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The Primary Sources of Law in the United Kingdom

Introduction

The law is created to respect social agreements and preserve peace and security in the state. It creates not only binding prohibitions, but also criteria for lawful conduct. The law operates in a social environment, evolving, changing, and adapting to the social circumstances to make always the fair legal decision. Each legal system of the world has its own dominated sources of law. For example, in the Romano-German justice, normative legislation prevails as a source of law, and Muslim law emerged as part of the Sharia – a system of prescriptions to believers in Allah. By contrast, for the Anglo-Saxon system, the legal precedents and statutes are typical as the primary sources of law.

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The term ‘source of law’ first emerged and came into common use in Roman times. It was applied to the famous and oldest legislation called the laws of the XII tables1. This understanding of the source of law corresponds to the lexical meaning of the “source” – it is a thing that gives rise to something, where something comes from. Representatives of different schools defined the content of this concept differently. Positivists believed that the source of law was regulations adopted by the state in a certain way and protected by coercive force. Proponents of the Normative School saw the source of law as an abstract, unwritten basic (fundamental) rule that gives rise to the whole right. Supporters of sociological direction in law called sources of law social and legal practice.

Law System in the United Kingdom

England was affected by the influence of Roman law less than other countries. Before the Norman conquest in the 11th century, the main sources of law in England were custom and royal legislation2. The proclamation of laws very early became one of the means for Anglo-Saxon kings to raise their prestige and satisfy material claims. Today, English Law is a system based on a competent combination of laws (statutes) and precedent. Moreover, judicial interpretation of legislation is actively used. The general English system is characterized by flexibility and multiplicity in the application of regulations. However, statutory norms can change if technology or other economic requires it. This legal system is not only in operation in British Commonwealth countries but is also common in the United States and some others.

Primary Sources of Law

Primary legal sources in the United Kingdom can be presented in the following forms:

  • case law (precedents) – decisions of the court
  • legislation (statutes)
  • European cases and laws3.

Case Law

The most important source of Anglo-Saxon law in terms of its formation process is judicial precedent. These are established in England only by the highest courts. Another important detail is that lower courts do not set precedents. Case law is a system of legal rules and principles created by judges in the process of dealing with specific issues and cases. They are adopted as standard rules for the resolution of similar situations and serve as a model for the interpretation of laws. Such features characterize case law as a system, regularity, and formal certainty. Its essence is that the court decisions create examples, models of behavior, which in turn lead to new choices4. This process is specified by the consistency and duration of the action, in which the same judgment can be the cause and consequence of subsequent decisions.

The regularity of case law is evident in the fact that precedents are inherently rules of law (rules of conduct) that apply in similar situations. These norms are stable thanks to the application of the stare decisis principle (to solve the case as previously decided)5. The English case law rule, unlike the standards established in the Romano-German legal system, is more specific and close to the actual situation6. It is just legislative activity but is the consequence of a complex process that combines law enforcement and law-making. The systematization of case law is manifested in the fact that its rules create a specific, harmonized system, including provisions of common law and law of justice, supplemented by precedents of interpretation. Formal certainty of case law is achieved by publishing court decisions in official sources in the form of Law Reports, Current Law, and others.

The court decision, that is, the precedent, consists of two parts: ratio decidendi and obiter dictum. Ratio decidendi is the decision basis, the position, or the principle according to which the decision is made7. This part can be considered the essence of the case, the reasoning that justifies the judge’s position based on which he decides following the facts of the case. Obiter dictum is a statement relating to an issue that is not the decision’s subject8. There are two kinds of obiter dicta: the first is a rule, based on facts that were not established in the case, and if they were found, they were not essential. The second type of obiter dicta is a position, which, while based on facts, is not the essence of the decision. The most characteristic example of the second type of obiter dicta is the legal position of the judge, which has not been taken into account in the decision.

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In the case of uncertainty of precedent, courts in the UK can interpret it. At the same time, the interpretation is not only understanding and explaining the content of its sources but is a search of analog of the application of the law. Interpretation precedent is a special kind of precedent, as it always introduces something new into the legal form. This type of precedent differs because it is based on law. In English practice, courts often turn to such precedents to understand the content of a piece of legislation, which can lead to a significant difference between the actual content of the law and that invested in it by courts. It could be eliminated only through the issuance by Parliament of a new law repealing the provisions of case law.

Legislature

Another source of the Anglo-Saxon legislature is the law (statute). It appeared much later than precedent but gradually became very important in the legal regulation of public relations. The statute is an act containing rules of law and regulating a wide range of social relations, and it is a written form of law-making. In this way, the new law is created, existing legislation is amended and supplemented, and the actions of the executive and the judiciary are given legitimacy9. Statutes are particularly useful when it comes to the creation of new areas of law and the regulation of legal relations on issues that were not previously subject to legal regulation and were not subject to the rules of common and equity law.

Traditionally, in England, laws have taken the form of statutes, which are adopted by the established procedure by Parliament and must be approved by the ruler. The Magna Carta was its first act as an independent body of the legislature, and since its publication, only Parliament had the right to create new statutes10. Parliament is the highest legislature in the United Kingdom and, considered to have unlimited discretion in the adoption of laws. Thus, in theory, the English Parliament could pass any law. In practice, the statutes are largely adopted to make the necessary additions and amendments to the existing law. In particular, statutory legislation is intended to repeal existing legislation, supplement established provisions of common law or equity law, to review the consequences of court decisions. Also, it can introduce new provisions of the law on matters that were not previously subject to legal regulation.

