1. The Sources of English Law
What we are concerned about in this regard is the JUSTIFICATION for the decisions reached by our various courts of law, and the principles of law applied by lawyers in relation to commercial and business practices. Laws are created by lawyers, commercial and business law is created by commercial lawyers, but it is business men and women who must abide by, apply and work within it.
There are a number of sources of English law, and this is markedly different from some other jurisdictions, eg China and parts of continental Europe. In the UK, the legal system is a COMMON LAW LEGAL SYSTEM, as opposed to a CIVIL LAW SYSTEM.
It is perhaps easier to define a civil law system first, in that a civil law system is a written and accessible set of laws that cover all aspects of activity through codified legal principles and rules. These codified rules are usually created through the political apparatus, the court system is usually inquisitorial, not bound by precedent, and the law is administered by a specially trained judiciary with a limited authority. The judicial role is to INTERPRET the law.
Roman law was one of the first major civil law systems, and the Germanic codes that had developed from the 6th and 7th centuries in Germany were adopted by developing Asian nations from the 19th century onwards. The German Civil Code became the basis for the legal systems of countries such as Japan and South Korea, and in China, the German Civil Code was introduced in the later years of the Qing Dynasty and formed the basis of the law of the Republic of China. So in China, in simplistic terms, the law is created by the Legislative Branch of government, the National Peoples Congress and is applied and interpreted by the Judicial Branch of government, the Supreme People's Court being at the top of this hierarchy, and Basic People's Court at the bottom.
In the Common Law legal system of the UK there are a number of primary sources:
(i) Common Law
(iii) European Legislation
Sometimes also referred to as CASE LAW, this is judge-made law, a body of legal principles that are made by our judges on a case by case basis. This practice has developed over the centuries in England from the time of the Norman Conquest (1066). Local customary law was gradually brought together as the government and administration of the various parts of England and Wales was centralised in London in one parliament and one supreme court. Knights originally, then judges would travel around the country from London, hearing cases and recording their decisions so establishing a set of PRECEDENTS and a unified system of law. This became known as the COMMON LAW – a law that was common to all, applied to all men in all parts of the country.
An area of law that still to this day remains based in principles of common law is the law of contract, and this will be one area of law we will be considering in our studies this semester. While there is some statute law in the law of contract, most of the fundamental principles of how we create interpret and administer contracts at law in England, are to be found in common law, judge-made case law.
For example, it is a rule in the law of contract that, in general, only the parties to a contract can sue for breach of contract. A third party, C, cannot sue for a breach of a contract made between A and B. This is known as the COMMON LAW DOCTRINE OF PRIVITY, and as discussed in the case of Tweddle v Atkinson (1861). In this case, the father of the bride and the bridegroom entered into an agreement to pay the groom certain sums when he had married the daughter. On the marriage, one father refused to pay the groom and the court decided that the groom could not sue for breach of contract because he was not a party to the contract - even though he was obviously mentioned in it and had benefits under it.
(ii)Statute Law or Legislation...