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Custom, Equity and Books of Authority
Although it does not have a constitution per se, the United Kingdom does have an elaborate system of laws in place that help maintain and protect the interests of its citizens. Although the specific origins of many of the laws that are followed in the U.K. are based on common law, other sources of law can include longstanding custom, equity and books of authority that date to antiquity, causing some observers to question whether these sources remain relevant in the 21st century courtroom. Through the use of judicial comment, academic comment and case law, this paper provides a review of the relevant literature to determine the relationship between these historical sources and whether such historical sources have ceased to be a form of law within the English legal system today. A summary of the research and important findings are presented in the conclusion.
Review and Analysis
In the United Kingdom, the most important source of law for most applications is the common law. For instance, O'Reilly (1994) reports that, "The common law system has maintained the upper hand in England and has helped shape that nation's -- and later the United States' -- system of limited, democratic government and accusatorial criminal procedure."
According to Black's Law Dictionary, the common law is "distinguished from statutory law [that is] created by the enactment of legislatures" and "comprises the body of those principles and rules of action, relating to the government and security of persons and property, which derive their authority solely from usages and customs of immemorial antiquity, or from the judgments and decrees of the courts recognizing, affirming, and enforcing such usages and customs and in this sense, particularly the ancient unwritten law of England."
With respect to its relevance today, Mirfield (1997) suggests that, "Judicial equivocality about the common law position has come to the surface in a number of cases."
In support of this assertion, Mirfield (1997) cites the enactment of sections 34, 36, and 37 of the Criminal Justice and Public Order Act 1994 that seemingly allow direct adverse inferences to be drawn that are based solely on defendants' pre-trial silence where there were none in which they could be drawn at common law. Consequently, based on his interpretation of judicial comments from Sullivan (1966) 51 Cr.App.R 102, Mirfield maintains that the common law has continuing relevance in the 21st century for two fundamental reasons:
1. It is almost impossible to understand the statutory changes without knowledge of what it was that was changed.
2. Section 34(5) (b) preserves the common law to the extent that it did permit inferences to be drawn from the silence or other reaction of the accused. It follows that, even where no statutory adverse inferences is permissible, the judge will have to consider whether or not any common law inference may properly be drawn.
The net effect of these changes for the legal system has been to generate judicial commentary concerning the applicability of defendants' refusal to testify as a reflection of their guilt. In this regard, O'Reilly reports in "Right to Silence. Lessons from Northern Ireland, 1991 Crim L. Rev 404, 405" that, "At common law, judges have been permitted to instruct the jury that, where the accused does not testify, 'it means that there is no evidence from the defendant to undermine, contradict, or explain the evidence put before you by the prosecution. [However, you still have to decide whether, on the prosecution's evidence, you are sure of the defendant's guilt!'"
Black's Law Dictionary defines custom as a "term [that] generally implies habitual practice or course of action that characteristically repeated in like circumstance."
Over the years, the term custom has been used with categories of law including (a) public international law, (b) the custom of the constitution, and (c) the common law itself.
The relationship between custom and the other sources of law of interest is described by Loux (1997) as being essentially on the same level as the common law. For instance, Loux (1997) reports that, "[Custom] is the doctrine by which ancient customs practiced by a definite community in a distinct geographical locale, though contrary to the common law, are recognized by royal judges to constitute local common law for the land and people of the region."
(p. 183). Likewise, citing E.P. Thompson (Customs on Common 97, 1991), Loux adds that, "At the interface between law and agrarian practice we find custom. Custom itself is the interface, since it may be considered both as praxis and as law."
In support of his assertions that custom is on par with the common law in the 21st century courtroom, Loux (1997) emphasizes the truly ancient sources of custom as a source of law: "Custom is law that arises from the immemorial usage of the community. At once different from, yet coequal with, the uniform common law, custom is not created by royal judges: it is judicially noticed by them."
Finally, Loux (1997) even maintains that the sources of all customs that have been held valid today are lost in the mists of time but still have relevance today: "The significance of custom is not merely that it is law from a time before legal memory, but that it is law 'from below': its origins and legitimacy derive from the praxis of the community. All customs found valid at law, in theory, had their origin before the time of legal memory."
The legal definition of equity is "justice administered according to fairness as contrasted with the strictly formulated rules of common law."
According to Allan, "In the criminal law, the principle of legality is of special importance. No one should be convicted of an offence whose constituents were not clearly determined before he acted: nulla crimen sine lege."
In this regard, Allan cites A.T.H. Smith, "Judicial Law Making in the Criminal Law" (1984) 100 LQR46 and notes that this principle establishes significant constraints on the interpretation of both common and statutory laws but goes on to emphasize that, "On the other hand, equity plays a central role in the administration of the criminal law. In particular, the rules of procedure and evidence are adjusted to meet the overriding requirement that the defendant should be fairly tried."
In R. v. Brophy (1982) AC 476, the relationship between the common law and equity in the 21st century UK courtroom was also made clear: "An important consequence of the interplay between legality and equity, in the context of the criminal trial, is that the common law repudiates a notion of 'fair trial' based solely on formal procedures. The judge's duty to ensure a fair trial commits him to determining the justice of the defendant's treatment prior to arraignment, where the conduct of police or prosecution is impugned."
In addition, Allan cites Lawrie v. Muir 1950 SLT37 in support of his assertion that, "A formal account of the rule of law would emphasize the importance of conformity to settled rules. But it would be a distorted account of the doctrine, as it applies to the English (and Scottish) criminal trial, if it omitted the influence of equity."
Books of Authority
The term "books of authority" is used to describe a body of texts that are relied upon as authoritative sources of law based on the credentials and credibility of their authors alone.
Over time, the views expressed in such books have been distilled and further codified into an alternative set of guidelines that can and have been used by the courts to achieve more equitable resolutions.
Although many of the books of authority that are relied upon are truly ancient, the courts also consider books of authority from more contemporary authorities as well.
With respect to the use of books of authority by the courts, William Blackstone observed that, "Besides these reporters, there are also other authors, to whom great veneration and respect is paid by the students of the common law. Such are Glanvill and Bracton, Britton and Fleta, Hengham and Littleton, Statham, Brooke, Fitzherbert and Staundeforde, with some others of ancient date; whose treatises are cited as authority, and are evidence that cases have formerly happened, in which such and such points were determined, which are now become settled and first principles."
The research showed that the sources of modern law in the United Kingdom include the common law, custom, equity and books of authority. The research also showed that while the common law remains the principal source of law, some authorities suggest that custom and equity play a comparable and perhaps even co-equal role, in the formulation of legal decisions today. Finally, the research also showed that the judiciary also relies on various books of authority, many of which are ancient but some of which are more recent in origin.
Allan, T.R.S. (1994). Law, Liberty, and Justice: The Legal Foundations of British
Constitutionalism. Oxford: Oxford University.
Black's Law Dictionary. (1999). St. Paul, MN: West Publishing Co.
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