Автор работы: Пользователь скрыл имя, 05 Апреля 2013 в 23:28, реферат
The topic of this work is “Justice and the law. Britain’s legal system”. The object of this work is the legislation of Great Britain. The subject is the peculiarities of the British legislation system. The aim is to learn about this peculiarities. Our task is to understand, what does “justice, law and legal system mean? What concepts are included in these terms? We should know answers to many questions. For example: What denotes such terms as “civil law, common law and religious law” ? We should learn about different law acts and kinds of courts in Great Britain, first of all about the Supreme Court of The UK, its jurisdiction, history, justices. Here you can read, that The Supreme Court of the United Kingdom is the supreme court in all matters under English law, Northern Ireland law and Scottish civil law.
The topic of this work is “Justice and the law. Britain’s legal system”. The object of this work is the legislation of Great Britain. The subject is the peculiarities of the British legislation system. The aim is to learn about this peculiarities. Our task is to understand, what does “justice, law and legal system mean? What concepts are included in these terms? We should know answers to many questions. For example: What denotes such terms as “civil law, common law and religious law” ? We should learn about different law acts and kinds of courts in Great Britain, first of all about the Supreme Court of The UK, its jurisdiction, history, justices. Here you can read, that The Supreme Court of the United Kingdom is the supreme court in all matters under English law, Northern Ireland law and Scottish civil law. The main role of the UK Supreme Court is to hear appeals from courts in the United Kingdom's three legal systems. What concerns law acts there are such terms as “Treaty Union” and “Acts of Union”. The Treaty of Union is the name given to the agreement that led to the creation of the United Kingdom of Great Britain. The details of the Treaty were agreed on 22 July 1706, and separate Acts of Union. The Acts of Union were two Parliamentary Acts - the Union with Scotland Act passed in 1706 by the Parliament of England, and the Union with England Act passed in 1707 by the Parliament of Scotland. The Acts joined the Kingdom of England and the Kingdom of Scotland (previously separate states, with separate legislatures but with the same monarch) into a single, united kingdom named "Great Britain".
In this work we can find the information about the United Kingdom legislatures: about the British Parliament. Here the main attention is to the parliament’s two parts: the House of Lords , which currently acts to review legislation initiated by the House of Commons, with the power to propose amendments, and can exercise a suspensive veto; the House of Commons,the main function of which is to make laws of the land by passing various Acts (of Parliament), as well as to discuss current political issues. The work of the House of Lords is largely complementary to that of the House of Commons, and includes examining and revising bills from the Commons, and discussing the important matters which the Commons cannot find time to debate. The House of Lords does not have The same power as The House of Commons. It can:
• Pass Bills sent to it from the House of Commons;
• Amend Bills and sent them back to the Commons for approval;
• Delay Bills for a limited time;
• Start its own Bills, but it must send them to the Commons for approval.
It is very necessary to learn about the legislation in Great Britain, because Great Britain is “The Country of Traditions” and it is very hard for foreigners to understand many things taking place in this country. Great Britain has a very complicated legal system, as I’ve already said it has three distinct system of law. More over, recent constitutional changes saw a new Supreme Court of the United Kingdom come into being in October 2009 that took on the appeal functions of the Appellate Committee of the House of Lords. The Judicial Committee of the Privy Council, comprising the same members as the Supreme Court, is the highest court of appeal for several independent Commonwealth countries, the UK overseas territories, and the British crown dependencies. But, don’t paying attention to these changes, you should know some information about the legal system, justice and law of any foreign country(in our case of Great Britain), because we must respect laws of other countries… But how we can respect them if we won’t know about them…
For understanding the legal system of Great Britain it is necessary to know what does it mean and the definitions of such terms as “justice”, “ law”. And I want to give a brief description of these notions.
Legal system- is a system of laws.
Justice- the maintenance or administration of what is just especially by the impartial adjustment of conflicting claims or the assignment of merited rewards or punishments; the administration of law; the establishment or determination of rights according to the rules of law or equity; the quality of conforming to law; conformity to truth, fact, or reason.
Law- the control brought about by the existence or enforcement of such law; the action of laws considered as a means of redressing wrong; a rule or order that it is advisable or obligatory to observe; something compatible with or enforceable by established law.
