Sources of Law and Legal Reform INTRODUCTION There are different interpretations of the phrase 'source of law'. It can, in urisprudence, refer to what it is in our nature or society that necessitates law. More generally, however, the expression refers to the procedural origin of the law which i; applied in the courts. There are three main sources: Parliamentary legislation, delegated legislation and the common law. Used in this sense, the latter phrase 'common law' connotes all judge made law and therefore includes equity. 7 If you are covering this theme, you should be very familiar with the origins and modern role of both common law and equity. You should also understand the details of the process of enacting legislation from the stage before the publication of Green Papers to the final stage, the Royal Assent. However, the English legal system cannot be treated as static; it is continuously responding to changes that take place in society as a whole. To deny the relevance of European law in an English legal system course would not only be restrictive, it would be wrong to the extent that it ignored an increasingly important factor in the formation and determination of UK law. You should also have a good knowledge of the different bodies associated with reform: permanent institutions, that is, the Law Reform Committee, the Criminal Law Revision Committee and the Law Commission, and ad hoc bodies, such as Royal Commissions. You should also understand how the system resolves the interplay of several competing interest groups in order to produce legislation. This is a subject area where it is especially useful to have a sound knowledge of recent examples. You should be familiar with: ■ the origin and modern operation of the common law; ■ the origin and modern operation of equity; -> I -»I cm l*j r I— SOURCES OF LA W AND Lb Li AL Ktruiuvi I the stages of promulgation of legislation; I Parliamentary sovereignty and types of legislation; the types of delegated legislation and its advantages and disadvantages; the major institutions of the European Union (EU) particularly the European Court of Justice (ECJ); the institutions of law reform, the Law Commission, ad hoc bodies, etc. QUESTION 1 What are the main sources of law today? Answer Plan This is, apparently, a very straightforward question, but the temptation is to ignore the European Union (EU) as a source of law and to overemphasise custom as a source. The following structure does not make these mistakes: ❖ in the contemporary situation, it would not be improper to start with the EU as a source of UK law; ❖ then attention should be moved on to domestic sources of law: statute and common law; •:• the increased use of delegated legislation should be emphasised; •:• custom should be referred to, but its extremely limited operation must be emphasised. ANSWER EUROPEAN LAW Since the UK joined the European Economic Community (EEC) (now, following the Lisbon Treaty, the European Union EU), it has progressively but effectively passed the power to create laws which are operative in this country to the wider European institutions. The UK is now subject to Community law, not just as a direct consequence of the various treaties of accession passed by the UK Parliament, but increasingly, it is subject to the secondary legislation generated by the various institutions of the EU. European law takes three distinct forms: regulations, directives and decisions. Regulations are immediately effective without the need for the U K Parliament to legislation. Directives, on the other hand, require specific legislation juce i*5 own ieg .. _ .. ...... i as will give effect to their implementation. Decisions of the ECJ are prooui- their proposals, but the UK Parliament is under an obligation to enact tO imp'erT1 - - rr . . . iL.i.:__I____r\__:_:____riL.rn___ rh |egislation ' thrnushout the EU and take precedence over any domestic law. binding LnluuB PARLIAMENTARY LEGISLATION der UK constitutional law, it is recognised that Parliament has the power to enact, voke or alter such and any law it sees fit to deal with and no one Parliament can bind its successors. The extent of this sovereignty may be brought into question with respect to the EU for such time as the UK remains a member, but within the UK, Parliament's power is absolute. This absolute power is a consequence of the historical struggle between Parliament and the Stuart monarchy in the seventeenth century. Parliament arrogated to itself absolute law-making power, a power not challenged by the courts, which were in turn granted an independent sphere of operation. It should be remembered, however, that the Human Rights Act (HRA) 1998 has, for the first time, given the courts the power to question, although not strike down, primary legislation as being incompatible with the rights protected under the European Convention on Human Rights (ECHR). It also allows the courts to declare secondary legislation to be invalid for the same reason. Parliament makes law in the form of legislation, that is, Acts of Parliament. There are various types of legislation. Whereas public Acts affect the public generally, private Acts only affect a limited sector of the populace, either particular people or people within a particular locality. Within the category of public Acts, a further distinction can be made between government Bills and Private Member's Bills. The former are usually introduced by the Government, whilst the latter are the product of individual initiative on the part of particular MPs. Before enactment, the future Act is referred to as a Bill and many Bills are the product of independent commissions, such as the Law Commission, or committees, such as the Law Reform Committee and the Criminal Law Revision Committee. Without going into the details of the procedure, Bills have to be considered by both Houses of Parliament and have to receive Royal Assent before they are actually enacted. Delegated legislation has to be considered as a source of law, in addition, but subordinate, to general Acts of Parliament. Generally speaking, delegated legislation is law made by some person or body to whom Parliament has