The role the courts play in contemporary society is grounded in the tradition that the law can provide the framework, within which disputes between parties can be established, argued for and against which result in their resolution. The operation of this legal framework is the cornerstone in the functioning of a stable society, two core differences in the way this framework operates is the way it deals with criminal and civil wrongs.[1] This paper will firstly focus on analysing the role of criminal law within the English Legal System and will then move on to analyse the role civil law plays within the legal system. There will be a secondary focus in the paper on the role of common law and legislation within the legal framework in the UK. There will also be a final conclusion drawing the paper together.
The Role of Criminal Law:
In distinguishing the role of criminal law and civil law play within this framework, the courts in Armand v Home Secretary and Minister of Defence of the Royal Netherlands Government[2] decided that the correct test to determine whether the matter is criminal or civil is to examine whether the proceedings may result in the punishment of the offender.[3] Therefore Adams and Brownsword identify that the crucial distinguishing difference between crimes and civil wrongs is the element of punishment.[4] The essence of crime and criminal law is its capacity to punish the offender for the wrong; specifically it is the type of punishment that the courts can impose in criminal proceedings which is the defining feature of the nature of criminal law.
It is argued by Herring that criminal law performs three distinctive roles in society, encompassing the deterring of people from doing acts which harm others in society, to set out the conditions under which people who have performed such acts will be punished and to provide guidance on the kinds of behaviour which are seen by society as being acceptable.[5] The role criminal law fulfils within the English Legal System is to create a framework within which people who transgress society’s laws can be punished and to provide guidance to society in general on acts that will result in punishment.[6] It is interesting to note that the administrators and guardians of criminal law is the state, all actions in criminal law is brought before the courts in the name of the Crown and occupies the strongest formal condemnation that society can inflict on people.[7] This places criminal law at the core of the legal system in administering justice on behalf of the Crown and in turn society. However, criminal law and its functioning only operates at the fringes, in that criminal law can only do so much in dealing with crime in that not all crime is reported and not all offenders will be caught by the police. Additionally, whether the criminal law can effectively deal with crime is a key question posed by many academics, in that criminal sanction rates have spiralled in recent times with increasing regulation from Parliament, but this has not resulted in any reductions of criminal activity.[8] Therefore whilst criminal law may set the framework for dealing with actual criminal acts caught it does not provide a flawless approach in dispensing criminal justice.
The Role of Civil Law:
Civil law embodies a framework encompassing a wide range of different types of liability each containing its own conditions for liability. The two main branches of civil law encompass: the law of torts and contract law, forming the law of obligations, covering the regulation of a very broad spectrum of activities in commercial and non-commercial dealings. The role of civil law can be identified as being necessary to regulate transactions, regulate responsibilities within transactions when issues of performance are called into question and finally to allow a framework of remedies where claims are merit worthy. The fact that individuals can take civil actions is a key distinguishing feature of civil law in that anyone with a need to claim can take a civil action against someone else. The primary role civil law performs is to provide individuals with a framework in which they can resolve their dispute against another party, often the resort to legal action will, or at least should, be the absolute last resort when all other negotiation fails. A key function of civil law is to provide individuals with an avenue of redress when they have been wronged in some transaction which they are unable to get satisfaction. For example, in the law of contract where an individual has been sold an item which has been fraudulently misrepresented by the seller, the customer can take a civil action in contract law against the seller and gain compensation if successful at trial.[9] Similarly the law of torts operates to protect individuals against other parties causing damage or injury to them, with a primarily objective of creating a framework of rules within which individuals can pursue actions to recover damages for pain, loss or suffering as a result of negligence or a civil wrong.
Although civil law is primarily there to allow individuals pursue actions against other parties pertaining to issues in which both parties have become involved, the primary objective and role of civil law can be identified as creating a formulised approach to dealing with disputes between parties.
The Role of Common Law and Legislation:
The operation of the English legal system is hinged upon legislation and common law in that they both form together to become the core nexus within which the courts expound the law. Sources of law within the English legal system are classified by type and are ranked in order of importance depending on their genesis. For example, primary legislation in the UK is one of the most important sources of legislation in that the courts cannot question the validity of the Act of Parliament and thus become the ‘supreme’ source of law for the courts.[10] Parliament becomes the fountain of legal knowledge in that parliament’s wishes is supreme above all else. It is also important to note that whilst Acts of Parliament form the centre stage of law within the legal system, EU law has become a very important source of legislation, in that the European Communities Act 1972 gives precedence over national legislation. It is noteworthy that this precedence is only given because it is the will of Parliament to give EU the position of precedence, should it become the express will that EU law is not to take precedence parliament has the sovereignty to do that.[11] The Human Rights Act 1998 also forms a very important source of legislation in that, it has become a central tool to challenge the compatibility of other Acts of Parliament against the human rights incorporated under the European Convention on Human Rights. Other sources of legislation within the English legal system is subordinate legislation which by comparison to primary legislation, is more commonly used as it allows for laws to be enacted primarily through a pre-existing primary enabling statute.
