Sources of English Law

Sources of face Law By Christopher Richards 9/11/09 Executive Summary In this report I pull up stakes be discussing the English Legal System, its structure and its primary tooth roots. English impartiality and its ratified structure lay d experiences the basis of many an(prenominal) countries commonality practice of law legal system, this includes virtu all(prenominal)y commonwealth countries and the United States. English law falls into both roomy categories Civil law derived from Roman law, it is applied when wrongs amaze been made against individuals it is likewise know as a claim or an action.Criminal law jump instrumented assumeing the Norman Conquest of 1066, Its offences relate to wrongs against space and, or persons which affects the whole community, it is often referred to as prosecution.. I forget explain w here(predicate)fore the methods and tools of statutory make upation be necessary for the correct implement of rules and how juridical president formed the backbone of English common law. Introduction The English legal system stems from The Norman Conquest, William of Normandy invaded Eng charge in 1066 and upon successfully defeating his adversary he gained the crown of England.William formed the fist basic government The Kings Council(Magnum Concilium) comprised of Lords, Bishops, Barons and other trusted figures Whos advice which the monarch relied on. Introduced the separation of lay woos and perform woos with a screen jurisdiction evanesceing to church law i. e. clergy were act in in that respect own courts. As the Monarch William owned all of England with lords, bishops and barons possessing land as tenants or sub tenants, this prompt the introduction of feudal system of land tenure and judicial activity. Common law would be conventional by settle discussing conduct and behaviour throughout the land, still at this point no legislation was ever written down. Further changes arise, these includes the attainmen t of object lesson law setting reason through facts of similar elusions that bring forth already been watchd so that it kindle be calculated equally, extraly the hierarchy of attach precedents and court structure. Statutory Interpretation Some statutes keep a vague or misleading wrangle or words many with homonyms which fuck come the process of implementing the correct ruling a difficult one,A few atomic number 18as to look at argon a Broad shape ( spoken language that ar employ to cover many possibilities), Ambiguity (were the word has two or more means and its non defining in which one should be employ), a drafting error (an error that was made when drafting the acme or when it was amended), new developments (developments in technology means that old acts whitethorn not cover evidence day situations) and use of language( spoken language that have changed in meaning over time), this is why statutory interpretation as a tool is so important, it allows prono unces to look at statutes and withhold the true reasoning behind it, there argon three methods which are utilise to do this.Literal Rule This is the most commonly used construction and takes precedent over the appraiseing approach patterns it means to take words written into the statute literally in the sense that if the words are clear then they should be applied. The literal recovers had been scrutinised by many lawyers, and guess to be a rule against using intelligence in taste language. Anyone who in ordinary life interpreted words literally, be torpid to what the speaker or writer meant would be regarded as a pedant, a mischief-maker or an idiot.An typeful of this is in the Hotel Proprietors act 1956, it provides that the hotel owner is liable for loss of or damage to guests property, unless does not filtrate to guest vehicles or property left therein , so does the proprietor fall liable to property left on, rather than inside the vehicle ? Interpreted literally yes, the proprietor is liable, because if the act had intend to exclude property left on a vehicle the act would have utter therein or thereon so great care essential be applied when using this rule. The Golden RuleThe deluxe rule is very much a modification to the literal rule, whereas instead of taking the literal meaning the courts will use a narrow or a great approach of interpreting the word to avoid an ill-advised result. If the Narrow approach is applied it would usually be because the word themselves lead to an absurd result for example if there is a sign that say do not use lifts in scale of a prove interpreted literally it would mean to never use lifts, in case of a fire which would lead to an absurd result but clear it is to prevent people from using the lifts if there is a fire nearby.The wide approach is were the word has only one meaning but the meaning could result in a repugnant situation, the wider golden rule would be applied to modify the words in the st atute to avoid an partial result this is shown in the case Re Sigsworth (1935) A son had polish off his mother then committed suicide, The mother had not made a will and under the Administration of justice act 1925 the son would been authorise to her inheritance, the decision had to be made weather her inheritance was to passed onto the mothers family or her son, there is no ambiguity of the act so due to the circumstances the umpire used to golden rule to favour the mothers family rather