Last Updated on November 18, 2020 by LawEuro
The judicial system of Great Britain has the same significance for the genesis and evolution of modern public administration of this country, as well as political institutions and processes. It was in the judicial system of England that the principles of the presumption of innocence, open court, independence of the court, the irremovability of judges, as well as such institutions as the jury and the bar, which today are signs of a civilized society.
The principal milestone in the history of English law and legal proceedings was the reign of Henry II. During the period of early feudal monarchy there was no right common to the kingdom. The bulk of litigation was dealt with either in the seignorial courts, or in the curia of the county, or in the hundreds (the latter were also often under the authority of the immunoric lords of the manors). Although in this period the royal curia was the highest judicial authority. Traditionally, it dealt with matters affecting the interests of the sovereign, litigation between the direct holders of the crown, as well as appeals against sentences of lower courts [1].
The tendency of the royal curia to turn from an emergency court that deals with a very small number of cases into ordinary, accessible to all free subjects of the kingdom, was outlined under Henry I. It was this king who approved the division of the kingdom into six special districts to which a group of royal traveling judges were sent. Having declined during the war of Stefan of Blois and Matilda, this practice was restored and further developed under Henry II. Traveling judges came to one of the districts and held court sessions, relying on local legal practices, but also on the practice and decisions of the central royal court. Presiding in the county courts, the royal judges automatically turned the proceedings into sessions of the royal curia, thereby their jurisdiction undermined the jurisdiction of the courts of the Lords of Manor. At the same time, the traditional sacred-formalistic ritual process (known by Germanic truths) was replaced by an inquisitorial process, with a jury trial. Any free person could, for a fee, receive the king’s order to investigate his case in the royal court. In the absence of money or unwillingness to bear court costs, a person could refer to the old sacred-formalistic procedure, which continued to be applied in local courts [2]. However, according to the court orders of Henry II, a number of civil (primarily claims related to land) and criminal (especially serious crimes) cases automatically fell under the jurisdiction of the crown. The affairs of the villeins and other unfree people continued to be considered exclusively in the manorial curia of their seniors [Ibid.].
At the same time with the institute of traveling judges, the institute of the jury appears. More William the Conqueror attracted jurors from local residents in the preparation of the “Book of the Last Judgment” (census of England’s population and property after the Norman Conquest). In 1166, Henry II ordered twelve people from each hundred and four from each village to swear in an oath to the sheriffs and judges of the offenses [5]. Exit sessions of courts, judges, jurors later became known as assizes (previously, only royal acts, adopted in a solemn atmosphere, were referred to as assize, as was the decree establishing the jury institute).
Strange as it may seem, but the involvement of local residents in court proceedings in the role of jury stemmed from the completely patriarchal rule of mutual responsibility, when neighbors were responsible for the crimes of their fellow villagers. Initially, jurors were needed to sanction the prosecution of a person (grand jury). Soon they had already decided the question of the guilt of the accused (the small jury). The work of the jury was not paid and sometimes demanded traveling. Therefore, it was burdensome to be a jury in court sessions that took place quite often. Edward I at the end freed from this duty those whose income was below 20 shillings per year [4]. At the beginning of the XV century. Henry V doubled that number.
Since the end of the XII century. there has been, and a century later, the division of the judicial functions of the royal curia among several instances was finally established. In 1178, the main royal curia was created consisting of five legal scholars (two clerics and three laity), who decided the court in the name of the king. Later, this court was named the Royal Bench Court [2]. This court was inextricably linked with the person of the sovereign and followed the monarch; The barons, and then the parliament, repeatedly asked the kings to establish a permanent place of residence for him. And in the XV century. The royal court court finally settled in Westminster.
The court consisted of three to five judges at various times, the highest of whom since the time of Edward I was called the supreme judge of the country. He did not play the role of royal governor in public affairs, but represented the king exclusively in the field of justice. Only the Treasury in Westminster remained independent of this court. The Treasury Court (the chessboard chamber) not only conducted cases related to the collection of revenues, but also took into consideration disputes between private individuals.
To the sphere that emerged from the curia at the end of the 12th century The courts of general litigation concerned civil matters between free subjects of the English crown, not affecting the rights of the king. A huge number of lawsuits led to the fact that Edward I had already forbidden to disassemble claims for less than 40 shillings in this court, leaving them under the jurisdiction of local courts. Later on, the kings tried to solve the problem of the workload of the court by increasing the number of judges: while under Henry III there were three of them, then under Henry VI there were already eight people.
Thus, as a result of the reform of Henry II, common law began to form in England – the oldest section of British law (the term itself began to be used from the 13th century). It originated in the Anglo-Saxon period. Common law, one might say, was created by judges who were engaged in finding precedents in the past (“formulated by ancestors”) and applied them in the present period.
In general, the peculiarity of the common law of England is a case-law character (“the right of judges”). If on the continent, with the development of civilization, precedents lost their significance, gradually codified, in England they retained and strengthened their significance. Until a certain point, the king and parliament rarely acted as legislators in civil and criminal cases, so judges were more focused on practice and existing decisions or – less often – set their own precedents. Over the centuries, a system of judicial precedents has been formed, which it was already difficult to reform, therefore modern courts prefer not to refer to laws, but to judicial decisions that once applied the statutes [5].
