6 Key Ways the British Legal System Differs From the Rest of the World
At a glance, most developed countries seem reasonably alike.
You’ll notice the difference in architecture and language between Seoul, San Juan or Vienna, but there are significant similarities: people will be driving the same sort of cars, wearing the same sorts of clothes, and walking down streets with many of the same multinationals on them. Imagine trying to find someone who said they were standing at a crossroads with an H&M, a McDonald’s, a Zara and a Starbucks on each corner. They could be in virtually any developed country on Earth.
But scratch the surface and you’ll find that the legal systems underpinning these nations can differ to a remarkable extent. Because of the size and influence of the British Empire – covering a quarter of the world’s population and nearly a third of its land area at its height – many countries have legal systems that are based on the British one. Yet even despite this massive influence around the world, the British legal system retains many peculiarities. In this article, we look at how the British legal system differs from other systems around the world, including instances in which it is nearly unique.
1. Britain has an unwritten constitution
Probably the oddest thing about the British legal system is that Britain has an unwritten constitution. That’s something the UK shares with just four other countries: Israel, New Zealand, Saudi Arabia and Canada, and even those countries have more of a written constitution than Britain does. For instance, Canada has the Constitution of Canada, it’s just that this declares the Canadian constitution to be “similar in principle to that of the United Kingdom”; in other words, they have a written constitution to declare that their constitution is unwritten. Saudi Arabia’s constitution has been declared to be the Qur’an, which is decidedly written if not exactly a constitution in the conventional sense. It’s worth noting that while two of the four other countries with unwritten constitutions are former British colonies, that leaves an awful lot of other former British colonies that decided that the UK was not a good model to follow in this regard.
So what does Britain have instead of a written constitution, and why? It’s worth looking at those former colonies again to understand the answer. Most countries have a foundation of some kind, whether that’s a declaration of independence or a revolution. At that point, the terms by which the country was to be governed were set out, making it clear that this would be different from the governance of the past. But in the era of the nation-state Britain hasn’t had anywhere to declare independence from, and hasn’t been very good at making revolutions stick either. Instead, the principles that might derive from the constitution in other countries are drawn from laws passed by Parliament and court decisions, updated over time. These are written, but not all gathered in the same place; the defence of a principle might draw on a variety of legislation from the Magna Carta to the Human Rights Act.
2. Britain’s legal system is adversarial
While Britain’s unwritten constitution didn’t catch on globally, the idea of an adversarial legal system has proven to be more popular, and it’s used in the majority of countries that were once under British rule. The alternative is an inquisitorial system, although some countries use a combination of both (for instance, in the USA, serious crimes are tried using an adversarial system, but more minor misdemeanors are sometimes tried using an inquisitorial system).
The difference is in how a trial is pursued. In an adversarial system, the judge or jury are entirely neutral. The judge may request clarification, but is not involved in finding evidence or questioning witnesses. The prosecution and the defence each put forward their case in front of the judge and jury, and the judge’s role is to ensure fairness between the two sides. The truth in a criminal trial is found when the judge or jury decides that the defendant is either not guilty, or guilty beyond reasonable doubt. In civil law it depends on the balance of probabilities.
In an inquisitorial system, by contrast, the judge plays much more of an active role in seeking the truth; he or she is involved in questioning witnesses and preparing evidence. There is also no difference in the standard of proof required between civil and criminal law. A perceived disadvantage in an adversarial system is that if the prosecution and defence are not evenly matched (for instance, if one side has access to greater resources), then the outcome might not be just. On the other hand, the inquisitorial system can be more open to bias.
3. Britain uses a common law system
The other big divide between systems across the world is the divide between common law and civil law systems. The map below shows where each can be found, with civil law in blue, common law in red, religious law in yellow and mixed systems in brown:
Civil law countries – as the map shows – cover more of the world’s landmass, but common law countries encompass more of the global population. Britain falls into the latter category.
The preference for a common law system could be classified as part of the same tendency to prefer not to write things down. Our law is defined, for the most part, not by statute but by case law; if you want to prove that someone committed murder, the definition of murder has been established by previous cases, and has only subsequently been drawn up in a statute or a code. Judges then abide by precedent set by higher courts. This makes common law more flexible, as judges can adapt case law to circumstances as appropriate, rather than needing to rely on codes that may have been written at a time when the relevant circumstances could not have been thought of.
Civil law systems, by contrast, involve everything being written down in codes and statutes. Want to know what defines murder? Look to the relevant statute. Past judgements don’t have the force that they have in common law, but instead apply as guides. This makes for a less flexible but more stable system that can be more straightforward; there’s no need to trawl through case law to find the answer to a question; you just need to find and interpret the relevant code or statute instead.
4. Britain uses a jury system
From the discussion of inquisitorial and adversarial systems above, you’ll already have seen that the use of judges and juries in Britain can be different from other countries around the world. But there may be more differences than you realise.
