Evolution and Development of Civil Litigation in the United Kingdom

Author: Mao Ling
Publisher:
Publishing Date: 2005-05-01
Features:
1. Research Object and Significance of This Book
The research object of this book is the history of the development of English law and its civil litigation system, which has had a significant impact on the common law system. English common law is based on litigation procedures, and there is a close relationship between English law and procedural law. Procedural issues hold special importance in the UK, not only because "the concept of English law is primarily derived from the ancient forms of litigation and still embodies medieval ways of thinking," but also because English law itself was formed and developed within the "range of procedures provided by the Royal Court for litigants." As Sir Henry Sumner Maine pointed out, "English law has permeated through the gaps in procedures." The formation and development of English common law have gone through a long historical process, and the British judicial system, especially the civil litigation system, has had an extremely important impact on the formation and development of common law. Based on a strong interest in the history of English common law, the author has decided to interpret English law "historically" from the perspective of the civil judicial system. This book attempts to review and examine the historical evolution and development of the English civil litigation system, and its significance is mainly reflected in two aspects.
1. In existing research on this subject, comparative lawyers' introductions to the procedural systems of common law jurisdictions have mostly focused on general discussions, primarily comparing the characteristics and content of procedural systems in civil law and common law jurisdictions from a comparative perspective. In most works on the history of English law by legal historians, few analyze and discuss the development of its civil litigation system, or the historical truth and development of the English civil litigation system have not been fully studied. Moreover, although the domestic civil litigation law circles have introduced and studied the English civil litigation system extensively, it is mainly concentrated on the introduction and analysis of the current civil litigation rules and procedural systems of England, while the historical evolution process of English law and its civil litigation system has rarely been described and analyzed.
2. The author hopes to conduct a "root-seeking" study of the evolution and development of the English civil litigation system, which will not only help us better understand the basic characteristics of the English civil litigation system but also contribute to our understanding of the overall historical picture of the English civil litigation system. Moreover, through the review and examination of history, it will help us summarize the laws and scientific experiences in the formation, development, and reform of the English civil litigation system, thereby providing a reference, inspiration, and enlightenment for the reform and improvement of the civil litigation system in our country. Regarding the purpose of writing this article, I would like to use the discussion by the American scholar Harold J. Berman in the preface to "Law and Revolution—The Formation of the Western Legal Tradition" to explain it. He pointed out, "This is a history of origins, 'roots,' and also a history of 'routes,' the paths by which we have arrived at today." Moreover, "without a reintegration of the future, we cannot trace our past footsteps or find a guiding path for the future." The French philosopher and paleontologist Teilhard de Chardin also once said, "The past has shown me how to build the future." From a historical perspective, a thorough examination of the legal tradition of English common law and its civil litigation system will have an extremely profound impact not only on other common law jurisdictions but also on our country's civil judicial reform and the improvement of the civil litigation system, and it will provide a rational reference for comparing and learning from the experience of English civil litigation. This is also the main theme of the conclusion "The Enlightenment of 'British Experience' on China's Civil Litigation System and Civil Judicial Reform."
2. Research Method of This Book
In terms of writing methods, this book mainly adopts the historical analysis method, taking the historical perspective as the background. On one hand, it provides a historical description of the origin and development of English common law and its civil litigation system, and on the other hand, it conducts rational speculative analysis of its characteristics and impact. The reason for choosing this method is:
1. Because English law itself is a product of long-term evolution, and the main traditional characteristics of English law lie in its "historical nature." German comparative lawyer K. Zweigert once said, "Compared to the other two major legal systems, English law places greater emphasis on tracing its historical origins." English law, whether its various legal systems, litigation procedures, or legal traditions, "more consciously emphasizes connections with the past and relies more on traditional legal thought." French legal scholar René David also once pointed out, "Studying English law requires more historical knowledge than studying French law," and "English lawyers proudly emphasize the historical continuity of their law." Therefore, to understand common law, it must be interpreted "historically." Tracing the history of English law will help explain why England did not undergo Roman law adoption or codification, and why English law has such an attractive uninterrupted development for observers of the continent, especially legal historians. Moreover, without understanding the history of English law, it is difficult to understand today's special style, technical expression, and conceptual division of common law.