The United Kingdom has three legal systems. The legal systems of Great Britain today are generally based on one of two basic systems: civil law and common law – or combinations of these. However, the legal system of each country is shaped by its unique history and so incorporates individual variations. English law, which applies in England and Wales, and Northern Ireland law, which applies in Northern Ireland, are based on common-law principles. Scots law, which applies in Scotland, is a pluralistic system based on civil-law principles, with common law elements dating back to the High Middle Ages. While England and Wales, Northern Ireland, and Scotland diverge in the more detailed rules of common law and equity, and while there are certain fields of legislative competence devolved in Northern Ireland, Scotland, Wales and London, there are substantive fields of law which apply across the United Kingdom.
Civil law (or civilian law) is a legal system originating in Western Europe, intellectualized within the framework of late Roman law, and whose most prevalent feature is that its core principles are codified into a referable system which serves as the primary source of law. This can be contrasted with common law systems whose intellectual framework comes from judge-made decisional law which gives precedential authority to prior court decisions on the principle that it is unfair to treat similar facts differently on different occasions (doctrine of judicial precedent).
Historically, it is the group of legal ideas and systems ultimately derived from the Code of Justinian, but heavily overlaid by Germanic, canon-law, feudal, and local practices, as well as doctrinal strains such as natural law, codification, and legislative positivism.
Conceptually, civil law proceeds from abstractions, formulates general principles, and distinguishes substantive rules from procedural rules. It holds case law to be secondary and subordinate to statutory law, and the court system is usually inquisitorial, unbound by precedent, and composed of specially trained judicial officers with a limited authority to interpret law. Juries separate from the judges are not used, although in some cases, benches may be sat by lay judges alongside legally-trained career judges.
Civil law is the most widespread system of law around the world. It is also sometimes known as Continental European law.
3.1.2 Common law
Common law and equity are systems of law whose sources are the decisions in cases by judges. Alongside, every system will have a legislature that passes new laws and statutes. The relationships between statutes and judicial decisions can be complex. In some jurisdictions such statutes may overrule judicial decisions or codify the topic covered by several contradictory or ambiguous decisions. In some jurisdictions judicial decisions may decide whether the jurisdiction's constitution allowed a particular statute or statutory provision to be made or what meaning is contained within the statutory provisions. Statutes were allowed to be made by the government. Common law developed in England, influenced by Anglo-Saxon law and to a much lesser extent by the Norman conquest of England which introduced legal concepts from Norman law, which had its origins in Salic law. Common law was later inherited by the Commonwealth of Nations, and almost every former colony of the British Empire has adopted it (Malta being an exception). The doctrine of stare decisis or precedent by courts is the major difference to codified civil law systems.
Common law is currently in practice in Ireland, most of the United Kingdom (England and Wales and Northern Ireland), Australia, New Zealand, Bangladesh, India (excluding Goa), Pakistan, South Africa, Canada (excluding Quebec), Hong Kong, the United States (excluding Louisiana) and many other places. In addition to these countries, several others have adapted the common law system into a mixed system.
English law" is a term of art. It refers to the legal system administered by the courts in England and Wales, which rule on both civil and criminal matters. English law is renowned as being the mother of the common law and is based on those principles. English law can be described as having its own legal doctrine, distinct from civil law legal systems since 1189. There has been no major codification of the law, and subject to statute, the law is developed by judges in court, applying statute, precedent and common sense to the facts before them, to give explanatory judgements of the relevant legal principles, which are reported and binding in future similar cases (stare decisis). In the early centuries, the justices and judges were responsible for adapting the Writ system to meet everyday needs, applying a mixture of precedent and common sense to build up a body of internally consistent law, e.g., the Law Merchant began in the Pie-Powder Courts. As Parliament developed in strength, subject to the doctrine of separation of powers, legislation gradually overtook judicial law-making, so that today judges are only able to innovate in certain very narrowly-defined areas. The year 1189 was defined in 1276 as being the boundary of time immemorial.
The courts of England and Wales are headed by the Senior Courts of England and Wales, consisting of the Court of Appeal, the High Court of Justice (for civil cases) and the Crown Court (for criminal cases). The Supreme Court is the highest court in the land for both criminal and civil appeal cases in England, Wales, and Northern Ireland and any decision it makes is binding on every other court in the same jurisdiction, and often has persuasive effect in its other jurisdictions. On appeal, a court may overrule the decisions of its inferior courts, such as county courts (civil) and magistrates' courts (criminal). The High Court may also quash on judicial review both administrative decisions of the Government and delegated legislation. The ultimate body of appeal for all criminal and civil cases in England and Wales (and Northern Ireland, and for all civil cases in Scots law) is the Supreme Court of the United Kingdom, which took over this function from the Appellate Committee of the House of Lords (usually just referred to as "The House of Lords") in October 2009.
