English Legal System
Sources of Law
Introduction to the branches of
government
Relationship between legal
authorities
Aims
•
The aims of this lecture are:
1.
2.
To introduce the main sources of English law;
To look at the different ways in which these sources can be
classified;
To look at the relationship between the different sources of
law and how conflicts between them are resolved;
To look at the influence of European law on domestic law;
To examine the status of books of authority before the courts
To look briefly at the institutions which exist to reform the law.
3.
4.
5.
6.
Outcomes
•
By the end of this lecture you should be able to:
1.
2.
Identify the main sources of law in England;
Describe the way in which these sources of law
may be classified;
Describe the relationship between the different
sources;
Identify the main authoritative works on English law
and how important they are within the English
Legal System;
Identify and critically consider the institutions which
exist for the reform of the law.
3.
4.
5.
Institutions and doctrines in
the English Legal System
•
In order to understand the reasons for the hierarchy of laws in
the English Legal System one has first to appreciate the
different institutions and their role in the law-making process
•
The three branches of government in England and Wales are:
1.
2.
3.
The Legislature
The Executive
The Judiciary
These will be examined in further detail when we look at the
institutions of the English Legal System and their composition
The Legislature
• It is the legislature’s role in the constitution to make the law
• Traditionally the legislator may have been an individual, the King
or Prince who made the laws for his subjects
• In England from the middle ages onwards Parliament became
the legislature for the country as a whole
• This reached its classical expression during the Reformation
when the King or Queen-in-Parliament was held to be the
highest and most important law-making institution
The Legislature
• After the English Civil War and the
Glorious Revolution of 1688 the
relationship was statutorily defined in
Article 9 of the Bill of Rights
• The courts should not enquire into the
proceedings of parliament
The Sovereignty of
Parliament
• The sovereignty, or as it is sometimes
expressed, the supremacy of Parliament,
reached its classical formulation in the
writings of Professor Dicey in the 19th Century
This means that Parliament in traditional
constitutional theory can do whatsoever it
likes
Executive
• The executive in this country is the Crown whose functions are
exercised through the government, in particular by the Prime
Minister
• The executive also comprises the wider organs of the State with
executive authority such as the police, the civil service and local
authorities
• The definitions given to public authority vary from on area of
public and European Law to another
• It is important to realise the the State, and hence the executive,
can have a much wider definition depending on the context in
which it is regarded
• The executive proposes and enforces the law
The Judiciary
• The Judges’ function is to apply the law in the
cases which come before them
• Whether judges make law is a more moot
point
• However, it is fundamental that the judges
should be independent of the executive
• The Judiciary can sometimes come into
conflict with the executive – see Slapper &
Kelly pp.11-12
Sources of Law in the
English Legal System
•
•
•
•
•
•
•
•
Statute Law
Secondary or Delegated Legislation
EC Law
ECHR Law
Case law
Custom
Books of authority
Quasi-legislation
Statutes
• Also referred to as Acts of Parliament or primary legislation –
many may already be familiar to you
• Health & Safety legislation or the Licensing Acts for example
• Traditionally regarded as the highest form of law because of the
supremacy or sovereignty of Parliament
• Not always been the case, Dr Bonham’s Case 1610 Coke stated
that there were circumstances when the judges would depart
from the doctrine and apply natural law
Modern limitations on the
supremacy of statute
• Lord Woolf in more recent times has stated that there
may be instances where the judiciary are willing to
challenge legislation and this debate has been
heavily influenced by the Human Rights Act 1998
• Supremacy of EC law – wherever EC law is supreme
or not is not just a legal, but also a political question
• A judge in a recent case has indicated that were
Parliament to repeal the European Communities Act
1972, the judges would obey the new Act
Statutes
• Will look in a different lecture at how statutes are
interpreted and the process by which they become
law
• Note, however, that for a valid Act of Parliament there
has to be the consent of the Queen, the Lords and
the Commons
• If these are written on the statute then the court
will enquire no further as to its validity – see Coke
and Article 9 of the Bill of Rights (above)
Secondary Legislation
• As well as primary legislation passed by the
United Kingdom Parliament there is also
secondary legislation or delegated legislation
• This is made by a body or authority outside
Parliament using powers conferred on them
by a specific Act of Parliament
• Governs complicated and technical areas
which Parliament does not have time or
knowledge to deal with
EC law
• The law of the European Communities is increasingly
an important source of English Law
• A another lecture will look at its relationship in some
detail. Note, however:
Primary legislation = Treaties, and the specific articles in
them, e.g. The Treaty of Rome 1957, the Single
European Act 1982, The Treaty of Maastricht 1992
Secondary legislation = main forms are regulations and
directives
European Convention on
Human Rights
• Incorporated into English Law by the Human Rights
Act 1998 – effective from 2nd October 2000
• Separate lecture will deal with the form of
incorporation in more detail
• Note: that legislation must be interpreted as
compatible with Convention Rights as far as this is
possible
• The Convention rights protect fundamental human
rights from abuse by the State
Case law
• Case law is a very important source of law in
the English Legal System because of the
doctrine of judicial precedent or ‘stare
decisis’, let the decision stand
• A whole lecture will be devoted to this topic
later in the course
• Few elementary points to note here
Case law
• Although bookshelves full of law reports – very few
cases are litigated, most settle outside of the system
• This could be either because of the use of ADR
(Alternative Dispute Resolution) or because the
lawyers in the case negotiate a settlement between
the parties
• The case law provides a degree of certainty to the
parties in trying to negotiate a settlement to the case
• How the law will apply to the individual facts of the
case is a more complex question
Custom
• To some lawyers ‘the common law’, the concept we
looked at in the introduction to legal concepts and
terminology, may be viewed as customary
• The common law judges recognised the local
customs as laws across the country and made them
as uniform as possible
• Other commentators see this as an overly romantic
view of the law, and its historical development
• See Egerton v Harding [1974] 3 All ER 689
Egerton v Harding [1974] 3
All ER 689
• This case concerned the land of a public common
• The courts upheld the customary duty of the party to fence the
common land and prevent cattle from straying
• Custom may be seen as a positive way of reflecting the practice
of society
• Professor Zander in his book in the law-making process states:
‘But it is the judge who decides – not the people or the custom’
Custom has been a very important source of law in countries which
do not have a formal, written legal system
Custom
•
Criteria for the recognition of custom:
1)
It must have existed from ‘time immemorial’, that is,
1189;
It must have existed continuously within that period;
It must have been exercised peaceably and without
opposition;
It must have been felt to be obligatory;
It must be capable of precise definition;
It must have been consistent with other customs;
It must be reasonable.
