The roles, responsibilities, and authorities of the Head of State, or monarch, are established by conventions. One of the traditions is the political impartiality of the monarch. The common law system applied in England and Wales is a hybrid of both the enactment of laws and the development of precedents. The Parliament, with the House of Commons, the House of Lords, and the Monarch, makes legislation. The Prime Minister is traditionally a House of Commons member who is directly elected by the people.
The judiciary in the UK legal system
The court system and case law are under the jurisdiction of the judiciary, which is autonomous from Parliament. In the traditional constitutional understanding of parliamentary sovereignty in the UK, it is open to parliament to enact or repeal any law whatsoever; and, more generally, no action of any person or body is recognised by the law of England as a right to overrule or to annul the legislation of Parliament. This makes the legislation enacted by Parliament override the common law, which is a source of jurisprudentially derived legal principles. Unfortunately, the capacity of judges to shape common law in relation to the protection in the wake of the Human Rights Act of 1998 (HRA) has been grossly limited due to this traditional concept of parliamentary power.
There are legal systems in the United Kingdom of England, Wales, Scotland, and Northern Ireland. This is due to its historical origin, and because, through the Acts of Union in 1707 and 1800, Scotland, Ireland, and Northern Ireland later had their own legal systems and customs. This webpage deals with the judiciary of England and Wales. The Supreme Court of the United Kingdom, which has jurisdiction over the whole of the United Kingdom as it replaced the Judicial Committee of the House of Lords in October 200,9, and the Tribunals Service, including Scotland, are both named in passing.
The judicial system is one of the three arms of the state. The other two are the legislature, the two Houses of Parliament, and the government, which is the executive branch. In most democracies, these three arms of government are not dependent on each other. Their duties and obligations are spelled out in written constitutions, and each of the branches becomes a check on the other two and prevents any concentration of power by any branch.
What is common law?
It is well-known and nearly unique that the United Kingdom does not have a written constitution. It can be found in both the common law, which evolved over the centuries via court rulings, and the laws made by Parliament. In this regard, only Israel and New Zealand are comparable to the United Kingdom. This is how these three nations are different from nearly every other nation. Such constitutional texts, like the United States’, which has one of the most famous written constitutions, frequently hold a higher standing than regular laws, and only a specific process can be used to adopt and remove constitutional provisions. The 2005 Act does more than only restructure the Lord Chancellor’s position. It brought two of the main pillars of our constitution, the independence of the courts and the rule of law. This was the first explicit mention of the rule of law in statute, despite the fact that over time, the independence of the judiciary had been stated in acts of parliament such as the Act of Settlement 1701 and the Bill of Rights 1689. Common understandings of what they meant had developed over the ages, but it was thought necessary for the Act to include them and give them statutory power in light of the other amendments made.
Judicial precedent and incremental law-making
The procedure by which judges follow cases that have already been resolved when the facts are sufficiently similar is known as judicial precedent. The idea of stare decisis, or standing by the decision, is applied in the notion of judicial precedent. In actuality, this implies that lower courts must follow the rules established by higher courts in previous instances.
When a judge renders a decision in a matter, he lists the facts that he believes the evidence supports. After applying the law to such facts, he makes a decision and justifies (ratio decidendi). The judge may continue by speculating on what his ruling may have been in the event that the case’s facts had been different. An obiter dictum is this.
The ratio decidendi is the legally binding portion of a court ruling. Because it was not directly related to the issue at hand in the initial case, an obiter dictum is not legally binding in subsequent cases.
Distinction between statutory law and common law
The two major groups of laws are common law and statutory law, which govern different jurisdictions across the world. The differences between these two legal systems should be known to learn how legal systems operate and the manner in which laws are made, interpreted, and applied. This article will discuss the differences between common law and statutory law as well as their histories, characteristics, and other differences.
1. Common law
Common law is a legal framework that has been established over time by judges and legal professionals and is founded on court rulings, precedents, and customs. It is predicated on interpretations and legal ideas drawn from earlier instances. Court rulings and precedents, which set legal rules and interpretations that direct subsequent cases, are the source of the common law’s power. As judges and courts gradually establish and interpret legal concepts in response to particular instances and circumstances, common law develops. The idea of precedent, which states that earlier court rulings and legal interpretations have binding authority for cases with like facts in the future, is highly valued in common law.
2. Statutory law
Laws passed by legislative bodies, like Congress or Parliament, through the official legislative process are referred to as statutes. Written and codified laws include statutes, codes, rules and ordinances. Statutory law, that is, one that is articulated in statutes, codes, regulations or ordinances, is a product of legislation passed by the legislative body. Statutes come about by the legislative process, where legislators write, negotiate, and pass laws to correct specific issues or govern specific aspects of society. Whereas statutes can establish precedent, subsequent acts or judicial decisions can impact or alter the manner in which they are construed and utilized.
Limits on Judicial law-making
In the UK, constitutional principles, the sovereignty of parliamentary and legal doctrines are the main sources of a restriction on judicial law-making. Key limits include:
- Separation of Powers: The judiciary should take care not to cross the threshold of the interpretation of law to the legislative role of Parliament. This constitutional principle puts a check on courts that want to extend to a political or legislative role.
- Rule of Law and Principle of Legality: Courts safeguard the basic rights and the rule of law by restrictively interpreting statutes to the extent that they do not violate the basic rights of people unless Parliament says otherwise. The judicial law-making is therefore constrained by the presumption that it cannot override the constitutional rights in case of general or ambiguous legislation, without spelling it out.
- Judicial Review Exceptions: Judicial review may be limited by excluding some powers of the prerogative (e.g., treaty making, dissolution of Parliament) or political issues.
- Human Rights Act 1998: A court shall interpret legislation in a manner consistent with Convention rights where it can and may declare a law incompatible in case it violates rights; however, it cannot invalidate laws, the ultimate power still rests with Parliament.
- Devolution Limits: Devolution also has its judicial review, which limits the devolved legislatures and authorities to act beyond their statutory competences, and this is also within the provisions of the law.
In general, the judicial law-making within the UK is constrained by the deference to the Parliamentary supremacy, constitutionalism, and the political sovereignty of the legislature, balancing law-making with democratic responsibility.
The Judiciary’s role in interpreting legislation and human rights
The connection between justice and peace cannot be disputed in terms of interstate relations or the life of citizens. Due to this fact, the United Nations Charter underlines the basic human rights, in the dignity and the worth of the human person, and in the equal rights of men and women, as the very preamble. The Declaration is frequently cited, mentioned in court rulings, and mentioned in resolutions of the UN, its specialized agencies, and other global and regional institutions. It has influenced many national constitutions, such as ours, as well as international conventions. They formulated human rights promises that were enforceable and legally binding.
Contemporary debates on Judicial law-making and its boundaries
The scope of judicial lawmaking (judge-made lawmaking), the justification of the power to make law in a democratic system, and the demarcation between judicial and legislative lawmaking are central subjects of the contemporary debate concerning judicial lawmaking. Among the key issues are the counter-majoritarian nature of judicial power, the fact that judicial activism may weaken parliamentary sovereignty, and the need for judges to protect their legislative authority while balancing judicial restraint and necessary legal reform in the event that no legislative effort has been made to do so.
There have also been serious practical implications of the constitutional position amendments in 2003. They are related to the daily running of the judicial process, the process of electing judges, and the handling of complaints. These changes are meant to enhance accountability, trust of the people, and the effectiveness of the operation of the judiciary, as well as help in showing the independence of the court.
