During training sessions legal English with lawyers, the conversation often turns to the differences between the English legal system and the Dutch system. Dutch lawyers often find my answers frustrating when I simply have to answer that English law is that way ‘just because it is’. They are often surprised at the seemingly illogical English legal system in comparison with their own experiences in the Dutch legal system.
England is often known for its chocolate box cottages, quaint traditions, narrow lanes and cute villages. But is this just hiding a chronic inefficiency and a stubborn refusal to move with the times?
Take the English legal system as an example… Or actually, as I should say, the law of England and Wales. Yes, that’s right. The English legal system applies to England and Wales, but not the rest of the UK. Scotland and Northern Ireland have a separate legal system, with different laws and a different court system. Why? In short, when the UK was joined together, part of the deal was that Scotland and Northern Ireland would retain their own legal systems.
Custom and case laws
And that is not the only anomaly in the English legal system. Another example is the system of common law. English law is not codified like Dutch law. There is no single set of books containing the law. So where can you find the source of law? Well, like Dutch law, a lot of it is contained in legislation which is then supplemented by case law. But a substantial amount is based on common law.
So what is common law? Well, it’s quite difficult to define, but it basically means that the law is based on custom (what has always been a tradition) or on case law (a first case where the judge decided that a particular act was illegal). Or a combination of these two elements. Confused? I’m not surprised. Perhaps an example would help. Take the offence of murder – clearly an offence and an illegal act. But which piece of legislation states that murder is illegal? The answer – there isn’t one. The offence of murder has never been formally set out in an Act of Parliament. It is accepted that is wrong to kill another human being as that has always been considered as a moral wrong and the precise definition of various elements of this can be traced back to a handful of old cases, but the one single origin of this offence cannot be precisely located or defined.
More unwritten rules
This is not the only ‘unwritten rule’ in English law. In fact, the whole constitutional system is unwritten. The UK is one of the few civilized countries in the world with an unwritten constitution, instead we have a collection of Acts, documents, conventions and case law from various sources. Once again, it’s a messy solution to the problem when you compare that with a nice tidy written constitution, formally bringing together all the rights and duties of the individual and the state, which can be nicely combined with a lovely set of logically organised books containing the codified law.
So, why doesn’t the UK get this problem sorted out? Despite recent efforts to introduce a written constitution, it has all come to nothing. Why? Well, perhaps an indication of why can be found in recent efforts to modernise court dress. Barristers were invited to ditch the wigs that they have been wearing for centuries, wigs that are super expensive (prices start at around £2,000 and for an antique wig, you can put an extra nought on the end of that) and they are notoriously difficult to wear (hot and itchy). The idea was to bring barristers into the current times… And how many barristers chose to leave their wigs at home when they went to court? Almost none. Perhaps we just like our legal system this way.