The Different Sources of English Law - Coursework Example

Critically assess the different sources of English Law. To what extent have external influences affected its development? Introduction The English legal system has spread to many other countries most notably English former colonies such as the US, Canada, Australia, and New Zealand. Over time, English law has evolved extensively dating back from the local customs of the Anglo-Saxons, which were in use until 1925 (Riches & Allen 2011, p. 13). The Norman Conquest led to the growth of local customs alongside the Saxon shire courts, the feudal courts of the Barons and the church courts. The King’s Council led to the emergence of the royal courts, presided over by trained judges. The royal courts gradually utilized the jurisdictions of the Baronial and Ecclesiastical courts. By the 1250, the royal judges had adopted different local customs to form part of the common law (Slapper & Kelly 2011, p. 18). The system of equity developed came in later in the Court of Chancery, and the Lord Chancellor considered petitions. The 17th and 18th centuries saw the absorption of Law Merchant into the common law. In the 19th century, nearly the whole of English law saw reforms through legislation (Slapper& Kelly 2011, p.25). The paper looks into the different sources of law in England and Wales. It is necessary to note that England and Wales form part of the UK. The main sources of the UK law are legislation, case law and European law. England and Wales have similar legal system and laws passed by the UK parliament directly apply to Wales. Legislation This is probably the most crucial source of the English law. The legislature is responsible for the creation of legislation law. The most vital components of legislation are the Acts of parliament. The UK parliament is the principal legislature; it remains to be the only body with the powers to pass laws applied in the four countries forming the UK. The parliament comprises of House of Commons and the House of Lords. The two components of parliament debate and vote for Bills presented for legislation, and the final step of legislation requires the Monarch to assent to the Bills to make them Acts of parliament (primary legislation) (Mothersole & Ridley 1999, p. 33). In England and Wales, much of legislation occurs through primary legislation by Government Ministers and does not necessarily require advance approval by parliament. Such a situation is termed to as delegated or secondary legislation. Certain powers within the “parent” Act assist in the issuing of delegated legislation. Another notable fact is that delegated legislation is issued in the form of statutory instruments and may get the title of “regulations” or “orders” (Mothersole & Ridley 1999, p. 36). The use of delegated legislation is opted for a number of reasons, which include saving time in parliament since there is no time taken in scrutinizing statutory instruments, and if there is any, it would take at most an hour or two. The other reason is that it creates a room for the experts to give their input. Finally, delegated legislation allows flexibility when responding to representations and events (Riches & Allen 2011, p. 21). When comparing legislation with common law, the evident thing is that legislation has the power to alter existing common law, but the reverse is impossible. The fact of the matter is that legislation can only be amended using a second legislation. This phenomenon shows what is known as parliamentary sovereignty, which is the acceptance that parliament remains as the supreme law making authority. In some occasions, the powers of parliament may not be absolute. The relationship with the European Union to some extent has limited the powers of parliament. Others factors that place additional limit on powers of parliament include democracy, government accountability, and individual freedoms (Riches & Allen 2011, p. 27). Case Law Laws from this source arise as a result of decisions made by the judiciary. Judgments are comprised of case facts, correct legal position and the actual decision. Before the 17th century, the English law was largely made based on judge made law (common law or case law). Countries in the UK had different sets of common laws. After the 17th century, common laws started to receive numerous reforms through Acts of parliament. However, common laws are still relevant sources of law in England and Wales. Any judgment statement made by a judge in a case ruling can become a biding law that any other judge can use to make a ruling in the future (Chadwick 2011, p.70). There are two key determinants of whether a judge’s pronouncement (precedent) will become a binding to other judges. The first determinant is that the precedent must occur in a court of sufficient seniority. The rule is always that judges from lowest ranks of decision making have no mandate to issue decisions that are binding. In such cases, ruling issued by low ranked judges are not reported, which makes it difficult to know the decisions made. Furthermore, low ranked judges mostly deal with findings of facts rather than full legal arguments. Therefore, the higher