The Different Sources of Law in England & Wales - Essay Example

Name: Instructor’s Name: Course: Date of Submission: The Different Sources of Law in England & Wales Introduction The legal system in the United Kingdom is divided into three different legal jurisdictions including England along with Wales as well as Scotland and Northern Ireland and all these jurisdictions follow separate legal procedures. In the region of England and Wales the name of the legal system followed is recognized as English law. English Law has four major sources including the legislation, Common Law and European Laws as well as European Convention on Human Rights (ECHR) (Hendrick 14). The source of Legislation through which English Legal system obtains its laws and regulations is further divided into two sections including acts that are passed by the parliament as well as legislature that is delegated. Body One of the main sources through which English Law is created as well as altered is through Legislations that are passed by the parliament and the parliamentarians and laws that are delegated. Previously only common law was recognized as the basis of English Law, but with the changes in situations and due to need for change law that is enacted through legislation was adopted and is now considered as the most significant source of English Law. Laws that are created through legislation are enforceable and the citizens of the region have to follow these laws. The source through which English Legislation has been created and is altered is recognized as the Act of Parliament is regarded as superior to all laws and is created while giving importance to the theory of sovereignty of the parliament (Hendrick 15). Laws that are even passed in the European parliament have even become the basis of English Legislation. Acts that are passed by the parliament are recognized as statutes and are enacted with the assistance of a process that takes place in the parliament and are regarded as necessary to be used by the courts in different cases even if these laws end up treating individuals in an unfair manner. The second source of legislation is legislature that has been delegated. Laws that are created through this source are subsidiary to acts enacted by the parliament because these laws can only be used or exercised when they are enacted under a certain act that has been passed by the parliament. The authority to make laws is delegated to a certain body that can only create regulations that are created in conformity with the restrictions that are created through a parent act passed by the parliament. Such legislations are regarded as inter virus which means these laws are to be created with the powers that have been delegated. The legislation that is enacted by the parliament can only be subjected to interpretation that is statutory in nature, while those laws that are created under delegated legislation can be tested for being unreasonable and unfair and can even be regarded as ultea virus which denotes that certain law have been created outside the authority that has been delegated. These laws are further divided into three types including: orders in council that are created when the region is experiencing emergency situations, ministerial regulations which are created under those acts that are passed by the parliament and by laws that are created by the local level of authorities. The second main source of English law is common law which is even regarded as precedent in English Law and is rules and regulations that are decided as well as created by judges through the decisions they take within courts and other settings of dispute resolution such as tribunals (Hendrick 17). The main feature of common law is situated in the term itself as the term common law denotes that these laws are created through the common sense of the judges. In the region of England as well as Wales, laws are not only created within the parliament, they are even developed through previous decisions that have been held by the judicial system. The main element of common law is precedent which refers to a rule that has already been exercised in a prior legal case and becomes quite persuasive for any court while they are dealing with a case that is similar in facts as well as issue that is being tried to be resolved. The term common law was created in order to differentiate between regulations that were created by the Royal Courts located within the region of London and were then exercised throughout the Kingdom and Church law as well as laws regarded as local customary laws. Later common law became the single source of law making because of the sophistication of the procedure of reporting decisions and this assisted in making it transparent to see how the judges were exercising rules and regulations. One of the most renowned cases in which common law became a source of English Law was the case of Hadley vs. Baxendale in which it was decided that damages that may take place as a result of contractual breach were not to be recovered until those damages were foreseeable (Lundmark 185). Common law is quite different from civil law jurisdiction as in case of civil law jurisdiction, it is not binding for the judges to hold the same decision. A major benefit of common law is that it is quite flexible in nature and the practicality of such law is quite high as it is created in accordance to scenarios taking place in the real world and has a very huge history. Another source of English Law is European Law which was previously recognized as European Community Law and the whole of United Kingdom even including England and Wales are required to follow it since January 1st, 1973 (Hendrick 16). European Law came into existence with the signing of Treaty of Rome and UK became a part of it after signing the same treaty during a ceremony which took place in the region of Brussels. Due to signing of this treaty by the UK, the European Law is regarded as valid and has become a binding source for England and Wales Law and laws that are created under European Law are given precedence over laws that are created through other sources in England and Wales including the laws that are enacted by the parliament and this leads to the compromise of the sovereignty of the parliament. The supremacy of European Law was experienced by the UK in the case recognized as Factortame Litigation (Barnard 2173). In this case the verdict given by the UK law makers was considered inconsistent with the laws that were already made in European law and thus UK had to accept the European law. European Law is considered as the primary source of English law; there are certain secondary sources that are created under the guidelines of the European Law. These include regulations which are given precedence over local legislations, directives which are necessary requirements that the member nations including UK have to alter their law to make it consistent with European law, decision made by the justice court, these are to be followed by bodies whether they are members of European law or separate entities and last secondary source is recommendations. The last source of English Law is the European Convention of Human Rights which is even recognized as ECHR and was made a portion of the English Law after the enactment of Human Rights Act of 1998. The main aim of the inclusion of ECHR into England and Wales Law was to provide individuals with certain rights that fall in the category of basic rights as well as freedoms are regarded as very essential for a society that is democratic in nature. ECHR became a source of English Law during the session of October 2000 and due to its inclusion as a source it provided individuals who are fighting a court case in the region of England and Wales with the ability to rely on the rights stated in the ECHR while fighting their individual cases and due to this the courts are obliged to give importance to these rights while holding any ruling (Hendrick 16). Due to this inclusion, the government organizations and entities of England as well as Wales are required to operate in accordance to the rights provided by the ECHR. These rights are mainly concerned with the area of civics and politics but are even applied in the field of healthcare and include the right an individual have of not being killed or murdered by another body or human being in an unjust manner, the right to avoid being tortured, freedom to live, right to personal privacy as well as right to choose and create family and involve in marriage. Conclusion The four main sources through which English Law is operated includes Acts of Parliament which refers to the legislations that are passed by the parliamentarians, the common law which are created by the judges, the European Law which are created by the members who signed the treaty of Rome and this source is given precedence to all other sources and European Convention of Human Rights. Works Cited Barnard, Catherine. The substantive law of the EU: the four freedoms. 2nd ed. Oxford: Oxford University Press, 2007. Print. Hendrick, Judith. Law and ethics. Cheltenham, U.K.: Nelson Thornes, 2004. Print. Lundmark, Thomas. Common law tort & contract. Münster: Lit, 1998. Print. Read More