The sources of the English Legal System in the order of their constitutional importance Essay
The sources of the English Legal System in the order of their constitutional importance
Since the very beginning of the human era the particular rules were necessary for every pre-historian community to exist as the main principles of fair trade, the property, the state of the person in the society and moral standards needed to be defined. In our days these rules are commonly referred as law. Primitive pre-historian communities were reliant on customary law systems; however, the rise of first civilizations and writing systems caused the written law to appear. Nowadays each country has its own law. One of the oldest law systems in Europe belongs to England. There are three main sources of English law: European law, Parliament and The common law.
One of the most important sources of the English law is case law (often called common law). Around 1250, a common law was produced to be applied consistently and could be used to predict particular decisions. Actually, there are three different cases for the common law to be used in. Firstly, in order to describe the law which is common to whole country, it might be applied in contrast to the term ‘local law’. Secondly, the term was created in the common law courts from the one made in the equity courts (the Courts of Chancery).
The rules which were intended to bring greater fairness to the strict application of the common law (hence the term equity) had been developed by these particular courts. Though, today the common law and equity are distinguished between only historically. Thirdly, the term ‘common law’ refers to the law created in the courts as a contrary to the legislation created by Parliament. For instance, Hadley v Baxendale (1854) which said that consequential damages arising from a breach of contract cannot be recovered if those damages were not foreseeable. It is the example of case law.
Although England is described as a common law system, this description is in a sense misleading because it gives the impression that case law is the most important source of the law. The reality is that the major part of the English law is now covered by legislation passed by Parliament. The British Parliament has the power either to enact or revoke. Indeed it cannot be bound by the decisions of the courts nor by any of its own earlier decisions. The nature of the legislative process has undergone significant changes in recent years.
Due to the social and economic changes legislation has become more important. The common law jurisdictions are more limited although statutes can be applied to any combination of jurisdictions within the UK. Public general Acts are the ones of Parliament which apply to everyone throughout one or more jurisdictions. However, these Acts may also be limited to geographical locations within a jurisdiction (e.g. the W est Yorkshire Act 1980 and local bye-laws) or to specific persons or companies.
Despite the significance of other sources of English law, the European Law plays a big role in English legal system. The law of the European Community has been a source of UK law since 1973, when the UK became a member of the European Union (then called the European Economic Community). European law has been taking precedence over domestic law since then. In reality, European statutory provision is given preference in case there is some mismatch between European law and a statute passed by Parliament.
The impact of European law has been felt in the areas of industry, employment, human rights and financial services so far. For instance, as the scope of European law expands through new treaties, its impact on English law, politics and society increases. One example clearly illustrates this trend. The Westminster Parliament legislated The Human Rights Act in 1998 according to which the European Convention on Human Rights was made part of the law of all parts of the United Kingdom. Obviously, if the UK government fails to uphold its citizens’ human rights, they are able to take those particular cases to the European Court of Human Rights.
In conclusion, three main sources of law exist in England – case law, legislation and the European law. Each of them is very important in their own respect. Even though England has its own history of common law and legislation, the European law is still the most important and affects not only England but all member-states of the European Union.
Berry, Elspeth. 2007 European Union law. 2nd ed. Oxford : Oxford University Press.
Gary Slapper & David Kelly.2011 The English legal system. 12th ed. London : Routledge.
Richard Ward, Amanda Akhtar.2008 English legal system. Oxford : Oxford University Press.
Alix Adams. 2010 Law for business students. 6th ed. Harlow : Longman
University/College: University of Arkansas System
Type of paper: Thesis/Dissertation Chapter
Date: 27 April 2016
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