The positive side of case law is that it leaves much less opportunity for arbitrariness, legal norms are not developed by the work of parliamentarians and politicians, sometimes far from the daily court proceedings, but by practicing judges. But there is a threat to the archaization of law, the question arises about the adequacy of precedents born in a different historical reality. To avoid this, lawyers in the United Kingdom proceed from installations that:
1) in precedents it is necessary to separate the essence from the “passing” circumstances of the decision by studying the arguments of the judges of the verdict in the past;
2) it is necessary to follow only rational precedents, which are believed to be concentrated in the decisions of the higher courts;
3) the same courts may be authors of new precedents, which themselves must be guided by (the exception made in 1966 only for the House of Lords) [Ibid.].
A number of parliamentary committees and a special commission are engaged in consolidating the laws found in numerous legal acts (statutes) of the past.
Until the XIX century. statutory laws (statutory law) did not have a serious impact on legal proceedings as compared with common law (precedents). Most of the statutes concerned issues of state and administrative law and were less interesting for judges. Moreover, the judge could refuse to apply the statutes if they were contrary to precedents. Today, legal norms are established by laws, especially in new branches of law that could not have arisen during times of common law (for example, labor law).
If common law did not allow a decision, the kings issued special orders
and eliminated legal lacunae. But with the accumulation of precedents, common law became not sufficiently flexible. Therefore, the “right of justice” (otherwise – the Chancellor’s Court) appeared, which supplemented and corrected the common law. In medieval society, everyone could turn to royal “mercy and justice,” and the king, as chief judge, could overturn any decision of any court. Such cases were considered by the Chancellor – the highest official in medieval states, the keeper of the seal. And it is not by chance that, before T. Mora, the English kings appointed representatives of the clergy to this position (at that time the most educated part of society, who knew the law well). Since there were many such requests to the king, the chancellors themselves made court decisions. This order was formed from the beginning of the XIV century, when, in parallel with the common law courts (common law), a chancellor court of justice (equity) arose. The king, through the Chancellor, assisted the petitioner in the order of “mercy”: in fact, the case received the proceedings not according to the law of the country, but in accordance with “justice” without jurors. The Chancellor summoned the defendant to his court under penalty of fine and applied imprisonment to persons evading the implementation of his decisions.
The court of justice had no clear competence and specialized in those cases where there were not enough common law precedents. Over time, the Chancery Court formed its own system of precedents, although they were adhered to less strictly, the main thing was the idea of ”justice.” A feature of this court was the absence of jurors, the so-called “inquisitional status”, that is, an important role in such a process was assigned to the judge, and not to lawyers and jurors, documents were widely used and property disputes were mainly considered.
Difficult relations arose between common law courts and justice courts, since the former were against the population’s appeal to the latter. One of the highest common law judges at the beginning of the seventeenth century. even offered to arrest anyone who appealed to the chancellor with complaints. But the Tudors and then the Stuarts favored the Chancellor’s trial. Jacob I listened to the commission of Chancellor F. Bacon, which recommended recognizing the supremacy of the court of the Chancellor over general courts.
The union of absolute monarchs of England with a court of justice (by the way, rather independent of the king) began to cause irritation in the pre-revolutionary era. The revolution “reconciled” the courts of common law and the court of the Chancellor. Both were based on precedents, the general courts recognized that they needed to supplement, in the absence of precedents, the “fairness” of the Chancellor. The latter began to obey the House of Lords as the highest court. (In the 14th century, the High Court in England became the House of Lords, which examined complaints from decisions of common law courts and the court of the Chancellor, and also considered certain criminal cases as a court of first instance. as well as trials against senior officials of the kingdom accused of abuse. In the latter cases, the prosecution (“impeachment”) was initiated by the House of Commons, which served as a jury of jurors, as a representative of all in 3].
The court of the Lord Chancellor was becoming increasingly overwhelmed with deeds and demonstrated the bureaucracy and triumph of formalism, which was brilliantly noticed in the novel by C. Dickens “Cold House”. In general, this novel was one of the manifestations of a wave of criticism of the judicial system of Great Britain in the 19th century, which was accused of high prices, the complexity of procedural norms, excessive specialization of courts, and corruption.
A series of parliamentary acts of 1873-1876 and 1880. an important reform of the judicial system was carried out [6]. The division of the highest courts of England into common courts and courts of justice, preserved from the Middle Ages, was abolished. The goal of the reform was to merge the two previously existing legal systems into a single system of case law (judicial) law. As a result, a single Supreme Court was created, consisting of two divisions – the High Court, which included five (later three) branches, and the Civil Court of Appeals. Assize courts (circuit courts made up of members of the High Court) and lower courts, in particular the Magistrates and County Courts, continued to function. A special place was occupied by the Central Criminal Court in London (“Old Bailey”) created in 1834, which was a court of assize for Greater London and some central counties; It was chaired by the Lord Mayor of London, and it included the Lord Chancellor and judges of the highest royal courts. Court sessions were held once a month; cases were tried by jury [3].
