Comprehension check

Exercise 1. Answer the following questions.

1. What does the word ‘equity’ mean?

2. What is the development of equity?

3. What is the role of Chancery courts in creating Equity law?

4. What are the main equitable remedies?

5. Do equitable remedies remain important in the law today?

6. What was the conflict between equity and common law based on?

Exercise 2. Do you agree or disagree with the following statements?

1. Equity and common law have separate functions and operate in different courts.

2. It is important to understand the differences between equity and common law.

Exercise 3. Explain and extend the following statements.

1. Equity law is law created by the Chancery courts under the Lord Chancellor to ‘fill the gaps’ in the common law. Although equity prevails over common law, equitable remedies are discretionary.

2. 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.

Discuss

Modern use of equity today.

Unit 4 sources of law

The expression ‘sources of law' can mean several different things. It can refer to the historical origins from which the law has come, such as common law and equity which were discussed in the last unit. Secondly, it can also refer to the body of rules which a judge will draw upon in deciding a case, and where these rules are to be found. In this second sense there are two main sources of English law today: legislation and precedent.

0. 4.1 Legislation The nature and effect of Acts of Parliament

Legislation is the body of rules which have been formally enacted or made. Many bodies in England have power to lay down rules for limited purposes, for example social clubs, but fundamentally the only way in which rules can be enacted so as to apply generally is by Act of Parliament (laws passed by Parliament).

So, today, the main legislative body in the United Kingdom is Parliament. About 60 or 70 Acts are passed each year. For various reasons, some of Parliament's legislative functions are delegated to government ministers and their departments, which within a limited field are allowed to enact rules and regulations, which supplement Acts of Parliament. These regulations are known as delegated legislation. Local authorities, for instance, are allowed to enact by-­laws. But local authorities can only do this because an Act of Parliament has given them the power to do so.

In constitutional theory Parliament is said to have legislative sovereignty and, provided that the proper procedure is followed, the statute passed must be obeyed and applied by the courts. However, this conventional view has been affected more recently by the UK membership of the European Communities.

In this respect England differs from many countries which have written constitu­tions. In the United States, for instance, the Supreme Court has power to declare legislation passed by Congress to be invalid if it is, in the opinion of the Court, inconsistent with the written constitution. The conventional attitude of the courts in this country, on the other hand, has best been expressed in words attributed to Holt, C.J., in a report of City of London v. Wood in 1702: 'An Act of Parliament can do no wrong, though it may do several things that look pretty odd.'

This conventional view is now subject to a major qualification. While the UK is a member of the European Union, law enacted or created by the European Union Treaties has priority over law made or enacted in this country. Therefore even an Act of Parliament, whenever made, is invalid unless it is compatible with European Union law.

Although the courts cannot generally question the validity of an Act of Parliament, they do always have the task of applying it to specific problems. The Government, by Act of Parliament, states what the law is to be but, having done so, it must then abide by the words which it has used. What those words mean is a matter for the courts to decide. If the Government disapproves of the interpretation it must pass another Act in an attempt to state its intentions more clearly. The courts have, in fact, evolved rules of interpretation which they will use to discover the 'true' meaning of the words of a statute. Parliament helped the courts to some extent by passing the Interpreta­tion Act 1889, which was repealed and replaced by the Interpretation Act 1978.