Reading for general understanding

Unit 1

• Sometimes we want to find or check a particular piece of information (reading forspecific information)

• Sometimes we want to know what a text is about in general (reading for gist)
The way we read depends on our reason for reading.

1 Reading for gist

When you read for gist you only want to know what the text is about in general, so you do not need to read or understand every word. This style of reading is called skimming. It is often a good idea to read a text for gist before you try to understand it in detail. To practise skimming, complete the activity below. Do not try to read or understand the whole text for this activity.

As quickly as you can, skim the text on pages to decide which heading (title) at the top of the text (e.g. (1) THE SUBSIDIARY SOURCES, (2) The sources of English law) goes with which section of the text. Choose one heading for each space marked * (letters A-G). Make a note of the correct headings in the right order in your notebook. • Suggested time: 3 minutes.

(1) THE SUBSIDIARY SOURCES

(3) "custom

(5)" legislation

(7) books of authority

(2) The sources of English law

(4) JUDICIAL PRECEDENT

(6) THE PRINCIPAL

The courts are the interpreters and declarers of the law, the 'sources' of law are therefore the sources to which the courts turn in order to determine what it is. Considered from the aspect of their sources, laws are traditionally divided into two main categories according to the solemnity of the form in which they are made. They may either be written or unwritten. These traditional terms are misleading, because the expression 'written' law signifies any law that is formally enacted, whether reduced to writing or not, and the expression 'unwritten' law signifies all unenacted law. For example, as will appear, judicial decisions are often reduced 15 to writing in the form of law reports, but because they are not formal enactments they are 'unwritten' law.

Since the fashion was set by the Code Napoleon many continental countries have codified much of their law, public and private; on the Continent, therefore, the volume of written law tends to preponderate over the volume of unwritten. But in England unwritten law is predominant, for more of our law derives from judicial precedents than from legislative enactment. This does not, of course, mean that none of our law is codified, for many parts of it are; such as the law relating to the sale of goods (Sale of Goods Act 1979) and the law relating to partnership (Partnership Act 1890). All that is meant is that, as yet at least, although Parliament casts increasing multitudes of statutes upon us, we have not adopted the system of wholesale codification which prevails in many continental countries.

Two principal and two subsidiary sources of English law must be mentioned. These principal sources are Legislation, and Judicial Precedent; the subsidiary sources are Custom and Books of Authority. Legislation is enacted law. In England the ultimate legislator is Parliament, for in our traditional constitutional theory Parliament is sovereign ... here we are only concerned to explain the significance of the doctrine of 'parliamentary sovereignty'. It means first, that all legislative power within the realm is vested in Parliament, or is derived from the authority of Parliament - Parliament thus has no rival within the legislative sphere - and it means secondly that there is no legal limit to the power of Parliament. Parliament may therefore, and constantly does, by Act delegate legislative powers to other bodies and even to individuals but it may also, by Act, remove these powers as simply as it has conferred them. By Act, moreover, Parliament may make any laws it pleases however perverse or 'wrong' and the courts are bound to apply them. The enactments of Parliament are not subject to question, for our constitution knows no entrenched rights similar to the fundamental liberties guaranteed by the Constitution of the United States and safeguarded by the Supreme Court. It will have been noted that we have referred to the 'traditional' theory. This is intended to serve as a warning that when constitutional law falls to be discussed the effects of 'Common Market' membership upon that theory will have to be considered.

In the legislative sphere Parliament is thus legally 'sovereign' and master, but this does not mean that the courts have no influence upon the development of enacted law; for, in order to be applied, every enactment, however it be promulgated, has to be interpreted (or construed), and the courts are the recognized interpreters of the law. The meaning of words is seldom self-evident; they will often bear two, or even more, possible interpretations and hence the courts must always exercise a considerable degree of control over the practical application of statutes (enactments of Parliament). The difficulty of interpretation may be illustrated by a simple example. Suppose that Old King Cole, who is an absolute despot, commands that all 'dogs' in his kingdom are to be killed. Suppose that Jack Sprat, one of his subjects, who has an alsatian wolfhound, applies to the courts for a decree that it shall be spared, alleging that it is a 'hound' and that the royal command is only concerned with 'dogs'. The court will have to decide whether the word 'dogs' is to be taken to embrace 'hounds': whichever way it decides, it will influence the practical application of the King's command.

In all countries, at all times, the decisions of courts are treated with respect, and they tend to be regarded as 'precedents' which subsequent courts will follow when they are called upon to determine issues of a similar kind.

