Sources Of English Law
The Sources of English Law are many and varied, however there are four main types, which have different roles and importance in the British Legal system. According to The Chartered Institute of Legal Executives (2013) ‘The four principal sources of UK law are legislation, common law, European Union law and the European Convention on Human Rights.” French Law also includes two of these four sources, as the France and the UK are both part of the European Union. There are also distinctions in UK laws that classify UK law into two separate categories these are Private and Public laws. France also has similar distinctions in its legal system. Hence in the coming sections we will discuss the similarities and difference of the sources of all these types of UK and EU legislation with that of their French Counterparts.
Outline of the Courts in France and England
The most distinctive difference of the English legal system when compared to the French is its reliance on Common Law as opposed to the French Civil Law system.
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The root of Common Law is based upon the cultural, social and moral values that early English Society had.
“Common law is generally uncodified. This means that there is no comprehensive compilation of legal rules and statutes. While common law does rely on some scattered statutes, which are legislative decisions, it is largely based on precedent, meaning the judicial decisions that have already been made in similar cases. These precedents are maintained over time through the records of the courts as well as historically documented in collections of case law known as yearbooks and reports.” (University Of California at Berkley, 2013)
This reliance upon precedent makes the past decisions of judges and case law vital to the English Legal System, and also give the Judges far more power in the Legal process as unlike their French counterparts they are free to interpret the intentions of the judge that presided over the previous case and if appropriate change common law by setting a new precedent with sufficient cause. This is also the underlying reason for Ratio Decidendi being recorder so vigorously in English courts as this allows the Judge to clearly elaborate his reasoning to aid future Judges in their decisions.
In the France and most other European Countries they use a Civil Law system that is generally codified (All the laws are written down and do not rely on previous cases.) (University of California, 2013). This limits Judges powers, making them less influential in Civil law system where the Legislature reigns supreme.
There are influential proponents for both Civil Law and Common Law; For Civil (Statute Law) Aristotle, Hobbes and Bentham had the opinion that in a democratic society it was fair as the legislators who made all the laws were representative of the people (The Journal of Legal Studies, 2008). The Proponents of Common Law argue that it is more efficient and easily adapted to the changing culture of a country, and that Judges use there power to set precedents that produce efficient results, however they could be biased in their decisions, which is why the British court structure has developed the way it has.
This section of the report outlines some of the Key cases that have set up the precedent bulk of Common law in modern times in order to demonstrate how the English legal system can evolve organically as opposed to Civil law systems; and furthermore to truly get to the root source of Common Law.
A Prime example of how Case Law can evolve is the case of R v R (1991). In summary the antiquated value of English Common law stated that women who are married, are treated as the chattel (property) of their Husband, the case was brought to court of a man who forcible had intercourse with his wife after they had separated but neither party had filed for divorce.
All previous precedent stated that this occurrence was not in fact rape as all previous decision of the courts had never interpreted it that way as the women in marriage were the property of the man; however given the women’s rights movement of the second half of the C20th this was no longer in keeping with the zeitgeist of the time and the judge used his power to overrule the previous precedent and insisted that it was legally rape. Thus the Judge had change the common law through establishing a new precedent, with a Civil Law system this change in the law would have had to go through the legislature first and thus the man may have escaped punishment.
Another example of how the Common law system allows evolution was given in the practice statement of 1966 by Lord Gardiner, “which stated that the House of Lords would treat former decisions of the House as normally binding but that it would depart from a previous decision when it appeared right to do so.” (Supreme Court, 2013) This had a marked effect on the following case DPP v Lynch in 1973, when he was brought before a court in Northern Ireland after he was purportedly forced to drive three IRA members to a shooting, wherein a police officer was killed.
He was convicted by the court of 2nd degree murder, due to the precedent that duress was not a permissible defence in cases of murder. He appealed and after being dismissed by the Court of Appeal, eventually ended up before the Supreme Court (House of Lords). The Supreme Court held his appeal and allowed that the defence of duress was permissible to an aider or abettor of murder, thus reversing the decision of lower courts.
In Summary, not only has the Supreme Court the power to Overrule, Distinguish and reverse the decisions of lower courts but member of the House of Lords can directly defy Stare Decisis as set previous supreme court judges. This power is denied to the Highest French Court, The Court of Cassation, as they are merely permitted to overrule, reverse and distinguish the decisions of lower courts than themselves. Their role is purely “to unify the case-law and ensure that the interpretation of texts is the same throughout the whole territory.” (Court Of Cassation, 2013)Thus they are unable to make exceptions in exceptional circumstances.
