Friday 22 January 2010

Diverse systems of law

The visits to New Zealand and Australia by HRH Prince William have attracted considerable media attention. Whilst in New Zealand, the prince opened the new building of the Supreme Court of New Zealand – see BBC and NZ Supreme Court.

These nations and many others are all “common law” jurisdictions. Their law and legal system is based on that which developed in England and Wales and which was “exported” as people from these islands travelled and settled elsewhere. This does not mean that in modern times the law is identical in all of those countries but it does mean that the law is based on the same fundamental principles.

Within the courts of England and Wales, it is permissible to refer to – (or as lawyers say “cite”) - decisions of courts such as the supreme courts of other Commonwealth nations. They are referred to as “persuasive precedents” because they do not tie the hands of British judges but they might show the way forward on some difficult point of law.

Until quite recent times, many Commonwealth nations retained the Judicial Committee of the Privy Council as their ultimate court of appeal. Technically speaking, appeals to the judicial committee are “Appeals to Her Majesty in Council” though the case is heard by judges and “advises” Her Majesty as to the outcome of the case. This continues to be the position for those countries which retain appeals to the Privy Council. This court now sits in the same building as The Supreme Court of the U.K. and its judgments may be seen here.

The Common Law system differs markedly from other legal systems such as CIVIL law systems. A reasonably good description of civil law systems may be seen here and a particularly detailed study may be read at the website of the USA Federal Judicial Centre- (pdf file).

Other legal systems developed in Muslim nations – see, for example, the course offered by the School of Oriental and African Studies.

It must not be thought that legal systems invariably are influenced by only one of these (and other) systems. “Mixed “legal systems are far from uncommon and the reasons for this will be found in the history of the nation concerned.
Scotland and South Africa are two of the leading jurisdictions which integrate English common law with Continental civil law. Quebec in Canada has a legal system based very much on the civil law.

A student of English law in the 1960s would have studied almost only the common law system developed over the centuries by the judges and as altered, then quite minimally, by Parliament. This student would rarely have even looked across the English Channel to see the different legal systems of continental Europe though some students of the time might remember with some affection the "The Constitutional Law of Great Britain and the Commonwealth" by O. Hood Phillips. 50 years later, such insularity would be absurd. Since 1973, the U.K. has been a member of what has developed into the European Union and the jurisprudence of the Court of Justice of the European Union owes much to civil law. The U.K. has become multicultural and there are those who press for the law to take account of principles of other systems such as Shariah. Understanding of the different legal traditions of the world is now necessary and is to be encouraged.

Here are links to some of the major courts in the Commonwealth. It is quite a world tour:

Eastern Caribbean Supreme Court

New Zealand

South Africa


  1. Gordon Corrigan, the military historian, remarks in one of his books that British military law descends from Roman law and is an inquisitorial, rather than adversarial, system. I appreciate that this is a very specialist area, but to your knowledge is he correct in that?

  2. I confess to being unsure of the answer to your interesting question and I have not seen Gordon Corrigan’s claim or his arguments though I acknowledge that he is a very notable military historian. However, whilst remaining open to correction, real evidence of a Roman Law influence in the British military law system seems hard to find. Roman Law has not been entirely without influence on English law but it seems to be mainly in some matters such as wills which were historically handled by the ecclesiastical courts and where the lawyers traditionally had studied “Civil Law.” The jurisdiction of the ecclesiastical courts was taken over by the High Court in the 19th century. They survive today only to deal with internal church matters.

    A history of the British system of Courts-Martial may be read
    here. (Please note - I have not checked its accuracy in any way). Also, see Judiciary-Military Justice.

    The Courts-Martial system as it was at the time of World War I was the subject of trenchant criticism and a considerable number of books have been published on this subject including “Shot at Dawn” (Putkowski and Sykes), “For the sake of example” (Babington) and “Blindfold and alone” (Hughes-Wilson). British Courts Martial records of the time clearly demonstrate the unfairness of the system and the refusal by senior commanders to reverse the decisions of their subordinates. It would seem that Gordon Corrigan would refute that – see his book “Mud, Blood and Poppycock.”

    Few systems are so self assured as the military in the confidence of their decision making and executive command structure. Resistance to change has been extensive. It was not until 1951 that the Courts-Martial Appeals Court was established and this is, essentially, the equivalent of the Court of Appeal (Criminal Division). It was not until 2006 that Parliament finally bowed to the public pressure to pardon those executed for certain offences during World War I – (Armed Forces Act 2006 s359).

    In the 1990s the British Courts-Martial system came to the attention of the European Court of Human Rights. The decisions of the court led to some improvements – see Armed Forces Act 1996. Nevertheless, the system was still found wanting in 2002 in
    Morris v United Kingdom (2002) 34 EHRR 52.

    The Armed Forces Act 2006 has set up a system of military justice which is common to all three services instead of each being governed by its own discipline act – Ministry of Defence. It remains to be seen whether human rights problems will arise with this new system which is, basically, modelled on that which existed before the Act.

    In 2007, the House of Lords decided R(Al Skeini)v Secretary of State for Defence [2007] UKHL 26 which held that the Human Rights Act 1998 extended to the case of Baha Mousa who died whilst in a British military prison in Basra, Iraq.

    I think that the French Military Law system might well have been based on Roman Law. Historically, it permitted punishments such as decimation and military degradation though, as far as I can see, there is little modern evidence of their use.

    An interesting question and topic. If anyone has evidence of Roman Law influence on the British military law system I would be interested to hear.

  3. I should have added that there is a new Manual of Services Law

    SUMMARY Service discipline (i.e. before the Commanding Officer) is inquisitorial – see the Manual Volume 1 Chapter 11. However, Courts Martial will have to follow the procedure in the Manual Volume 2 which is akin to the adversarial processes of civilian trial.

  4. The comment by Gordon Corrigan appears in “Mud, Blood and Poppycock”, the book you mention, in the chapter "Kangeroo Courts and Firing Squads" page 220/1 of my copy. Thank you for the various references, which, as you say, provide little evidence of Roman law. However, the Manual of Services Law does have an historical section in vol 3, which contains a section:

    Military courts originated from the Court of Constable and Marshal, which formed part of the
    Curia Regis or Supreme Court established in England by William the Conqueror. This was a
    Court in a double sense; first, in the sense of being composed of the great officers of State,
    and secondly, in the sense of being a judicial body. The commander-in-chief of the army was
    the Constable or Comes Stabuli or Master of the Horse and he had allotted to him the army
    and all persons and matters connected therewith, while he and the Marshal together
    constituted the Court which exercised both civil and criminal jurisdiction.

    Perhaps it could be said that William's Curia Regis has a connection to Roman law. (a French connection in fact!)

  5. Chris - thanks again. The Norman Curia Regis is an interesting angle and it seems that it might have been modelled on the Curia Ducis of Normandy. The Curia Regis was a fertile mother of law courts!

    I note that the Offices of Earl Marshal and Lord High Constable still exist. The former is held by the Dukedom of Norfolk and, because of ceremonial functions, is one of the hereditary peerages which retains a seat in the House of Lords. The latter, so it seems, is appointed only for a Coronation and the last holder was Field Marshal Viscount Alanbrooke (1953).