2)
3)
4)
5)
6)
7)
Books of authority
• As well as the case law that has built up over
the centuries there have been very influential
writers who have stated the law at various
times
• The courts were originally reluctant to admit
these as authority, but this is becoming more
and more prevalent in the practice of the
courts
• No longer the case that an author has to be
dead in order to be an authority
Traditional Sources of
Authority
• Coke’s Reports
• Blackstone’s Commentaries
• Dicey
Blackstone’s Commentaries
• Series of lecture given by Blackstone when
Vinerian Professor of Law in the University of
Oxford
• Still very influential in some areas of law, for
example in constitutional theory
• The definition of the royal prerogative as ‘the
pre-eminence that the King hath over other
men’ is an example of this
Modern practitioner texts
Chitty On Contract, Clerk & Lindsell On Torts,
The White Book for Civil Practice, Archbold’s
for Criminal Practice and Procedure
• Some modern academics and practitioner
texts – Hill’s ‘Ecclesiastical Law’ for example
was referred to in the House of Lords in 2001
the Aston Cantlow case
Professor Zander
• See pp.387-392 for a discussion of why books of
authority have not been highly regarded
• One reason is that the status of the study of law at
universities where it was not regarded as a liberal
arts subject
• He quotes Dr Paterson in the LQR as saying:
‘there seems little evidence that the Law Lords regard
pronouncements of living academic writers (as a
group) as having even persuasive authority’
Modern Practitioner Texts
• Why do you think that courts may have been
reluctant in the past to admit practitioner texts
as a statement of the current state of the law?
• Why has this position altered?
• See Zander ‘The Law-Making Process’ for a
discussion of this question (reference above)
Law Reform - The reports of
Commissions
• These are sources of law, although they can
be influential and useful to the student in
assisting him or her to understand the
rationale for the adoption of a certain legal
rule
• There are temporary Commissions set up to
deal with ad hoc events, e.g. Royal
Commissions set up at the command of the
Sovereign
The Law Commission
• This is the statutory body set up by the Law
Commission Act 1965
• It is divided into different sections which keep the law
under review in specified areas and also works
towards the codification of the law
• Composed of senior judges and academics,
Baroness Hale was a member of the Commission
• It is also has a standing body of the civil servants
who keep the law under review and also employs
graduate research assistants
Law Commission
See their website at www.lawcommission.org.uk
The government does not always implement their
recommendations – see for example the Report on
blasphemy which was laid before the House in 1985
Why do you think that the government may not always
implement the Law Commission’s recommendations
in a certain area?
Quasi-legislation
• This is a term first used in 1944 by R.E. Megarry
• It refer to rules which are made by executive
agencies in particular, but which do not form part of
the written law as such
• A well known example of this would be the Highway
Code – a breach of the Code can be taken into
account in determining whether someone was
negligent in a road traffic accident claim
• See Zander ‘The Law-Making Process’ pp. 400-403
Summary of Lecture
•
You should now be able to:
1.
Explain in basic outline the functions of the three branches of
government and explain the doctrines of parliamentary
sovereignty;
Identify the main sources of law in this country;
Discuss the advantages and disadvantages of certain types of
legislation;
Be able to name certain historical and modern authoritative
works on the English law and the courts’ approach to using
these on a daily basis;
Identify ad hoc and statutory bodies which are set up to deal
with law reform.
2.
3.
4.
5.
Further reading
• Slapper, G. and Kelly, D., The English Legal
System (London: Cavendish Press, 2004, 7th
edition), chapter 2 ‘Sources of Law’, pp.63108
• Smith, A.T.H, Glanville Williams Learning the
Law (London: Sweet and Maxwell, 2002),
chapter 1 Common Law and Equity, pp.22-28