European Law

Governments cooperating in the international arena can sign various treaties. Once ratified within the country, international law is made mandatory for its citizens. European Union law is also a particular type of international. The countries that entry to the union adopt all its existing regulations11. European law thus becomes another source of law in addition to already existing. However, following the referendum decision on membership in the EU and the launch of the Brexit process, the question of the legality of the rules emanating from the union in British law became open. The most likely solution would be to fill new legal gaps in other international treaties12. Yet EU law has had a lasting impact on Britain and cannot remain outside the discussion of sources of law.

Entanglement of Different Sources

There are two types of subordination in the source system in English law. It can base on a possibility of cancellation of this act by acts of other bodies and on powers of the body that enabled the act. The division of sources into primary and derivative sources is based on this ground. Since precedent and the legislation are independent in their validity from each other or other sources, they can be described as the primary sources. However, the case law is subject to the legislature in the sense that it can overturn the precedent.

Acts of executive power and acts of Parliament have equal significance. If a conflict happens between them, it is required to act in an interpretation as if it were a conflict between articles of the law13. The close entanglement of statutory and case law has resulted in the source system being sufficiently mobile. When the socio-political situation changes, the emphasis is easily shifted from one form to another.

An Act of Parliament never provides a list of the precedents it affects. Thus, the task of law enforcement agencies is complicated, as it is necessary not only to establish existing precedents but also to determine whether they are contrary to existing statutes. Therefore, it is vital to keep in mind both statutory and case law in modern English law. The contrast between the actual content of the law and the meaning the court puts into it arises due to the broad discretion given to judges14. They cannot complement or cancel the statute, but treat it according to their own rules. In the practice of English courts, the interpretation of laws is governed by special regulations or, more precisely, a set of special techniques. Their primary purpose is to determine the limits within which English judges may consider themselves free to do what they deem necessary. At the same time, they may not fear that they will come into conflict with the legislative power – the Parliament.

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Conclusion

The Anglo-Saxon legal system is one of the most common in the world. It operates on the territory of states such as England, the United States, Canada, Australia, Northern Ireland, New Zealand, and many others. A large part of the world’s population today acts according to the principles laid down in this system and, in particular, in its center – English law. The English system of law has a rich history and many features. Unlike Romano-Germanic, the classical division into public and private is not used here. Instead, its division into common law and the equity law has historically developed.

In the United Kingdom, the law is a mix of legislation and judicial precedents. All legal institutions in English law are viewed through precedent, but legislative acts also have a strong position, thus weakening the strength of precedent. Moreover, the system of sources of English law is exceptionally flexible, which requires extraordinary professionalism from specialists associated with it. It should be noted that all rules are equal in importance, although, in different historical periods, priority was given to one or the other. These rules are sometimes referred to as canons of judicial interpretation of laws. They have a significant influence on the conclusions that follow from the text of the legislative act.

Bibliography

  1. Baker, J., Introduction to English Legal History (5th edn., Oxford University Press, 2019)
  2. Finch, E., and Fafinski S., Law Express: English Legal System. (7th edn, Pearson, 2018)
  3. Frost, T., Huxley-Binns R., and Martin J., Unlocking the English legal system. (6th edn., Routledge, 2019)
  4. Hage J., ‘Sources of Law’ in Jaap Hage, Waltermann A., Akkermans B. (eds), Introduction to Law. (Springer, 2017)
  5. Lundmark, T. and Waller H. ‘Using Statutes and Cases in Common and Civil Law’ [2016] 7 TLT 429
  6. Odermatt J. ‘Brexit and International Law: Disentangling Legal Orders’ [2017] 31 EILR 1051
  7. Partington M., Introduction to the English Legal System 2019-2020 (14th edn, Oxford University Press 2019) Gillespie A. and W. Siobhan, The English Legal System (7th edn, Oxford University Press 2019)
  8. Wilson G., English Legal System: Question & Answer (5th edn, Pearson, 2019)
  9. Yalnazov, O., Precedent and Statute: Lawmaking in the Courts Versus Lawmaking in Parliament (Springer, 2018)

Footnotes

  1. Jaap Hage, ‘Sources of Law’ in Jaap Hage, Antonia Waltermann, Bram Akkermans (eds), Introduction to Law (Springer, 2017)
  2. John Baker, Introduction to English Legal History (5th edn., Oxford University Press, 2019)
  3. Tom Frost, Rebecca Huxley-Binns, and Jacqueline Martin, Unlocking the English legal system (6th edn., Routledge, 2019)
  4.  Gary Wilson, English Legal System: Question & Answer (5th edn, Pearson, 2019)
  5. Emily Finch and Stefan Fafinski, Law Express: English Legal System (7th edn, Pearson, 2018)
  6. Martin Partington, Introduction to the English Legal System 2019-2020 (14th edn, Oxford University Press 2019)
  7. Gary Wilson, English Legal System: Question & Answer (5th edn, Pearson, 2019)
  8.  Gary Wilson, English Legal System: Question & Answer (5th edn, Pearson, 2019)
  9. Alisdair Gillespie and Siobhan Weare, The English Legal System (7th edn, Oxford University Press 2019)
  10. John Baker, Introduction to English Legal History (5th edn., Oxford University Press, 2019)
  11. Emily Finch and Stefan Fafinski, Law Express: English Legal System (7th edn, Pearson, 2018)
  12. Jed Odermatt’ Brexit and International Law: Disentangling Legal Orders’ [2017] 31 EILR 31 1051
  13. Orlin Yalnazov, Precedent and Statute: Lawmaking in the Courts Versus Lawmaking in Parliament (Springer, 2018)
  14. Thomas Lundmark and Helen Waller ‘Using statutes and cases in common and civil law’ [2016] 7 TLT 429

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