Historical and political background

In order to understand why a particular country has a particular legal system, it is necessary to look at its history, political structure and social values. When there is political and social upheaval, one of the main concerns of a new government is to revise the legal system. Britain has had an unusual degree of political continuity. Despite civil wars in the fifteenth and seventeenth centuries and enormous social changes associated with industrialization, England and Wales have retained many laws and legal principles that originated eight centuries ago.

There are two main traditions of law in the world. One is based on English Common law, and has been adopted by many Commonwealth countries and most of the United States. The other tradition, sometimes known as Continental, or Roman law, has developed in most of continental Europe, Latin America and many countries in Asia and Africa which have been strongly influenced by Europe.

Where does the law come from? Where does it start? Who makes it? In English law the law comes from two main sources, legislation (Acts of Parliament) and judicial precedent (the decisions of judges), and from subsidiary sources such as custom and books of authority.

If a person is accused of breaking the law, it is essential that all interested parties know the source of the law. For example, if a person takes goods out of a supermarket without paying, the shopkeeper, the police, the judge and the shopper will need to know the law that applies if the shopper is to be brought before the court. This particular offence arises from legislation. Parliament passed a law in l968 (the Theft Act) which makes it a crime for a person to "dishonestly appropriate property belonging to another with the intention of permanently depriving the other of it.”

There is a maxim in law "that ignorance of the law is no excuse," which means that everyone is presumed to know the law. Obviously no single person knows all the law of the land.

Even judges, barristers and solicitors have to look up the law, but because of their training they know where the law originated and are able to go to the source.

The details of the different sources of law are as follows:

JUDICIAL PRECEDENT

Judicial precedent, or case law as it is often called, is the source of a large part of common law and equity. The law is "judge-made," in that when a judge makes a decision in a court case on a particular aspect of law, other judges may be bound to follow this decision in subsequent cases. Once the law has been established, the example or the precedent is binding on other judges, who must make a similar decision in cases concerning this aspect of law.

The doctrine of judicial precedent became firmly established by the late nineteenth century, although a system of precedent existed for hundreds of years before that. It was not until a reliable system of law reporting was started in 1866, and the administration of the courts was re-organised by the Judicature Acts 1873-75, that judicial precedent became an established source of law.

STARE DECISIS (THE STANDING OF DECISIONS)

Not all decisions of judges create a precedent. Some courts are more important than others. The higher the court which creates a precedent, the greater the authority the decision will have. A general rule is that lower courts are bound by decisions of higher courts, and some courts are bound by their own previous decisions. The hierarchy or standing of the courts is as follows:

The House of Lords

The House of Lords is the highest appeal court in civil and criminal matters, and decisions of this court are binding on all lower courts. Unlike most other courts, the House of Lords is not bound by precedent and may depart from their own previous decisions if they wish to do so, but if a precedent is to be reversed consideration should be given to the effect it would have, particularly on criminal law and commercial and business transactions.