The Sources of English Law - Essay Example

In his essay “Dialogue on Private Property,” Felix S. Cohen defined property stating, "To the world: keep off X unless you have my permission, which I may grant or withhold; Signed: Private citizen; Endorsed: The state" (Cohen 1954, p. 374). This definition indicates a relationship among people characterized by the ability to exclude others by virtue of the rights accorded to individuals by law. Thus, for the property professional, his task is confined to ensuring that private citizens, execute his rights on property insofar as the law allows. In fulfilling this task, the property professional must depend on the legal devices made available to him, as determined by those who make the law. Hence, his conduct is therefore dependent upon the manner that laws develop, such that as policies and regimes change, affecting the principles of private property, the devices available to property professionals are likely to change, as well. Thus, given the recent changes brought about European Union (“EU”) legislations in English law, this essay will therefore assess the effects of EU legislations in English property law to determine its relevance on the duties of property professionals. Within English law, the rules governing property have been, for most part, determined by legislations made by the Crown and Parliament, as the land’s formal law-making authority. However, as Galbraith and colleagues have illustrated, this rule-making institution, although the supreme author of the law, is in practice subject to a number of limitations determined by statutory interpretation, in giving the legislation’s “true meaning”; and European legislation, as part of English law (2004, pp. 3-4, 9). For the property professional, this is of relevance for a number of reasons. First, as the supreme author of the law, the Crown and Parliament, through legislation, determines the core devices, rules, and standards property professionals must abide by in practicing their profession. However, whereas practitioners can be widely knowledgeable on the relevant legislations affecting their practice, the bulky system of precedent developing under case law altering standards and procedures informally necessarily calls for property professionals to change the way they conduct their responsibilities as well (Abbey & Richards, 2005, p.31). Second, given that equity is a pervasive element of land law where court judges have a broad discretion in distinguishing disputes brought to court in the context of equitable rights over land; practitioners must also consider the manner courts deal with equitable rights in practice to avoid failing their clients. European Union legislations, on the other hand, are relevant in ushering new policy regimes and principles, which by virtue of the United Kingdom’s membership into the European Economic Community (“EEC”) in 1972, become part of the laws of the land. As Lord Denning states in Macartys Ltd v Smith, “whenever there is inconsistency, Community law has priority”, however, he continues “[i]t is not supplanting English law. It is part of our law which overrides any part which is inconsistent with it”1. Hence, in cases where English laws are inconsistent with EU legislations, legal professionals are compelled to repeal inconsistent laws in compliance with Community law. In the outset, the relevance of EU legislations seems to be directed towards legal professionals who ensure the compliance of English law with Community law. However, as a result of EU legislation’s direct effect on the individual rights of citizens, granting both “vertical rights” against states and “horizontal rights” among private individuals, EU legislations hold significance for the property professional whose task is to ensure that the rights of private individuals, insofar as it relates to property, are ensured. Thus, where EU legislations affect the proprietary rights of individuals, property professionals must take these changes into account in their practice. To illustrate this, one can look into the European Convention on Human Rights and Freedoms (“ECHR”) and the Human Rights Act 1998 (HRA), in response to the ECHR. The HRA, created in response to the ECHR, is a legislation enacted by Parliament meant to give effect to the rights and freedoms recognised under the ECHR within domestic laws. The vertical effect of the HRA therefore prohibits property professionals, acting as public authorities “to act in a way which is incompatible with a Convention right.”2 In this respect, the ECHR rights, which may hold great relevance to the property professional, include the right to a fair trial3, the right to respect for private and family life4, the right against discrimination5, and the protection of property6. Hence, insofar as these rights are concerned, property professionals acting as public authorities must always give consideration to the rights embodied in the ECHR to avoid violations of human rights in their practice (Galbraith et al., 2004, p.21). With respect to its horizontal effect, on the other hand, while the HRA does not provide explicit enforceability of ECHR between private individuals, property professionals must still observe the compliance of ECHR rights. In this regard, where property disputes involving questions of human rights are brought to court, courts by virtue of Art.3§1 of the HRA must “[s]o far as possible to do so”, ensure that legislation are “read and given effect in a way which is compatible with Convention rights”. Hence, indicating its relevance, at least indirectly. Furthermore, the human rights regime advocated by the ECHR also affects the more technical practice of property professionals, such that it may prohibit practitioners from using strange devices present under English law. Among these devices include the use of fee tails, determinable fees, and modified fees in cases of intestacy, which may prove incompatible with the ECHR in the event that these devices prohibit the freedoms recognised under it. Thus, property professionals must therefore keep caution in dealing with such estates to avoid possible problems with the law. Hence, as illustrated by this essay, property is a concept, which indicates a relationship between individuals, as determined by law. In this respect, it is the task of the property professional to ensure that individuals enjoy these rights by ensuring adherence to the law insofar as disposal of their property is concerned. However, while relevant laws may be clearly set out through legislation; relevant legislations, in practice are limited by case law and EU legislations. Furthermore, whereas case law has interjected practical applicability and equity for property professionals; EU legislation such as the ECHR, on the other hand, in expanding the concept of property rights through its horizontal and vertical effects has compelled property professionals to practice in a rights-based manner. In this respect, the HRA in response to the ECHR has required property professionals functioning as public authorities to be cautious in avoiding human rights violations, while at the same time compelling those professionals dealing with private citizens to consider their human rights, as well. References Abbey, A. & Richards, M. (2005). A Practical Approach to Conveyancing (7th Ed.). London: Oxford University Press. Cohen, F. S. (1954). Dialogue on private property. Rutgers Law Review, 9(2), 357-387. European Convention on Human Rights and Freedoms 1950 Galbraith, A., Stockdale, M., Wilson, S., Mitchell, R., Hewitson, R., Spurgeon, S., Woodley, M., & Davenport, A. (2004). Galbraiths Building and Land Management Law for Students (5th Ed.). Boston: Butterworth-Heinemann. Human Rights Act 1998 (UK) Macartys Ltd v Smith [1979] [Case 127/79] ECJ and CA. Read More