Legal systems are particular
ways of establishing and maintaining social order. Law is a formal mechanism of
social control Categories of law Law can be categorised in a number of ways,
although the various categories are not mutually exclusive, as follows:
• Common law and civil law
relate to distinct legal systems. The English legal system is a common law one.
• Common law and equity
distinguish the two historical sources and systems of English law.
• Common law is judge made;
statute law is produced by Parliament.
• Private law relates to
individual citizens; public law relates to institutions of government.
• Civil law facilitates the
interaction of individuals; criminal law enforces particular standards of behavior
The Human Rights Act 1998
The Human Rights Act 1998
incorporates the European Convention on Human Rights into UK law. The Articles
of the Convention cover:
• the right to life
• the prohibition of torture
• the prohibition of slavery
and forced labour
• the right to liberty and
security
• the right to a fair trial
• the general prohibition of
the enactment of retrospective criminal offences
• the right to respect for
private and family life
• freedom of thought,
conscience and religion
• freedom of expression
• freedom of assembly and
association
• the right to marry
• the prohibition of
discrimination and
• the political activity of
aliens may be restricted
The incorporation of the Convention
into UK law means that UK courts can decide cases in line with the above
Articles. This has the potential to create friction between the judiciary and
the executive/legislature.
Domestic sources of law
• Legislation is the law
produced through the parliamentary system; then it is given royal assent. The
House of Lords has only limited scope to delay legislation.
• Delegated legislation is a
sub-classification of legislation. It appears in the form of: Orders in
Council; statutory instruments; bylaws; and professional regulations. Advantages
of delegated legislation:
❍
speed of implementation;
❍ the
saving of parliamentary time;
❍
access to expertise; and
❍
flexibility.
The disadvantages relate to:
❍ the
lack of accountability;
❍ the
lack of scrutiny of proposals for such legislation; and
❍ the
sheer amount of delegated legislation.
Controls over delegated
legislation:
❍
Joint Select Committee on Statutory Instruments; and
❍
ultra vires provisions may be challenged in the courts.
Case law
• Created by judges in the
course of deciding cases.
• The doctrine of stare
decisis, or binding precedent, refers to the fact that courts are bound by
previous decisions of courts which are equal or above them in the court hierarchy.
• The ratio decidendi is
binding. Everything else is obiter dicta.
• Precedents may be avoided
through either overruling or distinguishing. The advantages of precedent are:
❍
saving the time of all parties concerned;
❍
certainty; and
❍
flexibility. The disadvantages are:
❍
uncertainty;
❍
fixity; and
❍
unconstitutionality
Law reform
The need to reform the law may be assessed by a number of
bodies:
• Royal Commissions;
• standing committees;
• ad hoc committees; and
• the Law Commission.
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