Sources of English Law and the Extent of the External Influence - Article Example

Student Name: xxxxxxx Tutor: xxxxxxx Title: Sources of English Law and the Extent of the External Influence Course: xxxxxxx Institution: xxxxxxx Date: xxxxxxx Sources of English law and the extent of external influences on its development Introduction English law originates from several sources and they include common law, statute law, European Union as well as human rights. European Union consists of law in treaties, rules, and directions in addition to decisions. The European Union laws are binding on member stated and is followed. For instance, European Court of Justice makes decisions coming from United Kingdom courts and the decisions are adhered to. Since UK is a member of EU, the legislation of EU is a source of English law. The interaction between European Union law and national law deals with parts where the two systems harmonize each other. However, within the case Costa v Enel (1964), the doctrine of predominance of EU legislation over national law was marked by the European Court of justice (McKay 2011). Still, Common Law forms precedent in English law, for example a case that took place several years back would be presented to a judge and the defendant would be found guilty of the murder crime; the case sets a precedent for each and every judges to follow. At present, with time the precedent is revised and improved. English law has developed via common law in form of case law where a decision of a court binds the lower courts to put into effect equivalent decision. The system of establishing precedent ascertains law since after a decision has been made in accordance with the law; other courts should follow that decision (Kelly 2008). However, even though the common law that governs England and Wales is similar, Scotland is governed by a different common law. In case law, the judges compare the previous rulings made by the judges in previous cases and then make decisions basing on this. The case law is based on principle of stare decisis which means to make a ruling basing on the ruling made in a similar case. A law statement by a judge within a case can turn out to be binding on judges in lower courts within similar cases. For example, the decisions made by Supreme Court bind all the lower courts. The principle of precedent directs the progress of case law (McKay 2011). Parliament passes the Statute law. The British Parliament at Westminster endorses primary law through Act of Parliament. The parliament also authorizes the government ministers to introduce laws and this is what is referred to as secondary legislation. The key legislation comes into force after being debated and approved by the House of Commons. After that the House of Lords approves it and then the law receives Royal Assent to become a valid law. The Parent Act grants the parliament to make laws and but there is secondary legislation which is the law formed outside the parliament. Therefore, the parliament gives another body power to make laws. For the Human Rights, the English Law has included most of the European Convection regarding human rights through The Human Rights Act 1998. Historically, the basis of English law was on customs as well as social traditions. At present, custom law is a component of Common law particularly within cases where there was no legal precedent. An example of cases is the case Beckett Ltd v. Lyons [1967] 1 All ER 833. Statue law composed of the House of Commons, the House of Lords in addition to the Monarch. Both the House of Commons alongside the House of Lords debates and votes for the presented Bills and them the Monarch assents them where they become Acts of Parliament after being approved (Smith, 2006). From 1973, under the European Communities Act 1972, the English Law incorporated the laws established by the European Union. Since European Court of Justice is the most Supreme Court, European law has an effect on judicial precedent. Basically, law is divided into two parts; Civil law which protects the rights of people and the Criminal law that protects the people individually. The chain of command is also divided into two parts. The hierarchy of the civil courts is consists of: European Court of Justice, House of Lords, Court of Appeal, Divisional Courts, High Court, County Court, and lastly Magistrates' Court which is the least inferior court and should conform with by the rulings established set by all other courts. On the other hand, the hierarchy of the criminal court includes: European Court of Justice, House of Lords, Court of Appeal, Queen's Bench Divisional Court, Crown Court, in addition to Magistrates' Court (Kelly 2008). For the external influence on the English law, the English law system was adopted from the Commonwealth nations and numerous features are still there. Several states that were formerly utilizing English law, for example Australia is still using the law and decisions adopted from English law are still cited within judicial rulings (Smith, 2007). The international obligations are included within the English law before the courts are obligated