Chapter 2 Guidance to answering the practical exercises

Legal systems and sources of law

Q1: Why is the English legal system such an ‘unusual case’?

To answer this, it is necessary to ask what we mean by ‘unusual case’. In the chapter you have read about a multitude of overlapping jurisdictions, some of which incorporate four different types of law, the boundaries and hierarchies of which are not easily resolved. Whilst every jurisdiction will have its own peculiarities, this one is more peculiar than most.

You may have come to your own conclusions but one reason must be that England & Wales (and related jurisdictions) have not witnessed anything akin to a ‘revolution’ since 1688. Even in 1688, the judicial system was largely undisturbed. So since that date, changes have been absorbed by often ad hoc evolution. Some institutions (like the King’s Bench, and the courts of Chancery) gradually developed in an unbroken history since the 11th and 14th Centuries respectively. The nature of the state has evolved over a similar period, and the state that now is part of the EU and has a Human Rights Act is a mutated version of the Kingdom of England seized by William the Conqueror in 1066.

No one, not even the new regime of 1688-9, has seen fit to ‘start afresh’, since William the Conqueror in 1066 (although the Commonwealth of 1649-60 did install a new political system). What exists now is a patchwork state blending many adaptations and add-ons. The legal system reflects this synthesised characteristic.

Q2: Can we understand the English legal system without properly knowing its history?

In short, not in any detail. There are many examples where a comprehension of the history of part of the legal system helps the student or the lawyer. Here we list a few:

  • Common law and equity: to understand why the relationship between these two types of law works, you need to understand why equity developed in the first place. After all, if you were to design a legal system from scratch (without a pre-history of equity as in the US), it would be unlikely to include a concept of equity. Only then does it make sense that you can have two overlapping bodies of case law, one of which is notionally more flexible than the other.
  • The idea that the Supreme Court considers civil litigation from Scotland and Northern Ireland, and is therefore the only UK-wide court. This is because of the special circumstances prevailing when Ireland was annexed and then later partitioned, and when the crown of Scotland was joined to the crown of England, with the two kingdoms later united. So the legal traditions prevailing outside England & Wales needed to be preserved.
  • The fact that UK legislation has not, until recently, been interpreted purposively (see chapter 4). In addition, the idea that, whilst the jurisprudence of the Court of Justice of the EU is binding in English courts, that of the European Court of Human Rights is not. These are accidents of history. England has inherited civil law jurisprudential techniques from the EU, and the UK acceded to the EU, but merely signed the European Convention on Human Rights. We explore these concepts more in chapter 5.

Q3: Is there an argument for dispensing with ‘equity’ altogether? Is it an anachronism?

In (2) above we explored the idea that equity seemed a bit unnatural. At 2.3.3, you may have read that India turned its back on equity in 1963. It is possible to excise it from a legal system. But it may not be easy. The fact that the word ‘equity’ has so many modern meanings evidences the deep-seated nature of the concept in many common law jurisdictions. Not only the law of remedies, but also the law relating to ownership of property, is tightly bound up with the law of equity.

So, yes, it may sound anachronistic, and it may indeed be esoteric to someone not accustomed to using it, but it is still a central concept in the law of England & Wales.

Q4: Can there be too much legislation on the statute books?

The answer to this question must be ‘yes’, but for two reasons, one functional, the other ideological.

Functionally, there must come a point at which legislation becomes so overwhelming that it is difficult to use it all. The risk of overlap and contradiction becomes greater. It would also entail ever increasing use of court or tribunal time to decide on disputes generated by such legislation.

Ideologically, laissez-faire politicians tend to dislike regulation. They like people to be self-motivating and free to do what they want within limits set by minimum standards. Regulation is created normally by various types of legislation (see chapter 4), and so legislation is seen by many laissez-faire thinkers as only sometimes a necessary evil.

In his Road to Serfdom, Freidrich Hayek, the pre-eminent free-market thinker, stated, “The state should confine itself to establishing rules applying to general types of situations and should allow the individuals freedom in everything which depends on the circumstances of time and place, because only the individuals concerned in each instance can fully know these circumstances and adapt their actions to them ... Hence the familiar fact that the more the state “plans”, the more difficult planning becomes for the individual.” 

Such thinking is certainly not universal, and many (more left-leaning) thinkers and politicians see regulation as an important instrument of state in maximizing collective economic output and setting important minima for standards of living.

Q5. Is International law really ‘law’?

In 2.5 we saw that Public international law comprises a system of rules and principles that govern the international relations between sovereign states in addition to some other institutions such as the United Nations (‘UN’).

In chapter 1 we saw that law is a body of rules which a state recognizes as governing the actions of its subjects. In international law there is no sovereign body that legislates to bind states in the way that a sovereign body in a state binds the actors in that state (its citizens for instance).

Some legal theorists argue that ‘international law’ is a misnomer because it is not ‘law’ in the strict sense. However, all states conduct themselves on the assumption that the rules comprising international law are in some sense binding, even if they choose to flout or sidestep them. There are different academic analyses of why international law is binding, but most rest on the idea of consent. In much the same way as individuals enter a contract by consenting to be bound, states consent to be bound by treaties.

International law is enforceable in various international courts, most notably the UN court, the International Court of Justice (ICJ). There may be courts mediating between states but there are few institutions to enforce international law. There is no police force and no army. Usually international law relies on international pressure to give it heft, and as we saw in Chapter 2 this is deficient if the realpolitik is not in favour of enforcement. Consistent pressure from other states coupled with economic incentives does not always work.

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