The sources of law

I.

Introduction

Sir John Salmond defined law as being the body of principles

recognised and applied by the State in the administration of justice. The
law of England and Wales has evolved gradually over the centuries. There
was no system of law before 1066, as it was mainly based on customs and
decisions of judges. In the 18th Century and early 19th Century, Parliament
became more powerful and made law through Acts of Parliament which
holds Sovereign Power today in the United Kingdom (UK). Regardless,
judicial decisions were still important as they interpreted the
Parliamentary law and filled in gaps where there was no statute law.
Present day, there are various methods of creating laws. These methods
are known as sources of law. This essay will attempt to elaborate on the
different sources of law in the English Legal System.
II.

Judicial Precedent

Judicial precedent refers to the source of law where past decisions of

the judges create law for future judges to follow1. This source of law is also
known as case law. For many centuries, it was the main form of law and it
is still very important today.2 Even though precedents can be overruled by
parliamentary or delegated legislation3, England and Wales still operate
with a common law system and the importance and effectiveness of
judicial creativity and common law principles cannot be discounted.4
Judicial Precedent operates on the basis of the doctrine of stare
decisis. Stare decisis literally translates as to stand by decided
matters. In a legal context, this is understood to mean that courts should
generally abide by precedent and not disturb settled matters.5
1 Jacqueline Martin, The English Legal System (6 th edn, 2010)
2 Catherine and Elliot Quinn, AS LAW (2 nd edn, Pearson Education Limited, 2004)
3 Terence Ingman, The English Legal Process (12 th edn, Oxford University Press
New York, 2008)
4 Gary Slapper and David Kelly, The English Legal System (13 th edition, 20122013)
5 Adeleye, Gabriel et al. World Dictionary of Foreign Expressions: a Resource for
Readers and Writers, page 371 (1999)

Precedent can only operate if the legal reasoning of past decisions is

known. These legal reasons are called ratio decidendi. Sir Rupert Cross
defined the ratio decidendi as any rule expressly or impliedly treated by
the judge as a necessary step in reaching his conclusion. In future cases,
judges will look at the ratio decidendi of a case with similar facts and
come up with a similar judgement.

In Entores Ltd v Miles Far East Corporation (1955) the courts held
that postal rule for acceptance was inapplicable for communication by
telex. Utilising the principle of stare decisis, Entores became a binding
precedent in the case of Brikinbon Ltd v Stahag Stahl (1982). This doctrine
adjudicates the idea of fairness and provides certainty in the law.
Original precedents are new precedents created on a point of law
which has never been decided. As there are no past cases for the judge to
base his decision on, the idea of creating new law by analogy is used. This
analogy is put in practice in Hunter and others v Canary Wharf Ltd and
London Docklands Development Corporation (1955)6.
Persuasive precedents comes from a number of sources such as
courts lower in the hierarchy, decisions of the Judicial Committee of the
Privy Council, statements made obiter dicta, a dissenting judgement and
decisions of courts in other countries. Although persuasive precedents are
not binding, judges may consider and decide if he is persuaded to follow
the judgement.
In England and Wales, courts operate a relatively rigid doctrine of
judicial precedent which has the effect that every court is bound to follow
the decisions of the court above it. However there was a twist in
circumstances following the year 1966, where the Lord Chancellor issued
Practice Statement in London Street Tramways v London County Council7.
Practice Statement allowed more flexibility into the House of Law. This
system is still operated in the Supreme Court.
III.

Common Law and Equity

6 In 1990 a tower known as the Canary Wharf Tower was buit by the first
defendant. The claimant, and hundreds of others suing with her, claimed
damages from the first defendant for interference over a number of years with
reception of their homes in East London. The interference was claimed to have
been caused by the tower.
7 [1898] AC 375

The English common law originated in the early Middle Ages in the Kings
Court (Curia Regis), set up by William the Conqueror. In the time of Henry
2(1154-1189) representatives of the king (itinerant justices) were sent to
check the administration in the countryside and adjudicated local disputes
in accordance to local laws or the old Anglo-Saxon laws. When they
returned to Westminster they discussed the different laws which were
present around the country and decided which ones to keep and which to
dismiss. By about 1250 a common law had been produced which ruled
the whole country.
Common law has several meanings. It can be defined as the law
developed by the early judges to form a unified law, the law which has
continued to be developed through judicial precedent or the law operated
in the common law courts before the reorganization of the courts in 187375.
Equity was also an important source and still plays a part today as
many of our law developed from equitable remedies. Historically, equity
was developed due to the problems in common law. Equity was developed
by the Kings Chancellor and practiced in Chancery Courts. It serves as a
platform for people back then to appeal for a better outcome. To ensure
decisions were fair new procedures such as subpoenas8 were developed.
Remedies like injunctions, specific performance, rescission and
rectification are also developed and are all still used today. Today,
equitable remedies such as Mareva injunction, Anton Pillar order, deserted
wifes equity and promissory estopel are widely practiced by lawyers in
the UK. Besides that, trusts and mortgages are also useful equitable
remedies.