to affect them. For instance, the European Convention on Human Rights and Fundamental Freedoms permitted people to directly petition the European Commission on Human Rights. Currently, this is the Now s6 (1) Human Rights Act 1998 and makes it against the law for the public authority to take an action that is irreconcilable with a convention right. Public authority refers to an individual or entity that implements a public function and this includes the courts but excludes the parliament. Even though the European Convection is applicable to acts of non-state agents, the Human Rights Act 1998 does not make the European Convection exclusively pertinent between private parties. In addition, when the courts are interpreting the common law, the European Convection is always taken into consideration. The courts also consider the European Convection during the interpretation of the Acts of Parliament. However, the courts are supposed to follow the Act’s terms even if they are not consistent with the Convection (Section 3 Human Rights Act 1998). Likewise, international evenness during making of decision is of great significance. Therefore, the Public International Law as well as treaties and convections that regulate shipping have a strong influence on Admiralty (Hilaire 2008). English criminal law gets its key doctrines from the common law. In general, the key features of a crime include the actus reus, which means doing something that is illegal criminally and mens rea which means having an intention to commit the crime. Basically, a prosecutor is supposed to demonstrate that the accused individual was responsible for the criminal act or that the person had some pre-existing obligation to take actions of avoiding a criminal end result. The kinds of diverse crimes include murder, robbery with violence, manslaughter as well as plethora of regulatory including statutory crimes. Some defenses that are there to crimes consist of self-defense, duress, necessity and for a murder charge, under the Homicide Act 1957, diminished responsibility in addition to provocation and suicide pact (Pollock 2007). From 1189, English law has been referred to as common law instead of civil law which means that there have been few codifications of the English law and that judicial precedents are binding. This might be as a result of the Norman conquest of England which incorporates several legal models from Norman law in the English law system. In the early years of English law, the judges and also the justices played the role of implementing the Writ system to meet the daily requirement, applying various precedents as well as mind to establish a body of internally steady law, for example, the Law Merchant started within the Pie-Powder Courts. As parliament was developing in force legislation progressively overhauled judicial law and as a result at present judges can also innovate within certain extremely intently defined areas (Dicey 2003). One of the key problems within the early years was to come up with a judicial system that had definite operations and its results could be predicted. Numerous judges were either biased or not competent and acquired their positions basing on their status within the society. Consequently, a process that was uniform surfaced gradually and the process was based on stare decis system. Accordingly, the ratio decidendi of all cases binds all future cases of equivalent standard set of facts. According to the English law, the highest court is the Supreme Court and as a result is decisions binds all other courts within the hierarchy and the lower courts are obligated to apply its decisions during rulings as the law of the land. Similarly, the Court of Appeal binds other lower courts and the sequence follows (Hilaire 2008). Conclusion Common law is a source of English law in that it forms the base on which the judges makes the decisions. This is because rulings on cases are made basing on the previous rulings on similar cases. The parliament is also responsible for making the laws and these are this is the statute law. However, the parliament can delegate some bodies to make laws and these are referred to as delegated legislations. The English Law has also included most of the European Convection regarding human rights. Lastly, the European Union sets some regulations which should be followed. European law has primacy over National laws. Books Dicey, M., 2003, The Conflict of Laws, Sweet & Maxwell Ltd, London. Kelly, D., 2008, The English Legal System, Routledge-Cavendish, London. Hilaire, D., 2008, Constitutional & Administrative Law, Routledge-Cavendish, London. Mckay, W., 2011, Legal English: How to Understand and Master the Language of Law, Trans-Atlantic Pubns, Sydney. Pollock, F., 2007, The History of English Law Before the Time of Edward, The Lawbook Exchange, Ltd., New Jersey. Smith, K., 2007, Smith and Keenan's English law, Longman, New York. Smith, K., 2006, English law, Pitman, London. Cases Beckett Ltd v. Lyons [1967] 1 All ER 833 Costa v Enel (1964) Legislations Human Rights Act 1998 European Communities Act 1972 Section 3 Human Rights Act 1998 Read More