The Sources of English Law Essay example

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The Sources of English Law

In UK there are three main sources of English law, Legislation (Statue
Law), Common Law (Judge-made Law) and the European Communities law.
English Law was historically based on customs and social traditions.
Today Custom Law is a part of Common Law, notably being in cases where
there was no judicial precedent but which were known to exist since
time memorial (i.e. since 1189). Many of these laws such as the
Fisherman's Case (1894) 2 East PC 661(
http://wilmington.butterworths.co.uk/citator-0/Citator.ASP?WCI=tmpSearch&WCE=Form&WCU=)
in criminal law and Beckett Ltd v. Lyons [1967] 1 All ER 833 the law
of user in Land Law are still good law. Custom law can still be used
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Parliament can delegate the power to legislate to various bodies such
as local authorities, the Crown and ministers. Delegated legislation
has same legal force and effect as the Act of Parliament. The
advantages of delegated legislation are: time saving, access to
particular expertise and, flexibility. On the other hand it can be a
disadvantage due to lack of accountability and effective scrutiny as
it can erode the constitutional powers of the Parliament.

Another major source of law comes from judges deciding cases before
them, also referred to as Case Law. Judges use various rules to
interpret legislation and the intention of the Parliament. For
example, in the case of Royal College of Nursing v. DHSS [1981] 1 All
ER 545, three judges gave their judgment using the mischief rule and
two judges used the literal rule to interpret the Abortion Act 1967,
and the intention of the Parliament (173 and 174 Slapper G. and Kelly
D. The English Legal System (5th Edition), (2001) Cavendish Publishing
Ltd, London, Sydney). One example of when judges have actually made
new law is the case of R v. R [1994] 4 All ER 48 decided in the House
of Lords. The court re-interpreted the legislation so that a husband
could be found guilty of raping his wife.

'Stare decisis' or binding precedent is at the heart of the English
legal system and case law is particularly dependent on it. It refers
to…