English law is a history lesson all on its own and the sources of law that the judiciary use to administer justice are just about the biggest in the world today. To my knowledge no other country has a history of law like our own. There are five sources of law in use within English law today. They are Common Law, Statute Law, Case Law, European Law and minor sources. It is William the Conqueror that is responsible for the start of real laws in England and Wales. Before 1066 there were no real laws of the land and society lived by customs very much initiated locally.
Different areas of England and Wales were living by different customs and so one behaviour in one area would be accepted but in another not accepted. After the Norman Conquest William realised that this kind of inconsistency was unworkable and so instigated a more organised legal system administered by a central government common to all of the land. Common Law under William was still initially primitive and administered by travelling Judges. These Judges would travel to major cities around England and Wales ruling on cases.
Previous customs of that particular area were still used in certain circumstances along with old Anglo-Saxon laws to decide cases. Judges would return to Westminster from time to time and cases they had ruled on discussed. Over time the best customs and laws from around the country were being implemented and law was starting to become uniform. Problems with the development or indeed the lack of development of common law started to appear around the 13th century. Legal action pre 1285 could only be taken by the production of a WRIT.
WRITS had to be exactly worded and were very technical documents, in addition to this fact action could only be started if a WRIT already been previously issued. (Rather like the modern day precident) You may be familiar with the saying "No writ, no remedy"! To make matters worse the only remedy open to common law courts was to financially compensate the "plaintiff". In 1285 this problem was eventually recognised and the Statute of Westminster was passed. This statute was designed to remove the rigidity of common law and allow new WRITS to be introduced. The Statute of Westminster was the countries very first Act of Parliament.
100 or so years, around the year 1400 the people began to petition the King for fairer legal remedies. Although it was Parliament that now changed or made new law it was the King who had Royal prerogative to make any order he though right. This still happens today in that every new Act of Parliament still goes to the Queen for Royal assent. In reality though it was the King's Chancellor who dealt with these petitions. He was not only a lawyer but also a priest and broadly based his decision on fairness and natural justice. He examined each case on its own merits and moved away from the rigid past of the old common law.
Previous decisions on similar cases were not as a whole followed and indeed he even started to develop new compensation remedies for claimants or plaintiffs. Rescission and rectification orders, injunctions and specific performance orders were all introduced but were not yet used in conjunction with the remedy of damages. However all of the above are still in use today. As time went on the people saw and embraced these new legal developments and the number of petitions soured. Eventually the Chancellor was forced to enlist help with these cases and after consultation with the King set up a separate court.
The Court of Chancery was born and operated along the exact lines that the Chancellor had. Equity and fairness were its goals but again problems started to appear in that Equity was not a complete system of law and although fairer specific remedies could be imposed on behalf of claimants the Court of Chancery had no power to coincide these new remedies with the remedy of damages. In effect two separate petitions were having to be filed if the claimant also wanted financial compensation. One in the Common Law Courts and one in The Court of Chancery.
Finally it was recognised that the situation could not continue as it was and in 1873-1875 the Judicature Acts were passed by parliament and the whole court structure was reorganised. The two courts were merged so that one court could dispense a full range of justice. The onus of this new court would be to follow Equity if ever a conflict with Common Law. Case Law or Judicial Precedent is the third major source of the English Legal System. Huge amounts of Legislation has been produced by parliaments through out the ages but statute law is incomplete as a system of law on its own.
Large parts of the law have been made by Judges interpreting the parliamentary statute. This kind of law is known as "the doctrine of binding judicial precedent". Under this doctrine any decision made by a court is binding on any other courts (although not necessarily to a higher court) involving cases where the facts are the same or similar. Judicial Precedents are not new, indeed some pre date The Statute of Westminster and come from Common Law. However it's not until the 19th century that the system of using precedents consistently was introduced by the creation of the Council of Law Reporting.
