Significance of Courts
- The definition of courts
Courts as an institution are not unique to the “English legal system”. They exist in the legal systems of every modern state. They also exist in other non-state legal systems…Courts may not be a single discrete concept since ‘[a]cross societies what are called courts do not necessarily handle the same matters”1
Courts might be defined as places concerned with settling legal disputes. However, this definition is deficient in several ways.
- Courts are sometimes distinguished from other bodies which are also concerned with settling legal disputes. e.g. Courts and Tribunals
- Parliament has (sometimes) set disputes under a particular Act to be determined by tribunals set for the purpose and not courts.
To call something a court is not simply to describe what it does. It is also an ascription of status.2 Courts are seen as having centrality to a legal system tat is not true for other institutions.
- The Importance of Courts
…Courts are perceived to be central to the very idea of a legal system. The words “court” and “legal system” become synonyms. Lawyers, professionals in a legal system, are assumed to be people who use the law and legal system as a regular part of their professional lives, who go to courts and are thus familiar with court procedures.
…Lawyers perception of work is that they spend most of their time in work which either involved only “routinised legal knowledge: or skills which were wholly non-legal.3 Many lawyers spend very little of their time in either courts or in doing work which directly leafs to anything happening in courts.
- The function of Courts
Courts we might suppose, exist to settle disputes about the application of legal rules. They might not be the only bodies that do that, but that is at least part of their function. Within the rules of the system itself the courts of that system are the only body which can authoritatively settle disputes. Others, such as academics and journalists, may comment on court decisions, questioning their internal logic or social efficacy, but that questing does not effect the finality of the courts decision.4
In this sense courts exist to determine disputes. However, we should not take from that proposition the idea that all legal disputes end up in court.
In 1978 the Royal commission on civil liability and compensation for personal injury noted that of the 250,000 tort claims in respect of personal injury, 86 percent were disposed of without issue of a writ, 11 per cent after the issue of a writ but before setting down for a hearing, 2 per cent after setting down for trial but before trial and only 1 per cent were settled in court.5
Ten years later the Civil Justice Review noted that of 240,000 personal unjust claims based on allegations of either negligence or breach of statutory duty 300,000 (88 per cent) were settled without issue of a writ and, once again, only 1 per cent were disposed of by trial.6
Courts, then, are not as central to this part of the legal system as we might at just have thought. People can, and usually do, choose to make a final settlement of their dispute without going to court.
However, in divorce cases, for example, a divorce can only be granted after a court hearing.7
- The centrality of courts
When courts are involved in an individual dispute, they usually impose a final legal determination of the issue on the parties involved. That parties’ presence in court may be voluntary but, usually, either party can insist on going to court simply by refusing settle the dispute in any other way. As soon as one of the parties insists on a court settling the dispute, however the nature of the disputes changes. The court at this point becomes central to the legal system. It is it’s focus. It controls what happens within the legal system. In this sense of centrality each court which makes a final determination for any individual litigant is as important as any other. So far as the defendant
is concerned, the magistrates’ courts’ decision that decided that they are guilty is precisely as important as if the case had been taken on appeal to the house of lord and the house of lords had held that they were guilty.
Legal systems tend to be hierarchical. One courts decision may be overturned by another higher court. Even when the highest court has ruled, even when there is no prospect of further appeal, the court does not necessarily settle an issue.
- Courts as rule-makers
Courts are also important to “the English legal system” because of the contribution they make to the development of the jurisprudence of the legal system. In making individual decisions, courts are not necessarily just deciding the law for those litigants that come after the particular case before them. Rules of law in the English legal system come from two main sources. One source of legal rules is the statues passed by parliament. These are intended to create rules of law which are binding prospectively and, occasionally, retrospectively.8 Another source of law is the decisions of the courts where no statutory provisions are to be found; the common law.
Courts make law when they interpret statutes, when they hive a legally authoritative explanation of what the Act means. Ordinary individuals, trying to decide what a statue means, are faced with the problem that “[i]n all forms of experience, not only that of rules, there is a limit, inherent in the nature of language, to the guidance which general language can provide.9
- The courts as legislature
To say that judicial decisions are themselves a final source of law is a statement of greater constitutional significance than saying that in interpreting statues judges make law. It is often argued that the theory of the separation of the powers is fundamental to any western, liberal democracy of which the British constitutional system is taken to be an example.10 This theory, in it’s simplest form, holds that an abuse of governmental power is prevented, or at least made less likely, if the power of the state is shared amongst the executive, the legislature and the judiciary. Thus, following this theory, one of the functions of a court is to be one side in a balance between the various organs of state. If, however, judicial decisions are themselves a final source of law.
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1 R. Cranston, “What do courts do?” (1986) 5 civil justice Quarterly 123 at P. 124.
2 “Judges are authoritative figures” (S.Roberts, “Three Models of family Mediation” in R. Dingwall and J. Eekelaar, Divorce Mediation and the legal process (1988) Clarendon Press, Oxford, P. 148) and, we would argue, other people settling disputes are not authoritative in the same way.).
3 C. Campbell, “lawyers and their public” in D.N. MacCormick (ed.), lawyers in their social setting P. 209.
4 See further H. Hart, The concept of Law (1961) Oxford University Press, Oxford PP. 138 et seq.
5 Royal Commission on civil liability and compensation for personal injury, report (the Pearson Report, vol.2) (1978) Cmnd 7054-11, P. 20. Torts are actions in respect of civil wrongs; claims where the litigant contends that they suffered an injury contrary to law at the hands of another. Actions are commenced by issue of a writ. After the issue of the writ, indicating that court actions is being contemplated, the matter is set down for trial at a later date.
6 Civil Justice Review, Report of the Review Body on Civil Justice (1988) Cm. 394, para. 391.
7 Matrimonial Causes Act 1973, S.1.
8 For an example of retrospective legislation see the War damages Act 1961. In Burmah Oil company V. Lord advocate [1965[ AC 75 the courts had held that the government was obliged to compensate the Burmah oil company for the loss of installations which had been destroyed to prevent their falling into the hands of the Japanese during the second world war. The war damages act 1961 retrospectively gave the crown authority to act in this way without being obligated to pay compensation. The act is thus an example of a litigant, in this case the Government, successfully carrying on a dispute in another area despite a ruling from the courts.
9 H.Hart, The concept of law (2nd edn, 1994) Clarendon press, Oxford, P.126.
10 See, for example, A.Bradley and k. Ewing, constitutional and Administrative Law (12th edn, 1997) longman, london, p.89.
