Sources of Law free essay sample

Explain the different sources of Law in England. The legal system in the UK has expanded over many centuries and has also changed regularly during this period. The present UK law consists of four major sources that include the Interpretation of Statues (Acts of Parliament), Common Law, European law and European Court of Human Rights. ‘These sources of Law have all one common element, influenced by political, social and technological change. ’ (Open University, Block 1, Pg 89). This essay will focus on two sources of law, Statue Law and Common Law Statue Law is made by Parliament, i. . the House of Commons, the House of Lords and the Monarch. Proposals for legislation Bills are presented to debate by and voted upon by the House of Common and the House of Lords, finally receiving the assent of the Monarch and thus becoming Acts (Statutes) of Parliament. ‘Acts of Parliament can originate from a number of sources; for example a national emergency, crisis or developmen t. ’ The Anti Terrorism, Crime and Security Act 2001. This Act was introduced after the terrorist attacks on New York and Washington on 11th September 2001’. Another source may derive from ‘Private Member’s Bill’ members of parliament have the authority to introduce their own legislations, an example being ‘The Marriage Act 1994’ this legislation allows people to marry in any registered place other than a Registry Office or religious building’. (Open University, Block 1, Pg 96 and 98). Parliament also has the authority to delegate the task of making laws to someone else this is referred to as ‘delegated legislation’ an example of delegated legislation ‘Byelaws’. Byelaws can be created by councils/local authorities where there is no ‘general legislation’ in place, a typical ‘byelaw’ would be the Greater London Authority Act 1999, section 385(1) this ‘byelaw’ was created to secure the proper management and preservation of Trafalgar Square and Parliament Square Garden (Open University, Block 1, Pg 114,116). Moving on, to look at Common law, Common law is a type of legal system that relies on precedents developed by judges and court cases. The most important concept of a common law system is that cases that are considered to be similar in circumstance to prior cases should result in the same ruling by the court. It is sometimes referred to as case law because it is built upon the results of individual cases. Judges use various rules to interpret legislation, the literal rule, the golden rule, the mischief rule and the purposive approach, looking closely at; the literal rule – as it suggests means that the judge will interpret the words of the Act literally, even if the outcome is unjustified or immoral. The literal rule has been used in numerous cases, such as  Fisher v Bell  [1960] 3 All ER 731. (Open University, Block 1, Pg 181). The golden rule is in effect an alteration of the literal rule. Like the literal rule, they follow the meaning of the words in the Act literally, the golden rule corrects what the judge believes to be an absurd result as in the case of Adler v George [1964] 1 All ER 628. (Open University, Block 1, Pg 182) Advantages/Disadvantages Statue Law/Common Law. Statute law has both advantages and disadvantages; one advantage is the thought that Parliament are more in touch with the outside law than judges. This means that a public opinion is taken into account. Another is that Parliament is free to make law points straight away, rather than waiting for a case to come along. This way, Parliament helps to fill in the gaps of case and common law. 2) Discuss the operation of precendent. The operation of precedent is where the past decisions of the judges create law for future judges to follow. This system relies on the hierarchy of the courts. Every court is bound to follow any decision made by a court higher in the hierarchy and in general appellate courts are bound to follow their own decisions. At the top of the hierarchy is the European Court of Justice, this court only has jurisdiction over some areas of the law such as European law. One main feature of the European Court of Justice is that it will overrule its own decisions if it feels necessary a decision made by the European Court of Justice is binding over all courts in England and Wales. The next court in the hierarchy is The House of Lords which is the most senior court in England and Wales. The House of Lords is not bound by its own decisions, but it will generally follow them. All courts in England and Wales are bound by the House of Lords decision. Following the House of Lords is the Court of Appeal, of which there are two divisions: criminal and civil. The two divisions must follow the decisions made by the House of Lords and the European Court of Justice; they must also follow their own decisions although there are limited exceptions to this rule. Below the Court of Appeal are the divisional courts (Queens Bench Division, Chancery Division and Family Division). The divisional courts have to follow their own decisions but again there are a few exceptions. Below the divisional courts are the High Court. The High Court has to follow all precedents of the higher courts and it binds the lower courts, it does not have to follow decisions but I generally does so. Judicial precedent refers to the source of common law where past decisions of judges create law for future judges t follow. This source is a major source of law both historically and today. The English system of precedent is based upon the Latin phrase; maxim stare decisis et non quieta movere (usually just stare decisis). This translated means; stand by what has been decided and do not unsettle the established. This supports the idea of fairness and certainty in the law. The basic idea is that the higher courts bind the lower courts. The European Court of Justice bounds all English courts and is not bound by its own past decisions. The House Of Lords is binding on all other courts and is bound by all its past decisions, this was true until 1966 when the practice statement was introduced allowing the court not to be bound by its own past decisions if it seas necessary. So previous decisions normally are normally binding unless it appears right not to in a particular case, few cases use the practice statement, as there is a need for certainty. An example of this is the cases of British Railways Board v Herrington (1972), followed by R v R (1991) and Hall v Simons (2000). dvantages and Disadvantages of Statute Law Advantages Parliaments are elected because they have policies people want. Therefore, their laws are likely to be closer to what people want. A Judge might not be in touch with the ideas of ordinary people. Parliament is elected, and it could be said, has the right to make laws. A Judicial Precedent is normally only about one point – an Act of Parliament covers a whole range of things and is therefore more thorough. Disadvantages Acts of Parliament often use difficult language and a lot of time in a case can be spent arguing about what they mean. It takes a long tome to pass an Act of Parliament – the process is slow Advantages and disadvantages of judicial precedent Advantages Because of the hierarchy of courts, it is easier for lawyers to be aware of Precedents and can advise their clients before the go to court. There are opportunities for the law to grow and change. Precedents mean that there is incredible detail in the law (about half a million reported cases). Having examples from before means that it makes it easier to make a good decision. Disadvantages Some courts, particularly the House of Lords is unwilling to overrule old decisions, even when most Law Lords think they are wrong. . The law is slow to change, because it only changes in response to cases coming up