courts issue binding rulings that are followed by the lower courts. Since 1865, there has been a unique system to aid in recording and reporting of binding rulings (Chadwick 2011, p.77). The second determinant for a decision to become a binding ruling is that a precedent must have generated the ratio decidendi of the case (reasoning behind the decision). It is worth noting that the reasoning must be a subject related to law rather than a factual decision. The other notable thing is that the precedent should not be obiter dictum. The ratio decidendi becomes the binding factor, and it consists of legal principles and rules, which are essential in solving of problems presented to the court. On the other hand, obiter dicta are not binding, but are regarded as “persuasive authority”, which implies that future judges have the responsibility of reading them for influence purposes, but are not entitled to use them in issuing precedents (Chadwick 2011, p. 84). When using case law, a later judge has a responsibility to determine binding precedents and their relevance. When making a ruling using binding rulings, a judge can declare his case as “distinguishable” from earlier cases. Therefore, precedent plays a crucial role in case law. One key role is to ensure certainty, consistency, and logical formulation of the law. The other importance is the ease in which a judge can find the law from archives and apply it in accordance to court guidance (Chadwick 2011, p.88). European Union Law The European Union forms the other essential source of law to UK’s member countries. The European Union law arises through a number of ways, which include treaties, regulations, directions and decisions. All EU member states have the responsibility to bind and adhere to laws provided. The UK joined the EU community on the 1st of January 1973. The European law was introduced into UK law by the EU communities Act 1972 after UK joined the EU community (Fairhurst 2009, p. 112). In this section, it is necessary to address the sources of European law because all member countries are entitled to adhere to the laws. Treaties form the primary source of European laws, which form the basis of the EU community. Under treaties, there are three crucial documents under consideration; the treaty of Rome 1957, the single European Act 1986, treaty on European Union 1992, and the 1997 draft treaty of Amsterdam. EU has a number of Acts in place that ensure that treaties take effect as UK law (Fairhurst 2009, p. 117). Treaties form a platform where secondary sources of EU laws are derived through regulations, directives, decisions from courts of justice, and recommendations. Regulations are binding and apply directly to all EU member states, which imply that there is no any implementation through national legislation. Directives are requirements that EU member states should change their national laws within a stipulated period in order to implement the directives. UK member countries can implement the directives through delegated legislation under the EU communities ACT 1972. Decisions from the courts of justice prove binding rulings that bind the addressed parties regardless of whether they are member states or individuals. On the other hand, recommendations and opinions lack the binding power but state the opinion of the institution issuing them. Various institutions, which include executive, legislative, and judicial institutions, play roles during the formulation of European laws. The European Commission is appointed to oversee the daily running of the EU affairs. In addition, the commission proposes the EU policy and legislation and heads on to supervise its application and enforcement. Today, the European parliament has directly elected MEPs from each of EU member states, but they lack direct legislative powers. There are also committees of the regions in each EU member state that comprise of representatives from local and regional authorities. The laid down rules advocate for consolation of representatives on social and economic issues before developing any European law (Fairhurst 2009, p. 125). In summary, the main sources of England and Wales laws are legislation, case law and European Union law. Laws obtained through legislation are formed through Acts of Parliament after members of House of Commons and House of Lords have passed bills. The laws then come into effect after the Monarch has appended its signature on the new laws. In order to apply European Union laws, countries are required to be members of the EU community. England and Wales are members of the EU community, which enables them to apply laws developed by the European Commission. References List Chadwick, A. (2011). The English Legal System, Oxford, Emerald Group Publishing Limited. pp. 70-90. Fairhurst, J. (2009). Law of the European Union, London, Longman. pp. 110-130. Mothersole, B. & Ridley, A. (1999). A-Level Law in Action, London, Cengage Learning EMEA. pp. 33-38. Riches, S & Allen, V. (2011). Keenan and Riches Business Law 10th edition, London, Pearson Education Ltd. pp. 10-30. Slapper, G. & Kelly, D. (2011). The English Legal System, New York, Taylor & Francis. pp. 15-25. Read More