Being bound by a precedent can sometimes be extremely frustrating by all concerned in a case. It can also be an absolute godsend and a great deal of time is spent by both sides in a case trawling the Law Reports looking for precedents that could help their case. The Law Reports contain the comments of Judges on every case that has been heard in every court in the land, excluding Magistrates courts, as precedents are not generally made at this lower level of the judiciary. When a judge makes judgement on a case he also makes a speech in open court.
Depending on the size of the case this can any length from a few minutes to many pages. Every judgement contains the following information. The fourth source of law in the English Legal System is European Law. Twenty years ago European law was barely a pimple on a duck egg in the world of law. But now the law is influenced strongly from Europe, and is seen to be the way forward. The signing of the treaty of Rome in 1957 kick started the European union, as we know it today. To start off with there were six member states, France, West Germany, Italy, Belgium, Holland, and Luxembourg.
These countries were the first to have to abide by the new rules set throughout Europe. Britain didn't join what was then the European Economic Community until January 1st 1973 when the European Communities Act was signed, which gave effect to European law in the United Kingdom. There are two types of European Law and legislation, regulative law, which is immediate, and directive. Directive sets out what the European community wants to do. It takes effect when they have passed the law in the individual country. Regulations are the nearest of European law that mirrors an English Act of Parliament.
Regulations become part of law for each of the member nations as soon as they come into force, and it is done so without the countries making it it's own legislation. Regulations must be applied even if there is already legislation which conflicts with the new European Regulations, and if this is the case the European legislation takes precedent every time. This shows that European law is the top of the hierarchy of courts in every member country. Directives are set out to be like regulations, but written down to be just the broad objectives of the European Union.
These are left up to the member countries to create more detailed legislation to put those objectives into practice. For example The Consumer Protection Act 1987. These have to be done in a certain time limit. E. U. Directives are present in our everyday lives now without us even realising it. They control Immigration and Asylum, certain Food Laws, Air Traffic Control, Working Time with a new directive being implemented in March 2005 and lastly Human Rights. This last EU directive is probably the most frequent type of case that the ECJ has to deal with. Over recent years Human Rights cases have soured within the English legal system.
There are many many articles of the Human Rights Act and dozens of law firms specialise solely on issues of human rights. The fifth and final source of law in the English Legal System is Minor sources of Law. Minor sources of law include Old Custom Law, Cannon Law and Roman law. None of these are widely used today but certain Land laws from Old Custom Laws are still used. So are family laws from Old Cannon Law. As indeed are shipping laws from Roman law. In conclusion to this question The English Legal System has five sources of law. More than most countries around the world and indeed many countries base their own legal system on ours.
Three of the sources, Statute Law, Case Law and European Law continue to make new law but Common law and Minor sources no longer add to the English Legal System. Q3: – In the role of statutory interpretation, to what extent do judges defeat or ignore the will of Parliament? When judges interpret statute passed by parliament, they have three rules to follow. These are the literal rule, the golden rule and the mischief rule. The whole reason these rules are here is to interpret laws so that the legislation serves its purpose of which it was introduced.
The rules examine the wording of the particular statute and are the most common approach of interpretation of the English legal system. The three rules take different approaches in the interpretation and some judges use one rule while another prefers to use another rule. That is why we have three rules not just one. This means that in English law the interpretation of statute may differ depending on which judge is hearing the case. Once an interpretation has been made, a judge can form a new precedent for future cases in the same area of law.
Since the three rules can result in very varied outcomes, it is important to understand the three rules. The LITERAL RULE means that judges will give the word its original and literal meaning even if the result is not sensible or seems unfair. It simply means if the words of the Act are clear then you must follow these words even if they are absurd and the legislation must not be questioned by the court. The rule has been in the English legal system for many years and has been used in many cases. A good example of the literal meaning defeating the intent of parliament is Whiteley v. Chappell (1986).
