Tuesday, 28 June 2011

Explaining our Law and Legal System ... No.6 ... Sources of Law

Law Library Oxford University

Previous posts in this series:
No.1 - Legal Personnel
No.2 - Courts of Law and Tribunals
No.3 - The Judges
No.4 - Juries
No.5 - Magistrates

"The laws of man may bind him in chains or may put him to death, but they never can make him wise, virtuous, or happy" - John Quincy Adams (1767-1848).

Can "Law" be defined?

There is no clear definition of "law."  In recent times, many modern law schools have neglected the fascinating subject of "Jurisprudence" which is, broadly speaking, the theory and philosophy of law.

The familiar notion of "law" escapes precise definition even though, over centuries, numerous thinkers and writers have attempted to explain it and also to describe the scope and content of law.  Connected to the idea of law are other elusive concepts such as "justice", "morality", "rights" and "obligations."

A post such as this cannot hope to do "justice" - (there's that word again) - to the wealth of literature which is available.  A working notion will have to suffice.  One such notion is - "The rules which a particular country or community recognises as regulating the actions of its members and which it may enforce by the imposition of penalties."  Of course, this begs questions: what is a "country" (or State), what is a "rule", from where do "rules" come (i.e. sources of law), how is something given recognition as a rule, what "authority" is empowered to make "rules", who are the "members" of a society, what are "penalties" and how are they justified.  These, and many other similar questions, would be asked of any attempt to explain what law is.

The question of law and morality:

Another difficult idea is that of "morality" but it can be said with confidence that law and morality are not identical.   An obvious example of this is that adultery or sexual promiscuity outside of marriage are not unlawful though many consider them to be immoral.  Indeed, as we have recently seen, the law will sometimes take steps to prevent publication of such activities on the basis of protecting the privacy of the individual - (Right to respect for private and family life - Article 8 of the European Convention on Human Rights).

The killing or assisting with
the killing of another may be immoral but is it always so?  There are laws against assisting another to commit suicide but it has been made clear that they will not always be enforced.  In February 2010, the Director of Public Prosecutions published an Assisted Suicide Prosecution policy.

It would not be regarded as immoral and would be entirely lawful to kill another when acting in reasonable self-defence against a deadly threat.

Other examples could be given to show that law and morality are not identical but, in many ways, they have (or should have) an important relationship.  A complete divorce of law and morality could have adverse consequences - (see, for example, Nuremberg Laws 1935 and "Gustav Radbruch v Hans Kelsen: A Debate on Nazi Law").  The reader may wish to explore this topic further with - BBC April 2004 (The Relationship between Law and Morality) and the debate between Professor Hart and Judge Devlin - (referred to as the Hart-Devlin debate).

The sources of English law:

Common law -

Staying with the working notion, what are the sources of English law?   The first major source of our law is "the common law."  The term "common law" has distinguished "common law systems" of law from other systems such as those of continental countries (e.g. France ) or legal systems which developed in non-Christian societies.  For historical reasons, the legal systems of many States are essentially "common law systems" - e.g. the United States of America, Canada, Australia, New Zealand etc.  In simplistic terms, the common law is the bedrock of the system and was stated, over many years, by the judges.  Please see the posts on legal history - Our legal heritage No. 1 and No. 2

At one time, there was a theory that the judges did not make law but only declared what it was - as if it existed somewhere only waiting to be discovered by a judge - see Declaratory Theory.   Rather than rely on this theory - described by the late Lord Reid as a "fairytale" - it seems more realistic to accept that the judges have certainly made law historically and that they continue to do so.

The judges came to define the conduct which would constitute various crimes.  They developed rules relating to the ownership of interests in land; a law of contracts (i.e. enforceable agreements entered into voluntarily) and a law of tort (or torts) - (i.e. civil "wrongs" such as trespass).  Many of these judge made rules are still with us.  Some major offences - such as murder and manslaughter - remain common law creations.  Many defences to crime are also creatures of the common law - (e.g. duress).    English law of contract remains very much a judicial creation as does the law of tort which, today, covers an extensive area particularly with regard to liability for negligence.

It follows that, to find the law, it is necessary to consider the decisions of the judges.  Most key decisions are reported and a report may be "cited" as an "authority" in court. The Incorporated Council of Law Reporting for England and Wales (ICLR) publishes reports which should be referred to in preference to other sources.  Nevertheless, an excellent internet resource is Bailii.    The authority of a judicial decision depends on various factors but primarily on the level of court which made the decision.  Supreme Court - (House of Lords) -  decisions are "binding" on all courts and tribunals.  Court of Appeal decisions bind all courts and tribunals below that level and the Court of Appeal even binds itself (with certain exceptions).  This "doctrine of judicial precedent" is a creature of the common law.

Common law systems are noted for the adversarial system  of trial - essentially a battle between the parties to the case with the judge acting as an umpire.  These are to be distinguished from inquisitorial systems.  The other major feature of common law trial - especially in serious criminal cases - is the jury system - considered more fully in the earlier post.

