ARHIVELE OLTENIEI - Universitatea din Craiova

SOME FEATURES OF THE ENGLISH LEGAL SYSTEMELENA ALEXANDRA ILINCAIt would be too much to say that English judges do decide cases in anyway they like despite the existence of statutory interpretation rules and judicialprecedent rules or that executive, legislative and judiciary power arediscretionary exercised.Nevertheless, it is true that in the British common-law system, judgesare given larger prerogatives than in the civil-law systems, which is a specificfeature of the common-law systems. Whether this judge’s power is exercised ina fair way or abusive is the true problem as this possibility objectively exists aslong as judicial interpretation grants law making powers to judges.The point of precedent is to facilitate consistency in decisions, not tomake law. But in law a previous decision in the absence of a definite statute haswhatever force and authority a judge may choose to give it as there areprecedents for everything and he is the one to decide which previous decision isthe most assembling to the current case.Concerning the statement that the executive, legislature and judiciaryexercise their power in any way they see fit despite the existence ofconstitutional conventions, judicial rules and custom, it would rather describesome form of anarchy than a parliamentary democracy.Although it is submitted that the principle of Parliamentary Sovereigntyconfers to the legislative the supreme power it can not be concluded that it isdiscretionary exercised as long as there are the limitations of politicalexpedience and constitutional conventions.It will also be shown that despite the fact that the executive is said togain power at the expense of the legislature and at the expense of the separationof powers doctrine there are certain legal instruments that provide the possibilityto limit its power and control its actions. Amongst these are to be mentioned “thevote of no confidence”, the rule of “ministerial responsibility”, the judicialreview or parliamentary control of delegated legislation.Concerning the power of English judges in deciding cases it has to betaken into consideration that judicial interpretation is not regulated byParliament. In order to minimise the degree of judicial interpretation, theParliament has to draft more complex legislation so that the amount ofInterpretation would not compromise certainty and result in redraftinglaw by judges. However, in certain circumstances legislation is draftedambiguously to avoid arguments in Parliament or to allow future developments.In such cases, the amount of interpretation that is necessary arises.ARHIVELE OLTENIEI, Serie nouă, nr. 21, 2007, p. 279–284