The General Law of England - Essay Example

The general law of England is divisible into three parts which are distinguished as Statute Law, Common Law and Equity which are also called the sources of Law under the English Legal System. Common Law thus means all the residue of the general law of England after excepting Statute law and Equity. 1 These are discussed as under: 1. Statutory Law- Statutory law means that which has been created by statute. Such statutes are an act of the parliament of the state and this exercise has been prevalent ever since the Seventeenth Century. These may either be applicable to the entire UK or to a specific geographic location, as may be mentioned in the Act. Legislation may be primary or subordinated or delegated. It is called the enacted or written law.2 2. Common Law- The primary source of these legal rules was the general immemorial custom and which had its source mainly in the judicial decisions of the Old Courts of King’s or Queen’s Bench, Common Pleas and Exchequer. 3. Equity- it denotes the body of legal rules the primary source of which was the imperative dictates of conscience and which had been set forth and developed mainly in the courts of chancery. The causes which lead to the introduction of the concepts of equity were the rigidity in prevalent law, the strict observance of arbitrary and technical forms, adherence to feudalism and antipathy towards Roman law. In the 12th century King Henry I set up the Court of Imperial jurisdiction which was headed by the Justiciar who was also the president of the Court or Council which was formed of Chief Barons connected with the Royal Household. This Council had consultative and sometimes legislative functions, and acted as the council of finance and Supreme Court of Justice. But it broke into Aula Regis/ Curia Regis which had purely legal work. The king earlier had both legislative as well as judicial powers but now its powers were reduced to judicial becoming more professional and learned. However, gradually it stuck to so much of precedent that it carried out principles with uncompromising logic. Edward I abolished the office of the Justiciar and constituted the office of Edward the Confessor who was an ecclesiast learned in Roman law. It was him who first appointed Chancellor who was the head of the Chancery and had power to issue original writs. Slowly, it was felt that this power should vest in the parliament. Statute of Westminster II empowered the chancery to invent new writs for certain cases. Petitions/appeals lied with to King in Council who could delegate the same to his Chancellor who held equitable jurisdiction. He decided on matters “for the love of God and in name of charity” which were not provided for in common law. The chancellor’s court decided in personam rather than in rem and gave way to the system of sequestrations. This is where equity truly prospered. References for a preliminary ruling are specific to Community law. Whilst the Court of Justice is, by its very nature, the supreme guardian of Community legality, it is not the only judicial body empowered to apply Community law.3 The national courts also have jurisdiction to review implementation of Community Law, becoming thus, the primary guarantors of Community Law. However, it becomes their duty, at times to consult the ECJ on any point concerning the interpretation of Community law. The judgment is a landmark decision of the European Court of Justice of 15 July 1964, in the case of Flaminio Costa v E.N.E.L which established the supremacy of European Union law over that of its member states. In this case, Mr. Costa was an Italian citizen, who opposed the nationalization of the Italian energy company E.N.E.L. He did this because he had shares in the company and by way of protest he refused to pay his electricity bills. The line of argument that he chose was that nationalization would be an infringement of the EC law on the state.4 The state felt that a private individual could not act as the complainant in this national issue. Subsequently Mr. Costa asked for a preliminary ruling by the European Court of Justice. Here the court acknowledged the basic principles of direct applicability of Community law (judgment of 5 February 1963 in the Van Gend en Loos case, 26/62) and the primacy of Community law over national law (judgment of 15 July 1964 in the Costa/ENEL case, 6/64).5 This can be termed as one of the most significant contribution of the Court to European integration. On the basis of these principles, individuals may invoke Community law before national courts and seek the non-application of any national law which is contrary to Community law. As such the doctrine of supremacy of Community law had no basis in the EC Treaty but was developed by the ECJ. The very famous Factortame Ltd. and Others v. Secretary of State for Transport6 case involved the 1988 Merchant Shipping Act. The issue was that the revisions of this Act lead to more stringent rules in regard to nationality and residence which affected the registration of vessels in the United Kingdom. This was done in order to prevent quota hopping-a practice whereby the nationals of other states were able to fish against the quotas given to UK under the Common Fisheries Policy. A lot of Spanish countries affected by this revision brought an action against the state asking for temporary suspension of the said Act. The case came up before the House of Lords since there were contradictory decisions of the Divisional court and Court of Appeal. The House of Lords felt that there could be no interim relief against the Crown but took opinion of the European Court of Justice. The ECJ ruled that the same was possible. The House of Lords ruled keeping in mind the decision of the ECJ and applied the “balance of convenience” to say that an interim measure could come into effect via temporary suspension. In this way it set aside the conflict. The decision was confirmed by the House of Lords in the subsequent judgment in case of R. v. Secretary of State for employment, ex parte Equal Opportunities Commission and Another.7 BIBLIOGRAPHY 1. Embuck, “Role of National Courts in European Law”, viewed 24th October 2009, 2. G.P Singh, 2007, “Equity, Trust, Mortgages & Fiduciary Relations”, Seventh Edition, p. 15 3. UK Law Online 1998, Centre For Criminal Justice Studies University of Leeds, viewed 25th October 2009, 4. Wikipedia contributors, European Court of Justice, Wikipedia, The Free Encyclopedia, 19 October 2009, viewed 24th October 2009, Read More