Sources and Varieties of English Law

The United Kingdom 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

Classification by source

Who makes the law? Parliament Courts The European Union The Council of Europe

English Law 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 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 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 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 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 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 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 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 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’ 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 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 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 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 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 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 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 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 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 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 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 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 Law of contract Law of torts Family law Patents and copyrights