Sources of Law England and Wales - Essay Example

Institution Logo: Title: Sources of Law England and Wales. Authors Name: Date: Supervisor’s Name: Program of Study: Sources of law refer to the origin of the doctrine that governs human conduct in an administrative division. It can also refer to the state from which the law derives its vigor or legitimacy. Factors that have contributed to law development are also sources of law Owen (1977: 40). In this essay the focus is to identify and give a critical description of the different sources of law applicable in both Wales and England. The essay further examines the impact of external sources of law on its development. Blackstone (1753: 12) highlights the various sources of law in Wales and England include: the European Union, the common law, the legislation, and the European convention on human rights. The principal nature of common law is that it is prepared by judges who sit in courts and apply their general intelligence as well as awareness of justifiable precedent to the particulars facing them Blackstone (1753: 34). Owen (1977:23) insists that all model courts in the hierarchy are bound to follow the directions and decisions made by the highest court; the appeal court as well as those of the United Kingdom’s Supreme Court. For instance, there is no ruling that murder is against the law. Murder is a common law offense despite the fact that no act of parliament makes murder unlawful. Therefore, murder is illegal according to the authority of the constitutional courts in addition to their past decisions. Blackstone (1977: 54) states that parliament can amend or repeal the common law. According to Cazenave (2006; 56) murder carries an obligatory life sentence nowadays decree whereas previously the death penalty was allowed. Precedent ensures sureness, steadiness continuity and progression on the development of the law. Correspondingly it can be rigid as well as complex Blackstone (1753: 65-67). Owen (1977: 70) notes that a decree on a particular topic might be hard to affirm since it is extended across a variety of cases thus the codified law system is preferred. Unlike the common law which is not written down the statute law is written Blackstone (1753: 78).The statute begins as a bill which is passed to become a law. The statute law has gained a lot of popularity as compared to the customary law. Acts of parliament are the most common form of legislation. The acts become legally binding after approval through a debate in both the house of the lords and the commons. The queen, then, gives her stately consent. An example of statute is the education act (student loans) 1998. Nowadays a better part of the statute is prepared by the government ministers without the approval of parliament Blackstone (1953: 80). This is referred to as the delegated legislation. The laws are issued underneath a definite authority in the original act in form of statutory instruments. They are usually titled as regulations or orders. An example is the jobseekers allowance amendment regulation. The delegated legislation is efficient since it saves time- the time spent to examine the constitutional instruments is usually trivial. It also allows for the access and application of expertise knowledge. Finally, this gives room for suppleness in responding to proceedings as well as representations (Raj 2006: 34) The statute law has authority to adjust the conventional common law. On the other hand the common rule cannot override the statute law. A written law can only be amended by another written law. This correlation between the common law and the statute law reflects on the doctrine of parliamentary sovereignty which recognizes and accepts that parliament is the ultimate power that makes law. The authority is not complete since it is limited by the relationships with such bodies as the European Union as well as the recognition of values like human freedom and democracy. The judges have the duty of interpreting and applying the statute laws but have no right to declare the statute unconstitutional. The European Union was formed after the Second World War. The primary principles of the European Union law are set in the founding treaties: the treaty of Rome, the treaty of the European Union and the treaty of Amsterdam. The main objective of the EC was to foster economic cooperation among the member states so that they depend on each other and avoid conflict. The organization has since shifted its goals from economical to political. The member states must agree democratically and sanction the treaties. A state authorizes a treaty when it becomes part of its law. The European Communities Act 1972 incorporated the EC law into the UK national law .The UK legal system does not regard an international law unless it is incorporated by an act of parliament. Raj (2006: 65) states that in addition to the primary sources of the European law, there are secondary sources. These include laws made under the terms of the treaties. They are issued in terms of regulations, directives, and decisions of the court of justice, recommendations and opinions. The regulations are applied directly thus do not have to be necessarily