3 THE SOURCES OF THE LEGAL SYSTEMS

Though the systems differ in the contents of their laws and the institutions and professions which surround them, the indigenous sources of laws are in fact similar in all three jurisdictions. Remember also that European laws from the European Union (and in the future perhaps, the European Convention on Human Rights) are also a source of laws, but these are dealt with elsewhere in these pages.


Case law

The legal systems within the United Kingdom were based largely on judge-made law (law developed through decisions by judges necessary to decide cases brought before them - called "common law" or case-law) until around the seventeenth century. Each jurisdiction developed its own forms of common law, with Scotland being especially distinct from the rest. Since that time, new laws and law reform have increasingly been brought about through Acts of Parliament, usually inspired by policies of the Government of the day. Even so, the development of case-law still remains an important source of law. A statement of law made by a judge in a case can become binding on later judges and can in this way become the law for everyone to follow. Whether or not a particular pronouncement (technically called a precedent) by a judge sitting in court when deciding a case does become binding (according to the doctrine of "stare decisis" - stand by what has previously been decided) on later judges depends on two main factors:

We can summarise these rules -as the doctrine of precedent (or, to use lawyers’ language, the doctrine of stare decisis). A later judge will have to determine (i) what pronouncements from earlier decisions are binding and (ii) whether any is relevant - the later judge may say that the case before the court is "distinguishable" from the earlier case (i.e. has materially different facts so as to fall within different areas of law).

Precedent has a very important role in the common law. It ensures certainty and consistency and logical progression and development in the law. At the same time it can be rigid and also complex - what is "the law" on a subject may be very difficult to find or to state as it is spread across many cases. So, many countries (especially in Continental Europe) prefer a codified system in which laws are set out in legislation and cases which apply them may be illustrative but do not become binding. The law is also easier to find and to state and is rationally prospective rather than based on the chance event of litigation, which may give rise to laws based on extreme or unusual situations or unevenly argued cases. For example, here is the offence of murder in US Federal Law. By contrast, the law of murder in England is contained in several cases, and even having read them there may be room for doubt. As for English law, the classic definition of murder is considered to be that given by Lord Chief Justice Coke who (writing in the early seventeenth century) said:

"Murder is when a man of sound memoryand of the age of discretion, unlawfully killeth within any county of the realm any reasonable creature in rerum natura under the King's peace, with malice aforthought , either expressed by the party or implied by law, so as the party wo, or hurt etc. die of the wound or hurt etc.within a year and a day of the same."

Can you put this statement in modern language?

Note that:

1 Some of these elements of the offence have since been changed. For example, what was called the year and a day rule was abolished by the Law Reform (Year and a Day Rule) Act 1996 .

2 For further sayings of Lord Coke see http://www.commonlaw.com/Coke.html

Nevertheless, the common law does have advantages over codified systems - it is more flexible, it is more practical as it is derived from real life dramas played out before the courts.


 Legislation or statutory laws (Acts of Parliament)

Legislation has become the commonest source of new laws or of law reform since around the Seventeenth century. So when we think of laws in modern times, we often think of sections in an Act of Parliament. Statutes can be applied to all or any combination of jurisdictions within the United Kingdom, whereas the common law jurisdictions are more limited. Acts of Parliament which apply to everyone throughout one or more jurisdictions are called public general Acts. But Acts may also be limited to geographical locations within a jurisdiction (e.g. the W est Yorkshire Act 1980 and local bye-laws) or to specific persons or companies.

The most important legislation is Acts of Parliament (called primary legislation). This becomes valid through being approved (after debate) in the House of Commons and (with some exceptions under processes laid down by the Parliament Acts 1911-1949) the House of Lords; it then receives the Royal Assent from the Queen. (see The House of Commons within the UK Constitution; and The British Monarchy pages). Here are some examples of some statutes: Education (Student Loans) Act 1998, Education (Schools) Act 1997, Protection from Harassment Act 1997, School Inspections Act 1996, Disability Discrimination Act 1995.

A greater volume of legislation is nowadays made under the authority of primary legislation by Government Ministers, and it does not have to be approved in advance by Parliament. This is called delegated or secondary legislation. Delegated legislation is issued (often by a government minister) under a specific power in the "parent" or "enabling" Act. Such legislation is issued in the form of statutory instruments (there are about three thousand per year) and may be titled "regulations" or "orders". Here are some examples - The Jobseeker's Allowance (Amendment) Regulations 1998, The Education (Direct Grant Schools) (Revocation) Regulations 1998, The M42 Motorway (Dunton Diversion) Scheme 1998.

Reasons for the use of delegated legislation are as follows:

There are also powers under the Local Government Act 1972 for local authorities to issue delegated legislation - these are called bye-laws.

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Comparing legislation with common law, statutes generally have the power to change the established common law, but the common law cannot overrule or change statues. A statute can only be overrruled or amended by another, later statute. This relationship reflects the legal and political doctrine known as Parliamentary Sovereignty - the recognition and acceptance that Parliament is the supreme law-making authority in the land. However, that authority may not be absolute - it has been limited by the relationship with the European Union, and the importance of principles such as the recognition of individual freedoms, democracy and governmental accountability may place further limits on its exercise. Nevertheless, save for these possible limits in extreme circumstances, the judges must normally apply statutes, even if they are contrary to established common law. The task of the judge is to interpret and apply the statute - they cannot disregard it or declare it to be "unconstitutional". In many other jurisdictions, the judges do have this power to override statutes by declaring them to be inconsistent with the written constituion. This happens in the United States. For an example, see the cases of Youngstown Sheet & Tube Co. v. Sawyer 343 U.S. 579 (1952); and Griswold v Connecticut 381 U.S. 479 (1965).

There are various theories as to how the judge should interpret statutes. This is not an easy task. The legislation will originially have been written by experts (Parliamentary draftsmen) who write in precise and technical language. But the legislation may be amended by non-experts during its passage through Parliament. And circumstances may be encountered which were not considered by the draftsmen. There are three main rules which are used by the judges in interpreting Acts of Parliament:

The literal rules might be said to be the default position. But the judges will commonly use a more purposive approach (the golden or mischief rules), especially where the legislation seeks to implement a social policy such as the outlawing of sex discrimination. see Pickstone v Freeman [1988] 2 All ER 803.

Aside from these broad appraoches, there are more specific rules of interpretation which fall into two categories:


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Last updated 18 September 1998.