Download sources of English Law

Sources and Varieties of English
Law
The United Kingdom
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The United Kingdom means Great Britain and Northern
Ireland; Great Britain means England, Scotland and
Wales
The United Kingdom is a unitary state, but it does not
have a single body of law
England, Scotland, Wales and Northern Ireland have
their own legal systems and courts
The separation of powers
The great political philosopher Montesquieu
coined the phrase the ‘separation of powers’ in
the 18th century
“Government should be set so that no man need
be afraid of another”
Three individual elements of the state:
The executive, the legislature and the judiciary
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Classification by source
Who makes the law?
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Parliament
Courts
The European Union
The Council of Europe
English Law
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EU Law – law that emanates from the Institutions of
the EU
Statute law – mabe by Parliament
Common Law (customary law, judge-made law, case
law) – made by the decisions of the judges
Equity – created by the Chancery court under the
Lord Chancellor to ‘fill in the gaps’ in the common law
EU Law
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The EU was established in 1951 by the
creation of the European Coal and Steel
Community (ESCS)
The UK joined the EU on January 1, 1973
EU legislation has primary legislation (treaties)
and secondary legislation (regulations,
directives, decisions and recommendations)
EU Law can overrule national law
Written and unwritten law
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Two main categories of law:
Written (formally enacted) and unwritten (unenacted)
A statute is drawn up in a definite form of words, and
these words have been approved by Parliament and
have received the Royal Assent (written law)
There is no authoritative text of the Common Law
(unwritten law) – law reports
Rules of equity
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Rules of equity grew up through the practice of
medieval Lord Chancellors
“keepers of the king’s conscience” – initially claimants
petitioned the king; in the 15th century the king handed
the responsibility to the Lord High Chancellor who
created a specialist court to deal with such matters (the
Court of Chancery)
Alternative legal remedies – more flexible
Equity gradually became more rigid and was fused with
common law by the Judicature Act of 1873
Common Law
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Unwritten law is predominant
More precedents than legislative enactment
Common law (the general law contained in
decided cases; unwritten or judge-made law)
means ancient customs, precedents and books
of authority (writings of jurists)
Principal sources of English Law
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Statute Law: Legislation (enacted law; statutes
or Acts passed by Parliament); the doctrine of
parliamentary sovereignty
Common Law: Precedent (courts are
interpreters of law); previous decisions by
superior courts on similar facts
Subsidiary sources of English Law
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Common law means judicial precedents, but
also ancient customs and writing of jurists books of authority
The subsidiary sources are customs and books
of authority
Customs
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Customs are social habits or patterns of
behaviour
“Conventional”rules
Many of early rules of the common law were
general customs which the courts adopted
The customs must be reasonable, certain and
“ancient” – must go back to 1189
Books of authority
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The writings of legal authors
Cited in courts
Some books by prominent authors are as
authoritative as precedents e.g. Blackstone’s
Commentaries (1765)
Why it is called ‘common’
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The first legal system that became common to the
whole country (England and Wales) in 1066 – after the
Norman Conquest
Prior to the Norman Conquest there were many
different rules of law found all over the country –
custom law
William the Conqueror decided to set up a central
system of government that would include the justice
system
Curia Regis (King’s Court)
Common law v. Roman law
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Common law is a native product of Britain
It absorbed only a few rules of Roman law
A unique legal system
Common Law and Statute Law
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Common Law has grown rather then being
made
Statutes began with the reissue of Magna
Carta in 1225 in the reign of Henry III
A large volume is added every year
Much of the fundamental part of English law is
still Common law
Sovereignty of Parliament
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Where Statute Law and Common Law come
into competition, Statute Law prevails
The sovereignty of Parliament is the dominant
characteristics of English political institutions
No court or judge can refuse to enforce an Act
of Parliament
No development of Common Law can repeal
an Act of Parliament
Advantages of case law
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Certainty: the fact that decided cases are binding
makes it certain that every future case which is
essentially similar will be decided in the same way
The possibility of growth: new rules meet new
circumstances
A great wealth of detailed rules: English law is richer
than any code of law
Practical character: rules laid down by the cases are in
close touch with the needs of everyday life
Disadvantages of case law
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Rigidity: once a rule has been decided, it is
difficult to depart from it
Lack of logical distinctions: Rules which are
logically inconsistent with each other are
sometimes developed along distinct lines of
cases – conflict
Bulk and complexity – more than 2,000
volumes of law reports make the case law
difficult to apply
The British Constitution
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It has evolved over many centuries
It is not set out in any single document
It is made up of statute law, common law and
conventions
Conventions are rules and practices which are not
legally enforceable, but which are regarded as
indispensable to the working of government
The constitution can be altered by Act of Parliament, or
by general agreement to alter a convention
Varieties of English Law
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Law can be classified by the type of law (the
matters that the law is regulating)
Classification by types of law includes
distinctions between international or national
and public or private
National and international law
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National (domestic, internal) law – the law of a
state regulating its domestic affairs
International law – A body of rules that
regulates relations between states and rights
and duties of individuals in their relations to
foreign states and with each other
Public and private law
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National law can be divided into public law and
private law
Public law involves the State in some way; it is
the area of law in which the state has a direct
interest (administrative law, constitutional law,
revenue law, criminal law)
Private law controls the relationships between
individuals
Public law
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Administrative law – the body of law which
deals with the powers of the executive organs
of the state
Constitutional law – the area of law that deals
with the interpretation and construction of
constitutions
Revenue law – the area of law concerned with
income and taxes
Criminal and civil law
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Criminal law – a branch of law concerned with
behaviour that is considered to be harmful to
society as a whole: the state (prosecutor) takes
legal action against the wrong-doer in the
name of society
Civil law – a branch of law that deals with
disputes between individuals
The injured party (plaintiff or claimant) takes
legal action
Subcategories of civil law
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Law of contract
Law of torts
Family law
Patents and copyrights