Table of Contents
Regulation is one of the main functions of law. One may observe that law regulates human behavior in various spheres – business, family, employment, and so on. At the same time, society is not static but dynamic. Social relations change in the course of time. Social changes, in turn, cause legal changes. Law responding to social changes is one of the main causes of legal change (Keenan & Riches 2007, p. 13). This paper is an attempt to briefly discuss how various social changes caused modification of four sources of English law: common law, statutory law, European law and European Conventions.
Common law is also known as case law. Case law represents “the creation and refinement of law in the course of judicial decisions” (Slapper & Kelly 2011, p. 119). The central concept of case law is stare decisis. According to this doctrine, the decision of the higher court is binding upon on the lower court. Despite the growing significance of statutory law, common law remains one of the primary sources of law. Indeed, in some legal areas, like as contracts and torts, common law rules still prevail. Since common law heavily relies on previous precedents, it is very difficult to overrule judicial decisions. However, even common law can be flexible. This was proved by substantial modification of common law in the age of the Industrial Revolution. The Industrial Revolution caused dramatic changes in economic life. Sources of wealth have become different. Land was no longer regarded as an ultimate source of wealth. Commerce and trade grew increasingly. In response to growing trade, common law judges developed many principles of commercial law and law of contracts. Previously, the English common law was too rigid for commercial relations. Thus, common law judges often did not accept business customs (Trakman 1983, p. 27). For instance, the seventeenth century merchants did not make a distinction between bills of exchange and promissory notes (Plucknett 2001, p. 669). Moreover, merchants negotiated promissory notes in the same way they negotiated bills of exchange (Plucknett 2001, p. 669). However, in Buller v Crips,Lord Hold refused to accept that a promissory note had the same status as a bill of exchange (Plucknett 2001, p. 669). Thus, one may witness that Lord Holt, in fact, ignored the merchant custom to treat promissory notes in the same way as a bill of exchange was treated. The need for reforming English common law was acknowledged by Lord Mansfield. He sought to make rigid common law rules softer. Being a judge, Mansfield integrated the law of merchants (commercial law) into English common law (Trakman 1983, p. 27). Lord Mansfield became the first judge who accepted the validity of commercial customs and, thus, embraced the role of commercial law in England. For example, in Carter v Boehm, Lord Mansfield not only recognized the validity of insurance policy but also held that insurance was a contract, thus making it enforceable. Moreover, Lord Mansfield ruled that the parties of such a contract should act in a good faith. Furthermore, in Pillans v Van Mierop, Lord Mansfield recognized that letter of credit contained enforceable promises. In a word, Lord Mansfield upheld important commercial principles, thus making them laws. Lord Mansfield’s ideology continued to have an impact on the development of English common law. In other common law countries, judges started to accept principles of merchant law and, thus, made common law more progressive (Trakman 1983, p. 28).
Statutory law denotes the written law. The written law can regulate various areas: business corporations, family relations, healthcare, military service, etc. The written law can be adopted by local governments as well as by national governments. As a rule, laws written by national governments and adopted by national legislators are known as legislation. For instance, in the UK, legislation is a law enacted by the Queen in the Parliament. The legislation may take forms of Acts of Parliament or statutes. All statutes are initially introduced to the Parliament as bills. Bill refers to a proposal “for a piece of legislation” (Elliott & Quinn 2008, p.36). After that bills pass the following stages of legislative process: first reading, second reading, committee stage, report stage, third reading, House of Lords, Royal Assent (Elliott & Quinn 2008, p.37). Once all these stages are undergone, a bill becomes a law. Statutory law is an extremely important source of English law since it covers almost all areas of human life. Indeed, statutes define the principles of the political sphere: they define election rules, voting rules, principles of formation of administrative bodies and so on. Furthermore, statutes define the principles that affect economic life: taxation, social allowances, rules of credit and so on. Private life is also a subject to statutory regulations. For instance, statutes define what marriage is and when it has legal consequences. Compared to common law, statutory law is more flexible. Once a social change occurs, legislators address such change by passing an appropriate act. For instance, it was done in response to growing importance of electronic commerce or “e-commerce”. E-commerce refers to “the process of conducting transactions by electronic means” (Spinello 2002, p. 66). Electronic communication facilitates many business processes. For instance, contracts can be concluded via the Internet. Obviously, such technologies required an appropriate regulation. For instance, there was a need to endorse the validity of electronic signatures. In order to address this and some other issues, the Parliament enacted the Electronic Communications Act 2000 (c.7). The purpose of this act is to facilitate electronic communications and electronic data storage. In particular, the law provides the admissibility of electronic signatures. Thus, an electronic signature incorporated or associated with a particular electronic communication is admissible as an evidence of the authenticity of the electronic communication.
European Union Law
In 1973, the UK joined the European Union and, thus, accepted the EU law as part of national law. The principle of application of the EU law in the UK was established by the case R v Secretary for Transport, ex parte Factortame. In this case, the court pointed out that the EU law was directly effective in the UK even if it contradicted the English law itself (Elliott & Quinn 2008, p.60). The EU law is mainly promulgated by the European Commission. The EU law comes in the form of Regulations, Directives or Decisions. Regulations can be compared by the Acts of the Parliament. They become a part of English law as soon as they enter into force (Elliott & Quinn 2008, p.84). In other words, there is no need for the UK to pass any enforcing legislations. Directives are more general than regulations and they leave a room for member states to decide how the principles and rules outlined in Directives will be enforced on their territory (Elliott & Quinn 2008, p.84). In other words, in order to enforce some EU Directive, the UK should pass additional national legislation. Decisions, as a rule, are addressed to a state, an individual and a company. The decision is binding upon the recipient. The EU law had a dramatic impact on English legal system. The English law directly incorporated a great amount of the EU law and, additionally, passed legislation to enforce some general principles and rules of the EU law.
Various European conventions are part of the English law. One of such conventions is the European Convention on Human Rights (ECHR). The ECHR was prepared by the Council of Europe. The ECHR protects the following rights: right to life, freedom from torture, inhuman or degrading treatment, freedom from slavery or forced labor, the right to fair trial, freedom of thought, conscience and religion and many other human rights. The ECHR established the European Court of Human Rights designed to deal with claims based on the ECHR. The ECHR is directly applicable in the UK courts by virtue of the Human Rights Act. Some scholars believe that, despite the fact that the ECHR is a part of the UK law, it cannot be considered as a Bill of Rights for the UK “because it has not been entrenched” (Elliott & Quinn 2008, p.247).
English legal system relies on common law, statutory law, the EU law and European Convention. The common law is most rigid source of law. However, even common law experienced significant modification in result of social changes. Statutory law is more flexible than common law. The EU law dramatically changed English legal system, since it introduced new rules which became a part of English law. Finally, European Conventions are also parts of English law. For instance, the ECHR is directly applicable by the UK courts.