Sources of Law Assignment
In England and Wales today the individual citizens, companies, groups, and even political parties must all conform to the Laws which are created by the English Legal System in a number of different ways. These sources of Law are very important. In this essay we will look at the different ways in which Legislation and Law is made, with a more detailed view of two of them, including the advantages and dis-advantages, and their impact.
The five main sources of Law include: Parliament, Europe, Statutory Interpretation, Judicial Precedent, and Delegated Legislation.
Parliament uses its powers to create new law, or statutes as they are known which tackle major changes in the modern day society. Other methods of the law making process are not strong, nor quick enough to be as suitable as statute law for bigger changes in the law. Also it is worth noting that in a democracy the parliamentary members that have the power to create the new statutes are only able to do so because they have been elected by the very people that the laws will affect.
Since 1973, under the European Communities Act 1972, the legal system of England and Wales has had to conform to those laws created by the European Union, making it the top ranking source of Law in the court hierarchy. With the European Court of Justice (ECJ) also being the most Supreme Court, European Law therefore also affects the source of judicial precedent.
Judicial precedent is making of law by the Judges of a court, which must be followed by Judges in the same, or a lower level of the hierarchy. Law is split into two areas; Civil law which is basically the protection of people's rights, and Criminal law which is the protection of the people themselves. The order of hierarchy is also split into two areas. The hierarchy of the civil courts is as follows: European Court of Justice, House of Lords, Court of Appeal (Civil Division), Divisional Courts, High Court, County Court, and finally Magistrates' Court at the lowest level which must abide by the rules set by all of the above. The criminal court hierarchy is very similar but not the same and is as follows: European Court of Justice, House of Lords, Court of Appeal (Criminal Division), Queen's Bench Divisional Court, Crown Court, and Magistrates' Court. Precedent is based on Case-Law and is a major source in the English legal system.
Delegated Legislation is law which is made by committees and other bodies other than Parliament. However it must have the authority of Parliament. This is very similar to statute law however there are a huge amount of these laws passed every year in comparison to those made in parliament. The laws are set out by experts in those particular fields, however they are deemed to be undemocratic as the people creating the laws were not elected to do so by the people whom the laws will ultimately affect. Parliament's argument to this is that the Laws must be ...
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Delegated Legislation is law which is made by committees and other bodies other than Parliament. However it must have the authority of Parliament. This is very similar to statute law however there are a huge amount of these laws passed every year in comparison to those made in parliament. The laws are set out by experts in those particular fields, however they are deemed to be undemocratic as the people creating the laws were not elected to do so by the people whom the laws will ultimately affect. Parliament's argument to this is that the Laws must be given authority by parliament itself before it becomes law anyway so the delegation process merely saves on Parliamentary time.
Statutory interpretation is quite simply Parliaments statute laws, and their examination by the courts. It is where the judge looks at the statute set by Parliament and decides whether to use the law literally (i.e. word for word in the exact context of which it was written), or whether this would be perverse in which case the judge can use his/her discretion and avoid using the statute in the exact way it was written, therefore interpreting it in order to coincide with the case in hand. This process of law making was implemented because of the amount of laws which are passed each year, and the realisation that every statute could not be word perfect and always taken literally giving the judges the power to use their own common sense and discretion.
The source of Law which we will now look at in more detail is Judicial Precedent
Judicial Precedent is primarily based on three strong principles in order to keep certainty throughout the English Legal System. The three policies that are followed are Latin statements: Stare Decisis, Ratio Decidendi, and Obiter Dicta. Loosely translated Stare Decisis means 'To stand by what has been decided', so when a judgement is passed in a court, judges of the same level or lower in the court hierarchy must follow the decision made by that judge in future cases, if the facts of the case are the same or very similar. Ratio Decidendi translates to mean 'The reason for Deciding' in the judgment, and this is the statement that all judges must give after a court case to justify how and why they ultimately came to their decision. This part of the judgment is extremely important as it creates the precedent which must be followed in future cases. Obiter Dicta are other statements that a judge might make in the judgment outlining why the decision that was made could have been different if the details were slightly different. The literal translation of Obiter Dicta is 'Other things said'. Obiter Dicta comments can be used as guidelines for future judgements, however they persuasive precedent and are not binding precedent and thus do not have to be strictly followed.
