The English law of the present day is the culmination of a long tradition of revision, appraisal and amendment. Historically, what comes to be passes as law is derived and influenced by a range of sources. The following essay will capture a brief outline of these sources in their order of importance.
European Community Law:
Britain has always been under the cultural and political influences of continental Europe. The domain of law is no exception to this rule. The number of legal words and phrases that are of non-English origin is a reflection of the importation of European law. For instance, such phrases as “status quo”, “de novo”, etc are of continental origin. So, the historical trade and fraternal relationships between different European Kingdoms have imposed a common sense of ethic across the European landscape. Any comparison between different Constitutions of present day European nation states will reflect this fact. The efficiency and effectiveness with which the European Union functions, in spite of barriers of language, is further proof of this commonality. Hence, it could be emphasized that the common European historical links have the most profound influence in the shaping and evolution of English law (Holdsworth & Burke, 1903).
In the legislative arena, Parliament is “legally sovereign”, implying that the stamp of approval from the elected representatives can overturn, modify or nullify any existing legislation. In this respect the processes and the entities that are involved in making legislations have special importance for English law in particular and all parliamentary democracies in general. The legislative procedures also serve as a platform for constructive debate on various interpretations of the letters of the law, thereby making the meaning and intent more lucid. Although the role of interpreting the law is usually attributed to the grand jury, legislative processes can make the scope of such interpretations narrower and not prone to abuse (Scaman, 1975).
Customs & Traditions:
While the parliament and other legislative bodies provide sets of rules and regulations that are written down, “custom and tradition” indicate laws that are unwritten. Though these aspects depend on antecedents and are generally based on a historical perspective of the trial at hand, they tend to represent the moral fabric of the English society. In this sense their role as an important source for guidance and reference is very valuable. They also help eliminate ambiguity in the face of varying interpretations. They are sometimes referred to as the “unwritten” laws of the British Isles (Scaman, 1975).
Custom is not confined to cultural tradition but also legal precedents. The employment of Legal precedents in adjudicating similar cases serves a very useful purpose. In English judicial history, the decisions of courts are always regarded with respect. Hence, subsequent courts have tried to match the lofty standards set by the preceding courts. This is done by adopting the same framework of adjudication that the previous courts followed. Having said so, the customary reference to precedents does not hinder, restrict or predetermine the present case. In other words, judicial precedents and customs are open ended. The precedents formed by decided cases are, as famously noted by Bacon, the “anchors of the laws”. The following passage further emphasizes the import of Custom: “Customs are social habits, patterns of behaviour, which all societies seem to evolve without express formulation or conscious creation. In a sense custom should be accorded pride of place as one of the principal sources of law for much, if not most, law was originally based upon it. Moreover custom is not solely important as a source of law, for even today some customary rules are observed in their own right and they command almost as much obedience as rules of law proper. (Holdsworth & Burke, 1903)”
It should not be assumed that the process of administering justice based on precedents and customs is an automatic and mechanical process. This is where the utility of case laws comes to the fore. The judges usually have a field of choice in making their decisions. But this is not to say that they exercise their discretion in a random and arbitrary way; rather “they rest their judgments upon the general principles enshrined in case-law as a whole. Case-law does not consist of a blind series of decisions, but of reasoned judgments based upon rational principles” (Scaman, 1975). Generally, these principles have gradually been given shape by the English courts, going a long way back. By making the case laws sufficiently general in scope, it serves as a valuable tool for lawyers giving advice in legal disputes.
Text Books are another valuable source of English Law. Such books as Introduction to English Law by Philip James, De Legibus et Consuetudinibus Angliae by Bracton, Institutes by Coke (seventeenth century) and Blackstone’s Commentaries (1765) are some prime examples of textbooks that provide much of the substance for English law. Having said so, it must also be added that in contemporary societies, “the established tradition appears to have been breaking down, because many textbooks are now in practice constantly cited in the courts, though only the best of them are likely to command attention” (Scaman, 1975). Hence, for instance, the Law of Torts written by Salmond is frequently referred in courts of today, alongside other authors of the present era.
Lord Scaman, English Law: The New Dimension, published by Baron, 1975.
William Searle Holdsworth & John Burke, A History of English Law, published in 1903.