This reliance upon precedent has been both the hallmark and the strength of the common law. Its rules have been evolved inductively from decision to decision involving similar facts, so that they are firmly grounded upon the actualities of litigation and the reality of human conduct. And new cases lead onwards to reach forward to new rules. Its principles are, to employ a popular phrase 'open ended'; they are not firm and inflexible decrees. This characteristic of the common law contrasts, again, with the European civil law. There, harking back to the tradition of the Corpus Juris, law is characteristically derived from a code; that is, from an enacted body of rules either (as in the case of Justinian's or of Napoleon's legislation) embodying the whole of, or some considerable part of, the law, or embracing some special aspect of it. Thus the task of the courts is deductive: to subsume the present case under the mantle of the generalized and codified rule. The word 'codification' was an invention of the ingenious Jeremy Bentham (1743-1832). In principle this method carries the danger that the encoded rule may, being the work of a theorist divorced from reality, be out of touch with actual needs; and certainly, as noted above, in course of time it may become so, and thus may require judicial adaptation to meet changed conditions. But in practice many codes are really restatements of rules previously embodied in the opinions of jurists (as was the Digest which formed the most important part of the Corpus Juris) or from case law (like the English Sale of Goods Act 1979) or from custom or from some other tried and tested source. So that although the approach to legal decision is on the one hand inductive at common law and on the other hand deductive in the civil law, in reality (apart from interpretive method) the two systems are not quite so divergent as might appear. One thing, however, which is distinctive of the English system is that because the English judge has, through precedent, power to make new law his position in the legal system is central.

Another salient feature of the English system is the doctrine of the binding case. By this doctrine the authority of the courts is hierarchical; a court which is inferior in authority to another court is obliged to follow ('bound by') a court of superior authority if called upon to decide upon facts similar to facts already tried by the superior court.

The precedents formed by decided cases are, thus, as Bacon wrote of the Reports of Sir Edward Coke, the 'anchors of the laws'. A practitioner who is asked to consider a legal matter will therefore look to the reported decisions of the courts; and he will do this even though the point in issue is regulated by a statute, for, as has been explained, statutes are interpreted by the courts, and a decision which is concerned with the interpretation of the statute is just as binding as any other decision. When this much has been said, it must not, however, be imagined that the law is always discoverable by the simple process of looking up, and finding, the right precedent. For facts are infinitely various and by no means all cases are exactly covered by previous authority. Quite the reverse, the facts in issue often resemble two or more divergent authorities. In these circumstances the courts therefore have freedom of choice in deciding which of the divergent authorities or streams of authority to 'follow', and much of the ingenuity of counsel is directed to 'distinguishing' the facts of precedents which appear to bind the court to decide against him. Further, even today cases of 'first impression' sometimes arise; cases arising upon facts which bear no resemblance to the facts of any previous case. When the judge rules in such a case he legislates, because future courts must usually 'follow' him. A remark which leads to the comment that in 'distinguishing' between previous decisions and 'following' one rather than another the judge, though appearing only to apply existing law, in fact exercises a quasi-legislative discretion: a fact which the system of 'binding' precedent serves to conceal. The administration of justice is not therefore a slot-machine process of matching precedents. The judges have a field of choice in making their decisions. But they do not exercise their discretion in an arbitrary way; they rest their judgments upon the general principles enshrined in case-law as a whole. Case-law does not consist of a blind series of decisions, 'A will succeed', or 'B will fail', but of reasoned judgments based upon rational principles. These principles have been evolved by the courts through the centuries: and, building precedent upon precedent, they have framed them with two ends in view. First, they have sought so to formulate them that their application may be capable of effecting substantial justice in particular cases; second, they have sought to make them sufficiently general in scope to serve as guides to lawyers faced with the task of giving advice in future legal disputes. Thus in a sense the history of the common law (as opposed to statute law - for statutes are sometimes arbitrary and they have often wrought injustice) is the story of the evolution of the judges' conception of justice (a kind of natural law - see above) realized in the form of rules of law intended to be general in their application and as easily ascertainable as possible. The task of attempting to dispense justice, while satisfying the essential need for certainty, has not been an easy one; in fact the attempt can never achieve more than a compromise; but, on the whole, it has been well performed and the common law of England is no mean rival to the romanistic systems.

