Custom, Equity, and Books of Authority in UK Law

Introduction

Although it does not have a constitution per se, the United Kingdom has an elaborate system of laws that helps maintain and protect the interests of its citizens. While the specific origins of many laws followed in the UK are rooted in common law, other sources include longstanding custom, equity, and books of authority that date to antiquity. This has caused some observers to question whether these sources remain relevant in the 21st-century courtroom. Through the use of judicial commentary, academic commentary, and case law, this paper reviews the relevant literature to determine the relationship between these historical sources and whether they have ceased to function as a form of law within the English legal system today.

Common Law as a Primary Source

In the United Kingdom, the most important source of law for most applications is the common law. 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 continuing relevance, 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 cites the enactment of sections 34, 36, and 37 of the Criminal Justice and Public Order Act 1994, which seemingly allow direct adverse inferences to be drawn based solely on defendants' pre-trial silence — inferences that could not be drawn at common law. Consequently, based on his interpretation of judicial comments in Sullivan (1966) 51 Cr App R 102, Mirfield maintains that the common law has continuing relevance in the 21st century for two fundamental reasons:

First, it is almost impossible to understand the statutory changes without knowledge of what it was that was changed. Second, 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 inference is permissible, the judge will have to consider whether any common law inference may properly be drawn.

The net effect of these changes has been to generate judicial commentary concerning the applicability of a defendant's refusal to testify as a reflection of 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.]'"

Custom as a Source of Law

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 in connection with several 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 is described by Loux (1997) as being essentially on the same level as the common law. Loux 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). Citing E.P. Thompson (Customs on Common, 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 assertion that custom is on a par with common law in the 21st-century courtroom, Loux (1997) emphasises the truly ancient origins 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." Loux further maintains that the sources of all customs held valid today are lost in the mists of time yet still retain relevance: "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."

Conclusion

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 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.