In that case, the court held that on a literal interpretation of the words of the particular legislation, Whiteley could not be convicted of impersonating "any person entitled to vote' at an election", as the person he had impersonated was dead. On a plain, or literal interpretation the 'deceased are not entitled to vote' so, Whiteley did not commit that crime. No doubt this was probably not the intent of Parliament in passing the piece of legislation, but is was the logical conclusion if one used the literal rule. The GOLDEN RULE is basically an updated version of the literal rule. The rule looks at the literal meaning of the word.
The court must then avoid an interpretation, which would then lead to an unfair result. It does not allow much more flexibility than the literal rule and there are two views on how far the golden rule should be used. One is that you must not attach a meaning to a provision, which cannot be justified by the legislation and is not reasonable. If the wording of the provision is capable of one meaning then you can choose from those meanings but go no further. The second view can be applied wider and means that if the meaning of the word is clear then that must be followed unless this would result in an unfair result.
Then the golden rule can be applied wider and the meaning can be modified to avoid an unfair situation. A good clear example would be In the case of Sigsworth. The defendant had murdered his mother. She did not have a will and he stood to inherit her considerable estate under s. 46 of the Administration of Estates Act 1925 as next of kin by being her "issue". The court applied the literal rule and held that "issue" would not be entitled to inherit where they had murdered the deceased. The MISCHIEF RULE is the oldest rule and gives the judge more flexibility and discretion in court that the other two rules.
It is sometimes referred to as the rule in Heydon's case ((1584). It can be used by the court to interpret a statue but must consider the common law before the act was introduced. A look at the dictionary would reveal that the word 'mischief' has numerous meanings, such as harm or wrong. The judges use this rule to decide what 'mischief', or loophole the statute was intended to correct or close. In so doing the judges goes beyond the words of the statute to ascertain what 'mischief' or harm the statute was intended to remedy. The court should then interpret the act in such a way that the gap is covered.
This is clearly a quite different approach to the literal rule. The mischief rule was used in Smith v Hughes to interpret the Streets Offences Act 1959, which said, "It shall be an offence for a common prostitute to loiter or solicit in the street or public place for the purpose of prostitution". In this case the woman had not been 'in the street' but in a ground floor window of her house and was attracting men by tapping on the window. The defence argued that she was not on the street or in a public place and therefore not guilty under the Act. The mischief rule was used and she was found guilty.
This then filled the loophole of the Act. It is clear that that Judges have huge sweeping powers and depending on which side of the fence you sit they either should be able to interpret the statute as they do or they should leave well alone and administer the law as the statute directs. It is also widely acknowledged by law academics that two identical cases that come before two different judges can have totally different outcomes all down to how the individual judge interprets unclear statute, unless of course if a president has already been set by a Judge ruling on a case with very similar facts.
This situation in itself can have undesirable effects as the Judge hearing the new case may indeed disagree with the president on past cases but he is bound to implement the held president. On the question of Statutory Interpretation Lord Reid stated " We can only take the intention of Parliament from the words which they have used in the Act" – Lord Reid in I. R. C. v. Hinchy 1960 (note Pepper v. Hart 1992). And so Judges see themselves indeed as interpreters of parliamentary statue, not as lawmakers.
Arguments to the contrary have been discussed and debated by academics since statute law was introduced. Perhaps the most flagrant disregard for the wishes of Parliament was displayed in Anisminic Ltd. v. Foreign Compensation Commission 1969, where a statute said that "decisions" of the Commission should "not be called in question in any court". Despite this clear and unambiguous provision they contrived, in order to preserve their jurisdiction and to show Parliament who really was in charge, that the decision was ultra vires, and hence void and no "decision" at all.
In another example (Fisher v Bell 1961) the disregard by the court for the statute was so bad in Parliaments eyes the decision was overturned by statute the same year the offending decision was made. In conclusion there doesn't seem to be any clear answer to the question. Judges have developed rules over time to prevent defendants like Sigsworth exploiting statute law. And quite rightly so. So did the Judge "defeat or ignore the will of parliament". Clearly he didn't, but only on that occasion. This subject is certain to continue to be debated continually by all those involved in the administration of English Law.