Critical Analysis of Different Sources of English Law - Case Study Example

Critical Analysis of Different Sources of English Law Client Inserts His/her Name Client Inserts Grade Course Client Inserts Tutor’s Name English law: a basis of common law legal systems used in many commonwealth countries is the legal system of England and Wales. The English legal system has seen some developments over the years. These developments have at sometime been affected by external influences. Other laws that do not derive from domestic legal sources affect the English legal system. The essay tries to critically assess the different sources of English law and the extent to which external influences have affected its development. The three major sources of English law include: Case law. Legislation/Statute law. European Union law and human rights. Case law Through case law, the English law has developed over the years having the lower courts bound and enforce the decisions made at the rulings in higher courts. Precedent system is set to ensure certainty in law. A decision made at a certain point of law is followed by other laws. Case law has often been referred to as “judge-made law”.1 This is because of the role played by judges as lawmakers are presently much reduced as compared to the past. The decisions made by these judges are systematically collected and stored in volumes of reported cases and law reports. This is probably the most important source of law for the legal profession. The system of precedent is based on “the principle of stare decision” (“stand by what has previously been decided in a 1. Origins and Development of English Law, [Online text]. < http://www.zeblog.com/blog/uploads/t/titiflo77/Origins_and_development_of_English_law.pdf> (Accessed 15 March 2012), p. 1 similar case”). The doctrine of precedent is what governs the development of case law and it is a flexible than it might first appear. Case law has two major areas; these are common law and equity law.2 Common law This can be described as an amalgamation of decisions made in the past cases that are referred to and used to make decisions concerning related cases at present times. Common law was at first a rigid system given that it was based on the system of writs. It was crucial for the plaintiff to select the appropriate writ before starting his writ. Is also only recognized certain rights at first and some remedies awarded by the courts were inadequate. It is worth noting that these case laws have developed over time as a result of local customs and cases being decided. They have ended up forming a backbone of judicial precedent (decisions made by judges on previous cases). This type of law is kept updated due to the numerous new cases being decided. Normally, judicial precedents made by higher courts are binding on lower courts.3 Equity law This was put in place to supplement common law. It does this by filling in the gaps where there was a lack of fair judgment in some cases. A limitation with the common law was that for persons that had won the cases, it remedied only damages. 4 2. Origins and Development of English Law, p. 2 3. English Law and Other Legal System, [Online]. < http://www.acornlive.com/demos/pdf/C5_BLW_Chapter_1.pdf> (Accessed 15 March 2012), p. 3 4. ibid., p. 3 It will not be good in equity law in cases where there is delay in bringing a matter to court in reasonable time. Injunction, rescission, specific performance, and rectification are some of the remedies available under equity law.5 The difference between common law and equity law is that equity law recognizes rights that the common law does not. An example of this is the equity of redemption and the right of a beneficiary under the trust. Therefore, equity law was created to remedy the deficiencies of common law and it ended up challenging it in the long term. An equitable remedy is always at the discretion of the court. Equity law always supersedes common law in case of a conflict arising between them.6 Legislation/Statute law Legislation sometimes referred to as statute law is another main source of English law. This can be described as rules and procedures by the UK parliament. This is done by the parliament passing acts of parliament or statutes. These are then passed through the House of Commons and the House of Lords before they are finally given the Royal Assent. A statute can be defined as any act of the legislature which serves as a rule for the conduct of the community. Statutes are either declaratory or confirmatory of the common law. They serve to bridge r enlarge the common law or introduce a new law altogether. The parliament is mandated to legislate on any matter and once the legislation has been passed and enacted it must be obeyed. The next parliament is able to repeal any legislation if they don’t agree with it. 7 5. English Law and Other Legal System, p. 4 6. Origins and Development of English Law, p. 2 7. Gary Slapper and David Kelly, The English Legal System: 2009-2010, Taylor & Francis, London, 2009, p. 65 The acts passed by the parliament cannot be questioned by the courts but they can ask the government on interpreting and enforcing the act. It is surprising that English statutes have never been codified officially. Currently in force however are some unofficial publications of statutes currently in force where they are organized by subject.8 Other bodies like the various government departments, local authorities, regional parliaments and emergency laws can be delegated to legislate by the parliament. Emergency laws have to be approved by the Privy Council. Parliament however exercises control over legislated bodies with the right to take away the powers in case they are abused.9 European Union law European Union legislation is also another important source of English law. This law is designated to create a single market for European member states to freely trade with each other. It has however moved on to a closer tie of a single political and economic union since the Maastricht Treaty. These laws are made in a number of ways. They can also include law in treaties, directions, regulations, and decisions. These laws bind all the member states and must be adhered to by all. Decisions are made to those