Sources of English Law

1. Sourcesof English Law Unit 2

2. Part One: Preview • Sourceoflaw (fonsiuris) • Sourcesof English law • Custom • Commonlaw • Equity • Statute law • Delegatedlegislation • European Conventionof Human Rights • European law

3. Source of law(fons iuris) • Something (such as a constitution, treaty, statute, or custom) that provides authority for legislation and for judicial decisions • A point of origin for law or legal analysis

4. SourceofEnglish law • The law of England and Wales has developed very gradually over the centuries. • Methodsof developing law -referred to as sources of law. • A source of law can also be defined as the origin of law, or the basis of law.

5. A briefhistoricaloverview • Historically, the most important sources of English law:customs and decisions of judges. • 18thand 19thcenturies, Acts of Parliament became the main source of new laws; judicial decisions -still important as they interpret the law passed by Parliament and fill in gaps where there isno statute law. • 20th century: 3new sources of law became increasingly important: delegated legislation, EU law, and the European Convention on Human Rights.

6. Custom • Custom-no longer an important source of law in its own right, although much of the early common law developed through the application of customs. • Customs: rules of behaviour which develop in a community without being deliberately created. • Two main types of custom: general customs and local customs.

7. General customs • - important because they constituted the basis of common law. • Following the Norman Conquest (1066)(as the country was gradually brought under centralised government) the judges who were appointed by the kings to travel around the country based at least some of their decisions on the common customs. • General customs have long since been absorbed into legislation or case law and are no longer a creative source of law.

8. Local customs • Asituation where a person claims to beentitled to some local right, such as a right of way or 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. • Although customs may develop, they are not part of the law until recognised by the courts; judges decide which customs will be recognised as enforceable at law.

9. Common law • 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 only after the Norman Conquest in 1066 that a more organised system of courts emerged. • 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.

10. Commonlaw • In addition to thecentral court (CuriaRegis), the judges were sent to major towns to decide important cases. • Thus judges travelled from London all around the country. • In the time of Henry II (1154-89) these tours became more regular and the King divided up the country into 'circuits' or areas for the judges to visit.

11. Commonlaw • Similar cases were decided in similar ways, and decisions of royal judges were held in great esteem by local judges. • Lower courts gradually became bound by decisions of higher courts. • This had the effect that the law became uniform or 'common' through the whole country, and it is from here that the phrase 'common law' developed.

12. Equity • Equity was historically an important source of law and it still plays a part today. • The word 'equity' means 'fairness', and this is the basis on which it operates.

13. Equity • Equity developed because of problems in the common law. • The basic principle underlying the early development of the common law was that a right only existed if there was a procedure for enforcing it (ubiremediumibiius), and this is why English substantive law became inextricably bound up with procedure. • The law was very technical; if there was an error in the formalities the plaintiff would lose the case.

14. Equity • Another problem:the only commonlawremedy-'damages' – an order that the defendant pay a sum of money to the plaintiff (now claimant) by way of compensation. • In some cases this would not be the best method of putting matters right between the parties.

15. Equity • People who could not obtain justice in the common law courts appealed directly to the king. • Most of these cases were referred to the king's Chancellor. • The Chancellor based his decisions on principles of natural justice and fairness, making a decision on what seemed 'right' in a particular case.

16. Equity • To ensure that the decisions were 'fair' the Chancellor developed new remedies which couldcompensate plaintiffs more fully than the common law remedy of damages. • The main equitable remedies were: injunctions, specific performance, rescission, and rectification. These are all still used today.

17. Equity • Eventually a Court of Chancery under the control of the Chancellor came into being which administered equity. • Equity was not a complete system of law; it merely filled the gaps in the common law and softened the strict rules of the common law.

18. Commonlawandequity • The two systems of common law and equity operated separately, and this overlapping of the two systems could easily lead to conflict between them. • Under the Judicature Acts 1873-75, with the establishment of the High Court of Justice to administer both common law and equity, the Court of Chancery was abolished (though much of its work is still carried out by the Chancery Division of the High Court). • The Judicature Acts also provided that in cases in which there is a conflict between the rules of common law and equity, the rules of equity would prevail.

19. Statutorylaw • Statutarylaw -law passed by Parliament. • In today's world there is often a need for new laws to meet new situations. • The method of judicial law-making through precedents is not suitable for major changes to the law, nor is it a sufficiently quick, efficient law-making method for a modern society. • The other point is that judges are not elected by the people, and in a democracy, the view is that laws should only be made by the elected representatives of society.

20. Statutorylaw • The main legislative body in the United Kingdom -Parliament. • Laws passed by Parliament are known as Acts of Parliament or statutes, and this source of law is referred to as statute law. • About 60 to 70 Acts are passed each year.

