At one
level, the division relates specifically to actions of the State and
itsfunctionaries vis à vis the individual citizen, and the legal manner in which, and form of law through
which, such relationships are regulated; that is, public law. In the 19th century,
it was at least possible to claim, as Dicey did, that there was no such thing
as public law in this distinct administrative sense, and that the power of the
State with regard to individuals was governed by the ordinary law of the land,
operating through the normal courts. Whether such a claim was accurate when it
was made, which is unlikely, there certainly can be no doubt now that public
law constitutes a distinct and growing area of law in its own right. The growth
of public law, in this sense, has mirrored the growth and increased activity of
the contemporary State, and has seen its role as seeking to regulate such
activity. The crucial role of judicial review in relation to public law will be
considered in some detail below, at 1.5.6. There is, however, a second
aspect to the division between private and public law. One corollary of the
divide is that matters located within the private sphere are seen as purely a
matter for individuals themselves to regulate, without the interference of the State,
whose role is limited to the provision of the forum for deciding contentious issues
and mechanisms for the enforcement of such decisions. Matters within the public
sphere, however, are seen as issues relating to the interest of the State and general
public and are, as such, to be protected and prosecuted by the State. It can be
seen, therefore, that the category to which any dispute is allocated is of
crucial importance to how it is dealt with. Contract may be thought of as the
classic example of private law, but the extent to which this purely private
legal area has been subjected to the regulation of public law in such areas as
consumer protection should not be underestimated. Equally, the most obvious
example of public law in this context would be criminal law. Feminists have
argued, however, that the allocation of domestic matters to the sphere of
private law has led to a denial of a general interest in the treatment and
protection of women. By defining domestic matters as private, the State and its
functionaries have denied women access to its power to protect themselves from
abuse. In doing so, it is suggested that, in fact, such categorisation has reflected
and maintained the social domination of men over women.
SOURCES OF
LAW
This
section examines the various ways in which law comes into existence. Although
it is possible to distinguish domestic and European sources of law, it is
necessary to locate the former firmly within its wider European context; in
line with that requirement, this section begins with an outline of that
context.
LEGISLATION
If the
institutions of the EC are sovereign within its boundaries then, within the
more limited boundaries of the UK,
the sovereign power to make law lies with Parliament. Under UK
constitutional law, it is recognised that Parliament has the power to enact, revoke
or alter such, and any, law as it sees fit. Coupled to this wide power is the convention
that no one Parliament can bind its successors in such a way as to limit their
absolute legislative powers. Although we still refer to our legal system as a common
law system, and although the courts still have an important role to play in the
interpretation of statutes, it has to be recognised that legislation is the
predominant method of law making in contemporary society. It is necessary,
therefore, to have a knowledge of the workings of the legislative procedure
through which law is made.
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