implemented by the national legislation. In cases where the national law and the regulation conflict, the latter is prevails Raj (2006:65). The directives require that the member states change their national laws within a given time period so as to give effect to the directive. The European Court of Justice has a binding force on its member states. On the other hand the recommendations and decisions have no binding force but a persuasive power (Raj 2012: 74) The European Union law has a direct effect on the English legal system. For example parliament is sovereign and the highest legislative authority. This means that no other laws in the land are above those made by parliament. It also translates that no court in England or Wales can prevent the parliament from making whatever laws it deems fit. Therefore the courts must enforce whatever laws either made or cancelled by the parliament. However the EC membership compromises this principle. The treaty of Rome 1957 rules that all its laws affect all the member states and the UK is not an exception. This treaty is superior and the national laws from the member states must agree with it. This contradicts the sovereignty of the English parliament thus making it to appear inferior when rulings are made to favor the EC law. Sometimes the ruling has a negative effect on the UK citizens but they have to sacrifice for the sake of the community Raj (2006:67-73). Cazenave (2009: 56) asserts the European Convention of Human Rights (ECUR) is an international agreement that protects the human rights and fundamental freedoms in European countries. The Council of Europe drafted the convention in 1950 but it was imposed in the year 1953. All the EU member states must adhere to the convention. Similarly the European Court of justice making reference to the convention which influences its decision though the EU is not a member of the convention. The convention defines a list of human rights and as well as freedoms. It also provides a means of enforcing obligations that are entered into by the high contacting parties (HCPs). In Riedmann (2012: 23) the reunion represented the foremost attempts of combined enforcement of some of the rights laid down in the universal pronouncement .There are three institutions which were set to fulfill this duty. These institutions include: The European Human Rights Commission and court in addition to Ministers of the council of Europe Cazenave (2012:65). The European Human rights Court is universal foundation based in Strasbourg. It comprises of a quantity of judges equivalent to the quantity of member states from the Council of Europe that have sanctioned the reunion for civil rights and liberty protection. The judges do not represent the respective states but sit in individual capacity. To deal with the applications the registry, which is made of member country lawyers, assists the court. The lawyers are also referred to as official secretaries. Just like the judges, they do not represent their countries or individuals thus are exclusively independent. The main objective of this court is to ensure that individual’s religious and civil rights are not abused by the government and that citizens are treated as human rights Cazenave (2009: 100) The member countries must act in accordance with the court’s rulings even though the court does not directly put this into effect. The UK has incorporated the principles of the Human Rights Convention into its law. The court attends to a case on provision that all local possibilities have been dealt with. The court examines complaints by either individuals or states. If a member country has violated any of the rights or guarantee it passes judgment which the country involved is under obligation to comply with.Cazenave (2009: 120) argues that The European Human Rights Court has played a significant role in protection of human rights. However, the court is not effective since it takes a long period of time to pass its rulings Riedmann (2012:78). Presently there are about 110,000 cases before the court. To sum up, the common law and the statute can be classified as internal sources of law. The European Human Rights Convention and Union can be termed as the external sources of law in Wales and England. The four sources of law are not mutually exclusive but interrelate with each other (Owen 1977: 79). The statute law for instance can overrule the common law. The European Union undermines the supremacy of the UK parliament since it is superior. It impacts on both the common and the statute law. Contrary, the European Human Rights Convection affects all member countries since they are obliged to consider the defined human rights in their rulings. References Blackstone, W. (1753) Analysis of the Laws of England, Sydney: Clarendon press. Cazenave, S. (2009) The EU Human Rights and a Neighbor called Moldova, Roakhampton: Allen and Unwin. Owen, P. (1977) A first Book of English Law, London: Sweet and Maxwell. Raj, S. (2006) Understanding the EU policy making: National versus European sovereignty, Sydney: Pluto press. Reidmann, P. (2012) Migrants and non-discrimination: A challenge for equality bodies in EU Member States, London: Roydon. Read More