1 In relation to the English legal system explain the following sources of law:
(a) Common law; (6 marks)
(b) Legislation. (4 marks)
(10 marks) 1 (a) The Common Law
This term refers to the substantive law and procedural rules that have been created by the judiciary through the decisions in
the cases they have heard, thus it is also referred to as case law.
Central to the concept of the common law is the doctrine of precedent, which means that when a court has to decide an
issue, it looks to the previous decisions contained in earlier cases for guidance on how to deal with the present case. Case
law operates within the hierarchical structure of the courts system; with the decisions of higher courts binding those courts
lower than them in the structure. Courts at the same level are also usually bound, although since 1966 that is no longer the
case with the House of Lords, which can now overrule its previous rulings.
The actual part of the previous decision that is binding is the ratio decidendi of the case; that is the legal rule, which led to
the decision in the earlier case. The ratio is an abstraction from the facts of the case. Everything else is termed obiter dictum
and although of persuasive authority, does not have to be followed by the later court. As the ratio decidendi of any case is
an abstraction from, and is based upon, the material facts of the case, this opens up the possibility that a later court may
regard the facts of the case before it as significantly different from the facts of a cited precedent and thus consequentially it
will not find itself bound to follow that precedent. Judges use this device of distinguishing cases on their facts where, for some
reason, they are unwilling to follow a particular precedent.
Various law reports contain details of cases and decisions and it is to those books and cases that lawyers go to find out what
the case law is on any particular issue.
There are numerous perceived advantages of the doctrine of precedent, amongst which are:
– Consistency. This refers to the fact that like cases are decided on a like basis and are not apparently subject to the whim
of the individual judge deciding the case in question. This aspect of formal justice is important in justifying the decisions
taken in particular cases.
– Certainty. This follows from, and indeed is presupposed by, the previous item. Lawyers and their clients are able to
predict what the likely outcome of a particular legal question is likely to be in the light of previous judicial decisions.
Also, once the legal rule has been established in one case, individuals can orient their behaviour with regard to that rule
relatively secure in the knowledge that it will not be changed by some later court.
– Efficiency. This refers to the fact that it saves the time of the judiciary, lawyers and their clients for the reason that cases
do not have to be re-argued. In respect of potential litigants, it saves them money in court expenses because they can
apply to their solicitor/barrister for guidance as to how their particular case is likely to be decided in the light of previous
cases on the same or similar points. (It should of course be recognised that the vast bulk of cases are argued and decided
on their facts rather than on principles of law, but that does not detract from the relevance of this issue).
– Flexibility. This refers to the fact that the various mechanisms by means of which the judges can manipulate the common
law provide them with an opportunity to develop law in particular areas without waiting for Parliament to enact
legislation.
In practice, flexibility is achieved through the possibility of previous decisions being either overruled, or distinguished, or the
possibility of a later court extending or modifying the effective ambit of a precedent.
It is sometimes claimed that judges exceed their constitutional role by making such law, but others would counter that it is
both legitimate and necessary that judges should take an active part in developing the law.
(b) Legislation
Legislation, on the other hand, refers to law that has been created by the legislative body within a constitution. In the United
Kingdom that body is Parliament, constituted by both the House of Commons and the House of Lords and Bills have to be
considered in, and approved by, both houses before it becomes law subsequent to the formality of its receiving royal approval.
Since the Parliament Acts of 1911 and 1949, the blocking power of the House of Lords has been restricted as follows:
– a ‘Money Bill’, that is, one containing only financial provisions, can be enacted without the approval of the House of
Lords after a delay of one month;
– any other Bill can be delayed by one year by the House of Lords.
Statutes take the form of Acts of Parliament or delegated legislation. Delegated legislation is of particular importance. Generally
speaking, delegated legislation is law made by some person or body to whom Parliament has delegated its general law making
power. A validly enacted piece of delegated legislation has the same legal force and effect as the Act of Parliament under
which it is enacted but, equally, it only has effect to the extent that its enabling Act authorises it and anything done in excess
of, or contrary to, that authority may be challenged in the courts as ultra vires through an action for judicial review.
Within countries with written constitutions there is usually a limitation placed on the power of the legislature to make law, in
that it cannot make laws which are contrary to, or in conflict with, the fundamental provisions of the constitution. In the
United Kingdom, due to the doctrine of Parliamentary Sovereignty, legislation is superior to the common law, and the courts
cannot strike down primary legislation, although, under the Human Rights Act 1998, they can declare that such law is
incompatible with the rights contained in the European Convention on Human Rights. Legislation is published in the form of
individual Acts and collectively in annual volumes.
The courts exercise the essential task of interpreting statutes in such a way as to give them effect. In so doing the courts make
use of the three main rules of interpretation:
– the literal rule, (see R v Maginnis (1987) and AG’s Reference (No 1 of 1988) (1989))
– the golden rule (see Re Sigsworth (1935))
– the mischief rule (see Heydon’s case (1584) and Corkery v Carpenter (1950)). | 
发表于 2008-10-11 12:38
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