IV.

Legislation

The broad function of all legislation is to create, alter, or revoke law

to give effect to the intention of the legislative body. 9 The Parliament is
the main body that is involved in making legislation. In the past three
hundred years especially, Parliament has been called upon to enact

8 A formal document that orders a named individual to appear before a duly

authorized body at a fixed time to give testimony
9 Richard Ward and Amanda Wragg, Walker and walkers English Legal System
( 8th edn, Oxford University Press, 2005)

numerous detailed schemes of law to facilitate the political,economic and

social evolution of the UK.10
Act of Parliament
Parliament in the form of Acts of Parliament (statutes) are primary
legislation made by the Parliament. Parliament consists of the House of
Commons, House of Lords and the monarch. In English law, the Parliament
has two parliamentary chambers.11The two chambers are the directly
elected House of Commons; and the House of Lords, a non-elected
chamber that includes appointed life peers and a limited number of
heredity peers12.
All statutes begin as a bill. A Bill is a proposal for a new law, or a
proposal to change an existing law that is presented for debate before
Parliament.13 Bills are introduced in either the House of Commons or
House of Lords for examination, discussion and amendment. After going
through the legislative process which involves the first reading, second
reading, committee stage, report stage, third reading, when both Houses
have agreed on the content of a Bill, it is then presented to the reigning
monarch for approval (known as Royal Assent).
There are three different types of Bill: Public, Private and Hybrid
Bills. There is also another kind of Public Bill called Private Members' Bills.
Here, a Member of Parliament, without the official support of the
Government or his/her party, puts forward an idea for legal change. This is
an opportunity for ideas to be presented to Parliament which would
otherwise be ignored because they are divisive within the political parties.
A Private Members Bill was the source, for example, of the Act that
abolished the death penalty in the UK: the Murder ( Abolition of the Death
Penalty) Act 1965.
Due to the parliamentary sovereignty, parliamentary law should
therefore prevail over all other sources of law. 14 This means that Acts of
Parliament are superior to, and can therefore override, the common law
10 John Wheeler, Essentials of the English Legal System (2 nd edn, Pearson
Education Limited, 2006)
11 Andrew Mitchell and Minel Dadhania, AS Level Law (1 st edn, Cavendish
Publishing Limited, 2003)
12 Members of Parliament by birth
13 http://www.parliament.uk/about/how/laws/bills/

rules made by judges. Parliament can also make any law it wants. This
follows from an acceptance of Parliament as the supreme law-making
body and is both subject to, and supported by, the doctrine of implied
repeal. This amounts to a practical rule that a differing later statute
dealing with a subject in an earlier statute, in the absence of any express
statement, impliedly repeals the earlier state The doctrine requires that
no Parliament bin its successors15, thereby allows for freedom in lawmaking. Since Parliament is of a superior status to the courts, the
traditional view is that judges cannot question or challenge Acts of
Parliament.

Delegated Legislation
Delegated legislation is a source of law also known as subordinate
or secondary legislation. It is law made by some person or body to whom
parliament has delegated its general law-making power. A validly enacted
piece of delegated legislation has the same legal force and effect as the
Act of Parliament under which it is enacted but, equally, it only has effect
to the extent that its enabling Act16 authorises it.
The statutes passed by Parliament lay down a basic framework of the
law, with creation of the detailed rules delegated to government
departments, local authorities, or public or nationalized bodies; the
statute is known as the enabling Act. Examples of enabling Act include
the Access to Justice Act 199917 and the Criminal Justice Act 200318.
There are three main forms of delegated legislation.
14 Andrew Mitchell and Minel Dadhania, AS Level Law(1 st edn, Cavendish
Publishing Limited, 2003)
15 That is, for no Parliament to make laws that will restrict law-making in future
Parliaments)
16 Parent act
17 Gave the Lord Chancellor wide powers to alter various aspects of the legal
funding schemes
18 Gave the Secretary of State the power to make delegated legislation in
several areas. One of these powers enables a code of practice to be created for
the use of conditional cautions. A conditional caution is used instead of taking an
offender to court.

Statutory Instruments.
Statutory Instruments are governed by the Statutory Instruments Act
1946.19 Statutory instruments are made in a variety of forms, most
commonly Orders in Council, regulations, rules and orders20. The form to
be adopted is usually set out in the enabling Act. Statutory Instruments,
also known as SIs, are a form of legislation which enables the provisions of
an Act of Parliament to be subsequently brought into power or altered
without Parliament having to pass a new Act. Acts of Parliament confer
powers on government Ministers to make more detailed orders, rules or
regulations by means of statutory instruments. An Act will often contain a
broad framework and statutory instruments are used to provide the
necessary detail that would be too complex to include in the Act itself.
Among the functions of SI is to amend, update or enforce existing primary
legislation.

