Introduction
The English legal system has come to be synonymous with common law. The term ‘common law’, in its usage, over and over, has come to be seen to mean English Legal System. The English Legal System is characterized by its way of making laws through court precedents. According to Hogue, the term, common law, therefore implies those rules of law that generates from the courts by way of judicial precedents and not to such other laws that are enacted by way of delegated authority or by Parliament (statute law) (1986:114).
However, the English legal system has come to appreciate that given the unprecedented and rapid social changes, the courts can never rely on the precedents only to fully and fairly discharge justice. And so the need to formulate statutory laws and other administrative and regulatory laws to govern commercial and personal relations of its subjects became of the essence.
Sources of the English Legal System
What is meant by a source of law is actually “the means by which laws come into existence” (Saleemi 2002:118). It can also be construed as to imply the various factors which contribute and determine the organs through which laws are formulated. Just as in all other commonwealth nations, the English legal system has its sources of law being either written or unwritten, or both. Such sources can be categorized as being of local or foreign origin. It can also be said to be principal or subsidiary sources. An example of a principal source is legislation.
The English legal system boasts of a number of sources ranging from common law, Acts of Parliament, delegated legislation, doctrines of equity and other codes of conduct.
Common law – The common law generates from the Norman’s Conquest of 1066 AD which in its aftermath certain oral customs of the English were unified into one system and recognized as having general application in England. From then onwards, principles of law slowly evolved out of these customs and usages and yielded to what came to be known as common law of England. Common law, therefore, is to be construed as a “body of law that is based on custom and general principles, and grounded in case law” (Hogue 1986:113).
This category of law is applied as a judicial reference when there are material similarities between the case at hand and a past ruling, or is applied in such instances where there is no relevant statute to remedy the situation. According to Saleemi, a number of common law rules have been codified by statutes and now form part of written law of the land, for example, the implied terms under the Sale of Goods Act (2002:123).
Those that are not yet codified still remain unwritten law and may be ascertained from case laws or from books of authority. The application of common law particularly gives the system a great deal of agility/suppleness arising from the fact that all lower courts are bound by the precedents set by higher courts. The system is afforded quite a great deal of stability given that judicial precedents are revered by all quarters. However, given the rapid and unprecedented social changes, common law courts have been outpaced necessitating the rise of parliamentary statutes (Hogue 1986:115).
Doctrines of Equity – equity means fairness or natural justice. Equity evolved or developed as a result of the defects of the common law. Hogue reckons that the king was guided by the desire to be fair and to do justice, in intervening (1986:115-6). New remedies were created where common law provided none, or where insufficient remedies were advanced by the common law. Such new remedies include Specific performance and injunction.
In addition to simplifying legal proceedings in the common law courts, the King’s court evolved rules, rules of equity, to bridge the gaps arising out of the common law defects (116). Saleemi further notes that such maxims as equity will not suffer wrong without remedy, delay defects equity, he who seeks equity must do equity, and others captures the tremendous benefits of the doctrines of equity (122). It is therefore reasonable to state that laws generate from defects of the existing laws.
Judicial precedents – these are case laws which are made by judges as they deliver a ruling in any case that has no material similarity with a past ruling. Judicial precedents form the basis upon which present cases is decided (Adams 2010:398). The judge is bound by the prevailing doctrines and values of law in drawing from past judicial rulings. Here, a decision or a ruling in a court becomes a law binding all other subordinate courts while being of persuasive nature to higher courts.
It is to be appreciated that all case laws generate their legitimacy and “legal force from the doctrine of stare decisis, which literally means ‘let the decision stand’ ”(Saleemi 2002:118). According to Saleemi, Judicial precedents enjoy such merits as certainty/uniformity, practicability, flexibility and opportunities for development of the law. It also enjoys the advantage of detailed analysis of every doctrine or every maxim of equity. On the flip side, it is discredited for rigidity, judges’ over-subtlety, bulkiness and intricacy, danger of illogicality and slow prospects of legal growth (Adams 2002:116).
Acts of Parliament – This is an example of a direct legislation. The UK parliament is tasked with the formulation or enactment of legislations to govern commercial and personal relations especially in light of the rapid and unpredictable changes in the social sphere. Just as it is in all commonwealth nations, Parliament remains the highest legislative authority in the country, with powers to even veto the precedents set by the Supreme Court.
The making of a law begins with a bill being tabled and subsequently being passed into law in the Parliament. Acts of parliament have universal application on the citizenry. The legislative power of the Parliament is of paramount significance because it allows the parliament, and therefore the government, to find legal solutions every other problem that the country may be facing, or is likely to face in the foreseeable future (Saleemi 2002:132).
