Detailed Notes on English Legal Systems: Common and Codified Law

Sources of Law in the English System

  • General Division of Law

    • Written Law: Formally enacted laws; derived from legislative bodies.

    • Unwritten Law: Unenacted laws, such as judicial decisions; documented in law reports but considered unwritten.

  • Comparison with Continental Law

    • Continents typically have a codified legal system (e.g., Code Napoléon), emphasizing written law.

    • English law is predominantly unwritten; more laws originate from judicial precedents than from formal enactments.

  • Key Legislation Examples

    • Sale of Goods Act 1979

    • Consumer Rights Act 2015

    • Partnership Act 1890

Principal and Subsidiary Sources of Law

  • Principal Sources

    1. Legislation

    • Laws enacted by Parliament. The Parliament is sovereign, meaning its powers are unlimited and may delegate or withdraw legislative powers as needed.

    1. Judicial Precedent

    • Previous judicial decisions serve as benchmarks for future cases. This reliance on precedents has established stability and consistency in English law.

  • Subsidiary Sources

    1. Customs

    • Social habits or practices that evolve without formal creation. Customs can have legal force if they are reasonable, certain, and have existed since time immemorial (dating back to 1189).

    • Example: Local customs might permit specific rights for certain groups, like the fishermen of Walmer.

    1. Books of Authority

    • Influential legal texts that provide guidance. Examples include:

      • Bracton's De legibus et Consuetudinibus Angliae (13th century)

      • Coke's Institutes (1628-1641)

      • Blackstone's Commentaries (1765)

Sovereignty of Parliament

  • Parliament is the ultimate legislator in England; no legal limits to its powers.

  • Courts are bound to apply enacted laws, and Parliament can create any laws without legal challenge.

  • Judicial interpretation is crucial due to the potential ambiguity in language used in legislation.

Judicial Precedent

  • Judicial decisions from higher courts serve as precedents for lower courts.

  • The system is inductive: courts develop legal principles and rules through actual cases, contrasting with the deductive methods of civil law systems based on codified rules.

  • A significant aspect of common law is that judges can establish new precedents, which subsequent cases must follow.

Process of Interpretation

  • When interpreting laws, judges must consider multiple meanings of words. Ambiguities in legislation often arise, leading to varying judicial interpretations.

  • Example Case: Interpretation of a King's command regarding animals; judges must decide if the term "dogs" includes hounds.

The Doctrine of Binding Precedent

  • Courts must follow precedents established by superior courts in cases with similar circumstances.

  • Precedents serve as the "anchors of the law" and are central to legal reasoning in common law.

Judges' Role

  • Judges are not arbiters; their decisions stem from overarching legal principles developed through case law.

  • The evolution of common law reflects the judicial conception of justice over time, aligning it with fairness and equity.

Comprehension Questions

  1. Sovereignty of Parliament: Parliament's legislative authority has no legal limits.

  2. Interpretation of Legislation: Ambiguity and multiple meanings in words create challenges in interpretation.

  3. Judicial Precedent: Past court rulings guide how future cases are resolved.

  4. Inductive vs. Deductive Reasoning: Inductive reasoning develops general rules from specific cases; deductive reasoning applies general rules to specific cases.

  5. Doctrine of Binding Case: Lower courts are obliged to follow decisions of higher courts in similar cases.

  6. Customs: Long-standing practices that can influence common law, particularly in localized contexts.