Sources of Law (2)

  • Created by: JM150601
  • Created on: 13-09-18 10:34

A Custom

A custom is a behaviour which develops in community without being deliberately invented. These are believed to have been very important in that they were, effectively the basis of our common law. It is an unofficial rule we follow in society.

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Common Law

Common law is the basis of our law today; it is the unwritten law that developed from customs and judicial decisions. The phrase ‘common law’ is still used to distinguish laws that have been developed by judicial decisions from laws that have been created by statute or other legislation.

For example, murder is a common law crime however theft is a statutory crime. This means that murder has never been defined in any act of Parliament, but theft is defined by the theft act of 1968.

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Statute Law

An Act Of Parliament is Law that has been passed by both Houses of Parliament and received royal ascent. Law can be changed by an act of Parliament or a new law can be created.

Statute law can bring together all the existing law in one area in a single act of Parliament. This was done in the consumer rights act of 2015.

Statues often recognise the common law and create laws which rely on the common law. For example, the criminal offences of assault and battery are common law offences but the Criminal Justice Act Of 1988 sets out the maximum penalty for these offences.

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Equity

The term ‘equity’ means fair. It was developed to soften the extremes of the common law. It allowed judges, initially the Lord chancellor, on behalf of the king to look at the facts. If the common law remedy was seen to be too harsh then the court of equity would overrule the common law decision.

What is more is that the court of equity could do more that just award monetary damages like the common law would and what it could do is things like requiring the offending party to stop doing something or make them do something.

So much wa she power of the court of equity that in the earl of oxfords case (1616) it was decided that when common law an equity clashed, equity would prevail.

Under the Judicature Acts Of 1873 the two systems were fused. They still exist as separate sources of law but are now administered under one court structure.

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EU Law

Following the European Community Act Of 1972, The UK became part of the EU, which is now responsible for 60% of the UK’s laws. Laws that come from the EU are superior to common law and statues.

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Separation of Powers

One of the most important parts of our legal system is that our judges who make decisions under common law are entirely separate from Parliament (the legislature) and the government (the executive).

This is referred to as judicial independence and what it means is that the courts can conduct their business free from the influence of both the legislature and the executive.

Judges can not ignore the wishes of Parliament but they can hold Parliament to account. This means that feeling bodies authoritised by Parliament act outside the powers they have been given, they have the ability to strike them down.

Although Parliaments statues are superior to case law (common law) they cannot interfere with decisions of the court.

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