, and structure of this book which are to provide an introductory account of the English legal system, to note how it has developed in recent years, and to consider how it may develop in future. Part II raises fundamental issues about the social functions of law and the legitimacy of law; and considers the institutional framework within which law is made. Part III looks at the different contexts in which law is developed and practised. Part IV looks at the provision and funding of legal services. Finally, Part V offers reflexions on a system in flux.

1.1 Aims

I was first asked to write this book more than 20 years ago. The publishers wanted a book that was genuinely introductory, and would engage with all those coming (or thinking of coming) to the study of law. It was also hoped that it would be accessible to the more general reader. Thus, it could not be too long, and should be relatively uncluttered by footnotes. At the same time, I was encouraged to develop an approach to thinking about the English legal system and its place in society not found elsewhere.

The fundamental aim of this fifteenth edition remains the same: to get you thinking about a range of questions that you may not have considered before. For example:

Who makes law?

Where do law-makers get the authority to make law?

What are the functions of law in society?

What are the relevant institutions that should be considered?

Who are the personnel of the law and the legal system?

How is the legal system changing?

Thus, the book both:

provides an introductory account of the English legal system, examining how it has developed in recent years and how it may change in future; and

considers how principles that underpin the legal system relate to some of the most difficult issues facing the modern world. (For instance, how should a government’s need to protect civil liberties be balanced with its need to manage risks associated with terrorism or deadly pandemics?)

The book is primarily about the English legal system (which includes, at least for the present, the legal system in Wales) (see Box 1.1). There is a quite different system in Scotland and a rather different system in Northern Ireland. There are times when it is not sensible to refer just to ‘England’; thus, I use the phrases ‘Great Britain’ or ‘United Kingdom’ where they seem more appropriate. Nonetheless, the focus of the book is on the English legal system.

Box 1.1 Reform in progress

Creating a justice system for Wales?

One of the consequences of the devolution of administrative and legislative powers to the Welsh Government and Sennedd Cymru has been that a discussion has started about the extent to which there should also be a distinct justice system for Wales. Some moves have already been made in this direction (e.g. a number of tribunals are organized in Wales). An independent expert advisory committee reported on the issue in 2019 (www.martinpartington.com, 20 Sept 2019), followed by a report by the Commission on Justice in Wales, chaired by the former Lord Chief Justice Lord Thomas (www.martinpartington.com, 20 June 2020). The issue is now under consideration by the Legislation, Justice and Constitution Committee of Sennedd Cymru (www.martinpartington.com, 17 June 2020). They have yet to report. While significant change may not occur rapidly, it is likely that in the medium term there will emerge a new relationship between the English and Welsh legal systems.

p. 3This does not mean that this book is only about what goes in England and Wales. The English legal system is subject to important external pressures, in particular from European and other international sources.

Many who study law in England come from other countries. I hope you can both learn from the issues discussed here and relate the questions raised to the situation in your home countries. Many of you come from other common law countries, whose legal systems are based on the principles of the English legal system, in particular that judges have power to make law. Others come from civil law countries, whose legal systems are founded on principles of law and the codification of law developed in Roman times.1 Are the legal systems with which you may be more familiar fitted to their purpose? Are there lessons to be learned from the English experience? What do you think the English should be learning from experience elsewhere?

1.2 Themes

Three themes run throughout the book:

The holistic approach. Many books on the English legal system are rather ‘practitioner-oriented’; they focus primarily on those parts of the system in which professionally qualified lawyers practise law. The holistic approach adopted here is designed to introduce you to other activities and functions which relate to law and its practice. I have done this to ensure that you start to appreciate the enormous variety of professional contexts in which the legal knowledge and skills you p. 4are setting out to acquire can be used. All students should think about law and legal practice beyond the boundaries of the legal profession. This approach also benefits those of you who are studying law for its own inherent interest, without intending to become practising lawyers.

Change and transformation. It is important to appreciate just how dynamic the English legal system now is. Since the first edition of this book was published in 2000, the pace of change has been rapid. The challenges created by the COVID-19 pandemic have increased the pace of change. The professional world that today’s new students will enter in five years’ time will be significantly different from what it is now. Those unwilling to adapt are unlikely to thrive in this changing environment. Thus, a recurring theme is change and the forces that are shaping the transformation of the English legal system.