21. Delegatedlegislation • In addition to Parliament enacting law, legislative power is delegated to government ministers and their departments to make detailed rules and regulations, which supplement Acts of Parliament. • These regulations are delegated legislation and are called statutory instruments. • Unlike primary legislation, the validity of delegated, or secondary, legislation may be challenged in the courts if the maker has acted beyond the powers(ultra vires) given by the parent Act.

22. The European Convention on Human Rights • UK -one of the first signatories to the European Convention for the Protection of Human Rights and Fundamental Freedomsin 1950, which is usually referred to as the European Convention of Human Rights (ECHR). • This Convention is a treaty of the Council of Europe.

23. The European Convention on Human Rights • The ECHR was incorporated into English law by the Human Rights Act in 1998. • By this Act the English courts must take into account any judgment or advisory opinion of the European Court of Human Rights. • The Act requires that courts seek to interpret and apply primary and delegated legislation in a way which is compatible with the Convention Rights.

24. European law • On 1 Jan.1973 the UK joined what was then the European Economic Community, and another source of law came into being: European law. • Over the years it acquired increasing significance as a source of law. • After the withdrawal from the EU in 2019(Brexit), this source of law will cease to apply to the UK.

25. More aboutsourcesof English law… • Common law Vs Statutory Law & Common law ... – YouTube https://www.youtube.com/watch?v=iUCepIy2UUI • Common law vs. equity | TransLegal • https://www.youtube.com/watch?v=ES28YzIaobM

26. Provide theterms for thefollowingdefinitions • Methodsofdevelopinglaw; theoriginoflaw; thebasisoflaw • Sourceoflaw • A lawpassedbyParliament • ActofParliament; Statute

27. Provide theterms for thefollowingdefinitions • LegislationmadeunderpowersconferredbyanActofParliament (anenabling statute, oftencalledtheParentAct). Most __________ legislationisgovernmental. Itsprimarypurposeis to supplementActsofParliamentbyprescribingthedetailedandtechnicalrulesrequired for theiroperation. D_____ legislationisalsomadeby a varietyofbodiesoutsidecentralgovernment, such as by-laws, theRulesoftheSupreme Court, andthecodesofconductof some professionalbodies. • Delegatedlegislation

28. Provide theterms for thefollowingdefinitions • Law based on decisions that have been made by judges in the past: • Caselaw • (of a law, rule, or obligation) able to be imposed so that it must be complied with: • enforceable

29. Provide theterms for thefollowingdefinitions • 1. Rulesofbehaviourwhichdevelopin a communitywithoutbeingdeliberatelycreated: • customs • 2. Disagreementor argument betweenparties • dispute • 3. A personwhostartsanactionagainstsomeoneinthe civil courts • Plaintiff/claimant • 4. One ofthesixdivisionsofEnglandand Wales for judicialpurposes • circuit

30. Provide theterms for thefollowingdefinitions • A groupofrightsandprocedures to provide fairness, unhamperedbythenarrowstricturesoftheoldcommonlaworothertechnicalrequirementsofthelaw. Courtscanissueorderssuch as correctionofpropertylines, takingpossessionofassets, dividingassets, orinjunctiverelief (ordering a person to do something) to preventirreparabledamage • equity

31. Provide theterms for thefollowingdefinitions • Thebodyofrulesthatdefinestherightsandobligationsofindividualsandcollectivebodies.Itrefers to allcategoriesofpublicandprivatelaw, includingthelawofcontracts, realproperty, torts, andcriminallaw • Substantivelaw • Thebodyoflawwhichcomprises the rules by which a court hears and determines what happens in civil and criminal lawsuits or administrative proceedings • Procedurallaw

32. Provide theterms for thefollowingdefinitions • Any legal method for the enforcement, protection, or recovery of rights or for obtaining redress for their violation. Civil _______include damages,injunction,specific performance, or declarationAlso:redress, relief. • Remedy • Money required to bepaid as compensation for aninjuryorwrong; monetarycompensation. • damages

33. Provide theterms for thefollowingdefinitions • A complaint to a superior court of an alleged injustice created by an inferior court. • Appeal • (hist.) 1. the secretary of a nobleman, prince, or king; 2. the title of various important judges and other high officials 3. the chief minister of state in certain parliamentary governments, as in Germany; prime minister • Chancellor

34. Provide theterms for thefollowingdefinitions • A remedy in the form of a court order addressed to a particular person that either prohibits him from doing or continuing to do a certain act (a prohibitoryi.) or orders him to carry out a certain act (a mandatory i). • injunction

35. Provide theterms for thefollowingdefinitions • An extraordinary equitable remedy that compels a party to execute a contract according to the precise terms agreed upon or to execute it substantially so that, under the circumstances, justice will be done between the parties. • Specificperformance

