UNIT 1: SOURCES OF ENGLISH LAW

The objectives of this unit are:

to develop skills in: to teach and practise

these language items:
SECTION SPEAKING LISTENING WRITING READING

A. Historical Background ƒ Group discussion ƒ Skimming ƒ Matching English

ƒ Defending ƒ Reading for detail and Romanian
choices legal terms
B. Language Focus ƒ Pronunciation ƒ Listening for ƒ Reading for gist ƒ using legal
specific terminology
information ƒ cloze
C. Sources of English Law ƒ Agreeing/ ƒ Taking notes ƒ Skimming ƒ Building up word
Disagreeing ƒ Structuring ƒ Reading for detail families
ƒ Giving a team information ƒ Synonyms
presentation ƒ Preparation for ƒ Antonyms
project work ƒ Dictionary work
D. Round Up ƒ Transferring acquired
information on a chart
 UNIT ONE: SOURCES OF LAW

S
SEECCT
TIIO
ONNA
A:: H
HIIS
STTO
ORRIIC
CAALL B
BAAC
CKKG
GRRO
OUUN
NDD

A
A..11.. FFiinndd tthhee nneeaarreesstt EEnngglliisshh eeqquuiivvaalleenntt ffor
or tthhee R
Room mss aanndd jjooiinn tthheem
maanniiaann tteerrm m aass iinn tthhee
eexxaam
mppllee..
judicial precedent books of authority drept cutumiar

Jurisprudenţă case law custom

statute law doctrină cutumă

precedent judiciar common law legislaţie

INFO BOX
Common law. As distinguished from statutory law created by the enactment
of legislatures, the common law 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 judgements and decrees of the courts
recognising, affirming and enforcing such usages and customs; and, in this
sense, particularly the ancient unwritten law of England. In general, it is a
body of law that develops and derives trough judicial decisions, as
distinguished from legislative enactments.
Walker, David (1980) The Oxford Companion to Law OUP

A
A..22.. CChhoooossee tthhee tthhrreeee m
moosstt ssiiggnniiffiiccaanntt iinnfflluueenncceess oonn tthhee ggrroow Room
wtthh ooff tthhee R maanniiaann lleeggaall
ssyysstteem Coonnssiiddeerr iitteem
m.. C mss ssuucchh aass::

 the Civil Code of 1864  case law

 the Old Testament  the 1859 union of Wallachia & Moldavia

 customs  EC treaties

 the Napoleonic Code  the union of the 3 Romanian provinces under the
reign of Michael the Brave
 the Ottoman rule
 the Romanian Constitution of 1923
 Constantin Mavrocordat’s
reform  Roman law

N
Nooww bbee pprreeppaarreedd ttoo ddeeffeenndd yyoouurr cchhooiicceess..
A
A..33.. LLooookk aatt tthhee ddiiccttiioonnaarryy eexxttrraaccttss ffrroom
m tthhee O
Oxxffoorrdd C
Coom mppaanniioonn ttoo EEnngglliisshh LLaaw
w ddeeffiinniinngg
tthhee nnaattuurree ooff vvaarriioouuss ““ssoouurrcceess ooff llaaw Whiicchh ooff tthhee m
w””.. Wh meeaanniinnggss bbeelloow
w ccoorrrreessppoonnddss ttoo
eeaacchh eexxttrraacctt::

a. THEORETICAL or PHILOSOPHICAL
b. HISTORICAL
c. LITERARY
d. DOCUMENTARY
e. FORMAL

1. The _______________ sources of law are 3. The term is used of the

the acts and events in past time, which have
given rise to particular principles and rules of
law. In the United Kingdom and Continental
European legal systems generally these
include the Roman law, the canon law, the
feudal customs, the law merchant and the
general maritime law of Western Europe. In
particular countries, such as England, they
include the Magna Carta or the constitutional
disputes between King and Parliament in the
17th century.
_____________________ sources which, by
reason of their accepted authority, confer
validity and legal force on principles and rules
drawn from them. They are the recognised law-
creating and law-declaring agencies from which
come valid rules of law. In this sense, the
formal sources of law in the United Kingdom
are declarations by Parliament in the form of
legislation, statements of law by superior
courts, statements by authors of books of
authority, customs, agreement of parties, and
judicial ideas of justice, equity, morality and
reason.