Another case that demonstrates the larger amount of power that the English
Judiciary holds when compared to the French is Re Sigsworth (1935); were a son who had committed matricide and was found guilty, but stood to inherit money from his mother by law. The Judge ruled that the son benefitting from murdering his mother was an absurd result and thus interpreted the law differently to avoid this result. This ruling by the Judge was a use of the literal rule. (See Appendix A for a breakdown of the rules of English case law.
In conclusion, the English Judiciary is a source of English Law through the way in which Judges are allowed to interpret the common law and statues and set precedents that may alter subtly the way the original intent in common law or the statute was meant.
The British Legislature as a Source of Law
The British Legislature is Parliament, the Legislature has traditionally been the most important source of Law in the English legal system. The UK Parliament is split into the Houses that of the Lords Temporal and Spiritual and the Commons. A bill is a proposal of a new law to be discussed and if all goes well eventually passed. Both houses can initiate a bill; the stages of the legislating process are as follows.
First reading: “is the first stage of a bill’s passage through the House of Lords/ Commons – usually a formality, it takes place without debate.” (Parliament, 2013) Second Reading: This is the where the members of the house debate the bill and any amendments that they feel need to be added Committee Stage: The Public Bill Committee examines a bill in detail and amendments can be made. Report Stage: “All MPs may speak and vote – for lengthy or complex Bills the debates may be spread over several days. All MPs can suggest amendments to the Bill or new clauses (parts) they think should be added.” (Parliament, 2013) Third Reading: The Bill is read a third time and debated amongst the House, however no amendments can be made at this stage, the MPs/Lords can simple vote on whether or not to approve the bills third reading.
This Process is then repeated for the other house or the one that did not initiate the bill. Consideration of Amendments: This is were both Houses of Parliament pass the bill back and forth until both Houses can agree upon all amendments. In exceptional circumstances however Commons can pass a bill without the agreement of Lords. As was the case of the Irish Home Rule Act of 1914 Royal Assent: The reigning Monarch approves the bill and it is now an Act of Parliament.
Parliament is an important source of Legislation in England, if not the most important because it brings structure to parts of the common law system, which are in need of clarification. This process is called Derogation and has played a vital part in shaping the English Legal system, however due to the Common Law aspect of the English System, Parliamentary Law or Statute law is of less importance than that of its French Counterpart that has and does Legislate for every part of there legal system
Acts of Parliament are what is called Primary legislation; there are other types of legislation known as Secondary Legislation, which will be discussed in the next section.
Delegated Legislation (Secondary Legislation)
There are many ways in which Parliament delegate’s legislation to lower government bodies, these forms key sources of the law that can affect the everyday life of those who reside in England
Byelaws are the power to legislate, delegated by Parliament to certain Regional Councils in England. These laws are enforceable only in those areas rather than the Entirety of England. Examples of byelaws are: Ealing Council has issued bye-laws that legislate against people being anti-social, having dogs or leaving litter in public parks (Ealing Council, 2013). These Bye-laws are important source of law for British society as living in these areas means that you must follow your local bye-laws.
Orders Of Council are orders issued either by the Queen by Royal Prerogative (Exclusively on advice of the government), these are usually only issued in emergencies; or in the form of a statute issued by a minister of the cabinet, these are an important source of law in normal circumstances as they are used by minister to make key reforms to regulating bodies such as
The EU is a Union of European Countries set up by the Treaty of Rome in 1957, which now has the power to legislate certain laws for all of its member states. It does this through Regulations, Decision and Directives.
Regulations: “Regulations are the most direct form of EU law – as soon as they are passed, they have binding legal force throughout every Member State, on a par with national laws.” (European Commission, 2013). Regulations are a good example of how the European Union is a contributor to both French and English law in pretty much equal capacity.
Decisions: A Decision is a piece of EU legislation directly targeted at a particular member state or individuals in specific cases. These can be used to stop a state from doing something, make it do something or change the rights within a Nation. “A legislative act of the EU which is binding upon those to whom it is addressed. If a decision has no addressees, it binds everyone. [Article 288 TFEU]” (The EU.pptx, 2013)
Directives: A directive is a piece of EU legislation that enforces a particular aim to be achieved without defining how they to achieve it, this allows individual member states to achieve it how they will. So in the British paradigm, Parliament could legislate to achieve the Directive and thus this is contributory to British Sources of Law.
So in summary the EU is an important source of law to all its member states through any of these three methods of legislating, which is controlled by the European Parliament. The EU also has the highest courts of appeal for all its member states making it an equally important source of Law for England and France. An example of a piece of European Legislature is the Human rights convention of 1953. (ECHR, 2013)