English Law
Introduction
Every country in the world develops its own legal system. There are no identical legal systems. This applies even in countries that are very close nationally, economically, geographically, and even socially. There are Western legal systems, systems of Asian legal systems of the people of Africa among others. By meaning in the history of legal systems, we have to distinguish continental and Anglo-Saxon system. The Anglo-Saxon system developed independently without significant influence Roman law. The Anglo-Saxon system first developed in England and thereafter spread in English-speaking countries. The Anglo-Saxon legal system, unlike continental, was not insisting on the codification of law. Written laws are not the primary element of the legal system. However, they are at the forefront of custom and case law.
Anglo - Saxon law
The Anglo-Saxon legal system, which is also referred to as the common law system , was developed independently from the tradition of Roman law , the general principles of the traditions of English common law, and various court decisions known as precedents case law. This system is typically meant for England (UK) and the United States. Different authors of course have a different approach. Edwin Patterson defines them as acts and statements of official authority. He argues that one has the value or law which gives legal recognition rules that this kind of authority did not have. The political division of power in the modern era has the authority the legislature and judiciary. More specifically, Edgar Bodenheimer equates the sources to formal legal rules that generally derive their strength. These legal sources are in fact laws ratified by international treaties and other agreements, orders and decrees of the executive power, judicial opinions, and court rules. Because of the substantial significance of case law and custom, this system qualifies as a customary or common law. Common law and customary law often identifies with the system of English law as a whole. English legal system consists of three subsystems. These include: Common law, Equity law and Statute law.
Common law
England is the only country in Europe which did not come to the reception of Roman law. England retained its separate legal system outlined on the common law. They have their rights equated with the local custom in the system of law common to all people and hence it is called common law. It belongs to the family of Western legal systems. The fundamentals of the law were laid in the 11th and 12th century when the lawyers start with the transformation of primitive Germanic and Frankish law. It could be said that the English legal system was founded by King Henry II, who ruled England and Normandy in the 12th century.
The pros of the common law lie in its adherence to judicial precedent, a principle called stare decisis. This principle has its own pros and cons as far as common law is concerned. The pros of the common law are that there is certainty and predictability in the law. This, therefore, means that lawyers can advise their clients as to their legal position based on the legal principles enunciated by courts in a similar case. Despite the foregoing, it must also be recognized that common law allows for flexibility and change in decision making since precedents can be challenged, set aside and replaced by higher courts when they are found to be bad law. Another advantage of the common law is that it is responds faster than statute law.
Some of the cons of the common law include the inflexibility that is availed especially to the lower courts where it is bound by the decisions of the higher courts. This may occasion injustice when the higher courts have not set aside a precedent which is no longer good law. Further, common law can be superseded by statute law where it is in conflict with parliamentary law.
Equity law
In the 14th and 15th century it was reported that there is a collection of material and process rules known as equity or equity entitled. Then the royal courts of general become too strict and formalistic. The right of due process has been strengthened through a general agreement that the right is not acknowledged. The most essential case is a trust, that is when someone else sends its assets in trust for the benefit of a third party, but equity acted only in those cases where the common law remedies are inadequate.
Statute law
This is the third most significant historical source of law. From 15th century, the main source of English literary rights legislation was the statute law. It should be noted that the term legislation, which refers to a particular form of law, has a different use, which usually highlights. Paterson asserts that the term is used in a wider sense than the term statute law. On the other hand, it is narrower than the law making which include the creation of rights in the judicial decision-making. The term judicial legislation or law court, which is used by many authors, was incorrect in his opinion. He considers it correct only when it is limited to the rules of court that govern judicial proceedings.
Likewise, William Blackstone defines common law as well as common customs of the kingdom. He asserts that unwritten or common law can be perfectly divided into three types. The first types are General customs rules that are universal throughout the kingdom and make common law in its stricter and more usual sense. The second type refers to Specific customs related to the residents of particular areas. The third type refers to Common tailored specific laws that are applied in special courts of general jurisdiction and quite broad. General customs of the kingdom in terms of Blackstone`s Allen is equated with the fundamental principles of the legal relationships which are usually not found in the express language. It aids in shaping and bringing a real appreciation of the traditional principles of the common law. The result is far-reaching and fruitful idea of the rule of law.
As opposed to the common law, statute law is a product of the Legislature. It denotes the enactments or creations of Parliament. Some of the pros of statute law include the easy access to the general public compared to the common law. Further, statute law passes through a rigorous scrutiny process of debate and consultation which involves public participation before being enacted and is thus more democratic. Cons of statute law include the fact that the laws are created by politicians who are not the best suited in terms of expertise. Further, the enactment of laws is usually preceded by long drawn out processes dominated by political agenda which may derail the enactment of necessary laws.
European Convention on Human Rights
This is the international treaty operating in Europe which serves to protect human rights and other fundamental freedoms. By virtue of their ratification and consequent domestication, states or nations become bound by its provisions as they have a legal force in their respective nations. The Convention has provisions protecting rights to life, against torture and servitude, providing for right to fair trial and privacy. Further, the convention provides for several fundamental freedoms such as freedom of association, religion, and expression among others. As such, it may be said that the pros of this treaty is that the convention has expanded the space for human rights protection and anchored the protection of fundamental freedoms.
European Union Law (EU Law)
This essentially entails the body of treaties and legislation that has either a direct or indirect effect on the laws of member states of the European Union. European Union Law is applied by member states and this is more pronounced where the rights in a particular member state are of a lesser nature than is provided for in the EU law. Some of the pros of the law are the removal of movement restrictions around EU countries and member states. Cons of the EU law include the loss of independence and identity of member states as they are obligated to meet the conditions stipulated by the law. More so, the disparity in economic differences between the economically superior member states forces the rich states to suffer for the mistakes committed by the relatively lesser wealthy nations. Further, the process of legislation of EU law is usually slow, complicated and lacking in flexibility.
References
A, A. (2003). Law for Business Students (Illustrated ed.). Harlow: Pearson Longman.
Bantham, E. W. (1974). On the Nature and Method of Law (Revised ed., Vol. 3).
Blackstone, W. (1813). Commentaries on the laws of England. London: Apollo Press.
Bodenheimer, E. (1974). Jurispudence. Cambridge: Harvard University Press.
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