Research Proposal on "Rules Rights and Justice"

Research Proposal 6 pages (2141 words) Sources: 2

[EXCERPT] . . . .

English legal system:."... The law is never static, it is always changing, being reinterpreted or redefined, as regulators and judges strive with varying degrees of success to ensure that the law constantly reflects changes in society itself..." (Harris, 2007). While analyzing the above-mentioned quotation, I shall also outline in the paper the nature of UK law and its main sources, discuss the ways in which UK law can change, and explain the relationship between law and social change with examples of changes in different types of laws.

The Nature of UK Law and its Main Sources

The English legal system has evolved gradually over several centuries and has had a profound effect on the legal system of most of Britain's former colonies including the United States. This phenomenon of gradual evolution of law, by itself, explains in part the truth about the non-static, ever-changing nature of law. The different ways in which law is developed or created are referred to as sources of law.

Historically, the most important sources of law were customs and decisions of judges. As the British Parliament became more powerful in the 18th and 19th centuries, Acts of Parliament became the main source of new laws but judicial decisions continued to be important as they interpreted the legislation created by the Parliament and filled in the gaps in statutes.

Customs: Customs are 'the rules of behavior which develop in a community without being deliberately invented' (Martin, 2005, p. 14). Historically, customs are believed to have been very important in the development of law and form the basis of 'common law' in the English legal system. Following the Norman Conquest in 1066, the judges appointed by the kings traveled around the country making decisions in the King's name and it is believed that at least some of these decisions were based on common customs. Apart from ancient common customs that have become part of general law in UK over the years, certain local customs are still recognized as enforceable law, which are applicable only in a particular area. However, before a local custom is recognized as law, it has to pass a series of rigorous tests including its existence since 'time immemorial'; the peaceable, open and rightful exercise of the custom; its definite and local nature and scope as well as the reasonableness of such local customs (Ibid., 15).

Common Law: The unwritten law that eventually developed from the customs and judicial decisions following the Norman conquest has come to be known as 'common law' and forms the basis of the current UK law. Initially, the judges who traveled around the country used local customs and the old Anglo-Saxon laws to decide cases. On their return to Westminster in London the judges discussed the cases, gradually selecting the best customs which were then used by all judges throughout the country; thus laying the basis of a uniform or 'common law' for the country. Common law, therefore, refers to law developed by judicial decisions and is distinguished from laws that have been created by legislative bodies such as the Parliament. For example, murder in UK law is a common law crime while theft is a statutory crime.

Equity: Common law (rules developed by the King's courts) is also distinguishable from the rules of Equity which were developed by the Lord Chancellor and the chancery courts. Equity developed due the overly technical nature of common law. People who felt that they were not getting justice from the common law courts appealed directly to the King who created the institution of the King's Chancellor for the purpose of providing justice on the principle of natural justice, fairness and what seemed 'right' rather than on the strict adherence to legal precedents (Martin, 16-17).

The Doctrine of Judicial Precedent (also known as case law) refers to the source of law where past decisions of judges create law for future judgments. It forms a major source of law in the English judicial system and is based on the Latin maxim stare decisis. A major advantage of this type of law source is that it promotes certainty in law; this, in turn, enables people to know with a fair amount of certainty how a court is likely to apply the law in a particular case. It also promotes consistency and fairness in law as similar cases are decided in a similar way when the doctrine of precedent is applied. On the other hand, judicial precedent makes law inflexible to some extent since lower courts are bound to follow the decisions of higher courts and the Court of Appeal has to follow its own previous decisions. It also makes law more complex since there are nearly half a million reported cases and it is a formidable task to find a relevant case law. Moreover, in several cases, it is difficult to extract the ratio decidendi. (Martin, 34-35) in order to lessen rigidity in law and to promote flexibility and development of law, the Lord Chancellor issued the "Practice Statement" in 1966 which allowed the House of Lords to depart from previous decisions when 'it was right to do so.'

Acts of Parliament it is quite evident that judicial law-making through precedents alone would not serve the purpose of making major changes in law or to cater for the requirements of a fast-changing modern society. Law-making by judges is also, arguably a non-democratic method since judges are not elected by the people. Hence, the main legislative body that now makes new laws is the Parliament. In UK, the Parliament consists of the House of Commons and the House of Lords and when a Bill is passed by both the Houses, it becomes an Act of Parliament and is considered to be the law of the land. Parliamentary law is sovereign over other forms of law in UK such as a custom, judicial precedent, delegated legislation or previous Acts of Parliament. The concept of sovereignty of Parliamentary law is based on the supremacy of democracy: since an MP is elected directly by the voters in a constituency, the MP is in theory representing the people while making a law. The critics of this theory, however, point out that the MPs usually vote along Party lines rather than to fulfill the wishes of their constituents; many MPs are elected by a small majority; most bills are drafted by unelected civil servants rather than the MPs; and finally, the House of Lords is not an elected body but participates in passing Parliamentary laws.

Delegated Legislation: Delegated legislation is law made by some person or body other than Parliament but with the authority of the Parliament. Such 'authority' is granted by the Parliament through a "parent Act" also known as an enabling Act which creates the framework of the law and then delegates power to others to make more detailed law in the area. The need for delegated legislation has arisen because the Parliament does not have the time, technical expertise or the knowledge to consider and debate every small detail of complex regulations. In addition, Parliaments may not be able to pass law quickly in emergencies while delegated legislation can be promulgated quickly. Such laws can also be amended or revoked easily when required. Disadvantages of delegated legislation include its undemocratic nature and lack of publicity since such legislation is usually enacted in private rather than the publicly debated Acts of parliament.

European Law: European Law has become an increasingly important source of law in UK ever since the country joined the European Economic Community in 1973. The sources of European law include the primary sources, consisting mainly of the Treaties, and the secondary sources, i.e, the legislation passed by the Institutions of the Union under the Treaty of Rome. The most important characteristic of European Law is that it takes precedence over domestic law of its member countries.

Relationship between Law and Social Change

There is a direct relationship between law and social change as in most countries and eras laws are changed to reflect the changing moral and social values. Some of the early major civilizations did attempt to produce a complete set of codified rules designed to deal with every possible situation. The Codes of Hammurabi in ancient Babylon and the Justinian code in Roman times are pertinent examples. More recently, Frederick the Great of Prussia and Napoleon Bonaparte of France also compiled a set of codes which were purported to be a set of ideal laws that do not need to be changed. Although such a set of unchanging laws have their advantage as people in a society know exactly what their rights and obligations are, they cannot remain unchanged for a prolonged period since laws must eventually keep pace with changes in society; otherwise laws would start hindering rather than serving the society.

In most cases, the responsibility for changing the law with the changing values of the society and the needs of the times lies with the Parliament as its members… READ MORE

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