Of course, all the problems of the judicial system were not solved in the 1870s, its reform continues to the present.
The modern judicial system of Great Britain is the lower courts (counties and magistrates) and the highest courts. Courts of magistrates (former world) are designed to “unload” the highest from minor cases. They solve minor criminal cases, juvenile cases, conduct investigations on major criminal cases transferred to higher courts, minor civil cases (debts, taxes, rents). There are no jurors, often not even lawyers. Fines of up to 5 thousand pounds and imprisonment up to six months – these are the measures that these courts can apply. County courts deal with civil law claims of up to £ 50,000. Up to 90% of civil and criminal cases are considered by the lower courts.
The highest courts include the Court of Appeal, the High Court, the Crown Court.
Criminal cases are considered by the Crown Court, and appeals are made against the decisions of the magistrates’ courts. Here, a jury trial is applied (the grand jury was effectively abolished, and only a minor jury remained, which pronounces a verdict with 10 out of 12 jury votes).
An important place is occupied by the High Court, which consists of three sections:
1) the offices of the royal pew (most common law civil cases, appeals against decisions of county courts and the Crown Court);
2) offices of the Chancellor (on the basis of the norms of justice leads civil cases that have traditionally been under the jurisdiction of the Chancellor Court: inheritance, trust, claims to joint-stock companies, bankruptcy);
3) family affairs offices (deals with divorces, etc.).
There are also regional offices of the High Court.
The Court of Appeal consists of civil and criminal divisions. Appeals may come from different instances, as there is no clear hierarchy of appeal in England. This court includes judges of the House of Lords and appeals lords who can appeal to judges of the High Court. The fact is that the twelve members of the House of Lords are the so-called Appeal Lords (Lords Judges, or Lawyers Lords) performing the judicial functions of the House, they take part in the lawmaking process, but only with regard to bills related to the reform of law, the adoption consolidated and codified acts, and other legal issues. N. A. Alekseev notes that ordinary lords on appeals are active participants in the legislative process when considering issues related to the structure of the judicial system, criminal and civil law, the system of execution of punishments and other purely legal issues, where their professional councils are almost always accepted by the majority of members. chambers. It should also be emphasized that the presence in the House of Lords of legal lords involved in real judicial practice can significantly improve the quality of legislative work, and therefore many legal bills are submitted primarily to the upper house of parliament and only after that they are submitted for approval by the House of Commons [1 ]. They are also a link between the courts and the legislature, which is especially useful when the chamber discusses legislation or calls for the adoption of legislation arising directly or indirectly from court decisions. Appeal proceedings in the court of the House of Lords are actually conducted only by those lords who are specifically appointed by the Queen as ordinary lords of appeal. This status as of October 1, 2002, was held by 12 members of the House of Lords [3]. The twelve ordinary lords of appeals (legal lords, or law lords) are lifelong peers. This title on the basis of the Act of Appeal Jurisdiction (1876) complains to them by the Queen upon appointment to the post.
The highest judicial authority and the main source of precedents in modern England are the House of Lords and the Judicial Committee of the Privy Council (this includes Lords judges from authoritative members of the Court of Appeal, the former Lord Chancellor and the current Chancellor). The House of Lords is the highest court of appeal for the courts of the whole Kingdom, and the Judicial Committee of Lords Judges is the highest authority for those countries of the British Commonwealth that recognize its jurisdiction.
The English system of law and legal proceedings differs markedly from the continental, Roman-Germanic system of law. In Great Britain, a unique legal structure has developed, the differences are observed in terms, procedural order, forms of filing lawsuits, etc. A specific feature of English common law is its case-law. We tried to show the reasons for this peculiarity, which originated in the medieval English judicial and legal system.
Bibliography
1. Alekseev, N. A. The House of Lords of the British Parliament: from the court of King Egbert to the revolution of Prime Minister T. Blair, 825 – 2003 : monograph / N. A. Alekseev. – M.: BEK, 2003. – 432 p.
2. Power institutions and positions in Europe in the Middle Ages and Early Modern Times: the collective. monogr. – M.: KDU, 2011. – 600 p.
3. Kuchma, V. V. The State and Law of the Modern Times: textbook / V. V. Kuchma. – Volgograd: Volgogr Publishing House. state University, 2002. – 360 p.
4. Monuments of the history of England XI – XIII centuries: Sat. doc / status D. Petrushevsky. – M.: Lekrokom, 2015. – 244 p.
5. Pronkin, S. V. State administration of foreign countries: studies. allowance / S.V. Pronkin, O.E. Petrunina. – M.: KDU, 2011. – 496 p.
6. Romanov, AK The legal system of England: studies. allowance / A.K. Romanov. – M.: Delo, 2002. – 344 p.
7. Fedorov, A. N. Fragmentation or interaction: on the particularism of the law of medieval Western Europe / A. N. Fedorov // Vestn. Chelyab. state un-that. Right. – 2015. – Vol. 44, No. 23. – p. 18 – 24.
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