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A Comparison of British and American Legal Systems

Werner Haas, Yahoo Contributor Network

Jun 1, 2007 "Share your voice on Yahoo websites. Start Here." MORE: Presidential Pardons Oliver Cromwell American Law FlagPost a comment

We surely have seen movies and television programs depicting both American court trials as well as those in England and perhaps we tend to think of English courts as judges and barristers wearing wigs, such as in "Rumpole of the Bailey" while we think of American courts as dominated either by Perry Mason or Johnnie Cochran. In U.S. law, there are lawyers who may call themselves "trial lawyers"- they could be defense attorneys,. Lawyers in civil cases, as well as prosecutors working for the government or state. In Britain, there are solicitors- who basically represent people's legal needs, and barristers who are the ones with the wigs, taking cases to civil or criminal courts. Defendants in both legal systems have the right to face their accusers and are presumed innocent until proven guilty (the Napoleonic Code is not quite that liberal about innocence or presumed guilt). Yet, while there are many similarities between English Common Law and the American legal system, there are a number of major differences. It is not so much that, from the very outset, there was an American system and a British system, going back to the 1700s. It is that, as Oliver Wendell Holmes is quoted: "the life of the law has not been logic, it has been experience...the law embodies the story of a nation's development through many centuries..." (Knight 1996 1) The development of English Common Law, on which much of Anglo-Saxon laws are based is dim as to its actual historical origins, unlike the law in France, for example, which is most definitely based on the Napoleonic Code of 1803. What was (and still is) certain is that, in many cases, British common law is based on very strict precedents. "If legal rules were permanent, judges could not be innovators. Once the applicable rule was discovered, it must be applied, regardless of the judges' personal notions of fairness and justice." (Knight 1996 42) In part, this seemingly old-fashioned and rigid dependence solely on some historical precedent was due to the number of religious courts, or courts hearing religious cases. In earlier times, especially when Henry VIII formed the Church of England, and later, in the 17th century, when Oliver Cromwell became Lord Protector" of Britain, "it

was hard upon judges, who were required to change their religion as the sovereign changed." (Zane 1998 266) Of course, this religious advocacy has changed in Britain in modern times, and in the U.S. it was never a factor. Politics, rather than religion, is what got some American judges appointed or elected- even to the Supreme Court i.e., Clarence Thomas. Great Britain does not have a Supreme Court, in other words, a totally separate entity of government. Instead, the House of Lords is the "court of highest appeal". (Carter 2001 2) Unlike America's legal system which separates state from federal courts (and legal systems including judges), Britain includes the lowest criminal courts, called Magistrate's Courts, which deal with minor offenses. "More serious cases and ones appeal from the Magistrates Courts, are heard in the Crown Court (Queen's Bench Division). Cases are appealed to the Court of Appeal (Criminal Division." (Carter 2001 2) When one says that the House of Lords is more or less the equal of The U.S. Supreme Court, it has to be stated that the House's judicial functions are quite separate from its legislative work. "...cases are heard by up to 13 senior judges known as Law Lords." (Carter 2001 2) It is also interesting to note that Scotland and Northern Ireland have different legal systems, separate from that of England and Wales. Whereas the U.S. has an Attorney-General in charge of the legal system in the Executive branch, and the Supreme Court and Federal courts serving in the balance of power structure of the U.S. Constitution, in Britain it is the Home Secretary who has "overall responsibility for the criminal justice system in England and Wales, and for advising the Queen on the exercise of the royal prerogative of mercy to pardon a person convicted of a crime..." (Britannia 2001 1) Under the U.S. Constitution, the President has pardon power, and some of that was clearly demonstrated in some of the Presidential pardons that were handed out shortly before Clinton left office. Some of these pardons, in American jurisprudence, are political, of course. The difference in legal systems is perhaps strongest in the balance of power development of the U.S. Constitution, which gives the Judiciary control over its own actions, and therefore is not (supposedly) subservient to the Executive or Legislative branches. Interestingly enough, federal judge appointments and those to the Supreme Court, are originated by the Executive branch and must be approved by Congress, so just how "independent" the American judiciary is, is a point that is open for discussion. While so-called "colonial law" in the decades before the American colonies decided to become the United States of America had some major differences from the laws of the motherland, in fact

varying from state to state. However, "after the Revolution, American law became, in some ways,. More than less English....The law later needed was not to be found in the colonial past....Only England had a supply that American lawyers could use without translation or transformation." (Friedman 1973 29) However, American lawyers and some philosophers decried the idea that law can only continue to slavishly follow historical precedents. There have to be some alternations made to accommodate the republican, versus the Constitutional monarchical system of Britain. As newer territories in the American West became states and, therefore, part of the United States, laws and codes of pleading and the need for ":equity" which was part of the basic English system of common laws needed refinement. One such innovation was a change in how search warrants would be issued and carried out. In a precedent-shattering case, a court warded John Wilkes, a newspaper editor, damages in the amount of One Thousand pounds, "holding that general warrants are 'totally subversive of the liberty opf the subject.'" (Knight 1996 122) In other words, the American legal system now demanded a verifiable reason for issuing a search warrant, one that could not replace the rights of the potential accused. Trial by jury is different, as well. In the U.S., there is a jury composed of one's peers, and the jurors are chosen, not by the court or by the prosecution or defense per se, but by a willingness to agree on who shall serve and who shall be eliminated (or excused). The jury is not chosen by the Crown, or the Queen's Counsel, or any government-affiliated entity in the U.S. However, the idea of what we now know as a "grand jury" was actually developed by Henry II in the twelfth century. Then there is the matter of the death penalty. As can be seen on various Internet web sites, sponsored by Amnesty International. The U.S. is far and away the greatest "sinner" when it comes not merely to sentencing the accused to death, but actually carrying out the sentences. Only China, Saudi Arabia, and Iran can compare with capital punishment actually carried out in recent years. Britain now subscribes to a European human rights resolution, whereby capital punishment may be used only in extreme cases during wartime. It is simplistic, of course, to say that Britain is a less violent country, where, in fact, the police don't even carry guns. However, as the same rainbow coalition of immigrants and a growing minority population in Britain has stirred up racial troubles, so one may see some harsher methods of convicting everyone from mere rabble rousers to those who incite riots, and cause damage to per5sons and property. If there is one constant in the two systems of law is that they are evolutionary, rather than revolutionary; meaning that the sets of laws and judicial circumstances seldom make great changes

overnight. Not even the infamous Roe v. Wade, among other U.S. Supreme Court decisions, has created anything but a guide to new directions (in this case the legality of abortions). As may be pointed out, in terms of the similarities of the two legal systems in question: "The blots we see upon the law are all made by human hands and by those hands they can be taken away." (Zane 1998 428) In other words, as people change, the law and its system may change- but, to paraphrase the Bible, the mills of the Gods grind slow, but they grind exceeding fine. CITATIONS: Carter, Sarah: (2001) "A Guide to the UK Legal System" Canterbury UK: University of Kent.www.llex.com/features/uk.htm Friedman, Lawrence M.: (1973) History of American Law New York: Simon & Schuster Knight, Alfred H.: (1996): The Life of the Law New York: Random House Zane, John Maxcy (1998) The Story of Law Indianapolis IN:Liberty Fund, Inc. No author listed: "The Law" British Information Services (2001) www.britannia.com/gov/gov8.html No author listed: "The Death Penalty" Amnesty International website: www.ai.org