2. The author chose the historical perspective because the civil litigation system in England under the common law system is a vast topic. Given the length and ability, the author could not adopt a macro and comprehensive historical analysis method to study this topic, but instead focused on reviewing the origin and development of specific civil litigation systems in England from a "root-seeking" perspective. The author adopted this research method, not only because it is beneficial to a deeper and more thorough understanding and elaboration of a system, but also because the author hopes to make some innovations in this regard. After all, the comparative study of the English civil litigation system in the domestic academic circles, especially its historical development and evolution, is not comprehensive and in-depth enough. Although the author does not dare to expect to make up for it within the existing scope, at least the book hopes to inspire peers who are interested in this research. Therefore, the book only selects some systems with typical representative significance for analysis and discussion. The author hopes to examine and analyze the English civil litigation system through this historical analysis method, which will not only provide new insights into this subject but also for other countries, especially for our country's civil litigation system.
3. Structure and Content Arrangement of This Article
The origin and development of English law and its civil litigation system have gone through four stages:
1. Ancient Law Period, from the 4th century BC to the mid-5th century AD when the Anglo-Saxons invaded Britain and established a unified English nation to the Norman Conquest in 1066 that established a feudal dynasty. This period, known as the Anglo-Saxon period, was profoundly influenced by ancient Germanic law on ancient English law and its civil litigation system.
2. The period of the formation and development of common law since the 12th century, during which the English civil litigation system developed.
3. The 19th-century reform period of English law, when the judicial reforms in 19th-century England laid the foundation for the modern English civil litigation system.
4. The modernization period of English civil litigation, specifically the judicial reforms in the 1990s in England.
This article mainly elaborates on and analyzes the origin, development, and impact of the English civil litigation system around these four stages in seven chapters.
Chapter 1: Ancient English Law and Its Civil Litigation System. It is divided into four sections. Ancient English legal systems were deeply influenced by ancient Germanic law. In a certain sense, ancient Germanic law is the main historical origin of modern English law and also the historical origin of the common law system.
Section 1, titled "Ancient Germanic Law and Its Influence," discusses in detail the ancient Germanic law and its legal concepts, the judicial organizations of ancient Germanic tribes, litigation procedures, and the influence of ancient Germanic law.
Section 2 elaborates on the influence of the Frankish Empire on ancient English law and its civil litigation system from the establishment of the Frankish Empire, the legal system and judicial organization of the Frankish Empire, the transformation of litigation procedures, and its impact.
Section 3, titled "Anglo-Saxon Period English Law and Its Civil Litigation System," discusses the legal sources, court organization, and litigation procedures of England during the Anglo-Saxon period.
Section 4 analyzes the ancient Germanic characteristics and influence of English ancient law from the perspectives of legal sources, judicial organization, and litigation procedures.
Chapter 2: Civil Judicial System During the Formation of Common Law. It is divided into three sections. The 12th to 13th centuries were the most important and critical period in the history of English law, as common law was formed during this time. The judicial system is the prerequisite and foundation for the development of common law, and in a certain sense, it is the judicial system that has achieved common law. The judicial system is an important clue for understanding the origin and development of common law. Therefore, this chapter mainly elaborates on the English civil judicial system around the theme of the formation and development of common law.
Section 1, titled "The Establishment of Centralized Power in England," discusses how the Norman dynasty established and consolidated a centralized system to ensure its security and rule by setting up central and local political institutions and establishing a system of land tenure.
Section 2, titled "The Establishment of the Central Royal Court System," focuses on discussing this process from two aspects.
Section 3 mainly discusses the formation and impact of the civil judicial system in England during the formation of common law. It focuses on discussing the formation and development of common law during its formative stage, including the formation and development of the circuit court system, the jury system, and the writ system, and their impact on the formation of common law and civil litigation.