2. The term “sources” is sometimes applied to those ________________

principles which have influenced law, motivated legislation or prompted change.
Thus, the source of many principles of equity was the idea of natural justice and
that of much reforming legislation in the 19th century was utilitarianism, the
philosophy of utility. In Eastern Europe, the philosophy of Marxism-Leninism has
been the source of whole legal systems.

4. The term is used of the 5. The term is used of the

_________________ sources, the documents
containing the authoritative statements of rules
of law. In the United Kingdom, these are the
volumes of statutes, statutory instruments and
of reports of case law, and the writings of
jurists, which are recognised as books of
authority, such as Coke and Blackstone.
_________________ sources, legal literature,
the books to which one turns for information.
These include encyclopaedias, treaties,
textbooks, and works of reference, which are
based on the material sources but have no
authority and validity as rules of law, and no
judge is bound to accept the rules so stated as
correctly stated.

INFO BOX
Equity. Justice administered according to fairness as contrasted with the strictly
formulated rules of common law. It is based on a system of rules and principles
which originated in England as an alternative to the harsh rules of common law
and which were based on what was fair in a particular situation. One sought relief
under this system in courts of equity rather than in courts of law. The term
“equity” denotes the spirit and habit of fairness, justness, and right dealing which
would regulate the intercourse of person with person. Equity is a body of
jurisprudence, or field of jurisdiction, differing in its origin, theory and methods
from the common law; though procedurally, equitable and legal rights and
remedies are administered in the same court.
 Walker, David (1980) The Oxford Companion to Law OUP

A
A..44.. W
Woorrkkiinngg w
wiitthh aa ppaarrttnneerr aanndd w
wiitthhoouutt rreeffeerrrriinngg bbaacckk ttoo tthhee tteexxtt sseeee iiff yyoouu ccaann ffiinndd tthhee
aannssw wiinngg qquueessttiioonnss::
weerrss ttoo tthhee ffoolllloow

1. What are the historical sources that have shaped the legal system of the United
Kingdom?
2. Which two philosophical principles influenced 19th- century English law?
3. What are the formal sources of law in the UK?
4. What is the name used for writings by jurists, such as Coke and Blackstone?
5. Are legal treaties and encyclopaedias accepted as binding in courts of law?

N
Noow
w ccoom
mppaarree yyoouurr aannssw wiitthh tthhee tteext
weerrss w xt..

SSSE
EC
E CT
C TIIIO
T ON
O NB
N B::: L
B LA
L AN
ANNG
GU
G UA
U AG
AGGE
EF
E FO
FOOC
CU
C US
U S
S

B
B...1
B 1...1
1 1... L
1 Liisstteenn ttoo tthhee ddeeffiinniittiioonnss ooff sseevveerraall lleeggaall tteerrm
mss aanndd ppuutt tthhee lleetttteerrss iinn oorrddeerr ttoo m
maakkee 1122
lleeggaall tteerrm
mss..

e.g. GOLIESATINL L E G I S L A T I O N

1. VISIONPRO _ _ _ _ _ _ _ _ _
2. ROUCES _ _ _ _ _ _
3. VARPEIL _ _ _ _ _ _ _
4. DETELEGAD _ _ _ _ _ _ _ _ _
5. SEAWLCA _ _ _ _ _ _ _
6. UTASTET _ _ _ _ _ _ _
7. ROMERF _ _ _ _ _ _
8. SIODECIN _ _ _ _ _ _ _ _
9. PREDECENT _ _ _ _ _ _ _ _ _
10. ORNIM _ _ _ _ _
11. TUSTATORY _ _ _ _ _ _ _ _ _

B
B...1
B 1...2
1 2... W
2 Wrriittee tthhee w
woorrddss iinn tthhee ggrriidd ttoo ffiinndd tthhee m
myysstteerryy pphhrraassee.. TThhee ffiirrsstt oonnee hhaass bbeeeenn ddoonnee ffoorr
yyoouu..

