Sources of Law and Equity in the English Legal System

Sources of Law and the Development of Equity

The phrase "the source of law" can mean both the reason that laws are necessary in a society and the specific, direct procedural influences that have shaped the laws in any given civil society (Slapper & Kelly 2006, p. 1). The English legal system has developed primarily from three separate sources: parliamentary legislation, delegated legislation, and what is often referred to as "common law" — laws effectively made by judges during the practice of deciding both criminal and civil issues, including equity (Slapper & Kelly 2006).

Delegated legislation is becoming more frequently applicable and more directly utilized in the English legal system; although it has not been of great importance in the past, this situation is changing (Slapper & Kelly 2006). Essentially, delegated legislation consists of laws or legal practices instituted by executive positions using powers granted to them by the legislature, and is therefore an indirect means of forming laws and legal practices.

Parliamentary legislation is much more direct and has been much more common and influential in the development of the English body of law. Both parliamentary legislation and delegated legislation have the potential to be fairly unstable, as no parliament or executive can be bound by its predecessors; it is an established feature of legislative bodies that they have the power to change any existing laws, including legislative procedure and powers granted to executive offices (Slapper & Kelly 2006). Delegated legislation is therefore separate from but subordinate to parliamentary legislation (Slapper & Kelly 2006, p. 3).

Despite the increased explicit codification of law via parliamentary and delegated legislation, the English legal system is still primarily based on common law, or judicial precedent. Courts are generally bound by the previous decisions made by higher courts, or even by courts adjacent in the hierarchy to that hearing a specific case (Slapper & Kelly 2006, p. 4). When an issue is presented that has no clear legal precedent, the decision made regarding that issue will necessarily amount to a change in the law — this is how common law develops (Slapper & Kelly 2006).

Common Law and the European Court of Justice

Equity developed in a similar though distinctly and importantly separate way. As common law became increasingly codified in the courts, clear complaints were being unfairly decided or presumptuously dismissed, and the courts actually refused to hear many cases deemed not to have a legal basis in previous decisions. This led to the establishment of the office of the Chancery, which decided such cases based on the conscience of the Chancellor. From these decisions, a consolidation of equity eventually occurred, ironically becoming often as rigid as the system of common law it had developed in response to (Slapper & Kelly 2006).

During most of European history, law developed entirely independently in the various and often changing regions and countries that formed distinct political units. In the twentieth century, however, the establishment first of various European Communities and eventually of the European Union led to a consolidation of legal practices and bodies of law, primarily through the actions of the Union's highest court, the European Court of Justice.

This is not to say that the unification of Europe and the standardization of the laws of individual member countries — and of the European Union as a whole — has been a simple and straightforward process. The European Court of Justice has established certain guidelines for both itself and the national courts that ensure fairness and equitable reach of Community Law in all member nations, while at the same time guaranteeing the continued sovereignty of those nations and the continued relevance and power of their various national courts (Craig 2001, pp. 178–83). An important shift occurred following the ruling in the Da Costa case, which made rulings by the European Court of Justice applicable to the national courts of all European Union member nations (Craig 2001).