Sources of law
Common Law / Case Law
Examples
include
Donoghue
v Stevenson 1932 “snail in ginger beer
bottle” gave a new insight into a manufacturers duty of care to the ultimate consumer..
Case
law require accurate reporting.
[Activity
: Find out how law cases are reported and how can you access such reports]
Case
law also requires the development of precedent. Precedents bring to the law
consistency and certainty.
Moore v
Landauer 1921 (about number of tins of fruit in a box) is a case we can use as
an example of both binding precedent (ratio decedendi) – the original judgement and of persuasive precedent via the obiter of Lord
Wilberforce in a shipping case in 1966 when he stated that he stated he found
the original reason to declare the contract void was a “tom tiddler” of a
reason and should be ignored in future cases.
Over
the years there has been mush discussion on whether judges make law or as
Dworkin says in his Declaratory Theory simply find out what the law is and
declare it. I believe that you will see in this course that they both find out
and declare what the law is and when needed make new law.
In the
Lawteacher notes you were given last week on Precedent you will see find the
table of Hierarchy of Courts helpful. It tells us how the various courts are
bound by previous decisions.
The
table Methods of Avoiding Precedent is particularly helpful. Many an
examination question has come from this area or involves this area in an
answer.
Note
that practice statements are rarely used.
Be
aware of the greater flexibility given to the Court of Appeal by Young v
Bristol Aeroplane 1944.
You
must know what the terms distinguishing, over ruling etc mean.
Distinguishing In
this area I would use the cases of Balfour and Balfour 1919 and Merritt and
Merritt 1971 to illustrate my understanding of the meaning of distinguishing.
The cases are relatively easy to remember and should be part of your key cases
list.
Over ruling will apply if the previous (lower) court
has failed to apply the law properly.
Reversing takes place when the lower court has
reached the wrong decision.
In Re
Pinochet (1999), the House of Lords reversed a previous decision for the first
time after it was revealed that one of the original judges, Lord Hoffman had
failed to reveal he was a member of Amnesty. (we will use this in later work
when e discuss personnel of the law)
Disapproving precedent This is where a court follows a
precedent but states it doesn’t like it but has to follow it, hoping that the
higher appeal court will accept its concerns and reverse the judgement.
Make
sure you read the 6 Form College notes 10.6 Reversing, distinguishing and
overruling http://www.sixthform.info/law/01_modules/mod1/10_6_precedent/02_precedent_reversing_overuling_distinguishing.htm
In 10.6
introduction you will see a red triangle and a quote from Lord Atkins about our
legal responsibility to our neighbour. This quote has been used in several
cases in the 1990 where the House of Lords has a limited the duty of care
because they were a far a wider definition would open the floodgates allowing
more cases to be brought. What all of this means is that the original Donoghue
and Stevenson case which was a majority decision have become mush stronger as a
precedent as so many senior judges have locked on to the words of Lord Atkins
in the original case.
Make
sure you read 10.6 The Denning Story.
A
potential question is to state the advantages and disadvantages of precedent.
Lawteacher net provides a good list.
One
recent example of judges making law is seen in the Tony Bland case Airedale NHS
Trust v Bland 1993. The various transcripts through the High Court, the Court
of Appeal and House of Lords show how the judges felt that Parliament should
legislate in this type of case. The current euthanasia debate should provide a
rich source of material for this AS and especially for the A level .
Legislation
I like
the St Brendan’s notes at http://www.stbrn.ac.uk/other/depts/law/teaching/notes12.htm
on legislation. They are readable and full of interesting facts.
These
complement the business like approach of 6 Form College’s 10.2 Formal process
of statute creation which is a very clear summary of the legislative process
and for the examination a very readable revision page.
The
Sweet and Maxwell powerpoint presentation at http://www.sweetandmaxwell.co.uk/academic/updates/hunt/index.html
has
some excellent summaries on legislation as well as some good questions for you
to test your developing knowledge with.
The revision headings for Legislation are excellent headings for your
note taking.
The
main sources of proposed legislation are
Government
Advisory
agencies, such as Royal Commissions and Law Commission.
Pressure
groups. Note one or two who you can name in an examination as well as the
advantages they bring
Individual
MP’s thorough Private Member’s Bills.
It is
important that you understand the process a bill goes through to become an Act
of Parliament.
You
will need to become familiar with terms such as Green and White papers. Make
sure you read 6 Form College’s 10.4 Influences on Parliament which amongst
other things tells us that a Green paper is a consultative document whilst a
White paper contains firm proposals. This page is rich with examples for you to
incorporate into your notes on legislation.
Note
the restrictions on legislation through the EC and human rights legislation.
These topics are well covered in by 6 Form College and St Brendan’s.
Some
questions that will help you develop your knowledge of the process of
legislation.
Can an
Act of parliament apply outside the
Why do
old statutes provide the Law Commission with a good deal of work?
What
did the Statute Law (Repeals) Act 1998 achieve?
What
does the term “Queen in Parliament” mean?
What is
a private bill? Give an example.
Give an
example of a hybrid bill.
What is
meant by the phrase “hold the government to account” as applied to the House of
Commons?
How
does the House of Commons deal with the problem of not having to sufficient
time to have proper discussion of legislation?
What do
consolidation bills achieve?
What
real power does the House of Lords retain?
Equity
This is
an important source of English law. You need to able to tell the examiner what equity
is, how it originated, of the conflict between the judges who administered the
common law and the Chancellor who advised the King on matter of equity, all of
this culminating in the Earl of Oxford’s case 1615.
The Judicature
Acts of the late 19th century led to the relief of equity being
available in all courts alongside the common law.
You
need to know the meaning of terms such as “He who comes to equity must come
with clean hands” as well as some of the
main equitable remedies such as recession, rectification, and injunctions.
European Law
Since
joining the EU we have seem a growing influence of European law on English law.
Directives from the EU have to be applied in member States and laws such as the
Companies Act 1985 derive from EU directives. Other terms we will encounter are
Treaties (these require unanimous agreement of member states) and regulations.
Decisions
made by
European
law is of importance because where there is conflict it takes precedence over English
law.
Custom
The famous
legal writer Blackstone sees custom as something that has existed since time immemorial
(1189) and has been continuous.
This
source of law is still seen in commercial law. Bills of exchange originated as customs
in mercantile law and are today incorporated in mainstream law.
Academic writings
Legal textbooks
of great standing are sometimes referred to in cases. We usually see these in the
more esoteric areas of law. In cases involving withdrawing life support from patients
we might see references to legal or philosophic writers. In the Tony Bland case
reference was made by one judge to the philosophy works of Professor Bernard Williams.
There
are other minor areas of law such as canon law which influences family law and
roman law which can have an influence on property law.
This
has been a brief survey of sources of law but in it we have been able to recall
some of the material we covered in our last session.
Stephen
John
1 October 2004.