1 L E G I S L A T I O N
2
3
4
5
6
7
8
9
 10
11
12

B.1.3. FFiillll iinn tthhee bbllaannkkss iinn tthhee ffoolllloow

wiinngg tteexxtt uussiinngg tthhee aapppprroopprriiaattee tteerrm
mss ffrroom
m tthhee ggrriidd aabboovvee..
rrrddd
mee nnoouunnss m
((SSoom maayy bbee iinn tthhee pplluurraall oorr yyoouu m maayy hhaavvee aa vveerrbb iinn tthhee 33 ppeerrssoonn ssiinngguullaarr..))

English law stems from seven main ______________ (1), though these
vary a deal in importance. The basis of our law today is ____________
(2), a mass of judge-made decisions which lays down rules to be
followed in future cases. For many centuries it was the main form of
law and it is still very important today. However, the most important
form of law, in the sense that it _____________ (3) over most of the
others, is _______________ (4), or Acts of Parliament, which today is
the source of most major changes in the law. As well as being a source
of law in their own right, statutes contribute to case law, since the
courts occasionally have to interpret ______________ (5) provisions,
and such decisions lay down new ______________ (6). ______________ (7)
legislation is a related source, laying down detailed rules made to
implement the broader _____________ (8) of statutes.
An increasingly important source of law is the _______________
(9) of the European Communities, which is the only type of law that
can take precedence over statutes in the UK, and is increasingly
influencing the ________________ (10) of the courts in interpreting
statutes. Finally, custom, equity and obligations relating to
international treaties are ____________ (11) sources of law, though
Britain’s obligations under the European Convention on Human Rights
have produced notable contributions to law ______________ (12).
Source: Catherine Elliott and Frances Quinn (1998) English Legal
System, London: Longman

BB.. 22.. W
Wiitthh aa ppaarrttnneerr pprrac
acttiissee ssaayyiinngg tthhee ffoolllloow
wiinngg w maarrkk tthhee m
woorrddss aanndd m maaiinn ssttrreessss.. TThhee
ffiirrsstt oonnee hhaass bbeeeenn ddoonnee ffoorr yyoouu..
precedent legislation contribute equity courts
statutes statutory interpreting implement vary law
international provisions
BB..33.. To
o cchheecckk yyoouurr uunnddeerrssttaannddiinngg ooff tthhee m w,, ddeecciiddee iiff tthhee sseenntteenncceess bbeelloow
maaiinn ssoouurrcceess ooff llaaw w
aarree ttrruuee ((TT)) oorr ffaallssee ((FF))..
T F
1. The English legal system is based on Roman law.
2. Most legal systems have their origins in ancient customs.
3. English common law was originally based on oral customs of the Anglo-Saxons.
4. Common law, also known as statutory law, is the ancient unwritten law of England.
5. Equity originated as a more flexible system of jurisprudence than common law.
6. Legislation means judge-made law.
7. Parliament’s enactment is not absolutely binding on all courts and all citizens.
8. In Britain today Parliament is the supreme legislative body.
9. The principle behind the doctrine of precedent is that judges follow the example of
precedent of earlier decisions.
10. If domestic law and international law have different provisions concerning the same
issue, judges may choose to apply either of them.

SSSE
EC
E CT
C TIIIO
T ON
O NC
N C:::
C S
SO
S OU
O UR
U RC
RCCE
ES
E SO
S OF
O FE
F EN
ENNG
GL
G LIIIS
L SH
S HL
H LA
L AW
AWW

CC..11.. Y Yoouu hhaavvee ttoo ggiivvee aa sshhoorrtt tteeaam m pprreesseennttaattiioonn oonn tthhee ssoouurrcceess ooff llaaw
w iinn
Waalleess ffoorr aa ccoouurrssee//sseem
EEnnggllaanndd aanndd W miinnaarr..

