Sources of Law
Summary
A. Common Law
Ø Before
the Norman Conquest (1066), most rules
and practices
developed at a local
level.
Ø After
the invasion of England by William the Conqueror in 1066 (Battl e of Hastings),
the Norman kings set up a more centralised power:
o
Travelling justices:
· Applied customary rules
· Introduced their own
decisions
ê This harmonised the legal system throughout the country
Ø Under Henry II (Plantagenet 1154-1189)
in the 12th century, the
system became known as the common law.
· Courts
were set up under the authority of the king.
· These
court decisions prevailed over those of local courts.
Ø Common law and
the writ
system
· Plaintiffs / Claimants began
legal actions in royal courts by paying for a court order called a writ.
· Each writ recorded a particular claim.
· Courts
established a collection of
acceptable claims.
o
By the 13th
century, the system had become more rigid:
· Rules were imposed making it difficult to create any new writs.
· New
situations would not be taken into account.
· The only possible remedy
at common law
was damages.
NB:
Damage ≠ Damages ≠ Prejudice
Ø Development
of Equity
o
Many parties started to turn to the King directly to obtain redress.
o
The King delegated his power to his closest advisor, the Lord Chancellor.
o
é In
the 14th and 15th
century, a new category of law was created:
Equity which provided new remedies:
-
Injunctions
-
Orders of specific performance
o
In 1615: if
was decided that whenever there was a conflict between common law and equity, equity would
prevail.
Ø Judge-made
law
o
Decisions at common law and in equity = judge-made law / case law.
o
Based on concrete cases, these decisions set
precedents, which would be applied in later cases (raising the same legal point
in similar circumstances).
o
End of
18th century, court records became available:
precedents were applied more consistently.
B. Legislation
Ø Origins
of Parliament: barons of England that forced monarchs to hold
regularly in meetings called parliaments (+ prelates and knights and burgesses)
to obtain their approval of royal measures (especially taxation).
Ø Alongside
common law, Parliament enacted
more and more legislation:
o
Acts of Parliament = Statutes = Statutory Law
o
Statutes prevail over common law.
o
Statutes alter, codify the law.
o
Court rulings (precedents) became interpretations of
legislative acts.
Ø By the
middle of the 15th century,
the House of Commons fully shared lawmaking power with the House of Lords (i.e. approval by the
Commons was now needed for bills to become statutes).
Ø In the
16th and 17th century though, The Tudors and The Stuarts
ruled as absolute monarchs.
o
The English Civil War (1642-51) and the death of
Charles I (beheaded) is the direct result of the conflict between the King and
Parliament.
o
The
Glorious revolution (1688) and
the Bill of Rights (1689) marked the
end of absolute monarchy in England and the assertion of Parliamentary Sovereignty.
Ø Parliamentary
Sovereignty:
o
As there is no
entrenched Constitution to circumscribe
the powers of Parliament, Parliament is said to be sovereign:
o
Parliament passes acts
that constitute the highest law of the
land.
o
New acts prevail over existing case law and replace
former acts.
Primary
Legislation passed by Parliament.
Power can be delegated by Parliament to the
Government, enabling it to create secondary
legislation.
Devolved
legislation (Wales, Scotland, Northern Ireland)
C. European Law
Ø The UK
joined the European Economic Community in 1973, which became the European Union
(Maastricht Treaty 1992).
Ø The UK
is bound by EU law in the form of:
-
Directives (that
require UK parliament to pass legislation of its own)
-
Regulations
Ø The UK
obtained opt-outs:
-
To stay outside the Schengen Area,
-
Avoid adopting the euro,
-
Maintain sovereignty in certain areas of justice.
Ø The European Court of Justice (ECJ)
reviews, interprets and ensures the application of EU law, which prevails over UK law and results in a
partial loss of sovereignty.
D. The European Convention on Human Rights
Ø The Council
of Europe (1949) signed the European Convention on Human Rights (ECHR), which
went into effect in 1953.
Ø The European
Court of
Human rights
o
It was set up in 1959
o
It hears cases against those states (usually brought
by individuals) for violation of ECHR provisions.
o
Its decisions (awarding compensation to the claimant) must
be executed by the states.
Ex: Louise O’Keeffe / Ireland (child abuse) 2014.
Ø To
make the ECHR applicable directly in courts of the UK, the UK parliament passed
the Human Rights Act in 1998 (which came
into effect in 2000)
Ø After
his re-election in May 2015, the current Prime Minister, David Cameron, has
announced that he would repeal the Human Rights Act and draft a British Bill of Rights.
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