Historical and Political Overview, Research Paper Example

Abstract

In the offered paper, British legal system is compared to American. Comparison is conducted through the perspectives of administrative and normative differences, historical and political backgrounds of systems’ development and cultural dimension. Appropriate conclusions are given in the end of the paper.

Key words: British legal system, colonial legacy, English Common Law.

Historical and Political Overview of British Legal System

Among various legal systems of the world, the most suitable for comparison with US law is British legal system. The main reason for this choice is because American law evolved from the English law, so it would be quite educative to compare how far American system went beyond initial English Law. The topic is analyzed from historical, political, and cultural sides. The most essential difference between two systems is a source of law in two countries. Great Britain has no written and codified constitution. Legal system is based on the House of Lords’ and House of Commons’ decisions and normative acts. Common law is based on the legal precedent, meaning that laws are mainly created by judges in courtrooms (Chin Kim Smith, 1992).  American system, on the other hand, is based on four sources of law – Constitution, statutory laws,   administrative decrees and common law which is closest to the English law, since it is characterized as case law (Fletcher and Sheppard, 2005).

The structure of the legal system is also different. In UK, there is no separate institution as Supreme Court of American kind. The function of court of highest appeal is conducted by qualified in jurisprudence lords from the House of Lords (Maute, 2007).  There is no level of jurisdiction division into federal and state courts. All criminal cases are processed in the criminal court of original jurisdiction called Magistrate’s Court.  The court of the second instance is Crown Court and, according to criminal jurisdiction, The Court of Appeal (Lord Irving, 2003). Territorial jurisdiction is entirely different from American. While in US Attorney-General is rules legal system in terms of Executive power, Supreme and Federal Courts for disputes solution and cases exceeding the limits states’ jurisdiction, in UK Home Secretary is in charge of the whole legal justice system but only of England and Wales (Maute, 2007). Characteristic feature is that Scotland and Ireland have their legal systems. In both systems, head of the state has the right of pardon (Chin Kim and Smith, 1992).

From historic-political perspective, American legal system evolved from the British one due to the differences in historical and political needs of both countries. Precedent law was more suitable for the continuous changes of religious believe in UK during the religious wars and reign of Henry VIII (Maute, 2007).. Lack of recent changes in British legal system is explained by conservative attitude to traditions and etiquette of the Royal Monarchy and historical practice (Chin Kim and Smith, 1992). In US, on the other hand, functionality of the legal system was in its ability to unite different states and still keep their freedom in certain matters (Fletcher and Sheppard, 2005). Overall, British legal system was more case oriented and aimed to avoid continuous tensions about rewriting of the constitution or certain law due to religious wars, while American legal system is more political and oriented on supporting of vertical balance of state rule (Lord Irving, 2003).

Another essential element for comparison of two systems is a cultural aspect of legal structures formation. In the UK, cultural diversity was quite the same, without substantial   migrations or influence from other traditions or legal systems. Because of traditional customs being relatively the same over the whole island, there was no need to unify norms under common law (Chin Kim and Smith, 1992). Scotland and Ireland are not exceptions, the separation of their legal systems is rather political than structural matter (Maute, 2007). On the other hand, due to the immigration origin of US and cultural diversity of population, unification of legal norms on triple levels was crucial for the survival and efficiency of the country as a unity (Maute, 2007). Another essential cultural aspect influencing on British legal system is monarchic and colonial consciousness and historical legacy (Lord Irving, 2003). As a founder and member of the Commonwealth, UK does not have to worry about the inconsistency of old-fashioned approaches to legal norms, it can act the way it wants because it is Great Britain and Her Majesty remains the same as she was a century ago, when Britain ruled the seas and conquered nations. It still remains an old faithful, conservative Great Britain, which accustoms to changes slowly and gradually and only if they are crucial. Since the legal system worked well until now, it is not first priority for reformation.

References

Chin Kim, & Smith, J.C. (1992). English-American Comparison of legal systems. The George Washington Journal of International Law and Economics, vol. 26, iss.1. 1-15.

Fletcher, G.P., & Sheppard, S. (2005). American Law in a Global Context: The Basics. Oxford, OX: Oxford University Press.

Lord Irving (2003). Human rights, constitutional law and the development of the English legal system. Portland, OR: Hart Publishing.

Maute, J. L. (2007). English reforms to Judicial Selections: Comparative lessons for American States? Fordham Urban Law Journal. Vol.34.  387-394.