When judgments are made they will either set a Precedent, or follow one of two different types of Precedent. It is very important to understand the difference between the three different types of Precedent which are: Original, Binding, and Persuasive. Original Precedent is set when a Judgment is made on a case where the details and facts are sufficiently dissimilar from any other case making the Judgment a Law that must then be followed by the courts on the same level or lower in the court hierarchy. Once Original Precedent has been made, the Ratio Decidendi then becomes Binding Precedent for future cases which are brought to a court of the same level or lower in the court hierarchy, and they must stand by what has been decided before and pass the same Judgment. Persuasive Precedent is not binding, but is used at the Judges discretion and comes from a number of different sources including: decisions made by the judicial committee of the Privy Council and dissenting Judgements. It can be used when a Judge looks at either Rationes Decidendi of Judges from courts lower than their own, or from different countries, and decides to follow that decision. It can also be used when a Judge looks at Obiter Dicta comments from a certain case, and decides to apply them to the case in hand if they are relevant.
The advantages of using Judicial Precedent in the English Legal system are quite clear; however for every advantage there seems to be a corresponding disadvantage making it a very complex yet essential source of Law. The obvious first advantage, which is relatively easy for any to see is the fact that the Law has a distinct element of certainty about it, because the courts follow the decisions of previous cases it makes it fairly easy for people working in the Legal advice sector to advise their clients as to how they can realistically expect their case to unfold, and what the likely outcome is going to be. However a major dis-advantage to this, that critics will be quick to point out is the fact that if a bad decision has been made for whatever reason, that bad decision will bind the courts on the same level or lower until it is changed by a higher court. The argument to combat this criticism is that there is a certain amount of flexibility and room for change in the Law with Overruling being applied if the parties are unhappy with the Judgements that have been made, but this is quite a weak answer to the problem as a change in the law will only occur if the people involved have the spare time, money, courage, and persistence to present their case to a higher court, and with the quite frankly outrageous legal costs involved nowadays, most people will just have to accept the decision.
The problem with the cost implications in a negative way due to the decision to take the case to a higher court, however, will only effect a very small proportion of cases, making the argument for keeping Judicial Precedent the same even stronger perhaps, because of the amount of time, and ultimately money saving capability, that being able to use the decisions of previous cases, has.
It is evident that in theory the system should work, however there are some factors which were not taken into consideration when deciding the rules that it must follow, for example human error of Judgment that can effect not only one Judge's decision, but the outcome of many other peoples cases in the future. Perhaps the system could be revised in some way, perhaps even by looking at other forms of Precedent from around the world and applying some of their rules. America for instance, who use the concept of Prospective overruling to help provide more certainty and faith in the legal system. The idea of prospective overruling means that a Judge cannot change the law in the case that he/she is involved in, but can change it for cases in the future. At present any judge in the English Legal System can change the law at any time by simply distinguishing a difference between the cases, and then applying the new law to the case that he/she is involved in, which basically means that the parties involved may be subjected to 'dog's law', the idea that you do not know that you have done wrong until you are punished for it (Martin, 2007). This, however, would then open up the debate that a person could commit a crime, only to plead ignorance, and get away with it.
These are just a few of the qualms and responses to Judicial Precedent, so in conclusion there will always be two sides to every argument, but the system has been in place for quite some time and must be followed until the time comes for a reformation in the system.
Bibliography
Budge, I. (2007). The New British Politics. Essex: Pearson Education LTD.
Martin, J. (2007). The English Legal System, 5th Edition. London.
Revision Express. (2004 ). LAW AS & A2. Harlow, Essex: Pearson Education LTD.
Luke Allington
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