Equity - 

The early common law very quickly developed into a system of quite rigid rules.  Suppose that Richard was abroad on a lengthy and hazardous journey.  He wished his land to be kept in good condition for his wife and children.  He therefore transferred his common law estate in the land to John who was asked to manage the land for Richard (should he return) and for Richard's wife and children (should he not return).  As far as the common law was concerned, the land was now owned by John who could then transfer it to someone else.  Clearly, to allow this would have been unjust or "unconscionable" and a practice developed of  aggrieved persons asking the King's Chancellor to do justice in such cases.  From this a Court of Chancery developed and, with it, the system of legal rules known as "Equity."   Many of these rules have continued to modern times though equity gradually developed a certain rigidity of its own so that equity would not intervene unless the case could be brought within a recognised principle.

Equity always started with the position in the common law but then went on to do justice by, for example, applying a concept or offering a remedy not available under the common law.  For this reason, equity is often referred to as a gloss on the law.  In Richard's case, equity could impose a trust on John and require John to manage the land for the purposes intended by Richard.  The trust is probably the greatest creation of equity and has extensive application today.

The principal common law remedy was (and is) damages.  This did not always meet the justice of the case and so Equity developed various remedies which were not available from the common law.  One example is the injunction aimed at requiring a person to either not to do something or, sometimes, to require him to do something.  Another example is "specific performance" to require a person to perform a contract though this is usually confined to contracts relating to important property such as land.

The Courts of Common Law and the Court of Chancery existed separately until the late 19th century when the modern High Court of Justice was formed.  In the event that a rule of common law is ever in conflict with a rule of equity then it is the rule of equity which prevails.  The law student is referred to Walsh v Lonsdale ( 1820 ) 21 Ch D 9.   The "equity prevails" rule is now in the Senior Courts Act 1981 s.49 which refers to the concurrent administration of common law and equity.  Occasions of conflict have been very few since the rule was that "equity followed the law."

Other sources of law -

Historically, there was a system of ecclesiastical courts having jurisdiction in matters such as marriage and wills.  This jurisdiction was transferred to the ordinary civil courts in the late 19th century - (Judicature Acts 1873-75).   A system of ecclesiastical courts continues to exist within the Church of England but exists for church matters only - Reflections on Church and State - April 2011.   Yet another jurisdiction brought within the civil courts was that of Admiralty law.

The UK Parliament
Parliament -

THE major source of modern law is the outpouring of Parliament by way of primary legislation (i.e. ACTS of Parliament) and secondary legislation (which takes various forms).    This is referred to as Statute Law.  See "Making the law" - September 2010.

"Sovereignty" - (which can be described as the ultimate legal authority in the State) - lies with The Queen in Parliament.  The legal theory is that Parliament is Supreme and may make or unmake any law whatsoever.

There are many Acts of Parliament - often enacted in order to drive the government's political agenda.  A count of UK Public General Acts since 1st January 2000 to 28th June 2011 reveals 414 Acts.

Acts of Parliament, as the ultimate legal authority, have been used to replace many common law rules.  Common law offences (e.g. theft) have been redefined by Acts of Parliament - (now Theft Act 1968).  Parliament can create new offences and does so frequently and it may abolish older offences (e.g. blasphemy).  Similarly, Acts have been used to amend aspects of some legal topics whilst leaving the remainder of the topic to continue to be governed by common law / equity.  The law of contract offers an example.  The Unfair Contract Terms Act 1977 amended the law relating to exclusion (by either contract or by notices) of liability for death or personal injury.  Another example is land law which is a complex amalgam of common law, equity and statute law.

Unlike the courts of law, Parliament is able to command resources to assist in the development of law - e.g. Ministers may appoint a Royal Commission or an Inquiry or review to report on a particular issue and to make recommendations.  The Law Commission makes reports and some are taken up by Ministers and a bill is presented to Parliament.  Commission reports are an excellent source of what the law is as well as what the Commission considers it should be.

External Sources of Law

The U.K. as a State is subject to the complex body of International Law.  An important aspect of this is the Law of Treaties by which States enter into agreements.   The Charter of the United Nations 1945 is one such treaty.

The Treaty on European Union and the Treaty on the Functioning of the European Union are of major importance - (see European Treaties).   These Treaties are the fundamental law of the European Union.  Since the UK joined the European Communities in 1973, there has been an "incoming tide" of law made by the various EU institutions.    (The phrase "incoming tide" was Lord Denning MR's prescient comment in Bulmer v Bollinger 1974) - " ... when we come to matters with a European element, the treaty is like an incoming tide.  It flows into the estuaries and up the rivers.  It cannot be held back. ..."  Of course, Lord Denning fully realised that the UK had "signed up" to "Europe" under the Economic Communities Act 1972 - passed by our own "supreme" Parliament.    Parliament took the UK into Europe and may, without doubt, take us out.  (The political and economic consequences of such a move are, of course, another matter).