Customs are social habits, patterns of behaviour, which all societies seem to evolve without express formulation or conscious creation. In a sense custom should be accorded pride of place as one of the principal sources of law for much, if not most, law was originally based upon it. Moreover custom is not solely important as a source of law, for even today some customary rules are observed in their own right and they command almost as much obedience as rules of law proper; they only differ from rules of law in that their observance is not enforced by the organs of the State. Thus, it will be seen ... that many of the fundamental rules governing the Constitution are 'conventional' (i.e. customary), rather than legal, rules.

But in modern times most general customs (i.e. customs universally observed throughout the realm) have either fallen into desuetude or become absorbed in rules of law. For example many of the early rules of the common law were general Customs which the courts adopted, and by this very act of adoption made into law. So too, much of the modern mercantile law owes its origin to the general customs of merchants which the courts assimilated during the course of the seventeenth and eighteenth centuries and, indeed, they are still assimilating international banking practice. So also many of the rules of the law relating to the sale of goods originated as customs, were adopted by the courts, and eventually moulded into a statutory code by the Sale of Goods Act 1893. General custom has therefore now ceased to operate as an important source of law. For law, whether enacted or judicially declared, has in most fields superseded custom.

On the other hand customs, prevailing among particular groups of people living in particular localities, are sometimes still recognized by the courts as capable of creating a special 'law' for the locality in question at variance with the general law of the land. For instance in a well-known case the fishermen of Walmer were held entitled, by reason of a local custom, to a special right to dry their nets upon a particular beach. But recognition of such variants upon, the general law will only be accorded if certain conditions are satisfied. The following are among the more important of those conditions:- The custom sought to be established must (1) not be unreasonable, (2) be 'certain', that is to say the right which is claimed must be asserted by or on behalf of a defined group of people, (3) must have existed since 'time immemorial'. Literally this means that it must go back to 1189 (by historical accident the terminal date of 'legal memory').... But in practice the burden upon a plaintiff to establish such a custom - for example a customary duty in his neighbour to fence against a common upon which he has grazing rights - is not so formidable. For if he can prove that such a usage has in fact existed in the locality for a reasonable time a lawful origin for the usage will be presumed, provided, of course, that such an origin was possible; and custom itself is such a lawful origin.

On the Continent the writings of legal authors form an important source of law. In England, in accordance with our tradition that the law is to be sought in judicial decisions, their writings have in the past been treated with comparatively little respect. They have been cited in court, if cited at all, rather by way of evidence of what the law is than as independent sources from which it may be derived.

This general rule has, however, always been subject to certain recognized exceptions; for there are certain 'books of authority', written by authors of outstanding eminence, which may not only be cited as independent sources in themselves for the law of their times but which also carry a weight of authority almost equal to that of precedents. Among the most important of these works are Bracton's De Legibus et Consuetudinibus Angliae (thirteenth century), Coke's Institutes (1628-1641) and Blackstone's Commentaries (1765). When this much has been explained, it must nevertheless be admitted that in modern times the established tradition appears to have been breaking down, because many textbooks are now in practice constantly cited in the courts, though only the best of them are likely to command attention. The reason for this departure from the established tradition is probably that in comparatively recent years a large increase in the popularity of the study of English law in all our major universities has done much to improve the quality of legal writing and to increase the volume of legal literature. Thus, today Salmond's Law of Torts is commonly referred to in court and even works of living authors, such as Smith and Hogan's Criminal Law, are now often cited, though by a rule of etiquette, counsel who refers to works of the latter category should not cite them directly as authorities, but should request the leave of the court to 'adopt' the arguments which they contain as part of his own submissions. In practice, however, even this latter etiquette is now not always observed.

Philip S. James, Introduction to English Law

Reading for general understanding

Check that you understand the questions below. Do not try to answer the questions yet.

a) What are the two main types of sources of law?

b) Is most English law written in a code?

c) Who makes legislation in England?

d) Can the English courts influence the effect of legislation?

e) Has English law developed (1) from fixed general rules? or (2) through decisions in
individual cases?

f) Is the development of judicial precedent based on general principles of justice?

g) Is custom important as a source of law (1) in the history of the law? (2) in England
today?

h) Are books of authority more important as a source of law in England or on the Continent?

These questions are about some of the main points in the text. Which sections of the text do you think will contain the answers?

Read the relevant sections of the text quickly to find the answers. Do not stop and spend time on words or parts of the text you don't understand if you can answer the questions.

You now know what each section of the text is about and you understand some of the main points. You are going to study the principal sources of English law in detail in short sections.

Reading for detail and language study:

Date: 2016-03-03; view: 3362