After the Acts of Union, in 1707 English law became one of two legal systems in different parts of the same, united, kingdom and has been influenced by Scots law, most notably in the development and integration of the law merchant by Lord Mansfield and in time the development of the law of negligence. Scottish influence may have influenced the abolition of the forms of action in the nineteenth century and extensive procedural reforms in the twentieth.
The law of Northern Ireland is a common law system. It is administered by the courts of Northern Ireland, with ultimate appeal to the Supreme Court of the United Kingdom in both civil and criminal matters. The law of Northern Ireland is closely similar to English law, the rules of common law having been imported into the Kingdom of Ireland under English rule. However there are still important differences.
The sources of the law of Northern Ireland are English common law, and statute law. Of the latter, statutes of the Parliaments of Ireland, of the United Kingdom and of Northern Ireland are in force, and latterly statutes of the devolved Assembly. The courts of Northern Ireland are headed by the Court of Judicature of Northern Ireland, consisting of the Northern Ireland Court of Appeal, the Northern Ireland High Court of Justice and the Northern Ireland Crown Court. Below that are county courts and magistrates' courts. The Court of Appeal in Northern Ireland is the highest court specifically of Northern Ireland. Appeal from the Court of Appeal lies to the Supreme Court of the United Kingdom.
Scots law is a unique legal system with an ancient basis in Roman law. Grounded in uncodified civil law dating back to the Corpus Juris Civilis, it also features elements of common law with medieval sources. Thus Scotland has a pluralistic, or 'mixed', legal system, comparable to that of South Africa, and, to a lesser degree, the partly codified pluralistic systems of Louisiana and Quebec. Since the Acts of Union, in 1707, it has shared a legislature with the rest of the United Kingdom. Scotland and England & Wales each retained fundamentally different legal systems, but the Union brought English influence on Scots law and vice versa. In recent years Scots law has also been affected by both European law under the Treaty of Rome and the establishment of the Scottish Parliament which may pass legislation within its areas of legislative competence as detailed by the Scotland Act 1998.
The chief courts are the Court of Session, for civil cases, and the High Court of Justiciary, for criminal cases. The Supreme Court of the United Kingdom serves as the highest court of appeal for civil cases under Scots law, with leave to appeal from the Court of Session not required as a general rule. Sheriff courts deal with most civil and criminal cases including conducting criminal trials with a jury, known as sheriff solemn court, or with a sheriff and no jury, known as sheriff summary Court. The sheriff courts provide a local court service with 49 sheriff courts organised across six sheriffdoms. The Scots legal system is unique in having three possible verdicts for a criminal trial: "guilty", "not guilty" and "not proven". Both "not guilty" and "not proven" result in an acquittal with no possibility of retrial.
The Cabinet Secretary for Justice is the member of the Scottish Government responsible for the police, the courts and criminal justice, and the Scottish Prison Service, which manages the prisons in Scotland. Though the level of recorded crime in 2007/08 has fallen to the lowest for 25 years, the prison population, at over 8,000, is hitting record levels and is well above design capacity.
The Treaty of Union is the name given to the agreement that led to the creation of the United Kingdom of Great Britain, the political union of the Kingdom of England (including Wales) and the Kingdom of Scotland, which took effect on 1 May 1707. The details of the Treaty were agreed on 22 July 1706, and separate Acts of Union were then passed by the parliaments of England and Scotland to ratify the Treaty.
The idea of uniting the two sovereign states had been widely discussed since the Union of the Crowns in 1603, when King James VI of Scotland inherited the English throne from his double first cousin twice removed, Queen Elizabeth I. Fear of Scottish cooperation with France or in a French invasion was a constant concern in England. Three previous attempts to unite the two countries by Acts of Parliament, in 1606, 1667, and 1689 were unsuccessful, although the political and economic circumstances at the start of the 18th century were such that the political establishments, many of whom had lost large sums of money in the ill-fated Darién scheme which had failed in part due to English interference, supported the idea, despite its being deeply unpopular among the Scottish population at large.
Deeper political integration had been a key policy of Queen Anne (reigned 1702–14). Under the aegis of the Queen and her advisors the Treaty of Union was drawn up, and negotiations between England and Scotland began in earnest in 1706.
