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  • Level: GCSE
  • Subject: Law
  • Essay length: 913 words

The main sources of English law.

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Introduction

The main sources of English law In UK there are three main sources of English law, Legislation (Statue Law), Common Law (Judge-made Law) and the European Communities law. English Law was historically based on customs and social traditions. Today Custom Law is a part of Common Law, notably being in cases where there was no judicial precedent but which were known to exist since time memorial (i.e. since 1189). Many of these laws such as the Fisherman's Case (1894) 2 East PC 661(http://wilmington.butterworths.co.uk/citator-0/Citator.ASP?WCI=tmpSearch&WCE=Form&WCU=) in criminal law and Beckett Ltd v. Lyons [1967] 1 All ER 833 the law of user in Land Law are still good law. Custom law can still be used to argue a case provided the conditions set out by law are met. It is important to remember though that 'law never goes out of date, and it does not become obsolete because of passage of time' (Pg 41, Longshaw, A & Hughes, M W200: Understanding Law - Manual 1 (6th Edition), (2002), Oxford University Press, Oxford).

Middle

Delegated legislation has same legal force and effect as the Act of Parliament. The advantages of delegated legislation are: time saving, access to particular expertise and, flexibility. On the other hand it can be a disadvantage due to lack of accountability and effective scrutiny as it can erode the constitutional powers of the Parliament. Another major source of law comes from judges deciding cases before them, also referred to as Case Law. Judges use various rules to interpret legislation and the intention of the Parliament. For example, in the case of Royal College of Nursing v. DHSS [1981] 1 All ER 545, three judges gave their judgment using the mischief rule and two judges used the literal rule to interpret the Abortion Act 1967, and the intention of the Parliament (173 and 174 Slapper G. and Kelly D. The English Legal System (5th Edition), (2001) Cavendish Publishing Ltd, London, Sydney). One example of when judges have actually made new law is the case of R v.

Conclusion

The third source of law in England is European Community Law. The most important source of EC legislation comes from the founding treaties: the Treaty of Rome, the Treaty of European Union, and the Treaty of Amsterdam. The other forms of legislation made by the European Community are the regulations, directives and also the decisions made by the European Courts of Justice. The EC Law did not become binding on the UK until it was incorporated into our national law by the European Communities Act 1972. This is because international law is not regarded as a part of the UK legal system until an Act of Parliament has incorporated it. Once the European Communities Act 1972 had been enacted all EC Law became part of our national law. This means that if a national law conflicts with the EC law, the UK courts are required to apply the EC law in preference to the national law. Although nothing abridges the ultimate power of Parliament to set, for example, stricter standards than EC Law demands.

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