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Sources Of The Law Essay

1107 words - 5 pages

Law, according to Sir John Salmond is “the body of principles recognised and applied by the state in the administration of justice”. Where does law come from? The law has numerous sources and the English legal system adopts the rules derived from these various sources to form the law. Sources of law include common law and equity, legislation, and international conventions such as the European Convention of Human Rights (ECHR). It must be noted that customs or constitutional conventions are not law. It is a general perception that traditional practices are binding in the eyes of the law but this is far from reality. The judiciary have repeatedly held that conventions are not law and thus ...view middle of the document...

The formation of case law is heavily reliant, on these concepts. The doctrine of judicial precedent is based on the Latin maxim stare decisis et non quieta movere which basically means “stand by what has been decided and disturb not the established”. In operation, a judge sitting in a case is bound to follow the decision of an older case which has similar facts as the current case. Further, the rule is binding on lower courts to adopt the decisions of older cases which were decided by higher courts. For example, the Court of Appeal is bound to follow the decision of the House of Lords even though it finds that those decisions lead to unfairness. In the case of Miliangos v George Frank (Textiles) Ltd (1976), the House of Lords stated that the Court of Appeal had no right to depart from a binding decision of another House of Lords.

The rationale behind the application of the doctrine of judicial precedent is that alike cases should be treated in similar fashion to provide certainty to the law. Litigants are entitled to the knowledge of their fate based on a previous case of similar facts. However, the counter argument to this statement is that certainty negates flexibility. The law needs to be flexible to develop and adapt to the transformation within a society. Societal perception of what is acceptable, or otherwise, change over time and what is considered acceptable may no longer be regarded as such in more modern times. For instance, a man cannot be convicted of rape of his wife before the court in R v R (1991) ruled that it is possible for a man to be convicted of marital rape. Judges have created several methods to escape from being bound to follow previous cases. These mechanisms are vital for the courts to not be bound by the doctrine of judicial precedent.

Another essential ingredient in the formation of case law is known as statutory interpretation. Statutory interpretation refers to the devices with which the judges employ to interpret Acts of Parliament. There are two main approaches to interpreting statutes as well as rules of interpretation which may be applied in an effort to decipher the meaning of statutes. A single case can have different outcomes depending on which methods are used to interpret Acts of...

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