Trial by a jury of one’s peers is an ancient right and tradition in the UK. In the early Middle Ages, trial by jury involved 12 men of good standing assessing the crime, taking on the role of finding evidence as well as ruling on the evidence presented in the trial. This was further developed by Henry II in the 12th century, and affirmed in the Magna Carta, which stated that no fines for criminal offences would be imposed “except by the assessment on oath of reputable men of the neighbourhood”.
By the 17th century, juries had ceased being involved in finding out the facts of the case, and were tasked solely with deciding whether the defendant was guilty beyond all reasonable doubt, while the judge was responsible for advising the jury on what the relevant law was. The jury system is seen as an integral part of the legal system, even though only 1% of criminal cases go before a jury; among the general public in the UK, juries are more trusted than judges, magistrates or government ministers, and the right to a jury trial is seen as more important even than the right to political protest.
Yet other countries operate significantly different systems. In some countries, such as France, the jury and the judge sit together in order to determine guilt, while in others, the decision is entirely down to a judge or panel of judges. In the UK, the use of juries is seen as a valuable check to government power and as a means of embedding law within the community. Arguments against juries suggest that they may not have the knowledge to understand the complex problems they are presented with, and may be swayed by their own prejudices.
5. Britain has a dualist approach to international law
With the Brexit debate still rumbling on, Britain’s approach to international law is more relevant than ever. The key division between states is the choice of a monist or dualist system. In a monist system, whenever the country accepts international law – for instance by signing up to a treaty – that law is automatically incorporated in national laws. Any national laws that contradict the newly-signed international law are treated as void.
By contrast, in a dualist system, international law has to be translated into national law before it applies – so the country might sign up to a treaty but the law deriving from that treaty would have no effect until it had been translated into national law first. This can cause problems for international law if the country stalls on translating a treaty. It also causes problems if there are contradictions between international and national law, as national law passed subsequently to the incorporation of the international law can contradict and supercede the international law – which might lead to the country being in violation of its treaty to implement that international law.
An example might be that a country signs up to a human rights treaty that guarantees freedom of assembly, and then incorporates the relevant law into its own legal system. A subsequent government then passes a law that bans individuals from congregating in groups of more than three. This would breach the obligations of the human rights treaty. In a purely monist system, this could not occur, as international law would automatically take precedence (though there are very few real-world examples of purely monist states; most states that are essentially monist still have some dualist elements). Nonetheless, in international law there’s no preference for monism or dualism; the country’s own traditions are respected.
6. In Britain, parliament is sovereign
Another issue that’s relevant in the context of Brexit is that parliament is sovereign in the UK – or in the words of parliament.uk, Parliament is “the supreme legal authority in the UK, which can create or end any law… the courts cannot overrule its legislation and no Parliament can pass laws that future Parliaments cannot change.” It’s been argued that being a member of the EU undermines parliamentary sovereignty, and equally, that the government’s initial plan to invoke Article 50 (triggering the process of leaving the EU) without a parliamentary vote was unacceptable under the rules of parliamentary sovereignty.
The development of parliamentary sovereignty happened in the 16th and 17th centuries, and was crucial to the English Civil War, with Parliamentarians arguing in favour and Royalists arguing that Parliament had only the powers devolved to it by the king. The Parliamentarians won the Civil War, and though the monarchy was restored in 1660, it was with the understanding tha
the despotism of previous monarchs was forever at an end, and the powers of the monarchy were gradually reduced. By the late 17th century, parliamentary sovereignty had been enshrined in law. Britain isn’t unique in this respect; parliamentary sovereignty also holds in Finland, the Netherlands, Sweden, New Zealand and Jamaica among others.
But more common is popular sovereignty, in which the people are declared to be sovereign – that’s the case in the USA, Ireland and France, for example, and tends to be the preferred mode of countries that declared independence from a colonial power, or went through a revolution. Popular sovereignty declares that the power of a state and a government only exists through the consent of the people. In practice, there’s no difference between this and the situation in countries in which Parliament is sovereign, as Parliament is elected by the democratic will of the people. And of course, a dictator can declare that the people are sovereign when they are in fact nothing of the sort.
These different facets of the British legal system paint a larger picture: of a country with a great deal of trust in its institutions, such that its people are happy for Parliament, not themselves, to be declared sovereign, and for the constitution to remain unwritten. But they also present a picture of a country where legal authority figures are balanced by the involvement of the people, whether that’s the lesser role of the judge in adversarial trials, or the importance given to juries. When given a choice between trusting the expertise of a judge or the wisdom of the public, it’s clear which one the British prefer.
Image credits: big ben; legal systems of the world map; dorset beach; magna carta; gavel; time lapse busy street; torn-up paper; houses of parliament.