Read the following extract from a newspaper article and answer the questions at the end.

‘The mother of a severely handicapped child launched a legal challenge yesterday to what she claimed was a decision by doctors to deny the boy potentially life-saving drugs and “allow nature to take its course”.

Carol Glass told a judge in the High Court in London that Portsmouth Hospitals NHS Trust had unlawfully acted against her wishes by giving her 12-year old son, David, only the painkiller, diamorphine, which could hasten his death.

She said that the drug would adversely affect his respiratory system, but the trust said that it was necessary to balance the child’s distress against that risk…

Last October, David became seriously ill and was taken to hospital. A consultant paediatrician treating the child described in an affidavit read to the court how the atmosphere was “extremely fraught” as the boy, he asserted, lay dying.

The doctor said that in normal circumstances hospital staff would have recommended the family to hold their child and calm him while he was allowed to die peacefully.

But female members of the family started “blowing raspberries in his ears, banging his chest and rubbing his arms and legs very vigorously despite being asked not to”.

The paediatrician said: “In my view this was extremely cruel. The child should have been allowed to pass away peacefully and with dignity.”

(‘Mother fights to prolong son’s life’, Kate Watson-

Smyth, The Independent, 22 April 1999)

Questions:

a. Should parents have the right to demand treatment for a child? Give reasons for your answer.

b. Do you agree with the doctor when he said that David ‘should have been allowed to pass away peacefully and with dignity’?

c. The child in this case was very severely handicapped. Do you think any difference should be made between the treatment of a handicapped child and that of a normal child?

Unit 3

THE DEVELOPMENT OF ENGLISH LAW

The law of England and Wales has been built up very gradually over the centuries. There is not just one way of creating or developing law; there have been, and still are, a number of different ways. These methods of developing law are usually referred to as sources of law. Historically, the most important origins of the development of English law were common law,which is based on custom and decisions of judges, and equity. Then, as Parliament became more powerful in the eighteenth and early nineteenth centuries, Acts of Parliament were the main source of new laws, although judicial decisions were still important as they interpreted the parliamentary law and filled in gaps where there was no statute law.

Customs

He is a barbarian, and thinks that the customs of his

tribe and island are the laws of nature

George Bernard Shaw 1856-1950

(Caesar and Cleopatra(1898)

These are rules of behaviour which develop in a community without being deliberately invented. There are two main types of customs: local customs and general customs.

Until and for some time after the Norman Conquest, it could scarcely be said that there was such a thing as English law. The population was small, settlements were often widely separated and travel was difficult. Justice and other aspects of administration tended to be local. Each local community would have its own court in which, for the most part, local customs would be applied. These customs, the beginnings of legal rules, varied considerably from one area to another.

‘Local customs’ is the term used where a person claims that he is entitled to some local rights, such as a right to use land in a particular way, because this is what has always happened locally. Such customs are an exception to the general law of the land, and will only operate in that particular area.

Since there were (or still are) exceptions to the general common law, the judges, from the earliest times, established a series of rigorous tests or hurdles that had to be passed before they recognized any local custom. These tests still exist today and are used on the rare occasions that a claim to a right comes before the courts because of a local custom. The tests are as follows:

The custom must have existed since ‘time immemorial’

The custom must have been exercised peaceably, openly and as of right

The custom must be definite as to locality, nature and scope

The custom must be reasonable

General customsare believed to have been very important in that they were, effectively, the basis of English Common law. It is thought that following the Norman conquest ( as the country was gradually brought under centralized government) the judges appointed by the kings to travel around the land making decisions in the King’s name based at least some of their decisions on the common custom. The idea caused Lord Justice Coke in the seventeenth century to describe these customs as being ‘one of the main triangles of the laws of England’. However, other commentators dispute this theory.

It is very unusual for a new custom to be considered by the courts today and even rarer for the courts to decide that it will be recognized as a valid custom, but there have been some such cases. For example in Egerton v Harding (1974) the court decided that there was acustomary duty to fence land against cattle straying from the common. Another case was New Windsor Corporation v Mellor (1974) where a local authority was prevented from building on land because the local people proved there was a custom that they had the right to use the land for lawful sports. Although customs may develop, they are not part of the law until recognized by the courts; it is the judges who decide which customs will be recognized as enforceable at law.

Common law

Clearly the legal system in England and Wales could not rely only on customs. Even in Anglo-Saxon times there were local courts which decided disputes, but it was not until after the Norman conquest in 1066 that a more organized system of courts emerged. This was because the Norman kings realized that control of the country would be easier if they controlled, among other things, the legal system. The first Norman king, William the Conqueror, set up the Curia Regis (the King’s Court) and appointed his own judges. The nobles who had a dispute were encouraged to apply to have the King (or his judges) decide the matter.

As well as this central court, the judges were sent to major towns to decide any important cases. This meant that judges travelled from London all round the country that was under the control of the King. In the time of Henry II (1154-89) these tours became more regular and Henry divided up the country into ‘circuits’ or areas for the judges to visit. Initially the judges would use the local customs or the old Anglo-Saxon laws to decide cases, but over a period of time it is believed that the judges on the return to Westminster in London would discuss the laws or customs they had used, and the decisions they had made, with each other. Gradually, the judges selected the best customs and these were then used by all the judges throughout the country. This had the effect that the law became uniform or ‘common’ through the country, and it is from here that the phrase ‘common law; seems to have developed.

Common law is the basis of English law today: it is unwritten law that developed from customs and judicial decisions. The phrase ‘common law’ is still used to distinguish laws that have been developed by judicial decision, from laws that have been created by statute or other legislation. For example, murder is a common law crime while theft is a statutory crime. This means that murder has never been defined in any Act of Parliament, but theft is now defined by the Theft Act 1968.

Common law also has another meaning, in that it is used to distinguish between rules that were developed by the common law courts (the King’s courts) and the rules of Equity which were developed by the Lord Chancellor and the Chancery courts.

Date: 2016-01-14; view: 1468