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Introduction to the Sources of Law

The Sources of law
The term sources of law refers to where the law comes from. English and Welsh law comes from several sources. The main sources are: the common law equity legislation judicial precedent delegated legislation European law European Convention on Human Rights.

The Common law

The common law originates from the original laws and legal customs of England that existed prior to the Norman conquest of England in 1066. After 1066 these original laws slowly merged and developed into a single system of law referred to as the common law. The common law is a judge-made system of law because it was the judges who over many centuries were responsible for merging and developing the original laws and legal customs in to this single system of law. Today the term common law is regarded as including all case law.

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Equity

Equity means fairness in ordinary language. As a legal term it began as a set of special rules founded and administered by the old Court of Chancery. It was created because the original common law often failed to ensure fairness or justice, and people would appeal to the Kings Chancellor who as keeper of the Kings conscience could help. The Chancellor dealt with such appeals in the Court of Chancery. This court decided cases in the light of justice and fairness rather than the strict letter of the law. The Court of Chancery established special remedies such as injunctions that are very important today. They are sometimes known as equitable remedies. Equity was administered by the Court of Chancery until 1873, when the Judicature Acts merged the common law courts and the Court of Chancery. Courts today can award both common law and equitable remedies.

Legislation Legislation is law made by Parliament and is sometimes

referred to as Acts of Parliament or statutes. Legislation over-rides all common law and equity. Although legislation is the main source of new law today, it did not become an important source until the end of the eighteenth century. Indeed even today legislation forms a comparatively small part of the bulk of our laws and the common law still remains the basis of our legal system.

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Judicial Precedent

In all courts it is the judge who is responsible for deciding questions of law. This involves the judge interpreting the common law, equity or legislation. Courts are arranged in to a hierarchy of importance. A court that is more important is known as a superior court and one that is less important is known as an inferior court. When a judge has to interpret the law he or she will look to see if that law has been interpreted by a court before. The judge will generally always have to follow the interpretation of the law by a superior court. For instance, judges of the Divisional Courts and Crown Court are bound by the decisions of the Court of Appeal and House of Lords while the Court of Appeal is bound by the decisions of the House of Lords. The system of judicial precedent means that inferior courts have to follow the decisions of superior courts. This system is sometimes called stare decisis (Latin for let the decision stand). Judicial precedents are sometimes collectively referred to as case law and are regarded as part of the common law. For example, if a judge was required to decide the meaning of the term intention then he or she would look to the previous decisions made by the House of Lords in important past cases such as R v Nedrick (1986) and R v Woolin (1998). Judges and lawyers can find previous cases because important cases are recorded in various law reports.

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European Community Law

European Community Law is law that comes from the European Union of which the United Kingdom is a member. When the United Kingdom joined the European Community Parliament passed the European Communities Act 1972. The European Communities Act 1972 not only made European law directly enforceable in British courts but also gave it supremacy over any British law. European law covers areas such as health and safety in the workplace sex and race discrimination in the workplace consumer rights and trading laws The European Communities Act 1972 also made the European Court of Justice the final court of appeal in matters of European law and giving it precedence over British courts.

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Delegated legislation

Parliament has quite often delegated its power to make law to various bodies or people. There are different types of delegated legislation. The main types are Orders in Council Statutory instruments and Bye-laws Orders in Council permit the government through the Privy Council to make law. These are used in a variety of situations such as introducing restrictions of the movement of livestock during a foot and mouth crisis or to introduce European Union directives in to the British legal system. Statutory Instruments permit government ministers to introduce particular regulations that have the power of law. Bye-laws are the means through which local authorities and other public bodies can make law. For instance, a local council may wish to make it illegal for a dog owner to permit his or her dog to foul a public footpath. All delegated legislation requires Parliament to pass a statute, often called an enabling statute, which states when and in what circumstances the body or person can make a law.

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The European Convention on Human Rights

The European Convention on Human Rights is an international agreement that the United Kingdom has signed. The Convention gives people certain rights such as the right to freedom from torture (Article 3) and the right to a fair trial (Article 6). The Convention also established the European Court of Human Rights to decide if there have been any breaches of the Convention. The British Parliament passed the Human Rights Act 1998 that introduced the Convention in to British law. The decisions of the European Court of Human Rights will now be an important source of case law for British courts.