CC..11..11.. W
Woorrkkiinngg iinn aa tteeaam
m ooff ssiixx,, ddiivviiddee uupp tthhiiss lliisstt ooff rreelleevvaanntt ttooppiiccss bbeettw
weeeenn yyoouu..

COMMON LAW

PRECEDENT

LEGISLATION

TEXT BOOKS

EC LAW

JUDICIAL INTERPRETATION

C
C...1
C 1...2
1 2... IInnddiivviidduuaallllyy,, rreeaadd tthhee tteexxtt aanndd ffiinndd tthhee rreelleevvaanntt sseeccttiioonn w
2 whhiicchh pprroovviiddeess yyoouu w
wiitthh
on tthhee ttooppiicc you
maattiioonn on
iinnffoorrm you hhaavvee cchhoosseenn..

Name of topics
One of the great fascinations of the law is that it reflects history, politics, economics INTRODUCTION
and changing social values. Politicians come and go; public concerns fluctuate with
remarkable speed; theories of behaviour developed by sociologists and criminologists
find favour then fade; moral values differ from individual to individual, but the law is
the formal code by which society chooses to regulate its behaviour. For example, the
Public Order Act 1986 strengthened the provisions on crimes of racial hatred in
response to public concern about the increase in such incidents. In the civil law,
liberalisation of the divorce laws and the abortion laws illustrates that the law is a
formal regulatory code and does not necessarily coincide with individual views about
morality or the stability of social structures. More immediately, our laws come from
two sources: legislation and the common law.

Much of our law derives from specific legislation – Acts of Parliament

proposed, debated, and amended in the Houses of Commons and Lords and
finally accorded Royal Assent by the Sovereign. During the 1990s there has
been much new legislation in the field of criminal law, some of it motivated by
a wish to make long-term improvements to the quality of justice, some 1. ________________
motivated by short-term political expediency. For example, the short-lived
unit fine system, introduced by the Criminal Justice Act 1991, proved
disastrous and the Government was forced to backtrack very quickly. The
same Act severely restricted the extent to which offenders’ records could
be taken into account when sentencing, and again this had to be abandoned
very soon after. This is not to say that the 1991 Act was without merit; this
Act also introduced a structured approach to sentencing which has proved
largely successful. Acts of Parliament are increasingly supplemented by rules
made by Statutory Instrument (‘Regulations’ or ‘ Orders’). Thus, an Act may
lay down legal principles, but give authority to a particular government
minister to make rules, having the force of law, on secondary matters such as
procedure or dates of implementation. For example, the Children Act 1989
set out the ‘welfare of the child’, ‘delay’ and ‘no order’ principles, the orders
which courts can make, and so on, but left many details to be filled in by
statutory instruments. Thus, procedure, the court in which proceedings
should start, fees payable and many other matters are regulated by a host of
Orders and Regulations, which are amended and updated from time to time.
These Regulations are drafted by government departments and become law
by being laid before Parliament for the requisite period. They may be subject
to ‘positive’ or ‘negative’ resolution; either Parliament must specifically
approve them before they become law, or they become law in the absence of
any objection. The latter is the more common method, although it has
attracted some criticism and more matters are controlled by Statutory
Instrument and are not subject to full Parliamentary scrutiny.
Local authorities may also be given powers to make by-laws applying in
their own areas only. For example, the procedure by which local authorities
can require dog-walkers to ‘poop scoop’ has just been vastly simplified in an
attempt to make it easier to keep public places clean and hygienic.

Unlike many other countries, English law has not been fully codified into
statute, and many important provisions do not appear in any written law,
but remain based, wholly or partly, in the common law – established custom
as adopted and developed by judges over the years. For the details of this
kind of law, it is necessary to refer to reported judgements. The most 2.
important example of a common law offence is murder: the constituents of _______________
‘malice aforethought’ and an intention unlawfully to kill or cause grievous
bodily harm derive from what judges have said in the past, not from any
Act of Parliament which says that murder is a crime. Statute has, though,
intervened to impose a mandatory life sentence for those convicted of
murder, and, more recently, to abolish the old common law rule that death
must occur within a year and a day to constitute murder.