cases that are taken to the European Court of Justice from the United Kingdom courts and they remain binding. English law and European law interact in those areas where the two systems complement each other.10 8. Gary Slapper and David Kelly, The English Legal System: 2009-2010, p. 68 9. English Law and Other Legal System, p. 4 10. Europe and English legal system. [Online text], (accessed 15 March 2012), p. 96 In the case Costa vs. Enel (1964), the European Court Justice pronounced the principle of primacy of European Community law over national law. The parliament is no longer the supreme law-maker as it is overruled by the European Union law. Until the entry of UK into the European Community and subsequently the European Court of Justice, the House of Lords was the final court of appeal. By virtue of The Human Rights Act 1998, most of the European Conventions on human rights has been incorporated into English law. Countries protect the rights of their citizens through various documents. Though the United Kingdom may not have a written constitution, some documents exist to protect the rights of citizens. Example of these documents include The Magna Carta 1215 (the first statute ever) and The Bill of Rights 1689. These documents still contain albeit limited rights occasionally relied upon though they cannot be regarded as inductive of human rights. 11 English law has seen tremendous development over the years. This has to some extent been affected by external influences. Legislations of the European Union including its treaty provisions, regulations, directives, and decisions are some of the major external factors that have influenced the development of English legal system over the years. According the doctrine of parliamentary sovereignty, Acts of parliament constitute the highest form of law. The parliament’s legislation cannot be called into question by the courts since it is mandated to legislate in any manner.12 11. Europe and English legal system, p. 112 12. University of London External programme, ‘Identifying features of the English Legal System and the Common Law Tradition’, Common law reasoning and institutions. [Online] (Accessed 15 March 2012), p. 31 The UK was not in any way bound by the European Union law prior to 1972 even though it constituted foreign law. There was no any provision for EU taking precedence over domestic law in the Rome treaty until in the seminal case of Costa vs. Enel where its precedence was declared. The EU precedence over domestic law whether directly applicable or effective prompted domestic laws to be changed in case of incompatibility of the two.13 In light of the aforementioned influences on the English legal system, arise the concepts of direct applicability and direct effect. Direct applicability involves an instance where before any international law becomes part of the UK, it has to be incorporated into the English law through the passing of legislation.14 Directly applicable legislations, like regulations are automatically incorporated into domestic laws after being passed. Direct effect legislations are those that can be relied upon either as a cause of action or defence in a domestic court. Direct effect legislations can either have a vertical direct effect or a horizontal direct effect. A provision has vertical direct effect if it creates legal obligations between member states and individuals. Horizontal direct effect arises if it creates legal obligations only between individuals.15, 16 13. Baron A.A. Mackay, Human rights, constitutional law and the development of the English legal system: selected essays, Hart Publishing, Oxford, 2003, p. 115 14. Europe and English legal system, p. 102. 15. Ibid., p. 105 16. George Crabb, A history of English law: or an attempt to trace the rise, progress, and successive changes, of the common law; from the earliest period to the present time, C. Goodrich, 1831, p. 76 Legislation Direct Applicability Direct Effect (provided that conditions are met). Vertical Horizontal Treaty provision No Yes Yes (if wording permits) Regulations Yes Yes Yes Directives No Yes (once implementation date has passed) No Decisions No Yes (only upon addressee) No Table 1.0 the general effects of EU legislation. Common law tradition has also been found to have some influence on the development of English legal system. The judges in the English tradition are “the living oracle of the law” thus explaining the influential status to the modern English legal system. The original common law system is the modern English legal system. Out of hundreds of years of development, the common law of England has changed to that at present. This can be attributed to Norman rationalization and centralization of Authority. This dates back to the period of Anglo-Saxon customs.17, 18 17. University of London External programme, ‘Identifying features of the English Legal System and the Common Law Tradition’, Common law reasoning and institutions, p. 32 18. John H. Baker, Baker and Milsom sources of English legal history: private law to 1750, Oxford University Press, Oxford. 2010, P. 92 Bibliography Baker, J.H., Baker and Milsom sources of English legal history: private law to 1750. Oxford University Press, Oxford. 2010. Crabb, G., A history of English law: or an attempt to trace the rise, progress, and successive changes, of the common law; from the earliest period to the present time. C. Goodrich, 1831. English Law and Other Legal System, [Online]. < http://www.acornlive.com/demos/pdf/C5_BLW_Chapter_1.pdf> (Accessed 15 March 2012).\ Europe and English legal system. [Online text], (accessed 15 March 2012). Mackay, B.A.A., Human rights, constitutional law and the development of the English legal system: selected essays. Hart Publishing, Oxford, 2003. Origins and Development of English Law, [Online text]. < http://www.zeblog.com/blog/uploads/t/titiflo77/Origins_and_development_of_English_la w.pdf> (Accessed 15 March 2012). Slapper, G., and Kelly, D., The English Legal System: 2009-2010. Taylor & Francis, London, 2009. University of London External programme, ‘Identifying features of the English Legal System and the Common Law Tradition’, Common law reasoning and institutions. 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