Chapter 3: The Rise of Equity Law and Its Impact on English Civil Litigation. It is divided into three sections and discusses the rise, development, and characteristics of the litigation procedures of the equity court. Equity law, as one of the main sources of English law, is an important part of understanding and researching English law. Before the 19th century, English law existed with two different legal systems: common law and equity law. This dual structure is also an important feature of English law. The rise and development of equity law not only promoted the economic and social development of English society but more importantly, it pushed the English legal system gradually towards completeness and maturity.
Chapter 4: The Formation of Canon Law and Its Impact on English Civil Litigation. It is divided into two sections. Section 1 focuses on discussing the formation of canon law and the establishment of the canon law court system. The formation of canon law was a result of the improvement and centralization of the administrative organization of the church, the unification and expansion of church authority, and the establishment of the status and privileges of the church. Canon law included elements of Roman and Germanic law. To exercise extensive judicial power, the church established a hierarchy of canon law courts, forming an independent and complete religious court system modeled after the court systems of feudal states. Section 2 mainly discusses the establishment of the church organization and the canon law courts in England, the conflict and development of judicial jurisdiction between canon law courts and royal courts, and the content, characteristics, and impact of the litigation procedures of canon law courts on modern English law and litigation procedures.
Chapter 5: The Rise of the Legal Profession in England and Its Impact on Litigation Procedures. The emergence of the legal profession played a key role in the formation of common law. This chapter is divided into two sections.
Section 1 discusses the emergence and development of the legal profession in England. The rise and development of the legal profession in England is a long historical process. Overall, it emerged alongside the gradual professionalization of judicial institutions in England from the late 12th to the mid-13th century. Especially the institutionalization, members, and jurisdiction of the central royal courts, as well as their specialization and systematization, promoted the formation of the common law judge profession in the 13th century. The professionalization of the legal class is the internal reason for the rise of the legal profession, while England's unique legal education and lawyer training system is the external reason that ultimately led to the formation of the legal profession in England.
Section 2 discusses the impact of the legal profession in England on common law and its litigation procedures. The legal profession in England not only played an important role in the formation and development of common law but also contributed to the establishment of some traditional and important common law procedural systems.
Chapter 6: The 19th-Century Civil Judicial Reform in England. This chapter is divided into three sections.
Section 1 discusses the historical background and drawbacks of the traditional judicial system. This section focuses on analyzing the chaotic judicial organization, cumbersome and rigid litigation procedures, high litigation costs, and low trial efficiency of the traditional judicial system in England before the 19th century, arguing that these drawbacks of the traditional judicial system were the main reasons for the judicial reforms in 19th-century England.
Section 2 mainly discusses "litigation procedure reform." Targeting the drawbacks of litigation procedures in the traditional judicial system, simplifying litigation procedures was not only an important goal and content of the 19th-century judicial reforms in England but also an important breakthrough in this reform. This section focuses on discussing the four aspects of this reform: the reform of litigation procedures in common law courts and equity courts, the reform of court organizational structure, the reform of litigation procedures in the Supreme Court, and the reform and reshaping of the appellate system.
Section 3 provides a general evaluation of the historical significance of the 19th-century judicial reforms in England. Through judicial reforms, England adjusted its court settings, establishing a modern judicial system with a clear hierarchy of judicial authority, orderly and pyramidal four-tier, three-tier appellate system. Moreover, judicial reforms adjusted the relationship between common law and equity law, as well as substantive law and procedural law, ending the separation of common law and equity law and completing the integration of the English legal system, establishing a comprehensive modern capitalist legal system with a reasonable internal structure. The 19th-century judicial reforms carried out a true and thorough revolution in the common law litigation procedures, establishing a set of simple, quick, and efficient rules suitable for all departments of the court, improving judicial efficiency and fairness. Moreover, the 19th-century judicial reforms also promoted the formation of modern rule-of-law society in England, popularizing and improving people's legal awareness and rule-of-law concepts. All of this marked the beginning of modern rule-of-law society in England.
Chapter 7: The Civil Judicial Reform in England in the 1990s. This chapter is divided into two sections.
Section 1, titled "The Development of English Civil Litigation Since the 19th-Century Judicial Reforms," focuses on discussing two significant litigation procedural systems established since the 19th-century judicial reforms in England that have had a major impact on the entire common law system: the rule of precedent and the adversarial litigation system.