In the interests of fostering certainty, the principle of legal precedent

promotes consistency in decision-making. Thus, largely, higher courts
should follow their own earlier decisions, and decisions made in higher
courts are binding on lower courts: what the House of Lords says is
binding on the Court of Appeal; what the Court of Appeal says applies in all 3.
lower courts. The principle of precedent applies to both civil and criminal _______________
cases, and to the implementation of both common law and statute-based
law. Magistrates’ courts and the Crown Court are not bound by their own
earlier decisions, but they are bound by the decisions of the higher
courts.
The tradition is to name criminal cases in the style ‘R v. Smith’,
where R stands for Regina, all cases still strictly being brought by the
prosecutor on behalf of the sovereign; and Smith being the name of the
defendant; or, for short, the case may be referred to simply as ‘Smith’.
Reports published in the official law reports, the All England Law Reports
and the Weekly Law Reports may well be mentioned.

Although English legislation tends to be drafted in a fairly detailed way by

comparison with that of other European countries, and certainly with
European Community (EC) legislation, the draftsmen cannot always
contemplate every conceivable situation, and are not always as precise in
their wording as might be desirable. Gaps, inconsistencies and ambiguities 4.
are dealt with by ‘judicial interpretation’ in individual cases. Sometimes _______________
such interpretations reveal gaping holes in the law – tax lawyers are adept
at seeking out such loopholes. Sometimes a court will refer to Hansard
clarify the intention of Parliament in passing a particular piece of
legislation, in an endeavour to interpret it in the right spirit.
Interpretations of this kind are, like anything else, subject to the rule of
precedent.
Some judges have been said to be rather too imaginative in the use
of this power, to the extent that they make law in usurpation of the
prerogative of Parliament.

Finally, the courts of England and Wales are subject to EC law,

which takes priority over all domestic law. The Community makes
laws by means of Directives (which must then be implemented in
each member state by domestic legislation); Regulations (which are
directly binding on the member states) and Decisions, which concern 5. _______________
particular matters and are addressed only to the individual Member
State concerned. Most of the EC’s legislative activities do not
affect the criminal courts, but environmental protection is an
increasingly important exception. For example, and this is by no
means an isolated example, Regulations which came into force in
September 1996 implemented a directive on hazardous waste and
created certain new criminal offences.

Text books have no formal place in making and interpreting the law,
but advocates in court often refer to certain established works
when seeking to persuade the judge of a particular point of view.
Arguments on doubtful points of law are fairly rare in the
magistrates’ courts, but leading books are often referred to to 6. _______________
explain the relevant law, even though it may not be in doubt. This is
particularly likely in a case which is relatively unusual for
magistrates. Among authoritative books sometimes referred to are
Archbold (Criminal Pleading), Blackstone’s (Blackstone’s Criminal
Practice), Stone’s (Stone’s Justices’ Manual) and Wilkinson
(Wilkinson’s Traffic Offences). Generally, the more editions of a
book that have been published, and the fact that it is referred to
by its author’s (or original author’s) name alone, the more
authoritative it is!

Source: McKittrick, Neil & Callow, Pauline: Blackstone’s Handbook for Magistrates, Blackstone
Press Ltd., London, 1997

C
C...1
C 1...3
1 3... M
3 Maakkee nnootteess iinn oorrddeerr ttoo ggiivvee aa 22--m
miinnuuttee pprreesseennttaattiioonn oonn yyoouurr ttooppiicc.. SSttrruuccttuurree tthhee
maattiioonn ssoo tthhaatt yyoouurr ccoolllleeaagguueess ccaann ffoolllloow
iinnffoorrm wwwiitthhoouutt ddiiffffiiccuullttyy..

