Tuesday, 20 March 2012

Sources of English Law

Here is a little table I put together on Sources of English Law!


Case Law
Judicial decisions, precedent
To create law on a flexible case by case basis. However, written legislation has the power to override these sources.
  • Flexible
  • Promotes fairness and precedent can be consistent and certain.
  • Complexity and volume of decisions
  • Binding precedents can undermine flexibility

Proposals or Draft legislation
Parliamentary debates, command papers 
These are the origins of law which is today implemented and practiced 
  • Platform to put forward new innovative ideas.

  • Takes a lot of time and it doesn’t bring about change it is just in process of trying. 

Primary Legislation
Acts, Statutes
These are bills and proposals which have been accepted by both Houses of Parliament then given a Royal Assent.
  • Democratic as it is made by parliament 
  • Senior people work in parliament so they can bring their wisdom and expertise.
  • Slower and wastes parliamentary time
  • Inflexible and difficult to change
  • Now bound by EU
Secondary Legislation
Delegated legislation, Statutory Instruments
These are secondary form of legislation, delegated legislation is supplements to the act or statute set made by other parties not parliament. Statutory instruments is additions and amendments to acts/ statutes.
  • Speed of implementation
  • Saves Parliamentary time
  • Access to expertise
  • Flexibility
  • Lack of accountability
  • Lack of scrutiny of proposals for such legislation
  • Sheer amount of legislation
European Law
Directives, treaties, ECJ
European law is now given precedent over domestic law as we are signed up to them.
  • Following European Law simply reiterates how sophisticated our system is. 

- Can be too interfering 
International Treaties
Anglo- Japanese Alliance 1902
International source of law which again if conflicts with domestic law is given priority
- Promotes peace and is way in which the legal systems of the world are united.
  • It can sometimes interfere with domestic case dealings 

Conventions, common law
This is oldest source of law and was there to ensure that the law matched what people peopled
- Matches people’s ideas and expectations
  • Continually changing, hard to codify and verify.
  • For international commercial law can be problematic.
European Convention on Human Right
The right to a fair trial
Separate to the European Union and allows member states who are signed up to take Human Rights cases to them
- Promotes human rights principles and provides opportunity for states to fulfill them. 
  • Sometimes can interfere with domestic cases too much such as Abdu Qatar case.
Equitable principles such as creation of mortgages
Developed to mitigate the harshness of the common law and the operation of the common law courts
  • Promotes natural justice and fairness.
  • Also spurs economic growth
  • Law becomes intangible and something too complex to grasp.
Books of authority
judicial tradition books of antiquity created prior to 1765
When law reporting was in its infancy this was created and it has some works from senior members of the judiciary.
  • Wides the prospectus of law thus making it more applicable.
  • It is recognized as a minor source of law and it is also outdated.

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