However much the Parliament is useful to the country, it must be noted that sometimes Acts of Parliament are imposed on the citizenry, thereby reflecting the wishes of the small ruling elite. Sometimes also, technical bills are passed into law without adequate debate because of the little technical competence on the part of the parliamentarians (Adams 2010:398-401).
Delegated legislation, according to Saleemi constitutes indirect, subordinate or subsidiary legislation, and is another source of law in the English legal system (2002:121).
Law making bodies other than the Parliament can also legislate. Such bodies derive the authority from enabling statutes, sometimes referred to as called parent statutes. Ministers of government are empowered to make statutory legislations for purposes of regulation or administration, but this is done together with the parliament. Local authorities and public corporations, too, make by-laws which are approved by the line minister before they are enforced.
Distinctive features of the English Legal System
The most striking characteristic of the English legal system, Hogue reckons, is that it accords primacy to judicial precedents in determination of any case. The English Legal system integrates both the common law system and the civil law system in a view to discharging fair justice. While in common law rely is almost entirely placed on judicial precedents, the civil law system accords primacy to statutes and laid down regulations as bases for the determination of cases (1986:117).
Now that primacy is given to judicial precedents in the determination of court cases, there is the possibility of over subtlety on the part of the judges, and arising from the rigidity of the system, elements of artificiality are unwittingly imported into the law. In addition, given the current unprecedented changes in the social sphere, the law courts are outpaced creating enforcement discrepancies that might create major legal problems.
Arising out of the inadequacies of the common law, Saleemi contends, statutory legislations have gained some ground in the recent years as to outdo the common law especially in the realm of commercial, criminal and administrative/regulatory law (2002:119). Trial-by-jury method is also recognized in the system as a way of administering justice.
The English legal system boasts of its recognition of the fact that all are equal before the law, and that superiority of the law of the land must always be observed by all and guarded by the courts. This is in tandem with the all time contention that none, be it a king or a peasant, was above the law. Presently, this has even been accentuated with the effect that even government departments with delegated authority were answerable to the courts in respect of that which they enact as statutory or by-laws (Hogue 1986:117).
Hogue further contends that Parliamentary legislations enjoy unquestioned validity, even from the courts. This is particularly manifest in the case of Chenney vs Conn (1968), in which the where the complainant sought a legal redress regarding his objection to have him subjected to tax assessment as required by the finance Act of 1964.
This was informed by the fact that the government was appropriating part of his tax in nuclear weapons’ project. This was ruled that the court had no legal mandate to challenge parliamentary legislative authority, given that it was the supreme law making organ in the country – therefore its decision was not illegal (1986:201). With the little technical level on the part of the legislators, there is bound to be inappropriately structured and passed bills making to be laws.
As a result of the prominence of direct and indirect legislations, even that which is determined in the common law courts has remedy. It would, however, be unwise and erroneous not to state clearly that increased legislation has only cut short the applicability of case laws but it has surely not terminated its relevance.
Extent to which external influences have affected its development
It is to be found that the industrial revolution was a result of poor policies on the part of governments. This pushed the proletariat to want to cut off the chains supposedly tied to them by the owners of the means of production. This prompted realignment of policies especially those regarding employment relations and property ownership. The recent move to realign its policies towards regional integrations reflects how much the English system is influenced by outside forces.
Such integrations have seen the adoption of such laws as CBA governing all the EU countries. Fiscal policies and legislations are now made in line with the other economic power houses. Arising from the consequences of the Second World War, there was the necessity to realign policies in a way that could help reduce the negative effects of the war. Common law was advocated as the means to realizing social reforms.
An example of the impact of external influences to the system, Hogue reckons, is to be found in the 1975 Trilateral Commission Taskforce Report which suggested that a handy three pronged mutual aid was the way forward in achieving and maintaining peaceful coexistence while fostering economic development and stability even as poverty is eradicated (1986:201). This was advocated to improve the prospects of a smooth and peaceful development of the world system. This was followed by adjustments in the labour industry, and in the fiscal planning in the EU community.
As a result of the primacy that judicial precedents are accorded, court cases determined in other commonwealth jurisdictions also form the basis for their court rulings. This has given the system lots of flexibility.
List of References
Adams, A. (2010) Law for Business Students. 6th ed. New York. Paperback.
Hogue A. R. (1986) Origins of the Common Law. Indianapolis: Liberty Press.
Saleemi, N.A. (2002) General Principles of Law Simplified. Nairobi: N.A.Saleemi Publishers.