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30 Chapter 1The legal system

Most other countries have an inquisitorial system of trial, where the judge is the inquisi-

tor, determined to discover the truth. A French examining magistrate, for example, has

enormous powers. He or she takes over the investigation of a criminal case from the police

and can interrogate witnesses. He or she can also compel witnesses to give evidence and can

surprise witnesses with other witnesses, hoping that the confrontation will point the finger

of guilt.

When a French case reaches court, it is often all but decided. By contrast, no-one can ever

be certain of the outcome of an English trial. The lawyers will fight each other on the day

and either side might win. The judge should be disinterested in the outcome, merely ensur-

ing that the lawyers fight by the rules.

Absence of a legal code

In most European countries the law has been codified. This means that the whole of the law

on a particular subject, for example the law of property, can be found in one document or

code. As we have seen in this chapter, the bulk of English law has been made by judges in

individual cases.

Occasionally, Parliament codifies an area of law with a statute such as the Partnership

Act 1890. Such an Act aims to take all the relevant case law on a particular subject and to

codify it into one comprehensive statute. However, as we shall see, the vast majority of

English law remains uncodified. Nor does Britain have a written constitution, as most other

democratic countries have.

The law-making role of the judges

In most European countries the judges interpret the legal code. In doing this they do not

themselves deliberately set out to create law. Earlier in this chapter, when we studied the

doctrine of judicial precedent, we saw that the decisions of judges in the High Court, the

Court of Appeal and the House of Lords must be followed by lower-ranking judges. So these

senior judges are constantly creating the law.

Importance of procedure

In the Middle Ages a claim would fail if the correct court procedure was not rigidly adhered

to, even if the substance of the claim was perfectly valid. To some extent this is still true

today. If a litigant fails to follow the correct procedure, it is possible that his claim will be

struck out. Recent reforms of the judicial process have attempted to reduce the importance

of procedure. However, in cases which involve a substantial claim there is no doubt that

procedure remains very important.

Absence of Roman law

The Romans occupied England from 55 BC to 430 AD. Roman law was extremely sophisti-

cated by the standards of its day. The other European countries which were part of the

Roman Empire have retained elements of Roman law. However, English law has almost no

Roman law influence, although Roman law is still taught as an academic subject at some

English universities.