Sources of English law
In this chapter we will discuss that how the legal system is working and on which basis this system regulates. As we have discussed before about the elements of legal system now we determine how these elements originates.
There are following two major sources for developing the laws or legal system.
- Case laws or precedents
Case law and precedent
Case laws are the laws which are developed through the decisions of specific cases. This is the first sources within the legal framework to develop or create laws in the United States.
These laws become precedent when in future a similar case occurs and the judges follow the principles or decisions of case laws in past. Precedents are binding under the legal framework to all the courts but precedent should be developed by the court of sufficient seniority so that other courts have to follow it in future for similar cases.
The precedents are flexible and can be changed by the next higher court.
The doctrine of binding precedent
The doctrine of binding precedent is that the judge who is presiding over the case must establish that the facts of the current case are similar to the previous case in which precedent was established. So the decision of subsequent case should be according to the binding precedent but if situation is not similar then a new precedent may be created.
When judges have to follow the binding precedent in similar situation then it is known as judicial precedent which is based on three elements.
There must be sufficient and reliable reports of previous decisions by the judges.
There must be some rules which may be sufficient to apply on the currents facts of the case extracted from previous case facts.
The precedents must be classified and categorized into binding and persuasive precedents.
The law reports contains following detail of information.
- The names of both defendant and claimant parties
- The name of judges hearing the case
- The facts of the case
- Date and pint of hearing
- Order of the court
When the binding precedent is applying in the subsequent cases then there must be following consistency of events and facts.
- The decision must be based on the proposition of law and not on the question of facts.
- It must be part of the ration decidendi of the case. The ration decidendi is the statement of the judge in the previous case and its alternative name is obiter dicta.
- The material facts of the subsequent case must be similar to the previous one.
- The presiding court must have the superior position when deciding precedent so that the later courts follow it.
Advantages and disadvantages of precedent
There are number of strengths of judicial precedents on the other hand some drawback also discussed here.
- There is more certainty in the decisions because these are based on the real facts of the previous case.
- The decisions are more clear and fair following the ration of ration decidendi.
- They may be flexible and can be changed if the situation differs.
- These precedents contain more detail of real facts and situations and lead the other cases also.
- Time may be saved in the decisions of subsequent cases as it follows the previous rules.
- Although the precedents are flexible but these are rigid decisions and cannot be changed easily.
- Sometimes there may be inconsistency in the thoughts of judges which leads to disagreement.
- It may create complexity when number of precedents similar or to finding the exact ration decidendi.
- The precedents may become unfair in later time but the courts have to follow even these unfair precedents if they are not in the superior position to the previous courts that have made these precedents.
Another source of developing legal system is the legislation. This is also known as statute law.
Statute law is defined as a law (set of rules) which is made by the parliament (which governs the city, state or country).
In UK the legislation of statute law may be of two forms.
Primary legislation: This is developed from the Acts of parliament
Secondary legislation: this is known as delegated legislation