CHAPTER 1 : LAW AND LEGAL SYSTEM

Insurance Law CII 
Part I : General legal principles

Chapter 1 : Law and legal systems

Learning Objective:

• explain how law is classified in relation to public and private, criminal and civil law
• describe the characteristics of the legal systems
• discuss the development of English Law, including common law, equity, custom and legislation
• explain the common law system
• discuss delegated legislation and statutory interpretation
• discuss the effect of supranational legislation on national systems
• describe the courts and the system of precedent; and
• describe the basic elements of civil procedure and funding of litigation

Classification of low

There are a number of ways in which law may be classified.

We have already distinguished between countries whose based on English common law and countries whose systems are based on Civil, or Roman, law.

A further basic distinction is often made between 

• Public law and 
• Private law.

Public law

Public law is concerned with the legal structure of the State and relationships between the  State and individual members of the community. 

It also governs the relationship between one State and another.

It includes :

• constitutional law, 
• Administrative law and 
• Criminal law.

Constitutional law

Point to note : Constitutional law is concerned with the structure of the main institutions of government and their relationship to each other, including the relationship between the two Houses of Parliament in the UKS and that between central and local government.

It also includes:

• the making of treaties with foreign states (pembuatan perjanjian dengan negara asing) and 
• the status, function and powers of (status, fungsi dan kekuasaan dari)
• the Monarch (kerajaan)
• Member of Parliament (anggota parlement
• Government Minister
• the Judiciary (kejaksaan)
• the Civil Service, and (pegawai sipil)
• the Armed Forces (angkatan bersenjata)

Administrative law

Administrative law is often regarded as a branch of constitutional law

Point to Note:

It concern the legal relationship between private citizens and the various agencies of local and central government, and the impact of their activities on ordinary individuals.

Criminal law

Point to note: Criminal law is concerned with the control of behaviour which harms of threatens the peace and stability of the community

This control is exercised by punishing persons who commit serious wrongs which are likely to damage the interest of society as a whole.

Crimes such as theft or murder obviously affect individual victims, but the stability of society as a whole will be threatened if they go unchecked, so they are treated also as public wrongs, punishable by the stable

Private law

Point to note:

Private law governs the relationships between individuals.

Private law is also commonly known as civil law (from the Latin word citizen).

In fact, this term is used more often then the term 'private law' in England

The legal rules which govern insurance are part of the civil law. 

Many of them are drawn from the law of contract, which is, therefore, discussed in some detail in this book.

We will also examine the law of torts, which is particularly relevant to liability insurance.

The other branches of private and public law mentioned above are of only limited importance in the context of insurance and are not discussed, although occasional references are made to criminal law.

Characteristics of English Law

English law has some characteristics which distinguish it from other legal systems, and particularly from those of continental Europe. 

They include the following:

1. Age and continuity
2. Little Codification
3. Judge-made law
4. Independence of the judiciary
5. Little influence made by Roman law
6. Contentious procedure
7. No written constitution

Age and continuity

English law has a long history and has developed without interruption over 900 years. Many cases and statutes which go back more than 500 years are still good law and some examples, such as the old cases on trespass, are quoted in this book.

Little codification

Point to note: A legal code is systematic collection of written laws arranged so as to avoid inconsistency and overlapping.

In many countries the whole of the law, or at least a great part of it, has been reduced to a series of written codes, each containing the whole of the law on a particular subject.

Certain parts of English law have been codified, including a fair proportion of the criminal law. However, codification of the civil law has occurred in a few areas only, such as the law relating to:

• partnerships;
• the sale of goods
• bills of exchange; and
• marine insurance

We will return to the topic of codification when we discuss the various types of legislation.

Judge-made law

The decisions of judges in the superior courts have ad, and continue to have, a profound effect on the growth and development of English law.

In many other countries the function of a judge is merely to interpret and apply statutory codas of law.

In England, however, the system of binding precedent allows the decisions of judges to become part of the law itself and allows the law on a particular subject to adapt and develop through a series of binding decisions.

Independence of the judiciary

English judges are appointed by (or on the advice of) the Lord Chancellor or the Prime Minister, both of whom are members of the Government.

However, the judiciary is effectively free from Government control.

Senior judges can be removed from office before their retirement age of 75 only by a motion approved by each House of Parliament.

Junior members of the judiciary may be removed by the Lord Chancellor only on grounds of incapacity (e.g. through illness) or misbehaviour.

Point to note: Judges are, therefore, largely free from political interference.

This allows them, for example, to give judgment against the Government, which they do on many occasions.

A Judicial Appointments Commission has been created to increase the transparency / impartially of the appointments process.

Similarly, members of the legal profession (i.e. barristers and solicitors) are not state officials and must, in accordance with the traditions of their profession, give advice or assistance to any client, regardless of political allegiance.

Little influence made by Roman law

As we saw earlier, most of Western Europe and Scotland have systems based on Roman law. 

However, English law (with one or two exceptions) had developed independently of the Roman system.

We have already noted that many other countries (particularly those which were part of the old British Empire) have adopted English law.

Contentious procedure

Point to note:

Under the English legal system a court case is essentially a contest between two sides:

• In a civil case : the claimant (previously called the plaintiff) and the defendant
• In a criminal case : the prosecution and the defence

This is contentious procedure

The court itself, consisting of a judge or judges and sometimes a jury, remains neutral.
The role of the court is not  to investigate but simple to listen to the evidence presented by the two sides and then give judgment for one side or the other.

In civil proceedings, the claimant has the burden of proving his case on the balance of probabilities.

In criminal proceeding, guilt must be proven beyond reasonable doubt. 

This means that the court must be completely sure that the allegations made by the prosecution are true before the defendant can be convicted.

A different procedure that is common in continental Europe is the inquisitorial procedure.

There the court does not remain neutral but plays an active part in discovering the truth.

The only courts in England which employ an inquisitorial procedure are the Coroners' courts, which inquire into cases of violent, unnatural or suspicious death.

Having said all this, new rules of civil procedure which came into force in April 1999 (The Civil Procedure Rules, commonly known as the Woolf Reforms) may signal a gradual change in the role of the English courts, which now have more extensive powers to mange cases which come before them.

As yet, however, there has been no large scale shift towards the continental system.

No written constitution

Point to note:

English law differs from that of many other counties in that it has not traditionally defined for its citizens any fundamental, unchangeable rights.

In England there is simply freedom to do anything which is not specifically prohibited by law.

Many countries, on the other hand, have a written constitution, one function of which is to specifically define the fundamental rights and freedoms of citizens (such as freedoms of speech, religion and the freedom to associate with others.)

Rule of law

Although the constitution of the UK is unwritten, it includes what has become known as the 'Rule of law'.

This is a rather imprecise concept but is generally regarded as embracing the following principles:

• the powers exercised by politicians and officials must have a proper foundation and be based on an authority given to them by law
• the law generally should be reasonably certain and predictable
• people should be treated equally by the law, which should not allow unfair discrimination
• no one should be punished or deprived of their property, status or other rights unless they are given a fair hearing by an impartial court or tribunal and
• every person should have a right of access to the courts, which will defend the liberties and freedoms of the individual