36. Provide theterms for thefollowingdefinitions • In contract law, an equitable remedy which allows a contractual party to cancel the contract. Parties may rescind if they are the victims of a vitiating factor, such as misrepresentation, mistake, duress, or undue influence. • rescission

37. Provide theterms for thefollowingdefinitions • If, due to a mistake or oversight, a written document does not reflect the actual agreement the parties to a contract have reached, the court may be willing to order r_________of the written instrument reflecting their agreement. R_________involves the court modifying the document by substituting the whole or part of the original text with corrected wording to give effect to the parties' true intentions.1 In r_______the document the court is aiming to put the parties in the position in which they would have been had the mistake or oversight not occurred. • rectification

38. Provide theterms for thefollowingdefinitions • 5. Aninternationalagreement • treaty • 6. Money awardedby a court as compensation to a plaintiff/claimant • damages • 7. The set oflawspassedbyParliament • legislation

39. Completethe following table :

40. Answerthe following questions: • 1. What are the main sources of English law? • 2. What is the difference between local custom and general custom? • 3. What is the difference between common law and customary law? • 4. Why did equity develop? • 5. What are the main equitable remedies? • 6. Who creates precedents and who passes laws?

41. Answerthefollowingquestions: • 7. What are statutory instruments? • 8. What is the difference between primary and secondary legislation in terms of validity? • 9. When and how was the European Convention of Human Rights incorporated into English law? • 10. What does the Human Rights Act (1998) require? • 11. When did the UK join the European Economic Community?

42. Matchthetermswiththeirdefinitions

43. Matchthetermswiththeirdefinitions

44. Fillinthemissingwords: administration common Conquest courts customs decisions judicial royal courts • Definitions of common law: • 1. The part of English law based on rules developed by the _______ during the first three centuries after the Norman ________ (1066) as a system applicable to the whole country, as opposed to local _________ . The Normans did not attempt to make new law for the country or to impose French law on it; they were mainly concerned with establishing a strong central __________. Royal representatives were sent on tours of the shires to check on the conduct of local affairs generally, and this involved their participating in the work of local courts. Under Henry II (reigned 1154-89), to whom the development of the ___________ law is principally due, the royal representatives were sent out on a regular basis (their tours were known as circuits) and their functions began to be exclusively ___________. Known as 'travelling judges', they took over the work of the local courts. To this day High Court judges still sit in London for part of the year and then travel the country to hear cases in much the same way as they have done for centuries. • 2.  Rules of law developed by the __________as opposed to those created by statute. • 3. A general system of law deriving exclusively from court ________.

45. PartTwo: StatutoryInterpretationPreview • Approaches to statutoryinterpretation • Aids to interpretation • Rulesofinterpretation • Cases: Davis v. Johnson (1978) andPepper v Hart(1992)

46. Statutoryinterpretation • Approaches to judicial interpretation • Many cases heard by the highest courts involve the meanings of words in a statute or delegated legislation. • There is a major debate as to whether judges should interpret legislation so as to give effect to the intention or purpose of that legislation (purposive approach), or whether judges should take the words at their literal meaning (literal approach).

47. Discussion • Law is based on language. According to you, is the wording of statutes always sufficiently precise and clear? • What can the courts do if the meaning of a word or phrase in a statute is ambiguous?

48. Rulesofinterpretation • The courts developed three rules of interpretation: • Literal Rule uses the ordinary, literal meaning of the words (Whitely v Chappel1868); • Golden Rule is used to avoid literal approach in cases where the application of the literal rule would result in absurdity (R v. Allen 1872). • Mischief Rule is used where the court takes into consideration the gap or ‘mischief’ in the law that the Act was passed to cover. It was first applied in Heydon’s case (1584).

49. Literalrule • Whitely v Chappel (1868) LR 4 QB 147A statute made it an offence 'to impersonate any person entitled to vote.' The defendant used the vote of a dead man. The statute relating to voting rights required a person to be living in order to be entitled to vote. Held:The literal rule was applied and the defendant was thus acquitted.

50. Golden rule • R v Allen (1872) LR 1 CCR 367The defendant was charged with the offence of bigamy under s.57 of the Offences Against the Person Act 1861. The statute states 'whosoever being married shall marry any other person during the lifetime of the former husband or wife is guilty of an offence'. Under a literal interpretation of this section the offence would be impossible to commit since civil law will not recognise a second marriage any attempt to marry in such circumstances would not be recognised as a valid marriage.Held:The court applied the golden rule and held that the word 'marry' should be interpreted as 'to go through a marriage ceremony'. The defendant's conviction was upheld.