The role of the courts and the judiciary.

UNIT 1. SOURCES OF LAW.

CONTINENTAL AND COMMON LEGAL SYSTEMS.

Lead –in.

Before reading about the sources of law, think about the subject in general:

· Where do laws come from in your legal system? Which kinds of rules and principles have the authority and force of law? In other words, what are the sources of law?

SECTION 1. SOURCES OF BRITISH LAW

PART A. THE FIVE SOURCES OF LAW.

There are five sources of law in the UK:

· Common law

· Statute law

· Subordinate legislation

· Custom

· European Community law

Common law

Common law is the law as developed through the decisions of judges. Its rules are developed through a series of cases decided by judges over a period of years. Sometimes this period may be fairly short when the law is developing rapidly, at other times development may take centuries. What constitutes the common law is not so much the actual decision in a particular case as the principles upon which that decision is based. Each case helps to develop the principle a little further.

In deciding what does and does not form part of the common law it is necessary to consider the status of the court making the particular decision. Not only is there the distinction between the decision in the particular case and the principles upon which that decision is based, but there is also a distinction between the various levels of courts within the hierarchy of courts. Some of which can and others of which cannot contribute to the common law. The superior courts start upwards from the High Court of Justice through the Court of Appeal to the House of Lords.

The decisions of the superior courts are considered by experienced members of the legal profession who decide whether or not a particular decision should be published and contribute to the common law. Those decisions are published in the series of books known as the ‘LAW REPORTS’. Not all decisions made by higher courts are published in the Law reports. If a decision does not develop the law further it is not published.

The principles of common law are very flexible. A decision concerning a car accident can form the basis of other rulings, that does not concern cars at all. It is that flexibility of the common law and the ability of its judges to apply its principles to changing circumstances that is its strength. It means that common law can change and adapt to meet the changing community. The common law is not a code. Its strength lies in the fact that is not a code, for a code has an inbuilt rigidity. Common law constantly changes with the times. An example of common law’s flexibility and how it develops is how the case Ryland v Fletcher is used. In Ryland v Fletcher, the question was if water escaped from a landowner’s dam and damaged a neighbour’s land, could that neighbour sue. He could. This principle has later been used in a number of cases such as in Chiffman v Order of St John. In this case the St John Ambulance Society had erected a flagpole. When children played on the guy ropes, the flagpole collapsed and struck a bystander. The application of the principle in Ryland v Fletcher resulted in the Society being held liable in damages to the bystander.

Precedent

Precedent is the basis of the common law. The doctrine of binding precedent is known as the doctrine of stare decisis, which is Latin meaning ‘to stand by/adhere to decided cases, i.e. to follow precedent. In other words, once a principle is decided it should be followed in future cases. The doctrine refers to the fact that, within the hierarchical structure of theEnglish courts, the decision of a higher court will be binding on a lower court, In general terms, this means that when the judges try cases they will check to see if a similar situation has come before a court previously. If the precedent was set by a court of equal or higher status to the court deciding the new case, then the judge in the present case should follow the rule of law established in the earlier case. Where the precedent is from a lower court in the hierarchy, the judge in the new case may not follow but will certainly consider it.

There are three essential elements to the system of precedent:

· the hierarchy of courts

· binding precedent

· accurate law reporting

The role of the courts and the judiciary.

Many of British primary legal principles have been made and developed by judges (rather than by parliament from case to case in what is called a system of precedent, where the lower courts are bound to follow principles established by the higher courts in previous cases. The common law (or judge-made law) is at least as important as the law made by parliament. For example, there is no act of parliament telling that murder is a crime; it is a common law crime which has been refined over the centuries by judges.

Another important role played by the judiciary is that of statutory interpretation. Whilst the meaning of law in a statute should be clear and explicit, this is not always easily achieved. Many cases come before the courts because there is a dispute over the meaning of a word in a statute. For example, the Dangerous Dogs act 1991 contains the phrase ’any dog of the type known as the pill bull terrier’ but it did not say whether ‘type’ mean the same as ‘breed’. In order to assist with the interpretation of statutes the judiciary have developed a number of rules: the literal rule, the golden rule, the mischief rule and the purposive approach. They all take slightly different approaches and the judiciary do not always agree on which approach should be used, so the interpretation of a statute may depend on the judge hearing the case. Once that interpretation has been made, however, it may form a precedent for later cases.

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