However, it must be noted that the courts are also centre stage within the legal system due to their role of interpretation and development of common law. Common law allows judges to build the principles of law which can be applied to issues that arise before them in cases.[12] Whilst primary and sub-ordinate legislation provide the skeletal framework of laws, the interpretation in which the judges give that law is the principles upon which the law becomes developed by the cases that come before the courts. It is therefore, arguable that whilst Parliament may set the initial agenda by introducing the law, but it is the courts that give ‘meat to the bones’ allowing general principles of law to emerge. The courts become the focal point through which direction is given to the law by judges and can filter definitions and interpretation of legislation from trial courts up to the Supreme Court of Justice. Therefore the primary role in which common law is tasked with is to allow the courts to develop a body of laws build upon the legislation in which cases can be decided before them. The common law allows the courts flexibility in interpreting the law so as the law moves with time and keeps pace with modern developments, keeping the legal framework relevant and up to date.
Conclusion:
The role of criminal law in society is to law down a set of standards of what is permissible within society, acting as a method of social control creating a framework with parameters of acceptable behaviour.[13] It is a key functioning ingredient which makes societies stable allowing the regulation of unlawful conduct to be kept under control. Although criminal law does not provide the full answer for dealing with criminal acts, it forms part of the picture in which social regulation operates in an attempt to keeping societies under control. Civil law performs a different function in that, it allows for a framework for individuals to pursue civil wrongs against other parties when issues of dispute arise. It primarily operates within the context of regulating transactions or dealings and provides a useful tool in protecting individuals or companies from other parties not measuring up to what they agreed. Additionally, it provides the opportunity for remedies in which parties who have suffered injury can seek compensation.
In final conclusion, the paper also examines the role of legislation and common law with the legal system in the UK. Whilst primary laws are enacted through Acts of Parliament, the common law allows the judiciary the function to keep the law sufficiently flexible so that it remains relevant and open. It is the interpretation techniques employed by the courts which has allowed for general principles within law to emerge which have aided legal certainty and regulation of conduct within the legal system.
References:
- Adams and R. Brownsword, Understanding Law, (Sweet and Maxwell Publishing, London 2006).
Armand v Home Secretary and Minister of Defence of the Royal Netherlands Government [1943] AC 147.
- Bailey, J. Ching and N. Taylor, The Modern English Legal System, (Sweet and Maxwell, London 2007)
- Bradley and K Ewing, Constitutional and Administrative Law, (Pearson Longman Publishing, Harlow 2011).
- Clarkson, H. Keating and S. Cunningham, Clarkson and Keating Criminal Law, (Sweet and Maxwell, London 2010).
Derry v Peek (1889) LR 14 App Cas 337.
- Herring, Criminal Law (Palgrave McMillan Publishing, Hampshire 2009).
- Honore, About Law: An Introduction, (Oxford University Press, Oxford 1995).
Macarthys Ltd v Smith [1979] ICR 785.
Moloney [1985] AC 905.
- Shute, J. Gardener and J. Horder (eds), Action and Value in Criminal Law, (Oxford University Press, Oxford 1993).
- Wilson, Thinking About Crime, (Vintage Books, London 2001).
[1] T. Honore, About Law: An Introduction, (Oxford University Press, Oxford 1995) at p. 1.
[2] [1943] AC 147.
[3] J. Adams and R. Brownsword, Understanding Law, (Sweet and Maxwell Publishing, London 2006) at p. 153.
[4] Ibid, at p. 154.
[5] J. Herring, Criminal Law (Palgrave McMillan Publishing, Hampshire 2009) at p. 4.
[6] For example if you kill someone intentionally and the prosecution can prove all the elements of the act necessary and in the absence of a valid defence, the accused will receive a custodial sentence. Moloney [1985] AC 905.
[7] A. Ashworth, ‘Taking the Consequences’ in S. Shute, J. Gardener and J. Horder (eds), Action and Value in Criminal Law, (Oxford University Press, Oxford 1993) at p. 107 – 108.
[8] J. Wilson, Thinking About Crime, (Vintage Books, London 2001) at p.233.
[9] Derry v Peek (1889) LR 14 App Cas 337.
[10] S. Bailey, J. Ching and N. Taylor, The Modern English Legal System, (Sweet and Maxwell, London 2007) at p.295 -296.
[11] Macarthys Ltd v Smith [1979] ICR 785.
[12] A. Bradley and K Ewing, Constitutional and Administrative Law, (Pearson Longman Publishing, Harlow 2011) at p. 19 – 25.
[13] C. Clarkson, H. Keating and S. Cunningham, Clarkson and Keating Criminal Law, (Sweet and Maxwell, London 2010) at p.4-5.