Orders in Council
There are two types of Orders in Council; whereby the Queen-in-Council
exercises the Royal Prerogative, and Orders in Council made in accordance
with an Act of Parliament.21 The queen and the Privy Council have the
authority to make Orders in Councils22 Orders in Council can be made on
a wide range of matters, for example giving legal effect to European
Directives, transferring responsibility between government departments
and bringing Acts( r part of Acts) of Parliament into force. In addition, the
Privy Council has subordinate powers to make law in emergency situations
under the Civil Contigecies Act 2004. Another enabling Act giving power to
make Orders in Council is the Constitutional Reform Act 2005. This allows
the Privy Council to alter the number of judges in the Supreme Court.
By-laws

19 Statutory Instruments Act 1946, section 1

20 http://www.parliament.uk/business/bills-and-legislation/secondarylegislation/statutory-instruments/
21 "Draft Cabinet Manual, para 32". Cabinet Office. December 2010. Retrieved
31 December 2010.
22 Jacqueline Martin, The English Legal System(6 th edn, 2010)

In the Uk, bylaws are laws of local or limited application made by local
councils or other bodies, using powers granted by an Act of Parliament,
and so is a form of delegated legislation. Local council bylaws are
generally restricted in scope to a particular place. An example of a bylaw
is Section 76, Public Health Act 1961. This bylaw regulates seaside
pleasure boats which include personal watercraft (including jet-skis) and
waterskiing including speed, navigation and noise.23

V. European Law
On 1 January 1973, the UK joined the European Economic Community
(EEC), resulting the birth of European Law as another source of law. The
EEC was originally set up in 1957 by the treaty of Rome. The name
European Union (EU) was later introduced by the Treaty of Rome 1993.
There are two treaties setting out the Union rules. These are the Treaty of
European Union and the Treaty of the Functioning of the European Union.
The main institutions that exercise the functions of the Union are the
Council of the European Union, the Commission, the European Parliament
and the European Court of Justice.
The European Court of Justice (ECJ) , is the highest court in the
European Union in matters of European Union law. EU law has supremacy
over UK law where EU law and national law conflict, EU law will take
primacy. EU law may also have direct effect if it satisfies relevant criteria.
This means it gives rights and obligations to individuals as well as state
authorities which may be enforced before national courts.
There are three sources of European Union law: primary law,
secondary law and supplementary law.
Treaties
Treaty is a primary source of European law. All treaties signed by the
head of government become part of English law automatically under
European Communities Act.24 Treaties can play the role of contracts
between two or more parties, such as an extradition treaty or a defence
pact. Treaties can also be legislation to regulate a particular aspect of
international relations, or form the constitutions of international
23 Maritime and Coastguard Agency model
24 1972, s2(1), states that treaties are without further enactment to be given
legal effect

organisations. Citizens of the UK are entitled to rely on Treaty of Rome and

other treaties that have not been enacted in English Law. This is illustrated
in Macarthys Ltd v Smith25 where the ECJ held that Ms Smith had a claim
because she could compare her pay with a former colleague and her
employers breached Article 157 (TFEU).
Regulations
Regulations are issued under Article 288 TFEU. It is a secondary source of
European Law and are binding and directly applicable26to all member
states. If there is a conflict between a regulation and an existing national
law, the regulation prevails27.Regulations have vertical and horizontal
direct effect. This means that citizens may rely on them both against the
State and against private individuals or bodies.
Directives
A directive is a legal act provided for in the EU Treaty. They are issued
under Article 288 TFEU. Directives are binding in its entirety and oblige
Member States to transpose it into national law within the set deadline. If
a directive is not implemented it will have vertical direct effect when the
time limit for implementation expires. So where the Directives creates
individual rights, those rights may be relied on against the state of an
arm of State.28. The sue concept of an arm of state is a body that has
been made responsible for providing a public service under the control of
the State.
Where a directive has not been implemented, an individual who suffers
loss as a result of non-implementation may sue the State for breach of
Community law. In Dori v Recreb Srl (1994), the European Court of Justice
held that compensation would be payable where; the purpose of the
Directives was to grant rights to individuals, those rights could be
identified from a Directive and when there was a causal link between the
breach of the States obligation and the damage suffered. In R v HM
Treasury, ex parte British Telecommunications plc (1996), the courts held
25 (1981) QB 180 is an EU law, UK constitutional law and UK labour law case,
concerning the construction of a sex discrimination statute, and its compatibility
with European treaties, now in the European Union
26 meaning that they do not have to be implemented by any national legislation
27 http://www.leeds.ac.uk/law/hamlyn/european.htm
28 Jacqueline Martin, Key facts The English Legal System (4 th edn, 2010)

