"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).
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.
Jurisprudence - Wikipedia
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 usually unlawful though many consider them to be immoral.
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").
See also the Hart - Devlin debate - Wikipedia.
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.
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. This "declaratory theory" was described by the late Lord Reid as a
"fairytale" and it is 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 albeit modified by Acts of Parliament. 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 of the UK decisions are "binding" on all courts and
tribunals but does not consider itself bound by earlier decisions. 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.
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 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."
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. 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.
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| The UK Parliament |
THE major source of modern law is the outpouring by Parliament 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 King 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.
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.
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.
During the UK's membership of the European Union, the Treaty on European Union and the Treaty
on the Functioning of the European Union were important sources of law since they form the fundamental law of the EU - (see European Treaties).
The UK joined the EU in 1973 and withdrew at the end of 2020 - (Timeline of Brexit). In 1974, Lord Denning MR used the phrase "incoming tide" to describe the law made by the various EU institutions -
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 eventually took the UK out. Nonetheless, due to agreements with the EU, some law originating with the EU continues to have force in the UK.
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 sometimes cited in UK 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 gave 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 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 petition to the E Court of HR remains possible.
There continue to be some political pressures within the UK to withdraw from the European Convention on Human Rights but, at least with the present government (elected 2024), that is unlikely to happen.
A formal constitution
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 will alter the make-up of the House of Lords by removing the hereditary peers. Acts of Parliament have granted "devolution" to Scotland, Wales and Northern Ireland and these have made 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.
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