delegated its general law-making power. In statistical terms, it is arguable that at present, delegated legislation is actually more significant than primary Acts of Parliament. The output of delegated legislation in any year greatly exceeds the output of Acts of Parliament and, jiuh EINULISH LLUAL SYSTEM 2011-2012 each year, there are over 3,000 sets of rules and regulations made in the form of delegated legislation, compared to fewer than 100 public Acts of Parliament. Delegated legislation can take the form of Orders in Council, which permit the Government to make law through the Privy Council. This power is usually considered in relation to impending emergencies, but perhaps its widest effect is to be found in ] relation to EU law, for under s 2(2) of the European Communities Act 1972, ministers can give effect to provisions of the Community which do not have direct effect. Most delegated legislation, however, takes the form of statutory instruments, through which government ministers exercise the powers given to them by general enabling legislation to make the particular rules which are to apply to any given situation within its ambit. A third type of delegated legislation is the bylaw, through which local I authorities and public bodies are able to make legally binding rules within their area of competence or authority. Delegated legislation has developed for a number of reasons. One such reason is the increased pressure on Parliamentary time, with the consequent hiving off of detailed and time-consuming work to ministers and their specialist departments. Another reason for the growth in the output of delegated legislation is the highly technical nature of the subject matter to which it tends to be addressed and the concomitant need for such rules themselves to be highly technical. Any piece of delegated legislation is only valid if it is within the ambit of the powers actually delegated by Parliament. Any law made outside that restricted ambit of authority is void, as being ultra vires, and is open to challenge in the courts under the process of judicial review. COMMON LAW The next source of law that has to be considered is case law, the effective creation and refinement of law in the course of judicial decisions. It should be remembered that the UK's law is still a common law system and, even if legislation in its various guises is of ever increasing importance, the significance and effectiveness of judicial creativity should not be discounted. Judicial decisions are a source of law, through the operation of the doctrine of judicial precedent. This process depends on the established hierarchy of the courts and operates in such a way that generally, a court is bound by the ratio decidendi, or rule of law implicit in the decision of a court above it in the hierarchy and usually by a court of equal standing in that hierarchy. Where statute law does not cover a particular area, or where the law is silent, it will be generally necessary for a court deciding cases relating to such an area to determine what the law is and, in so doing, that court will inescapably and unarguably be creating law. The scope for judicial creativity should not be underestimated and it should be remembered that the task of interpreting the actual meaning of legislation in particular cases also falls to the judiciary and provides it with a further important area of discretionary creativity. As the highest court in the land, the Supreme Court has for creating or extending the common law, and a relatively particular scope ^ ^ jts adoptjng such an active stance can be seen in the way in contemporary ex^ ^ |ong.stanc|ing presumption that a man could not be guilty of Which it °^r™ agajnst his wife (see R (1991))- It should, of course, always be the crime o Par|jament remains sovereign as regards the creation of law and '^^eciof the judicially created common law is subject to direct alteration by statute. • n nf the doctrine of judicial precedent leads to a consideration of a further An extension ui 11 ible source of law, for when the court is unable to locate a precise or analogous dent it may refer to legal textbooks for guidance and assistance. Such books are sub-divided, depending on when they were written. In strict terms, only certain venerable works of antiquity are actually treated as authoritative sources of law. Amongst the most important of these works are those by Clanvill from the twelfth century, Bracton from the thirteenth century, Coke from the seventeenth century and Blackstone from the eighteenth century. Legal works produced after Blackstone's Commentaries 0/1765 are considered to be of recent origin, but although they cannot be treated as authoritative sources, the courts on occasion will look at the most eminent works by accepted experts in particular fields in order to help determine what the law is or should be. CUSTOM The final source of law that remains to be considered is custom. The romantic view of the common law is that it represented a crystallisation of common customs, distilled by the judiciary in the course of its travels around the land. Although some of the common law may have had its basis in general custom, a large proportion of these so-called customs were invented by the judges themselves and represented what they wanted the law to be, rather than what people generally thought it was. There is, however, a second possible customary source of law and that is rules derived from specific local customs. Here, there is the possibility that the local custom might differ from the common law and thus limit its operation. Even in this respect, however, reliance on customary law as opposed to common law, although not impossible, is made unlikely by the stringent test that any appeal to it has to satisfy. Amongst these requirements are that the custom must have existed from 'time immemorial' (that is, since 1189) and must have been exercised continuously within that period and without opposition. The custom must also have been felt as obligatory, have been consistent with other customs and, in the final analysis, must be reasonable. Given this list of requirements, it can be seen why