The European Sources

Inna FROLOVA. ENGLISH LAW for Students of English

Chapter 2. Sources of English Law

Sources of English Law

1. Text 1: Sources of English law

1. Pre-reading tasks

1. Scan the text and say how many sources of English law it mentions.

2. Read the text and say which sources of English law are of greatest importance nowadays.

Common Law

There are a number of sources of English law, the newest one being legislation from the European Union. Every year there is more and more legislation from Parliament, but still one of the major sources to guide the courts when they make a decision is the body of case law built up by justices since the Norman Conquest in the 11th century. Early common-law judges dealt with both criminal cases and civil disputes between individuals. When making their decisions they looked to previous similar cases and applied judgments already found by previous judges, thus relying strongly on the body of established precedents.

Equity

As time went on, however, people grew increasingly dissatisfied with common law courts, which often produced unfair and biased judgments. The decisions of common law judges were, one might say, 'just' but not 'fair': they were just because they were based on laws, but they were often not fair because the law itself was often inflexible and imperfect. Therefore gradually a practice developed of appealing directly to the King, who was, and still is, the head of the English legal system, the fountain of justice. The King dealt with these petitions through his Lord Chancellor, and by the 15th century a special court, the Chancery Court, was set up. The rules applied by this court eventually developed into the law of equity, which both supplemented the common law and corrected its deficiencies. When the Lord Chancellor considered a case, he first looked to the common law, but where he found the existing laws inadequate he made his own decision based on common sense and his own understanding of justice. Thus, equity, in a sense, was ultimate justice, which was above the existing law. Or, by a modern definition, equity is the application of the dictates of conscience to the settlement of controversies.

The courts of common law and of equity existed alongside each other, not without conflict, for centuries. However, the existence of two separate systems of law caused not only conflict but inconvenience, as a person often had to begin actions in different courts in order to get a satisfactory solution. In 1873-75 the two systems were unified and a single court was established with full power to administer both law and equity. The merging of the courts did not merge the rules themselves: it is still correct to talk about the principles of equity or about equitable remedies. Modern courts apply equally rules of common law and of equity irrespective of their origins. Importantly, it was enacted that in cases of conflict between the rules of equity and the rules of common law, equity should prevail.

Legislation

Until the late 19th century, English common law continued to be developed primarily by judges rather than legislators. But the growth of Parliament led to the growth of legislation and nowadays it is a major source of law, in its importance transcending common law and equity. Parliament passes hundreds of new laws every year on matters that need to be regulated more precisely than the common law has been able to do and on matters that had not arisen when the common law was developed. Some modern legislation is so precise and comprehensive it is rather like a code in the Continental system. But even statutes often need to be interpreted by the courts in order to fit particular cases, and these interpretations become precedents for future cases. However, no court can question the validity of an Act of Parliament. This principle is known as the doctrine of the legislative supremacy of Parliament worked out in the 17th century. Thus, when it comes to wholly new principles of law, the courts do not usually consider themselves as the appropriate forum for their development, a task usually considered to be best left to Parliament.

The European Sources

Of equal importance to the modern legal system in England are European sources. There are two such sources: the European Union laws and the European Convention on Human Rights. Since 1972 the United Kingdom has been a member of the European Community (now, the European Union), whose laws form part of English law. European Union law comes in the form of 1) various treaties signed by the members of the European Union; 2) directives, regulations and decisions issued by the Council of Ministers (or rarely by the European Commission) and 3) rulings of the European Court of Justice sitting in Luxemburg. All of these are not a separate system of law, but rather a fundamental and important source of English law.

The second source is the 1950 European Convention on Human Rights (ECHR). For many years this important international agreement that enshrines fundamental civic and political rights was not a full part of English law, and thus the rights created were not directly enforceable in English courts. Using the Convention usually meant taking a case to the European Court of Human Rights (ECHR) in Strasbourg - if it could be shown that all effective remedies in one's own country had been exhausted: that the case had gone through all stages of appeal and even the highest court in the land, the House of Lords, failed to afford 'just satisfaction' to the injured party. The decisions of the European Court of Human Rights were binding (disobedience might, ultimately, lead to suspension of the state from the Council of Europe), but the procedure was often time-consuming and expensive.

The European Convention could become part of English law only if it was incorporated into law by an Act of Parliament. This important event occurred in October 2000: the Human Rights Act (HRA) came into force and it made the Convention rights enforceable in English courts. It has had an enormous effect on all spheres of public life. First of all, it means that all public bodies must ensure that everything they do is compatible with Convention rights unless an Act of Parliament makes that impossible. Secondly, it means that UK courts must now take account of Convention rights in all cases that come before them and must not act incompatibly with these rights. They must also take account of Strasbourg case law now. However, the Human Rights Act requires courts to respect laws passed by Parliament. If an English law cannot be given a meaning compatible with the Convention rights, Parliament can then decide how to amend it, unless it can retain the law by arguing, for example, interests of national security.

Custom

Other sources of law, though once important, have now lost their significance for the present legal system. One of them is custom. Through the historical developments in the 11-14th centuries, the laws and customs of England were welded into one system of law. Such customs as monogamy, parental rights, the right to use the seashore for navigation and fishing, and most of the early criminal laws are no longer regarded as a separate source of law because they have either become part of the common law or been incorporated in statute.

However, custom can be a separate source of law, albeit very rarely. In order to be recognised by law, it must, first of all, be local custom, pertaining only to a definite locality, and it may be further limited to a class of persons within that locality, e.g. fishermen (it cannot apply to all fishermen throughout the kingdom, for then it would be part of the common law). The type of local customary rights that still exist are a right of way, a right to indulge in sports and pastimes on a village green, a right to dry fishing-nets on land within the parish. But they only exist in law when formally recognised by judicial decision.

Canon Law

The growth of English law was greatly influenced by canon law, i.e. the law of the Roman Catholic Church. Many concepts of common law originated in the canon law: the nature of Christian marriage and family rights, the nature of criminal law and its close association with moral fault, imprisonment as a punishment for crime (for it was believed that solitary confinement could lead to contemplation and through it to repentance) and so on. Although clerical and lay courts were separated from the very beginning, the former continued to play an important role in areas of probate and matrimony. It was only in 1857 that the jurisdiction of ecclesiastical courts was confined to matters affecting church members only.

Date: 2016-03-03; view: 1292