GDL INTRO Systems and sources of law transcript 2023_12_01.pdf

Systems and sources of law Transcript A legal system means the system of legal rules that governs a particular geographical area that shares common legal rules. This area is called a jurisdiction. These do not necessarily correspond to political boundaries. The United Kingdom has three legal systems...

Systems and sources of law Transcript A legal system means the system of legal rules that governs a particular geographical area that shares common legal rules. This area is called a jurisdiction. These do not necessarily correspond to political boundaries. The United Kingdom has three legal systems, so different laws apply in different parts of the UK. England and Wales forms one jurisdiction, the legal system of England and Wales, though it is often referred to as the English Legal system or ELS for short. Scotland has its own legal system and courts, though civil appeals go to the Supreme Court of the United Kingdom in London, as does Northern Ireland. So, what is the difference between the Common law versus Civil Law systems of law? A common law system is named because of the importance of case law, in other words, court rulings made by judges. Originally, the common law system was entirely based around decisions made by judges, which are themselves referred to as the common law. However, since the emergence of Parliament, laws made in Parliament have also become a source of law. The key feature of a common law system, however, is even though Parliament enacts laws, the rulings made by judges refine and add to the law. This is true even when Parliament has passed a law on a particular legal subject, as the judges will then interpret what Parliament said. This means that to determine the law, in a common law system, previous cases, known as precedents, influence current ones. This is known as the doctrine of precedent. The Civil law system takes a different approach, based on Roman law. It is based on the concept of “codification”, which means setting out principles in comprehensive codes or statutes. The crucial difference is that legal cases are decided by applying the circumstances of the individual case directly to the codes. Previous rulings made by judges on the codes are not looked at. In other words, the civil law system places less importance on case law and does not operate a doctrine of precedent. As a common law system, the English Legal System therefore relies on both legislation, the law made in Parliament and cases, the law made by judges, as sources of law. Both legislation and cases are known as primary sources of law. Although all legislation is a primary source of law, legislation itself may be primary legislation or secondary legislation. Statutes or Act of Parliament, made directly by Parliament, are primary legislation. Secondary legislation consists mainly of statutory instruments, such as regulations, which are produced under authorisation from Parliament. GDL INTRO Systems and sources of law transcript 2023_12_01.docx Page 1 of 3 College of Legal Practice Ltd (UK ID 11734212) © Copyright 2023 (used under licence from the copyright owner) As we know, case law, also called common law, is decided by judges in court. The decisions of the higher courts are reported in Law Reports, so that they can be referred to in later cases under the doctrine of precedent. Where there is no legislation on a particular area, cases are the only source of law. These are called “common law” areas of law. The law of negligence is an example, which was created by judges in a famous case called Donoghue v Stevenson. Where there is legislation on an area, it is the role of judges to interpret it. Judges refer to previous case law as a guide to deciding current cases under the doctrine of precedent, and each case decided (provided it is by a sufficiently senior court) will add to the law and be a potential precedent for the future. As judges interpret a statute, their rulings also become part of the law under precedent, so an area regulated by statute in time becomes regulated by case law as well. Statutes, where they exist, are superior to case law. This does not mean that case law is not important, but simply that under the UK constitution, judges must interpret Acts of Parliament, they are not able to ignore them, rewrite them or overrule them. Here is an example of how statute law and case law interact under the common law system and the doctrine of precedent. A care order is an order whereby a local authority assumes legal responsibility for a child, in cases where the child is at risk from their home environment. Part of the test for this is known as the threshold test, found in section 31 of the Children Act, which states that the child concerned is suffering, or is likely to suffer, significant harm. Take a moment to look at this test and consider which if any of these words might be open to interpretation. In fact, almost all these words have been interpreted either by statute or case law. The Children Act itself provides additional definitions of: Child as “a person under the age of eighteen” (section 105) harm as “ill-treatment or the impairment of health or development (in section 31(9)) and each of these words is then also further defined. “likely” is defined by case law as meaning a “real possibility”: Re H & R (1996) “significant” was defined in Humberside County Council v B 1 FLR 257 as considerable, noteworthy or important. The word “is” might not seem controversial, but it arose in the context of a child who had been removed to a place of safety in an emergency and therefore was temporarily safe: Re M (A Minor)(Care Orders: Threshold Conditions) 2 AC 424 found that the use of the present tense did not mean that the child still had to be at risk at the exact moment the care order was sought. GDL INTRO Systems and sources of law transcript 2023_12_01.docx Page 2 of 3 College of Legal Practice Ltd (UK ID 11734212) © Copyright 2023 (used under licence from the copyright owner) What marks out a common law system is that under the doctrine of precedent all this additional interpretation is taken into account where relevant in future cases. So, a legal practitioner must be able to research and apply a combination of statutory law and case law in order to advise clients. To summarise: The key feature of a common law system is even though Parliament enacts laws, the rulings made by judges refine and add to the law. A civil law system, on the other hand, is based on the concept of “codification”, that is, setting out principles in comprehensive codes or statutes. GDL INTRO Systems and sources of law transcript 2023_12_01.docx Page 3 of 3 College of Legal Practice Ltd (UK ID 11734212) © Copyright 2023 (used under licence from the copyright owner)