that compensation would only be payable where the breach was

sufficiently serious.
VI. The European Convention on Human Rights
In 1950, the UK government signed the European Convention on Human
Rights (ECHR), This Convention was drawn up after the Second World War
to protect peoples rights from the abuses under Hitlers rule of Germany.
Although UK signed the Convention in 1950, it was not part of the law unti
October 2000 when the Human Rights Act 1998 came into effect.
The Human Rights Act 1998
Another source of law that is more recently introduced to the English
Legal System is the Human Rights Act 1998.This Act seeks to give direct
effect to the European Convention on Human Rights in domestic law of the
UK by enabling claimants to bring an action in national courts instead of
having to take their case before the European Court of Human Rights, as
had previously been the case.29 It also requires the judiciary (including
tribunals) to take account of any decisions, judgment or opinion of the
European Court of Human Rights, known as the Strasbourg court, and to
interpret legislation, as far as possible, in a way which is compatible with
Convention rights. This can mean that the courts read the provisions of an
Act in a very broad way in order to make it comply with the European
Convention.
For example in Mendoza v Ghaidan where same-sex partners were
granted statutory tenancy. The CA held that the judgement in Fitzpatrick v
Sterling30 infringed Article 14 of the Convention (discrimination) and
revisited the Rent Act in Mendoza so that its provisions are rendered
compatible with the convention. However, if it is not possible to interpret
an Act of Parliament so as to make it compatible with the Convention, the
judges are not allowed to override it. All they can do is issue a declaration
of incompatibility. This declaration does not affect the validity of the Act of
Parliament: in that way, the Human Rights Act seeks to maintain the
principle of Parliamentary sovereignty.
VII.

British Constitution

29 Amos, Merris (2006). Human Rights Law. Oxford: Hart.

30 the Law Lords ruled that same-sex partnerships could be construed as family
relationships in housing succession cases.

British Constitution is the set of laws and principles under which the
United Kingdom is governed31 In this sense, the UK has a Constitution in
that it has a complex and comprehensive system of government. The
British Constitution is unwritten, granting the Parliament untrammelled
legislative powers. There are several documents which are central to the
Constitution such as, Magna Carta 1215, the Bill of Rights 1689, the Act of
Settlement 1700 and the Human Rights Act 1998. Besides Human Rights
Act 1998 as mentioned above, these sources of British Constitution
contributed a lot to the sources of law in the modern day society.

VIII. Conclusion
As seen above, the English Legal System derives law from many
different sources. These laws play an important part in the creation and
maintenance of social order in todays society. Although the Sovereignty
power of law creation lies in the Parliament, its powers are still balanced
by the European Law and the European Convention of Human Rights.
(2924 words)
IX. Bibliography

Text books and dictionaries

1. Jacqueline Martin, The English Legal System (6th edn, 2010)
2. Catherine and Elliot Quinn, AS LAW (2nd edn, Pearson Education
Limited, 2004)
3. Terence Ingman, The English Legal Process (12th edn, Oxford
University Press New York, 2008)
4. Gary Slapper and David Kelly, The English Legal System (13th
edition, 2012-2013)
5. Adeleye, Gabriel et al. World Dictionary of Foreign Expressions: a
Resource for Readers and Writers, page 371 (1999)
31 Prof. Dr. Helmut Weber: Who Guards the Constitution?, English version of a
paper delivered on 22 October 1999 at the Centre for British Studies, Humboldt
University Berlin, Colloquium of the Graduiertenkolleg "Das neue Europa"

6.

Richard Ward and Amanda Wragg, Walker and walkers English

Legal System ( 8th edn, Oxford University Press, 2005)

7.

John Wheeler, Essentials of the English Legal System (2nd edn,

Pearson Education Limited, 2006)

8.

Andrew Mitchell and Minel Dadhania, AS Level Law (1st edn,

Cavendish Publishing Limited, 2003)

9. Jacqueline Martin, The English Legal System(6th edn, 2010)

Websites
1. http://www.leeds.ac.uk/law/hamlyn/european.html
2. http://www.parliament.uk/business/bills-andlegislation/secondary-legislation/statutoryinstruments/
3. http://www.parliament.uk/about/how/laws/bills/

Other resources
1. Amos, Merris (2006). Human Rights Law. Oxford: Hart.
2. Prof. Dr. Helmut Weber: Who Guards the Constitution?, English version
of a paper delivered on 22 October 1999 at the Centre for British Studies,
Humboldt University Berlin, Colloquium of the Graduiertenkolleg "Das
neue Europa"