local custom does not loom large as an important source of law. ^ Common Pitfalls j£ The temptation is to concentrate on only one, source such as leg or the common law, and to go into far more detail than is neces-such a general question. Remember that each subtopic in this ar be asked as a question topic in its own right. So remember to cov if not all, of the potential sources. Aim Higher ^ It is essential to be aware of the EU as a source of modern law and reference to the Lisbon Treaty will show an up to date awareness of that particular source. In relation to legislation, reference could be made to examples of legislation introduced by the new coalition government QUESTION 2 .......................... Vnswer Plan A suggested plan for answering this question is as follows: •> introduction-the range of contributory factors; ❖ 'tradition expressed in action' (Simpson, Legal Theory and Legal History, 1987); ❖ the role of Henry lis clerics - itinerant royal justice; ❖ royal justice in competition with other sorts of justice; ❖ Pollock and Maitland's six principles (in History of English Law, 1911); •> conclusion - evaluating the role of an individual in legal history. ANSWER hrone of Edward I in 1272. Certainly, the three courts of King's Bench, accession tothetnJ°xcnequer were operational by this time. It is true that Henry II, Common Pleas an ^ ^ significance to enhance the development of the who reigned 1154 by popularising the King's court with the introduction of common law, However we are not really familiar with how the Curia Regis acted the Petty A^rman perioc| before Henry II, because the earliest plea rolls date from his during the pemaps be over-presumptuous to credit too much to Henry II. In any reign, so^ ^^ment of the COmmon law was contributed to by many factors of a eVCnt 1 historical nature and it might be more meaningful to speak of the various genera which helped nurture the common law from its first green shoots to its full Woom rather than to try and find a 'father'. Unlike continental civil law, the English system does not originate from any particular set of texts or digests but from what Simpson has called 'tradition expressed in action'. It began as customary law used in the King's court to settle disputes and conflicts which touched the monarch directly. To begin with, these only included the graver crimes which became Pleas of the Crown. After the Norman invasion, there were still many different types of court apart from the royal court: the stannary courts of Devon and Cornwall and the courts of the royal hunting forests but, principally, in potential rivalry with the royal court, were the feudal and manorial courts. It was during Henry lis reign (but clearly not wholly attributable to this one man), that the clerics in his court (that is, his royal entourage) began specialising in legal business and acting in a judicial capacity. In the jurisdictional expansion considered presently, an important role was played by the clerics who developed a range of writs and establishing procedures which, perhaps very significantly, afforded them greater importance and provided them with a generous income. These practices developed into the common law of England, the law which was available throughout the realm. In Simpson's words: 'It was common as a prostitute is common: available to all.' On this point, perhaps the most convincing of the reasons why Henry should be regarded as the 'father of the common law' is that he was largely responsible for the regional and itinerant royal justice, through which (by sending his judges up and down the country) the law truly became common. Henry sent officials from the royal household to the counties and the travelling judges formed a nucleus of iusticiarii totius Angliaewbo had no local roots. They were thus much less susceptible to the corruption which had spoilt a similar attempt, earlier in the twelfth century, in which the royal judges had actually been based in the local communities. It was under Henry II that judges were for the first time sent on 'circuits', hearing pleas in the major places they visited and taking over the work of the local courts. In this travelling mode, the royal representatives were iusticiae errantes (wandering justices) or iusticiarii in itinere (justices in eyre, that is, law French f0 journey). The judges were periodically sent on a 'general eyre', which included th whole country. Baker has argued, however, that it was the smaller circuit which 1 to prove 'the essence of the common law system', by bringing royal justice regNi | the counties. The era running from the Norman invasion to the accession of Edward I saw the important struggle to administer justice between the royal judges and the tribunals of feudal lords, the shires and the hundreds which had survived from Anglo-Saxon times 1 The efforts of the royal judges were significantly assisted by the works of the text writers! Glanvill and Bracton. Glanvill's Tractatus de Legibus Angliae (published under Henry ||) J was the first clear statement of the law, administered throughout the procedure of the I royal courts. Glanvill was a senior royal judge. The writer's preface (it was probably not I actually written by Glanvill, but by Hubert Walter or by Henry II's Chief Justiciary) divides I the pleas into criminal and civil and the body of the work is mostly practical. With only a few principles of general application before them and by virtue of some particular advantages of the evolving system, the royal judges had established the supremacy of their courts over all competing jurisdictions by the time of Edward's reign. Pollock and Maitland formulated six principles upon which was founded the usurpation of general jurisdiction by the Curia Regis. These principles show that while much was done by Henry II to promote the common law, there were several other factors which engendered it, some of which were effective only after Henry II's reign. First, the King's court was a court to go to in default of justice. Under the Norman kings, the litigant who wished to proceed in the ordinary court obtained the King's 'Writ of Right Patent' which contained