Sources of Law

There are various sources of law in the English Legal System.

Common Law or Case Law

This is the term given to law which is created in the courts rather than in Parliament. In the UK, the decisions of the courts are written in law reports and these decisions become law:

• Examples include Adams v Lindsell 1818 “acceptance takes place when posted” rule.
• Donoghue v Stevenson 1932  “snail in ginger beer bottle” gave a new insight into a manufacturer's duty of care to the ultimate consumer.
• Case law requires accurate reporting.

Judicial Precedent

Case law also requires the development of judicial precedent. Once a point of law has been decided in a particular case, that law must be applied in all future cases containing the same material facts.

• Precedents bring to the law consistency and certainty.
• Moore v Landauer 1921 (about number of tins of fruit in a box) is an example of both binding precedent (ratio decedendi)  – the original judgement and of persuasive precedent via the obiter of Lord Wilberforce in a shipping case in 1966 when he stated that he found the original reason to declare the contract void was a “tom tiddler” of a reason and should be ignored in future cases.

Over the years there has been much discussion on whether judges make law or, as Dworkin says in his Declaratory Theory, simply find out what the law is and declare it. Be aware of the greater flexibility given to the Court of Appeal by Young v Bristol Aeroplane 1944.

One recent example of judges making law is seen in the Tony Bland case Airedale NHS Trust v Bland 1993. The various transcripts through the High Court, the Court of Appeal and House of Lords show how the judges felt that Parliament should legislate in this type of case. 

Judges may avoid following a previous precedent by:

1. Overruling
2. Reversing
3. Distinguishing

Overruling

This will apply if the previous (lower) court has failed to apply the law properly. A court higher in the hierarchy departs from a decision made in a lower court and the previous decision is no longer binding.

Reversing

This takes place when the lower court has reached the wrong decision.

In Re Pinochet (1999), the House of Lords reversed a previous decision for the first time after it was revealed that one of the original judges, Lord Hoffman, had failed to reveal he was a member of Amnesty.

Distinguishing 

This is where the facts of the case are deemed sufficiently different so that the previous case is no longer binding. 

Disapproving Precedent

This is where a court follows a precedent but states it doesn’t like it but has to follow it, hoping that the higher appeal court will accept its concerns and reverse the judgement.

Advantages of Judicial Precedent

• Certainty - knowing what to expect as previous decisions followed
• Consistency and Fairness - similar cases are dealt with in same way
• Precision - case law helps to define law areas so there is great detail
• Time-saving - saves time as no drafting and passing laws is necessary
• Flexibility - that law can change with times

Disadvantages of Judicial Precedent

• Rigidity - doesn't change easily, bound by higher courts, bound by past decisions

• Complexity - not always able to find ratio deciendi, hard to find all relevant cases even with computer database

• Slow Growth - cases are unclear and need reforming, if no case occurs at House of Lords no change will happen

• Illogical Distinctions - distinguishing cause areas to be complex even if facts are not that different 

European Law

Since joining the EU we have seen a growing influence of European law on English law. Directives from the EU have to be applied in member States and laws such as the Companies Act 1985 derive from EU directives. Other terms we will encounter are Treaties (these require unanimous agreement of member states) and regulations. Decisions made by Europe often affect us. We see this influence in Human Rights cases. European law is of importance because where there is conflict it takes precedence over English law.

Equity

Equity defines a set of legal principles, in all the jurisdictions that follow the English common law tradition, that supplements strict rules of law where their application would operate harshly, and this is done to achieve "natural justice".

The Judicature Acts of the late 19th century led to the relief of equity being available in all courts alongside the common law. The same court was now able to apply rules of the common law and the rules of equity, depending on what the substantial justice of a case required, and depending on what specific area of law the pleadings involved. The result was that, when the issues arising from the causes of action were decided in favour of one party, that party got relief.

Custom

The famous legal writer Blackstone sees custom as something that has existed since time immemorial (1189) and has been continuous.

This source of law is still seen in commercial law. Bills of exchange originated as customs in mercantile law and are today incorporated in mainstream law.

Academic Writings

Legal textbooks of great standing are sometimes referred to in cases. We usually see these in the more esoteric areas of law. In cases involving withdrawing life support from patients we might see references to legal or philosophic writers. In the Tony Bland case reference was made by one judge to the philosophy works of Professor Bernard Williams.

Legislation

Parliament is responsible for approving new laws (legislation). The government introduces most plans for new laws, or changes to existing laws - but they can originate from an MP, Lord or even a member of the public or private group. Before they can become law, both the House of Commons and House of Lords must debate and vote on the proposals.

The process is as follows:

1. Introducing legislation - Bills normally introduce new laws. Bills that deal with more political or controversial issues usually begin in the Commons.
2. Defeating and delaying legislation - To become law the text of a Bill must be agreed by both Houses. Either House can vote down a Bill in which case it will normally not become law - but there are exceptions. The Commons can pass the same Bill in two successive years, in which case it can become law without the agreement of the Lords. Bills which are only about money (raising taxes or authorising government expenditure) are not opposed in the Lords and may only be delayed for a month.
3. Royal Assent - The reigning monarch has to approve all new laws - called the Royal Assent - but this is a formality as in practice it is not withheld. Royal Assent was last withheld in 1708 when Queen Anne refused a Bill to settle the Militia in Scotland.
4. When a Bill is given Royal Assent it becomes an Act of Parliament. It is then the responsibility of the relevant government department to implement that law (eg, the Home Office will deal with new Acts relating to immigration).

Here are some questions that will help you develop your knowledge of the process of legislation:

• Can an Act of Parliament apply outside the UK?
• Why do old statutes provide the Law Commission with a good deal of work?
• What did the Statute Law (Repeals) Act 1998 achieve?
• What does the term “Queen in Parliament” mean?
• What is a private bill? Give an example.
• Give an example of a hybrid bill.
• What is meant by the phrase “hold the government to account” as applied to the House of Commons?
• How does the House of Commons deal with the problem of not having to sufficient time to have proper discussion of legislation?
• What do consolidation bills achieve?
• What real power does the House of Lords retain?