Scottish proponents of union believed that failure to accede to the Bill would result in the imposition of union under less favourable terms, and English troops were stationed just south of the border and in Ireland as an "encouragement". Months of fierce debate in both capital cities and throughout both kingdoms followed. In Scotland, the debate on occasion dissolved into civil disorder, most notably by the notorious 'Edinburgh Mob'. The prospect of a union of the kingdoms was deeply unpopular among the Scottish population at large, and talk of an uprising was widespread. However the Treaty was signed and the documents were rushed south with a large military escort.
The united Kingdom of Great Britain was born on May 1, 1707, shortly after the parliaments of Scotland and England had ratified the Treaty of Union by each approving Acts of Union combining the two parliaments and the two royal titles. Scotland's crown, scepter, and sword of state remained at Edinburgh Castle. Queen Anne (already Queen of both England and Scotland) formally became the first occupant of the unified British throne, with Scotland sending forty-five Members to the new House of Commons of Great Britain, as well as representative peers to the House of Lords.
The Treaty consisted of 25 articles.
Article 1 states "That the Two Kingdoms of Scotland and England, shall upon the 1st May next ensuing the date hereof, and forever after, be United into One Kingdom by the Name of GREAT BRITAIN."
Article 2 provided for the succession of the House of Hanover, and for Protestant succession as set out in the English Act of Settlement.
Article 3 provide for the creation of the one, unified, parliament of Great Britain.
Articles 4 gave subjects of Great Britain freedom of trade and navigation within the kingdom and "the Dominions and Plantations thereunto belonging".
Articles 5 to 18 dealt with aspects of trade, movement, taxes, regulation etc., to ensure equal treatment for all subjects of the new kingdom.
Article 16 required the introduction of a common currency for Great Britain, subsequently effected through the 1707–1710 Scottish recoinage.
Article 19 provided for the continuation of Scotland's separate legal system.
Article 20 provided for the protection of heritable offices, superiorities, heritable jurisdictions, offices for life, and jurisdictions for life after the union.
Article 21 provided for the protection of the rights of royal burghs.
Article 22 provided for Scotland representation in the Parliament of Great Britain to be 16 Lords and 45 MPs.
Article 23 provided for Scotland's peers to have the same rights as English peers in any trials of peers.
Article 24 provided for the creation of a new Great Seal for Great Britain, different from those of England and Scotland, and that the English Great Seal could be used until this had been created.
Article 25 provides that all laws of either kingdom that may be inconsistent with the Articles in the Treaty are to be declared void.
Acts of Union in 1707, created the Kingdom of Great Britain but guaranteed the continued existence of Scotland's separate legal system. The two countries had shared a monarch since the Union of the Crowns in 1603, when King James VI of Scotland inherited the English throne from his double first cousin twice removed, Queen Elizabeth I. Although described as a Union of Crowns, until 1707 there were in fact two separate Crowns resting on the same head (as opposed to the implied creation of a single Crown and a single Kingdom, exemplified by the later Kingdom of Great Britain) . There had been three attempts in 1606, 1667, and 1689 to unite the two countries by Acts of Parliament, but it was not until the early 18th century that both political establishments came to support the idea, albeit for different reasons.
The Acts took effect on 1 May 1707. On this date, the Scottish Parliament and the English Parliament united to form the Parliament of Great Britain, based in the Palace of Westminster in London, the home of the English Parliament.
Previous attempts at union
England and Scotland were separate states for several centuries before eventual union, and English attempts to take over Scotland by military force in the late 13th and early 14th centuries were ultimately unsuccessful (see the Wars of Scottish Independence). The first attempts at Union surrounded the foreseen unification of the Royal lines of Scotland and England. In pursuing the English throne in the 1560s, Mary, Queen of Scots pledged herself to a peaceful union between the two kingdoms.
England and Scotland were ruled by the same king for the first time in 1603 when James VI of Scotland also became the king of England. However they remained two separate states until 1 May 1707.
Early Stuart union
The first Union flag, created by James VI and I, symbolising the uniting of England and Scotland under one Crown.
The first attempt to unite the parliaments of England and Scotland was by Mary's son, King James VI and I. On his accession to the English throne in 1603 King James announced his intention to unite his two realms so that he would not be "guilty of bigamy". James used his Royal prerogative powers to take the style of 'King of Great Britain' and to give an explicitly British character to his court and person. Whilst James assumed the creation of a full union was a foregone conclusion, the Parliament of England was concerned that the formation of a new state would deprive England of its ancient liberties, taking on the more absolutist monarchical structure which James had previously enjoyed in Scotland. In the meantime, James declared that Great Britain be viewed 'as presently united, and as one realm and kingdom, and the subjects of both realms as one people'.