the threat quod nisifeceris vicecomes meus faciet (if you do not do this, my sheriff will). Complaints and petitions for justice were numerous and these cases formed the basis of the growth of the common law throughout the development of the Register of Writs (added to each time a judge accepted a new writ as suitable to be used again in similar cases). Second, the Writ of Right issued by the Royal Chancery became compulsory for all pleas relating to freehold land, according to an apparently lost ordinance of Henry II. This was so, even where the case was to be tried in the seigniorial court and so gave the King power over manorial courts. Third was the introduction by Henry II of the Grand Assize as an alternative to trial by battle in the proceedings on the Writ of Right. As these cases were decided by impartial neighbours, it became much more popular than trial by battle and was only available in the royal court. fthe petty Assizes, also only obtainable in the reduction of the re y , d/sse/s/„ 0f land.Th, , ntroduction of the peiiy~—----- F0Urth was Henry II s werefor trying disputes concerning disseisin of land. They King's court. These as ^ ^ |or(J tQ tfy actj0ns re|ating to tne titJe did not actually m"°^enants Tney did, however, become very popular because of to the freeh°'dSn°ture and were frequently used by dispossessed owners to recover their summary na u „,e|vtookany further action if his claim was weak. seisin, since the opponent y factor accounting for the usurpation of jurisdiction by the King's court was The fifth a vine's Peace' (the monarch's as opposed to a lord's right to deal .Up pvn^nsion 01 trie ^ , .iHicnrHer crime, etc). Pleas of the Crown increased rapidly at this time with any \oc3< aiiuiut , and included many claims that would eventually evolve into torts. Finally Pollock and Maitland mention the important series of writs which began with the word praecipe, where the sheriff was commanded to investigate a matter and give any wrongdoer the right to give satisfaction, or else face the royal judges for their judgment. This was among the Pleas of the Crown and again quickly became quite popular on account of its efficiency. Kiralfy (in English Legal History, 1958) has advanced another factor significant in the acquisition of jurisdiction by the royal courts, namely, the construction given to the Statute of Gloucester 1278 by the royal judges. This statute provided that no cases involving an amount of less than 40 shillings should be brought in the royal courts, but that they should be tried before local tribunals. The judges interpreted this to mean that no personal actions to recover a sum greater than 40 shillings could be commenced in the local courts, thus reserving all important legislation for themselves. It is relevant here that the judges were anxious to attract litigants because their fees varied with the amount of business done. Apart from the advantageous nature of the remedy in the recovery of land provided by the Petty Assizes, the growth in popularity of the royal courts is connected with the progressive move towards strong, centralised government and its accompanying ability to compel attendance at court and enforce execution of its judgments. By contrast, we can look at the diminution in power of the feudal lords, their dilatory procedures and the inadequate powers to make defendants appear in their courts and to enforce judgments. Additionally, only the royal courts could give litigants the novel and desirable method of proof, the recognitio or jury, as it came to be called. !n conclusion, it can be seen that although Henry II was instrumental in making a number of important innovations which promoted the development of the common !aw, these policies were part of a wide and complex struggle for the power and revenue to be enjoyed by whoever controlled and administered justice Ther. many other important figures involved, such as the clerics, the judges and th^ whose own behaviour and interests it is important to appreciate in d^opTno^ proper understanding of the origins of the common law P 8 ' QUESTION 3 Why was the development of equity necessary? Did equity satisfy those needs? Answer Plan In response to this question, you should: ❖ define the concept of equity; ❖ outline the origins of the system of equity; ❖ examine defects in the common law: expense, delay, corruption, single remedy, etc; ❖ note trusts; ♦> note the advantages of equity-no formality, enforceable judgments, mobility of court, varied remedies, etc; ❖ include some mention of the 1873-75 legislation; ❖ comment on the irony of modern equity being slow and rule- ANSWER ............. In his Nicomachean Ethics, Aristotle argued that law operates through general rules in the pursuit of justice and is thus imperfect because it will fail to deal fairly with all eventualities. It is impossible for those who draft law to anticipate the infinite variety of circumstances which could arise in the future. Thus, if we are to have justice, we must use not simply a system of rules but also a power to depart from the rules in certain cases. Aristotle referred to epieikia, 'equity' as it was later known in its English form, as the absolute justice which corrects law in particular cases. In the light of the many problems encountered by litigants at common law, and the concerns of many Chancery personalities, equity developed to 'soften and mollify the extremity of the law': per Lord Ellesmere in The Earl of Oxford's Case (1615). The establishment of the common law courts in the early medieval period did not represent the full extent of the Crown's jurisdiction. The monarch as the 'fountain of justice' retained a residuary power 'to do equal and right justice and discretion in mercy and truth' (Coronation Oath). The King received many petitions for justice from dissatisfied litigants and, by the fourteenth century, there were so many that they ith by the King's Council. By the end of the century, most were ^ere being dealt w' CnanCellor, the most senior officer of the Council, being «nt directly tot nated as the royal secretariat (its name comes from the chancel or The Chancery °^lg thg c|erks wor|