C
C...1
C 1...4
1 4... T
4 Taakkee iitt iinn ttuurrnnss ttoo pprreesseenntt ttoo tthhee rreesstt ooff yyoouurr tteeaam
m.. TTaakkee nnootteess oonn yyoouurr ccoolllleeaagguueess’’
ccoonnttrriibbuuttiioonnss..

C
C...1
C 1...5
1 5... T
5 m pprreesseennttaattiioonn..
Tooggeetthheerr aaggrreeee oonn aa tteeaam

CC..22.. L
Laanngguuaaggee w
woorrkk

CC..22..11.. CCoom
mpplleettee tthhee ffoolllloow wiitthh tthhee vveerrbb((ss)),, nnoouunn((ss)) oorr aaddjjeeccttiivvee((ss)) w
wiinngg ttaabbllee w whheerree
aapppprroopprriiaattee..

NOUN VERB ADJECTIVE

law -
to regulate
code
amended
offender
procedure
resolution
to approve
scrutiny
to require
provision
mandatory
to abolish
- binding
prosecution
statute -
defence
judgement
persuasive
 authoritative

CC..22..22.. IInn tthhee sseenntteenncceess bbeellooww ffiillll eeaacchh bbllaannkk ssppaaccee wwiitthh aa ssuuiittaabbllee wwoorrdd ffrroom
m tthhee w
woorrdd
ffaam il y g i v en i n c a pi t a ls o
mily given in capitals on the right.n t he r i ght .

1. There are ___________ difficulties in getting this Bill through Parliament. PROCEDURE
2. The _____________ of the death penalty is a prerequisite of EU accession. ABOLISH
3. She said that she did not want a lawyer and was going to conduct her own DEFEND
_________.
4. UK judges are ____________ by the decisions of superior courts. BINDING
5. Bleak House is about the failings of the English _________ system in JUDGE
Victorian times.
6. The Romanian civil law was _________ in 1864. CODE
7. You must produce the _________ documents to prove that you’re the owner, REQUISITION
before we can let you have the car.
8. The body of law contained in Acts of Parliament is known as __________ STATUTORY
law.

C
C...2
C 2...3
2 3... M
3 mss eennccoouunntteerreedd iinn tthhee m
Maattcchh tthhee lleeggaall tteerrm mai wiitthh tthheeiirr ssyynnoonnyym
ainn tteexxtt aabboovvee w mss iinn
C
Coolluum
mnn A Ussiinngg aa ddiiccttiioonnaarryy,, ccaann yyoouu ffiinndd tthheeiirr ccoorrrreessppoonnddiinngg aannttoonnyym
A.. U mss?? IInnsseerrtt tthheem
m iinn
Co l u m
Column B.n B.

A - SYNONYMS B - ANTONYMS
1. expediency a. fortuitous/ incidental _______________
2. to backtrack b. encouraging/favouring _______________
3. fostering c. to try/make an effort _______________
4. consistency d. hesitate, oscillate, vary _______________
5. loopholes e. suitability/appropriateness _______________
6. to endeavour f. to make clear or understandable _______________
7. fluctuate g. ways of escaping a rule _______________
8. to clarify h. proved guilty of a crime _______________
9. hazardous i. to withdraw _______________
10. convicted j. uniformity/unity _______________

C
C...3
C 3... P
3 wooorrrkkk::: F
Prrrooojjjeeecccttt w
P w maanniiaann llaaw
Fiinndd oouutt aabboouutt tthhee ssoouurrcceess ooff RRoom w aanndd w
wrriittee aa
sshhoorrtt aaccccoouunntt ooff tthhee ttooppiicc..

The Sources of Romanian Law

 SE
S EC ON
CTTIIO D::
ND RO
R UN
OU ND UP
D--U P

U ordd uusseeffuull llaanngguuaaggee rreellaatteedd ttoo tthhee ttooppiicc ooff tthhiiss uunniitt..
Ussee tthhiiss ssppaaccee ttoo rreeccor

___e.g. judicial precedent__ ____________________

English for Law – ANSWER KEY