Section 2, titled "The 1990s Civil Judicial Reform in England," analyzes the three main drawbacks of English civil litigation, namely litigation delays, high litigation costs, and complex litigation procedures. It points out that the above drawbacks of English civil litigation largely stem from the adversarial litigation system of common law tradition and litigation culture, i.e., the adversarial litigation model. The adversarial litigation system, due to the lack of effective judicial control, results in delayed court power, which fundamentally leads to litigation delays, high litigation costs, and excessively long litigation cycles. Therefore, changing the adversarial system became an important goal of the 20th-century civil judicial reforms in England. In addition, it also focuses on discussing an important achievement of the 1990s civil judicial reforms, namely the creation of the new "Civil Procedure Rules" in England. The new "Civil Procedure Rules" of England, which came into effect on April 26, 1999, hold a milestone significance in the history of English law, especially in the civil litigation system. The new rules established the goals of "simplifying litigation procedures, improving efficiency, reducing delays, lowering costs, increasing the certainty of litigation, and promoting fair and reasonable resolution of disputes by the courts." The new rules carried out a thorough transformation of the civil litigation system in England.
Section 3 provides a summary and evaluation of the historical significance of the civil judicial reforms in the late 20th century. The reform of the civil litigation system by the new "Civil Procedure Rules" is an important milestone in the history of English civil litigation. It not only played an important role in eliminating the various drawbacks of the civil judicial system in England but also laid a foundation for the modern development of the civil litigation system. The new "Civil Procedure Rules" established the concept of "access to justice" in civil judicial affairs, reviving the independent value of "procedural justice." This not only established the goals of the civil judicial reforms in England but also pointed the direction for the development and improvement of the civil litigation system. Moreover, the civil judicial reforms in the 1990s in England were an important part of the global wave of civil judicial reforms. The experiences and lessons of England's civil litigation reforms, the codification of litigation rules, and the restructuring of various specific systems have had an important impact and enlightenment on the civil judicial reforms of other countries, especially on those of other common law jurisdictions.
The first seven chapters of this book, through the discussion and analysis of the origin, development, and evolutionary history of the English civil litigation system, as well as the legal thoughts, procedural principles, and litigation culture embodied and contained behind various specific procedural systems, not only help us better understand the development and changes of the English civil litigation system but also provide a broader perspective for us to anticipate the future development trends of the English civil litigation system. More importantly, from a historical perspective, a thorough examination of the legal tradition of the common law system and the English civil litigation system can help us find a way out of the "current predicament." This is also the essence of the conclusion "The Enlightenment of 'British Experience' on China's Civil Judicial Reform and the Improvement of Its Civil Litigation System."
In the conclusion, the author discusses the purpose of this article from three aspects. Under the global trend of civil judicial reforms, it analyzes the main drawbacks of our country's civil judicial system; it proposes taking the realization of judicial modernization as the goal of our country's civil judicial reform, and at the same time, it elaborates on the correct attitude and methods for us to learn from and use the modern civil litigation legal system and theory of the West. It focuses on discussing the enlightenment of "British experience" on our country's civil judicial reform and the improvement of its civil litigation system. It focuses on discussing the enlightenment of the British judge selection system, civil litigation legislation, and the British experience in transforming the litigation model on our corresponding judge system reforms, the improvement of the Civil Procedure Law, and the reform of the civil litigation system and trial methods.
As the author elaborates in the conclusion, the topic of this book and the author's final purpose in researching this topic are not merely a simple description of the English civil litigation system, but rather to provide a theoretical and practical guidance for our country's civil judicial reform and the improvement of the civil litigation system. Understanding the history of others is to learn from and absorb their experience. To achieve the modernization of civil litigation in our country, fundamentally, we must be based on our country's legal tradition and cultural foundation, based on a full understanding and respect for our national conditions, so as to propose feasible reform measures. But at the same time, we should also look to the world, seriously study the judicial and litigation systems of developed legal systems in the West, absorb their beneficial components and nutrients, and eliminate their dross or outdated aspects, through mutual coordination or mutual learning, to jointly promote the perfection and development of a certain litigation system.