than the son benefiting from his crime. this rule is favoured by Lord Wensleydale in the case of Grey vs.Pearson (1857) he stated In construing statutes, and all written instruments, the grammatical and ordinary sense of the words is to be adhered to, unless that would lead to some absurdity or inconsistency with the occupy of the instrument, in which case the grammatical and ordinary sense of the words whitethorn be modified, so as to avoid that absurdity or inconsistency, but not farther. T he Mischief rule This third rule gives a judge more discretion than either the literal or the golden rule. This rule requires the court to look to what the law was before the statute was passed in order to discover what gap or mischief the statute was intended to cover. The court is then required to interpret the statute in such a way to ensure that the gap is covered. The rule is shown inHeydons Case (1584), where it was said that for the true interpretation of a statute, four things have to be considered 1. What was the common law before the making of the Act. 2. What was the mischief and defect for which the common law did not provide. 3. What remedy Parliament hath resolved and appointed to resume the disease of the Commonwealth. 4. The true reason of the remedy, and then the office of the Judges is to make such construction as shall suppress the mischief and advance the remedy. An example of the mischief rule in use is found in the case of Corkery v Carpenter (1951). In 1951 Shane Corkery was sentenced to one months imprisonment for being inebriated in charge of a bicycle in usual.The defendant was drunk and was pushing his pedal bicycle along Broad Street in Ilfracombe. He was charged under section 12 of the Licensing Act 1872 with being drunk in charge of a carriage. The 1872 Act made no reference to bicycles. The court elected to use the mischief rule to find out the matter. The purpose of the Act was to prevent people from using any form of transport on a public highway whilst in a state of intoxication. The bicycle was a form of transport and therefore the exploiter was correctly charged. Purposive approach This rule exceeds the mischief rule by not just looking for gaps in statutes but for resolve to decide what parliament actually meant to achieve.One of the true supporters of this rule is Lord Denning, his placement towards this rule is shown in the case of Magor and St Mellons v Newport Corporation (1950) We sit here to find out the int ention of parliament and carry it out, and we do this break off by filling in the gaps and making sense of the enactment than by opening it up to destructive analysis This approach does have its drawbacks and many a judge has voiced its shortcomings saying that, should judges refuse to follow the clear words of parliament and how do they know what parliaments intentions were? Summary Statutory interpretation as tool is paramount, without it, statutes that were written blow years ago just wouldnt be able to be implemented unless statutory interpretation was used. It allows judges and Lords the flexibility to look into statutes and decide whether it is still fair to implement, to break down statues and to interpret how they were received intended, additional if bills have been written incorrectly the judge can use statutory interpretation to avoid absurd results and not make a travesty of the English Legal System. Rules of LanguageEiusdum generis (of the kindred kind) In addition to the rules above, the courts likewise rely on rules of language to aid in statutory interpretation. Firstly, eiusdum generis Latin for of the same kind, used to interpret loosely written statutes. The general words are to be taken as referring only to those things of the same course as specifically mentioned e. g. cats and dogs does not include wild animals. There moldiness be at least two specific words in a list before the general word or phrase for this rule to operate. (the phrase theatre or other place of public entertainment includes a funfair even though it was not of the same kind as theatres).Expressio unius est exclusio alterius (the mention of one thing excludes others) This is when one or more things of a particular class are mentioned but others may be silently excluded this can be seen in the case of tempest v Kilner (1846) the court had to decide whether stock and shares were affected by the statutes of invention 1677(which states that the contract of goods, w ares and ware of the value of ? 10 or more mustiness be evidenced in writing) but it was deemed that list of goods, ware and merchandise was not followed by general words(stocks and shares) and were not affected by the statute. Noscitur a sociis (a word is known by the company it keeps)This rule of language used by the courts helps interpret legislation, under which the questionable meaning of a tentative word can be derived from it association with other words. This can be seen in the case Foster v Diphwys Casson (1887), this involved a statute which stated that explosives taken into a mine must be in a case or canister. Here the defendant used a cloth bag. The courts had to consider whether a cloth bag was at heart the definition. Under noscitur a socials, it was held that the bag could not have been within the statutory definition, because parliaments intention was referring to a case or container of the same strength as a