18 2: Sources of law Part A Essential elements of the legal system
Study guide
Intellectual level
A Essential elements of the legal system^
2 Sources of law
(a) Explain what is meant by case law and precedent 1
(b) Explain legislation and evaluate delegated legislation 1
(c) Illustrate the rules and presumptions used by the courts in interpreting
statutes1(d) Identify the concept and impact of human rights law 1Exam guide
Questions could be set on the operation of case law and precedent or may focus on how legislation is
passed by government and interpreted by the courts.1 Case law and precedent
The first legal source of law, consisting of decisions made in the courts, is case law, which is judge-made
law based on the underlying principle of consistency. Once a legal principle is decided by an appropriate
court it is a judicial precedent.1.1 Common law and equity
The earliest element of the legal system to develop was the common law, a system incorporating rigid
rules applied by royal courts, often with harsh consequences. Equity was developed, two or three hundred
years later, as a system of law applied by the Lord Chancellor in situations where justice did not appear to
be done under common law principles.Common law is the body of legal rules common to the whole country which is embodied in judicial
decisions.
Equity is a term which applies to a specific set of legal principles which were developed by the Court of
Chancery to supplement (but not replace) the common law. It is based on fair dealings between the
parties. It added to and improved on the common law by introducing the concept of fairness.The interaction of equity and common law produced three major changes.
(a) New rights. Equity recognised and protected rights for which the common law gave no safeguards.
(b) Better procedure. Equity may be more effective than common law in resolving a disputed matter.
(c) Better remedies. The standard common law remedy for the successful claimant was the award of
damages for their loss. The Chancellor developed remedies not available in other courts. Equity
was able to make the following orders.
(i) That the defendant must do what they had agreed to do (specific performance)
(ii) That the defendant must abstain from wrongdoing (injunction)
(iii) Alteration of a document to reflect the parties' true intentions (rectification)
(iv) Restoration of the pre-contract status quo (rescission)
Where equitable rules conflict with common law rules then equitable rules will prevail.
Case law incorporates decisions made by judges under both historic legal systems and the expression
'common law' is often used to describe all case law whatever its historic origin.FAST FORWARDKey terms