Sources of English Law and Equity in Respect of English Law - Essay Example

Kelley and Holmes (1997) argued that it is not improper to consider European Communities Law before Legislation and Common laws as sources of English Law because European Union has progressively passed the right to create laws that have effects in the UK since it joined European Union, Kelley and Holmes (1997) considered Legislation as the second source of Law because Parliament within the UK is sovereign and can create or alter the law whenever it determines to do so.

European Law has three distinct forms namely regulations, directives, and decisions. Regulations have immediate effect without the need for the UK to produce its own legislation. On contrary, directives are those that require specific legislation to execute the proposals. Decisions of the European Court of Justice are applicable all over the European Union countries (Kelley and Holmes, 1997). Parliament has sovereign rights and powers to make or alter laws if European Union institutions are sovereign in its boundaries.

The laws that are formed by the legislature (Parliament) are known as Statutes or Legislation laws. A law which has been passed by the legislature and it has received Royal Assent, it is known as Act of Parliament and it forms to be the primary form of Statute Law (Gillies, 2004). There are various types of legislation and their impacts also will be different. For instance, public acts affect the public generally whereas private acts affect only limited groups of the public.

            The Common Law is the body of principles that are developed by the Common Law courts of England (Gillies, 2004). Common laws are those legal rules and principles that are created and developed by the courts in deciding legal cases. The primary hallmark of Common law is that it is made by court judges. They, rather than creating laws, find, observe, declare and discover laws from case to case.
How important is Equity in this respect?             Equity is considered to be a branch of English Law, supplement to Common Law. It has been established and developed hundreds of years ago when litigants went to the then King and complained of harsh or inflexible rules of common law (duhaime.org). The equity in English law has been viewed as a rival to the other branch of common law and at the same time it also has been viewed as a stand-in judge-made law along with common law.

Norman kings, after the conquest of England by Williams (1066), created an independent and parallel system of justice alongside the common law with ultimate legal and judicial power being resided by the kings. This has later been developed as an equity system of the English law and this distinctive branch of common law has significant jurisdiction over injunctive relief and specific performance of the business or otherwise contract as well (Emerson, 2003). Equity was earlier started as an independent legal system based on the perspectives of fair play. It covers injunctive relief, specific contracts and agreement performance, contract revisions, and certain parts of the family law as well.

In earlier times, many judges were traveling around the country in order to establish peace as suggested by the king and by selecting the best local customs and then making them the basis of the English law. The judges were asserting the power and responsibility of the central state and its judicial forms over the fragmented states. The Common law has been common to all on the basis of its application, but it was not common for all (Kelley and Holmes, 2002)

Emerson (2003) emphasized that the equity courts received responsibility for various matters that were previously vested in the Church’s courts before the equity courts were merged into the common law system. The equity legal system has thus gradually absorbed a number of various functions like family matters of divorce, adoption, etc.

The role of the equity legal system has been noted in the case law between Clarion Ltd v National Provident Institution. In this case, one party’s mistake to the effect of the terms of the agreement didn’t allow the agreement to be rescinded. It was held that the mistake would only operate inequity as it relates to the subject matter of the contract  (Kelley and Holmes, 2002).