Constitutional function. The English legal system is often portrayed as being independent of the British system of government. Indeed, an important claim made for law and its practice is that it is ‘independent’ of government. This is central to the idea of the rule of law. Yet the government of the country is based in law; the institutions of law derive their power and authority from the system of government. There is an interdependent relationship between law and government. The legal system is simultaneously independent of and part of the system of government of the country. Understanding the constitutional function of the English legal system and the relationship of the legal system to other branches of government is another theme which recurs in this work.

1.3 Structure

Having set out the themes, the structure of the book is as follows.

Titled Law, Society, and Authority, Part II contains two chapters that raise fundamental issues about the social functions of law and the legitimacy of law. It is impossible to study law without asking: What is the purpose of law? What impact does law have on society? Chapter 2 considers the role law plays in the way in which society is ordered, exposing the different and often conflicting functions inherent in the phrase ‘law and order’. Having concluded that law makes an important contribution to the ordering of society, Chapter 3 considers how law is made, who makes it, and whence those who make the law get their authority for making it and imposing it on society. The role of Parliament (including the devolved Parliaments), the senior courts, and key European institutions are discussed.

Part III considers the institutional framework within which law is developed and practised. Chapter 4 starts with an account of the role of government in shaping the institutions and practice of law. Primary attention is paid to the Ministry of Justice, but I also consider the role of other government departments. In Chapters 58, I look p. 5at the four legal systems which, I argue, make up the English legal system: the criminal justice, administrative justice, family justice, and civil and commercial justice systems. In each chapter, the ‘holistic’ approach is adopted. Thus, I consider not only the work of the formal legal institutions such as courts, but also the informal or other processes that do not catch the public eye (and, indeed, are often not properly understood by professional lawyers) but which form an essential part of the framework of the English legal system when seen in the round.

In Part IV, I look at the provision and funding of legal services. Chapter 9 considers the role both of those professionally qualified to practise law and of other groups who provide legal services but who are not formally qualified as solicitors and barristers. It sets out the key changes currently being made to the ways in which the legal profession works and is regulated. It considers adjudicators and other dispute resolvers who play a very significant role in the working of the legal systems. And it reflects on the contribution made by law teachers, both those working in universities and others working in private colleges and other contexts, in the formation of legal professionals. Chapter 10 reflects on access to justice and how legal services are (and should be) paid for, and considers in particular the enormous changes that have been made to the public funding of litigation services following changes to the system of legal aid.

A short concluding Part V rounds out the discussion in the book reflecting on the transformation that the English legal system is currently undergoing. What are the principal drivers of change? Will the changes undermine the system? Or will they help to adapt it to better meet the demands placed upon it in the twenty-first century?

1.4 Questions

Use the questions for reflection and discussion here to check your understanding of the topics covered in this chapter.

1.5 Web links

Use the selection of annotated web links here to easily research topics of particular interest.

1.6 Blog items

See Spotlight on the Justice System at www.martinpartington.com/category/chapter-1-2/.

p. 6Further reading

Everyone who starts to study law and the legal system has, whether they realize it or not, some ‘knowledge’ of the system, gleaned from books, media stories, or TV dramas. The trouble is that much, if not all, of this knowledge is wrong. Fake Law: The Truth about Justice in an Age of Lies, the latest book from ‘The Secret Barrister’ (London, Picador, 2020), aims to dispel these myths. It is an engaging work, written by a practising barrister, and is well worth reading. Warning—all the statements in pages 1 and 2 of the Introduction are (deliberately) wrong!

Other suggestions can be seen in the Further reading listed here.

Notes

  • 1 The distinction between common law systems and civil law systems is not discussed in this book; a helpful introduction can be found in Merryman, J. H., The Civil Law Tradition: An Introduction to the Legal Systems of Europe and Latin America (3rd edn, Stanford, CA, Stanford University Press, 2007).

© Martin Partington 2021