Chapter II sources of law Unit 3 Sources of English Law

Before you read

Discuss these questions.

1. What are the sources of law?

2. Where do laws come from in your legal system?

3. Is the law codified in your country?

4. Is most of the law written or unwritten?

Sources of English Law

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 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 Napoléon 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 law derives from judicial precedents than from legislative enactment. This does not, of course, mean that none of 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, England has 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.

The Principal Sources

1. Legislation

Legislation is enacted law. In England the ultimate legislator is Parliament. Parliament is sovereign. 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.

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.

2. Judicial precedent

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. This characteristic of the common law contrasts with the European civil law which is 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.

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, 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.

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 to ‘follow’.

Further, 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.

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 judgements upon the general principles enshrined in case-law as a whole. These principles have been evolved by the courts through the centuries.

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 realized in the form of rules of law intended to be general in their application and as easily ascertainable as possible.