Where does law come from? Law has been defined in many ways by various leaders and thinkers but there is no universal definition. There are numerous sources and the English legal system adopts the rules derived from these various sources to form the English 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 common misconception that customs or conventions are law. The judiciary have repeatedly held that conventions are not law and thus are not binding. The case of Attorney General v Jonathan Cape Ltd aptly demonstrated this point as the court held that the convention of Parliamentary confidentiality is only a convention and does not carry any legal weight. Nevertheless, it is essential to understand what, and how, are sources of law created and what possible dangers may arise from these sources.
Common law first came about during the reign of William the Conqueror who created a common set of laws which was binding on all in the land. In the 15th century, the Chancellor was given the responsibility of deciding cases and he subsequently created his own court, the Court of Chancery which decided cases based on equity. As a result of the Judicature Act 1873, common law and equity were merged into the same courts to ensure that one enhances, instead of opposing, the other. Consequently, the only distinction between common law and equity is the remedies available to litigants. Today, common law is regarded as case laws which are decisions made by judges in cases.
Common law is operated on two concepts of equal importance, namely the doctrine of judicial precedent and the concept of statutory interpretation. 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. Furthermore, 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 , 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...