English Legal System: Sources of Law

This presentation provides an overview of the sources of law in the English Legal System. It covers the functions of the three branches of government, including the legislature, executive, and judiciary. It also explains the doctrines of parliamentary sovereignty and the importance of case law. Additionally, it discusses other sources of law such as statutes, secondary legislation, EC law, ECHR law, custom, and books of authority. The presentation concludes with an introduction to law reform and the role of commissions in shaping legal rules.

English Legal System
Sources of Law
Introduction to the branches of government
Relationship between legal authorities

 The three branches of government in England and Wales
are:
1. The Legislature
2. The Executive
3. The Judiciary
Institutions and doctrines in the
English Legal System

 It is the legislature’s role in the constitution to make the law
 Traditionally the legislator may have been an individual, the King or
Prince who made the laws for his subjects
 In England from the middle ages onwards Parliament became the
legislature for the country as a whole
 This reached its classical expression during the Reformation when
the King or Queen-in-Parliament was held to be the highest and
most important law-making institution
The Legislature

 The sovereignty, or as it is sometimes expressed, the
supremacy of Parliament, reached its classical formulation in
the writings of Professor Dicey in the 19th Century
This means that Parliament in traditional constitutional theory can
do whatsoever it likes
The Sovereignty of
Parliament

 The executive in this country is the Crown whose functions are exercised
through the government, in particular by the Prime Minister
 The executive also comprises the wider organs of the State with executive
authority such as the police, the civil service and local authorities
 The definitions given to public authority vary from on area of public and
European Law to another
 It is important to realise the State, and hence the executive, can have a
much wider definition depending on the context in which it is regarded
 The executive proposes and enforces the law
Executive

 The Judges’ function is to apply the law in the cases which
come before them
 Whether judges make law is a more moot point
 However, it is fundamental that the judges should be
independent of the executive
 The Judiciary can sometimes come into conflict with the
executive
The Judiciary

 Statute Law
 Secondary or Delegated Legislation
 EC Law
 ECHR Law
 Case law
 Custom
 Books of authority
 Quasi-legislation
Sources of Law in the English
Legal System

 Also referred to as Acts of Parliament or primary legislation
– many may already be familiar to you
 Health & Safety legislation or the Licensing Acts for
example
 Traditionally regarded as the highest form of law because
of the supremacy or sovereignty of Parliament
Statutes

 As well as primary legislation passed by the United Kingdom
Parliament there is also secondary legislation or delegated
legislation
 This is made by a body or authority outside Parliament using
powers conferred on them by a specific Act of Parliament
 Governs complicated and technical areas which Parliament
does not have time or knowledge to deal with
Secondary Legislation

 The law of the European Communities is
increasingly an important source of English
Law
EC law

 Incorporated into English Law by the Human Rights Act
1998 – effective from 2nd October 2000
 Separate lecture will deal with the form of incorporation in
more detail
 Note: that legislation must be interpreted as compatible with
Convention Rights as far as this is possible
 The Convention rights protect fundamental human rights
from abuse by the State
European Convention on Human
Rights

 Case law is a very important source of law in the English
Legal System because of the doctrine of judicial precedent
or ‘stare decisis’, let the decision stand
Case law

 Although bookshelves full of law reports – very few cases are
litigated, most settle outside of the system
 This could be either because of the use of ADR (Alternative Dispute
Resolution) or because the lawyers in the case negotiate a
settlement between the parties
 The case law provides a degree of certainty to the parties in trying to
negotiate a settlement to the case
 How the law will apply to the individual facts of the case is a more
complex question
Case law

 To some lawyers ‘the common law’, the concept we looked
at in the introduction to legal concepts and terminology,
may be viewed as customary
 The common law judges recognised the local customs as
laws across the country and made them as uniform as
possible
 Other commentators see this as an overly romantic view of
the law, and its historical development
Custom

 Criteria for the recognition of custom:
1) It must have existed from ‘time immemorial’, that is, 1189;
2) It must have existed continuously within that period;
3) It must have been exercised peaceably and without
opposition;
4) It must have been felt to be obligatory;
5) It must be capable of precise definition;
6) It must have been consistent with other customs;
7) It must be reasonable.
Custom

 As well as the case law that has built up over the centuries
there have been very influential writers who have stated the
law at various times
 The courts were originally reluctant to admit these as
authority, but this is becoming more and more prevalent in
the practice of the courts
 No longer the case that an author has to be dead in order
to be an authority
Books of authority

 These are sources of law, although they can be influential
and useful to the student in assisting him or her to
understand the rationale for the adoption of a certain legal
rule
 There are temporary Commissions set up to deal with ad
hoc events, e.g. Royal Commissions set up at the
command of the Sovereign
Law Reform - The reports of
Commissions

 This is the statutory body set up by the Law Commission Act
1965
 It is divided into different sections which keep the law under
review in specified areas and also works towards the
codification of the law
 Composed of senior judges and academics, Baroness Hale
was a member of the Commission
 It is also has a standing body of the civil servants who keep the
law under review and also employs graduate research
assistants
The Law Commission

 This is a term first used in 1944 by R.E. Megarry
 It refer to rules which are made by executive agencies in
particular, but which do not form part of the written law as
such
 A well known example of this would be the Highway Code –
a breach of the Code can be taken into account in
determining whether someone was negligent in a road
traffic accident claim
Quasi-legislation

 You should now be able to:
1. Explain in basic outline the functions of the three branches of
government and explain the doctrines of parliamentary
sovereignty;
2. Identify the main sources of law in this country;
3. Be able to name certain historical and modern authoritative works
on the English law and the courts’ approach to using these on a
daily basis;
4. Identify ad hoc and statutory bodies which are set up to deal with
law reform.
Summary

 Slapper, G. and Kelly, D., The English Legal System (London:
Cavendish Press, 2004, 7th edition), chapter 2 ‘Sources of Law’,
pp.63-108
 Smith, A.T.H, Glanville Williams Learning the Law (London: Sweet
and Maxwell, 2002), chapter 1 Common Law and Equity, pp.22-28
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