Characteristics of English law

1. The United Kingdom is a … State, not a federation of States.

2. Nevertheless, it does not have a … system of law within that State.

3. There are … systems operating in (i) England and Wales, (ii) Northern Ireland, and (iii) Scotland. Due to the closeness of the … since the twelfth century between England and Wales on the one hand and Northern Ireland on the other, these countries have … legal systems. There are, however, … between the law of Scotland, influenced by Roman law, and that of the remainder of the United Kingdom, although since the Union with Scotland Act, 1707, these … are now less marked on broad issues.

4. Two important links uniting the system are: (a) Parliament at Westminster is the supreme authority throughout the United Kingdom; (b) The House of Lords is the final court of appeal.

5. English law is one of the great legal systems of the world, and a … proportion of it is … today by laws that came … from this small island.

b) Compare the definition of the “source of law” borrowed from Black’s Law Dictionary and explanations offered by the two scholars:

· "The term 'sources of law' is ordinarily used in a much narrower sense than will be attributed to it here. In theliterature of jurisprudence the problem of 'sources' relates to the question: Where does the judge obtain the rules by which to decide cases? In this sense, among the sources of law will be commonly listed: statutes, judicial precedents, custom, the opinion of experts, morality, and equity. In the usual discussions these various sources of law are analyzed and some attempt is made to state the conditions under which each can appropriately be drawn upon in the decision of legal controversies. Curiously, when a legislature is enacting law we do not talk about the 'sources' from which it derives its decision as to what the law shall be, though an analysis in these terms might be more enlightening than one directed toward the more restricted function performed by judges. Our concern here will be with 'sources' in a much broader sense than is usual in the literature of jurisprudence, Our interest is not so much in sources of laws, as in sources of law. From whence does the law generally draw not only its content but its force in men's lives?" (Lon L. Fuller, Anatomy of the Law – 1968).

· "In the context of legal research, the term 'sources of law' can refer to three different concepts which should be distinguished. One, sources of law can refer to the origins of legal concepts and ideas ... ' Two, sources of law can refer to governmental institutions that formulate legal rules, .. , Three, sources of law can refer to the published manifestations of the law. The books, computer databases, microforms, optical disks, and other media that contain legal information are all sources of law." (J. Myron Jacobstein &Roy M. Mersky, Fundamentals of Legal Research–1990).

 

c) Compare the definition of “precedent” with the comments made by the scholars:

· "In law a precedent is an adjudged case or decision of a court of justice, considered as furnishing a rule or authority for the determination of an identical or similar case afterwards arising, or of a similar question of law. The only theory on which it is possible for one decision to be an authority for another is that the facts are alike, or, if the facts are different, that the principle which governed the first case is applicable to the variant facts.” (William M. Ule et al., Brief Making and the Use of Law Books - 1914).

· "A precedent ... is a judicial decision which contains in itself a principle. The underlying principle which thus forms its authoritative element is often termed the ratio decidendi. The concrete decision is binding between the parties to it, but it is the abstract ratio decidendi which alone has the force of law as regards the world at large." John Salmond, Jurisprudence 191 (Glanville L. Williams ed., - 1947).

· "One may say, roughly, that a case becomes a precedent only for such a general rule as is necessary to the actual decision reached, when shorn of unessential circumstances." (James Parker Hall, Introduction, American Law and Procedure -1952).

· "One may often accord respect to a precedent not by embracing it with a frozen logic but by drawing from its thought the elements of a new pattern of decision." (Lon L Fuller, Anatomy of the Law - 1968).

 

TASK IX Compare the following definitions of "common law" with the one given in the text. Which of them do you find the most precise?

 

The body of legal principles evolved by judges from custom and precedent . …Common law is contrasted with statute law, the written law of parliament to which it is complementary; with equity jurisdiction in Chancery; and with canon law, the law of the church.

                                        Collins Dictionary of British History

 

1 . The part of English law based on rules developed by the royal courts during the first three centuries after the Norman Conquest (1066) as a system applicable to the whole country, as opposed to local customs. The Normans did not attempt to make new law for the country or to impose French law on it; they were mainly concerned with establishing a strong central administration and safeguarding the royal revenues, and it was through machinery devised for these purposes that the common law developed. Royal representatives were sent on tours of the shires to check on the conduct of local affairs generally, and this involved their participating in the work of local courts. At the same time there split off from the body of advisers surrounding the king (the curia regis) the first permanent royal court - the Court of Exchequer, sitting at Westminster to hear disputes concerning the revenues. Under Henry II (reigned 1154-89), to whom the development of the common law is principally due, the royal representatives were sent out on a regular basis (their tours being known as circuits) and their functions began to be exclusively judicial. Known as justiciae errantes (wandering justices), they took over the work of the local courts. In the same period there appeared at Westminster a second permanent royal court, the Court of Common Pleas. These two steps mark the real origins of the common law. The judges of the Court of Common Pleas so successfully superimposed a single system on the multiplicity of local customs that, as early as the end of the 12th century, reference is found in court records to the custom of the kingdom. In this process they were joined by the judges of the Court of Exchequer, which began to exercise jurisdiction in many cases involving disputes between subjects rather than the royal revenues, and by those of a third royal court that gradually emerged - the Court of King's Bench. The common law was subsequently supplemented by equity, but it remained separately administered by the three courts of common law until they and the Court of Chancery (all of them sitting in Westminster Hall until rehoused in the Strand in 1872) were replaced by the High Court of Justice under the Judicature Acts 1873-75. 2. Rules of law developed by the courts as opposed to those created by statute. 3. A general system of law deriving exclusively from court decisions.

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