Sources of Law
Sources of Law
In civil law systems, the sole source is the appropriate code, such as the civil code or the criminal
code; whereas in common law systems there are several sources that combine to form “the law”.
Civil law systems often absorb ideas from the common law and vice-versa. Scotland, for
instance, has a hybrid form of law, as does South Africa, whose law in an amalgamation of
common law, civil law and tribal law.
A state may comply with international law, it may have a written or federal constitution, or it
may have regional legislature, but normally it is the central national legislature that is the
ultimate source of law. While a written constitution may seem to be the prime source of law, the
state legislature may amend its constitution provided certain rules are followed. International law
may take precedence over national law, but international law is mainly made up of conventions
and treaties that have been ratified; and anything that can be ratified may be denounced later by
the national parliament. Although local authorities may feel that they have a democratic mandate
to pass bye-laws,the legislative power they wield has been delegated by parliament; and what
parliament gives, parliament make later take away. In England, the archetypal common law
country, there is a hierarchy of sources, as follows:
International Treaties
Governments may sign International Conventions and Treaties; but these normally become
binding only when they are ratified. Most conventions come into force only when a stated
number of signatories have ratified the final text. An international convention may be
incorporated into a statute (e.g. Hague-Visby Rules in Carriage of Goods by Sea Act 1971; e.g.
the Salvage Convention in the Merchant Shipping Act 1995). The Council of Europe’s European
Convention on Human Rights is enforced by the ECHR in Strasbourg.
European Community Law
The European Union is special example of international law. European nations that join the EU
thereby adopt all EC Law to date (the acquis communautaire), namely: treaty provisions,
regulations, directives, decisions, and precedents. Member States become subject to
“Brussels”[9] and to the binding precedent decisions[10] of the Court of Justice of the European
Union (or CJEU) in Luxembourg. However, Brussels may only act and legislate in accordance
with the EU treaties, and the CJEU's supremacy applies only in matters of EU law.
National sources
Legislation Legislation is the prime source of law. and consists in the declaration of legal rules
by a competent authority. Legislation can have many purposes: to regulate, to authorize, to
enable, to proscribe, to provide funds, to sanction, to grant, to declare or to restrict. A
parliamentary legislature frames new laws, such as Acts of Parliament, and amends or repeals
old laws. The legislature may delegate law-making powers to lower bodies.
In the UK, such delegated legislation includes Statutory Instruments, Orders in Council, & Bye-
laws. Delegated legislation may be open to challenge for irregularity of process; and the
legislature usually has the right to withdraw delegated powers if it sees fit.
Most legislatures have their powers restricted by the nation's Constitution, and Montesquieu's
theory of the separation of powers typically restricts a legislature's powers to legislation.
[11]
Although the legislature has the power to legislate, it is the courts who have the power
to interpret statutes, treaties and regulations. Similarly, although parliaments have the power to
legislate, it is usually the executive[12][13] who decides on the legislative programme.
The procedure is usually that a bill is introduced to Parliament, and after the required number of
readings, committee stages and amendments, the bill gains approval[14] and becomes an Act.
Case Law
Judicial precedent (aka: case law, or judge-made law) is based on the doctrine of stare decisis,
and mostly associated with jurisdictions based on the English common law, but the concept has
been adopted in part by Civil Law systems. Precedent is the accumulated principles of law
derived from centuries of decisions. Judgements passed by judges in important cases are
recorded and become significant source of law. When there is no legislature on a particular point
which arises in changing conditions, the judges depend on their own sense of right and wrong
and decide the disputes from first principles. Authoritative precedent decisions become a guide
in subsequent cases of a similar nature. The dictionary of English law defines a judicial
precedent as a judgement or decision of a court of law cited as an authority for deciding a similar
state of fact in the same manner or on the same principle or by analogy. Another
definition[15] declares precedent to be," a decision in a court of justice cited in support of a
proposition for which it is desired to contend".
Compared to other sources of law, precedent has the advantage of flexibility and adaptability,
and may enable a judge to apply "justice" rather than "the law".
Equity is a source of law peculiar to England and Wales. Equity is the case law developed by the
(now defunct) Court of Chancery. Equity prevails over common law, but its application is
discretionary. Equity's main achievements are: trusts, charities, probate, & equitable remedies.
There are a number of equitable maxims, such as: “He who comes to equity must come with
clean hands”.
Parliamentary Conventions are not strict rules of law, but their breach may lead to breach of law.
They typically are found within the English legal system, and they help compensate for the UK's
lack of a single written constitution. Typically, parliamentary conventions govern relationships,
such as that between the House of Lords and the House of Commons; between the monarch and
Parliament; and between Britain and its colonies. For instance, after the Finance Act 1909, the
House of Lords lost its power to obstruct the passage of bills, and now may only delay them. The
prerogative powers are subject to convention, and in 2010, the monarch's power to dissolve
Parliament was abolished. Britain's tradition with its colonies is that they are self-governing
(although, historically, rarely with universal suffrage), and that the mother-country should stay
aloof.
A "Particular Custom" (or "private custom") may arise and become a right with the force of law
when a person, or a group of persons has from long usage obtained a recognised usage, such as
an easement.
Up until the 20th century, English judges felt able to examine certain "books of authority" for
guidance, and both Coke and Blackstone were frequently cited. This old practice of citing only
authors who are dead has gone; nowadays notable legal authors may be cited, even if they are
still alive.
Other sources
Textbooks
Journals
Publications etc