Law refers to a set of decrees and rulings that are implemented through the use of government institutions. The legal system seeks to influence the various aspects of human society and civilization (Twining, 2000: Pg 78). English law has its origins since the middle ages. Its historical development has been shaped by both internal and external forces. The United Kingdom legal system uses a complex and intricate mechanism in order to derive its legitimacy. It has three sources of law which play an important role in the development of legal thoughts and procedures. Case law is the oldest source of law in the United Kingdom. It uses legal judgments made by judges as a precedent for subsequent trials and procedures. Case law was prominent in the middle ages right until the seventeenth century. In contemporary times, it has been replaced by legislation as a major source of legal thought and outlook. Legislation involves a set of written rules and regulations that are passed by the parliament. The political supremacy of the parliament has enabled it to become a significant source of written rules and regulations. Finally the third source of law in the United Kingdom is the European Union rules and regulations. EU procedures take precedence over national law according to the various directives, orders, and regulations enacted by member states. This paper will seek to evaluate and assess the various sources of English law.
Case law has been a significant source of legislation in the United Kingdom. This was the norm right until the seventeenth century. Judges used their own interpretations and deductions in order to settle legal cases. In recent times, the role of case law has been significantly diminished. However it retains its significance in the modern legal system. A number of important principles have been implemented in order to ensure the legitimacy of case law. The relative experience of judges is a major factor that is taken into account in subsequent legal decisions. Judges belonging to lower courts are prohibited from making any obligatory legal standards. Finally judges must be engaged in deriving legal facts from specific cases (Riles, 2001: Pg 78). Binding precedents issued by senior judges are documented and recorded by legal institutions in the United Kingdom. Judges can issue binding precedents only if valid and appropriate reasoning is utilized. This means that the reasoning should be related to legal provisions rather than personal interpretation. Judges also need to investigate the obligatory nature of previous decisions. Further case law applies to new legal cases only if it has significance with binding precedents. Case law helps to create uniformity and consistency in the legal system. It ensures the resolution of legal disputes in a systematic and methodical manner. However it creates an inflexible and rigid system that might not be applicable for new problems. Further interpretation and understanding of complex legal issues varies from case to case. A codified set of laws helps to remove ambiguities in the legal system. It leads to unrealistic and illogical decisions that can impact the overall efficiency of legal cases. An example of this approach is the definition of homicide. Under case law, murder seems to have different and divergent meanings and understandings. This poses serious problems in the settlement of criminal cases.
The rise of modern nation states coincided with the decline of feudalism and monarchy. It gave rise to the parliamentary source of government in which legitimacy was derived from representative government. Legislation enacted by the parliament became a common source of legal provisions. Statutes are used to provide guidelines to legal institutions. Acts of Parliament are obligatory for the general public living in different jurisdictions. Some Acts are confined to specific geographical areas and jurisdictions. Acts of Parliament goes through a vigorous process of approval and validity through the House of Commons, House of Lords, and Royal Assent from the Queen. Delegated legislation is an important principle in the derivation of Acts of Parliament. Such laws are passed by government ministers without endorsement from the Parliament. Delegated legislation is applicable in cases where existing laws need to be altered or modified for specific situations. This helps to ensure the creation of timely and reliable laws into the legal system (Zweigert & Hein, 1999: Pg 156). It allows legal experts to provide valuable feedback and opinion about the definition and meaning of the proposed legal provision. It creates a robust and flexible mechanism to respond to unusual events and unforeseeable circumstances. Judges can use Acts of Parliament in complex and intricate manner. Literal interpretation involves the process in which a judge derives a simple and ordinary meaning from the rule. Sometimes judges seek to derive a subtle understanding of the rule in certain cases. This is done because the original meaning appears to be ludicrous and ridiculous. Another important principle is the mischief rule which involves judges determining the primary objective of the Act. In such cases, judges can utilize personal understanding in order to resolve the legal dispute. The Acts of Parliament can be interpreted and understood in other ways. Judges can use general words as a means to resolve legal problems (Zweigert & Hein, 1999: Pg 159).
Assumptions are also made about the motivation of Parliament. If there is strong evidence that can prove the assumptions, judges are more likely to adopt this line of reasoning.
European Union Law
The European Union law is an important source of English legal system. It exerts a powerful influence on the member states. It can also overrule national legislation in several cases. The European Community principles comprise an essential element of EU law. These laws are passed through a systematic and methodical process. Extensive participation and consensus from member states is utilized as a method to derive legal principles. The European Court of Justice is a supranational legal body that can create legal principles through its indictments and judgments. The United Kingdom has incorporated EU law as a major source of legal rules and regulations. It is similar to the obligations of the country towards international treaties. Parliament decides upon the application and implementation of EU law. Section 2 of the European Communities Act 1972 states that European law will supersede national law in cases where the former has extensive regulations and provisions. This effectively diminishes the importance of the parliament as a sovereign body. EU law was used to settle the case of Factortame v. Sec. of State for Transport (1989) (Slapper & Kelly, 2008: Pg 102). The United Kingdom sought to modify and update its commercial laws. The European Union has become a powerful supranational body that plays an influential role in the lives of millions of people in the United Kingdom. EU law is derived from a number of sources. Several treaties like Treaty of Rome, Single European Act, and Treaty on European Union comprise the basic source of legislation (Barnett, 2008: Pg 62). Directives, regulations, and procedures initiated by member states comprise the secondary source of legislation. The European Court of Justice also enjoys considerable authority and influence in the passing of legal provisions.
English law has been developed through the influence of various factors. It has three sources of law. Case law has been associated with the individual decisions made by judges. For a long time, these decisions were made obligatory for subsequent judges. The advantages of case law have been the creation of a consistent and reliable legal system. Binding precedents helped resolve legal disputes in a timely and reliable manner. However it created inflexibility in the legal system. Another source of law has been legislation that is passed by parliament. Acts of parliament are passed through mutual consultation and approval. Legislation is beneficial because its provisions are based upon feedback from legal experts. It removes ambiguities in the legal decision making process. Finally the EU has been a major source of legislation inside the United Kingdom. The EU is a supranational body that passes laws based upon approval from member states. The law becomes dominant over national legislation. EU law is derived from treaties, directives, and rulings. The historical evolution of English law has been linked to internal and external factors. When case law became inadequate to meet the requirements of new social conditions, legislation became an important source of law. EU laws have now superseded the importance of parliament in the United Kingdom. It is likely in the future that the role of the parliament will be diminished due to the expansion and enlargement of EU legal thought. This is likely to create a new and dynamic English law which is compatible with contemporary requirements.
Riles, Annelise, ed. (2001). Rethinking the Masters of Comparative Law. Oxford, UK: Hart
Twining, William. (2000). Globalization and Legal Theory. Evanston, IL: Northwestern University Press
Zweigert, Konrad and Hein Kötz (1999). Introduction to Comparative Law. Oxford, UK: Clarendon Press, 3rd ed.
Slapper, Gary; David Kelly (2008). The English Legal System. London: Routledge
Barnett, Hilaire (2008). Constitutional & Administrative Law. London: Routledge-Cavendish.