The law of the European Union is intended to apply uniformly across all the member states of the EU.  The Treaties permit the various EU Institutions to make other law such as Regulations and Directives. Nowhere in the Treaties is there any reference to the supremacy of the law of the EU but the Court of Justice of the EU has held that supremacy is implicit in the Treaties.  This had been decided as long ago as 1964 in Costa v ENEL where the court stated - "... the Member States have limited their sovereign rights , albeit within limited fields, and have thus created a body of law which binds both their nationals and themselves."  Given the need for EU law to be supreme, there is procedure by which national courts faced with a point of EU law are able to make a "reference" to the Court of Justice of the EU for a ruling.

The other major Treaty signed up to by United Kingdom is the European Convention on Human Rights and the Protocols.  Until October 2000, the Convention acted more as an external influence on the law.  It was rarely cited in our national courts and, when it was, it was regarded as being of "persuasive" authority only.  There was a right to petition the European Court of Human Rights at Strasbourg and, in practice, there were many such cases against the UK.  When this happened, the UK government was bound by international law to give effect to the court's ruling and this was usually done by Parliament passing an Act to amend national law.

The Human Rights Act 1998 has altered matters in that Parliament has stated that - "A court or tribunal determining a question which has arisen in connection with a Convention right must take into account any - (a) decision .... of the European Court of Human Rights ...." - see Human Rights Act 1998 s.2.   Here is an unequivocal command to the judges from Parliament - "must" take into account.  The "Convention Rights" referred to are (basically) Articles 2 to 12 and 14 of the Convention as well as certain others - see HRA 1998 s.1.  The HRA 1998 goes on to allow the judges to make a declaration that even an Act of Parliament is "incompatible" with a Convention right.  If this happens, the Act of Parliament still applies unless and until Parliament alters the law.  A good example of this relates to prisoners and voting.

A key reason for enacting the HRA 1998 was so that the UK courts could apply the convention more freely and thereby avoid cases going to Strasbourg, though this still remains possible.

Just as with the EU, Parliament could get rid of (i.e. repeal) the Human Rights Act 1998 and much media pressure exists to make them do just that.  The present coalition government has set up a Commission to examine a UK Bill of Rights.   Parliament could even take the UK out of the European Convention.  Such a move would send out a very worrying message to much of the free world and also to many nations struggling to establish rights.  It would mark a return to the rights of the British people being entirely at the mercy of the Westminster Parliament.

Summary, worrying signs, a formal constitution:

It is from these sources that the law has developed.  It is the law of an essentially free people since we are free to do that which the law does not prohibit.  Nevertheless, there are worrying signs of authoritarianism within the body-politic.  A lot of legislation has given  rise to considerable civil liberty concerns and Ministers of the Crown have been openly condemnatory of decisions of even the Supreme Court of the U.K. and have vowed to use their influence over the Parliamentary timetable to reverse such decisions.

In all of this, it will have been noticed that there is no mention of "the Constitution."  Were this post about the law in, say, the USA then the natural starting point would have been the Constitution - "We the People ..."  Here is an immediate and striking statement that the constitution itself was (and is) the will of the people and not something imposed on them by a ruling elite. The UK has no such formal constitution. This makes ANY matter, however important, alterable by an Act of Parliament.  Thus, a Bill presently before Parliament would alter the make-up of the House of Lords.  Acts of Parliament have granted "devolution" to Scotland, Wales and Northern Ireland and these are making the UK look much more "federalist" in nature.  These and many other changes would be more difficult if the UK adopted a formal Constitution since such a document would  almost certainly be alterable only if some special procedure were followed.  This is sometimes referred to as "entrenchment."  Advocates of a formal (written) constitution argue that it is needed to protect the system from constitutional change driven by what is expedient politically at the time.  Whether the UK should adopt such a constitution and what should be in it are difficult questions about which there appears to be little agreement.  The UK Parliament has given many nations a formal constitution but has never seen fit to adopt one for the people of the UK.  Whether this will ever come about is a key issue for the future.


  1. Dear Obiter: Sorry, not about this post, I couldn't find another way to contact you, but I wondered whether you'd seen the recent judgment of the Administrative Court at crimeline.info/app/download/5043325739/GMP+v+Hookway.doc radically changing police powers of bail (effecting making police bail pointless to a large degree). I'd be happy to write a little explanation of the judgment and likely effect upon police investigation.

  2. I have seen the Hookway decision. The basic fact was that the warrant of further detention stated expressly that it would expire 36 hours after the time it was issued. As far as I can see, the clerk at the magistrates' court was right in saying that the warrant, having expired, could not be extended.

    The Hookway decision may be downloaded from Crimeline.

    Interesting article appeared on BBC 29th June

  3. It appears that Clare Montgomery QC was asked to give an opinion about the effect of Hookway. As a result, the Met Police has issued guidance.