In this blog post, we will be considering what the sources of law are in the UK. Knowing where law comes from is a key part of your studies that you may be required to write an essay about or have knowledge of to improve an essay on a different topic. In addition, it will help you to understand the law if you know how it is made and where it comes from, making studying easier and your work better.
We will be looking at two main sources of law in this blog post. The first of these is probably exactly what you would expect – legislation. This includes both Acts created by Parliament and secondary legislation delegated to other bodies. The second type we will be considering is common law, which is precedent that comes from decided cases.
Legislation
Primary Legislation
We will start by considering legislation as a source of law in the UK. Legislation is made by the sovereign body of law, which is the House of Commons, the House of Lords and the Queen. However, the Queen’s role in modern-day law is purely ceremonial. The sovereign body makes Acts of Parliament, also called statutes, which are binding. They can only be changed by another Act of Parliament.
This kind of legislation is called primary legislation and must be followed by the courts and judges. However, there may be times when the wording is unclear, so it is not immediately obvious what the outcome of the case should be. There may also be times where following the law to the letter would seem to produce an unfair outcome, or the opposite effect to the one Parliament intended.
Judicial Interpretation
In cases such as the ones above, judges must try to come to a decision that still follows at least the spirit of the law, while also avoiding an outcome that Parliament had likely not foreseen or intended. To do this, they may use various intrinsic and extrinsic aids to come to their decision.
The use of intrinsic and extrinsic aids is known as judicial interpretation. Intrinsic aids, or internal aids, are those found within the Act of Parliament itself, for example, the long title of the Act and any preamble to it. These will set out the purpose of the Act, which can help to make sure the interpretation is in line with Parliament’s original intention.
Another intrinsic aid is the section giving definitions of certain terms used in the Act of Parliament. Not all Acts have these, but if they do, they are an excellent source to interpret the Act, as it states Parliament’s intentions in more detail. Courts may also use other sections of the Act to interpret it.
Finally, explanatory notes appearing in the margin by each section of the Act of Parliament are another intrinsic aid. However, these cannot be taken as indicative of Parliament’s intentions as they are added by the printer after Parliamentary debate.
Extrinsic aids, or external aids, are those found outside the Act of Parliament. They include things such as previous Acts on the same topic and earlier case law. These can help to highlight the issues the Act was supposed to resolve but don’t really show Parliament’s current intention, so they should be used more cautiously.
Another type of extrinsic aid is dictionaries from when the Act of Parliament was written. These can help to explain any terminology used in the Act in the context of the historical setting. However, legal definitions may well differ from ones in standard dictionaries, so the court might instead use either a legal dictionary or academic writing. This can help to explain more archaic terminology from the time the Act was created.
Secondary Legislation
Another type of legislation is secondary legislation. You can read more about this in my blog here. Essentially, secondary, or delegated, legislation is created when Parliament assigns certain areas of law to ministers to draft. This legislation will then be subject to some sort of review by Parliament before it becomes law.
Case Law
The other source of law that we will be considering is case law. This is law that comes from decided cases, setting legal precedents. Lower courts have to follow the precedents set by the higher courts. Case law is created by judges in decided cases, so it is not democratic in the same way as legislation created by Parliament is.
Case law helps by resolving ambiguities in existing legislation, as well as filling any gaps that there may be. Essentially, it helps to clarify legislation from Parliament by applying it to cases and showing how the law works in practice.
Wrapping Up
I hope that this has helped you learn about the sources of law in the UK, as this is an important starting point for your legal studies. Next time, we will be looking at the difference between civil and criminal law, so come back in two weeks for that!
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