canister. Intrinsic Aids are things inside the act whi ch assist the judge to interpret or apply the law.Extrinsic Aids are things outside the act which assist the judges to apply or interpret he law. For example the judges can look at preceding acts of Parliament and the historical setting. legal precedent A judicial precedent is a decision of the court used as a source for future decision making. This is known as stare decisis (stand upon decisions) and by which precedents are dorsum and must be followed. When new cases are brought to court for the first instance and there are no previous cases to base the judgement, this is called overlord president. Binding precedent is where past judgements of a similar set of facts are implemented to help courts to keep cases fair by deciding the exit based upon previous cases.The common law has been developed by short down from precedent to precedent. In giving judgement a judge will state the law, set out the facts and then provide a decision , it is only the ratio decidendi (the legal rea soning for judicial decision)which is binding in later courts. Orbiter dicta (other things said) may be put previous in future cases but it is not binding, the difficulty is the separation of the two from past judgement as they are not usually listed separately. Judicial precedent is an important source of English law as an archetype precedent is one which creates and applies a new rule. However, the later decisions, especially of the high courts, can have a number of effects upon precedents.In particular, they may be Reversed where on appeal in the same case the decision is reversed, the initial decision will not continue to have any effect Overruled In a later case a higher court decides that the outcome of the first case was wrong. Distinguished where an rather case is rejected, either because the material facts differ or because the statement of law in the previous case is too narrow to be correctly applied to the new set of facts A refusal to follow this arises where a court, not bound by the decision, cannot bring down it but does not wish to follow it so it simply refuses to follow the earlier decision Explained a judge may seek to interpret an earlier decision before applying it, so the effect of the earlier case is varied in the circumstances of the present case. Court hierarchy and structureIn England and Wales there is a fixed hierarchy of the court system, every court is bound by a decision made by a superior court in its hierarchy and appellate courts (courts that hear appeals) are generally bound by its own decision. Courts of first instance Is where the original case was heard, The ECJ, theatre of operations of Lords, court of appeal and divisional courts do not hear any original cases as they only hear cases of appeal. European Court of Justice The ECJ is the highest court in the English Legal system European law will be decided in this court and will be binding on the rest of the courts within its structure although some laws are unswayed by ECJ and the House of Lords is supreme. One important feature of the ECJ is that it can overrule its own past decisions if deemed necessary. House of LordsIs not bound by its own decisions and is the most senior national court, its decision bind all courts set down in its hierarchy. Court of appeal Is subsequently split into two divisions, well-bred and criminal, both are bound by superior courts (House of Lords and ECJ) generally they will follow past decisions of their own but some flexibility (more so criminal division) is accepted. Divisional court Decisions are bound by the ECJ, House of Lords and court of appeal and are also usually bound by its own decisions although some flexibility similar to that of the Court of appeal can be used. in high spirits court Decisions are always bound by courts higher than them but none below.All other courts below the High Court are bound by higher courts and will not set president in subsequent cases. pic Unknown author. The C ourt social system of Her Majestys Courts Service online Available at http//www. hmcourts-service. gov. uk/aboutus/structure/index. htm accessed 16/11/09 accustom of Practice Statement Introduced in 1966, practice statements allowed the House of Lords to change a law and deviate from following earlier cases if they have been considered to have been falsely decided. There is very little guidance when implementing therefore many judges have been reluctant to use it. The first instance of its use was in the Herrington v British Railways Board(1972) this involved the law of their duty and care owed to a child trespasser.In an earlier case Addie v Dumbreak (1929) the lords had decided that the land occupier is only responsible for the duty of care to injuries of child trespassers if the injuries were deliberate or reckless. In the herrington case the lords had decided that social and physical conditions had changed since 1929 and so should the law. Summary Judicial precedent is a cru cial segment in English law, it has formed the backbone of common law by expiry rulings from president to president, binding or none binding and has given Judges and lords the power to keep every case fair through binding president and in the eventuality of changes (social circumstances, politics, technology) it can use it to adapt and give-up the ghost with the times accordingly. European Court of Justice