Introduction
In the study of law, particularly within the context of the English legal system, understanding the sources of law is fundamental. Sources of law can be broadly categorised into written and unwritten forms, each playing a distinct role in shaping legal principles and practice. Written sources include statutes and codified regulations, while unwritten sources encompass common law and customary practices derived from judicial decisions and historical traditions. This essay explores two major differences between written and unwritten sources of law: their form and creation process, and their adaptability and application in legal practice. By examining these differences, the essay aims to highlight their unique contributions to the legal framework, as well as some limitations in their respective roles.
Form and Creation Process
The first significant difference between written and unwritten sources of law lies in their form and the manner in which they are created. Written sources of law, such as statutes and legislation, are formal, documented rules enacted by a legislative body, typically Parliament in the UK context. These laws are systematically recorded and published, making them accessible and verifiable. For instance, the Human Rights Act 1998 is a clear example of a written source that incorporates the European Convention on Human Rights into UK law, providing a tangible set of rights and obligations (Elliott and Thomas, 2017). The creation process of written law involves rigorous debate, drafting, and approval stages within the legislative framework, ensuring a structured and deliberate approach.
In contrast, unwritten sources of law, primarily rooted in common law, emerge from judicial decisions and precedents established over time. These are not formally codified but are instead found in case law, where judges interpret and apply legal principles to specific cases. The doctrine of stare decisis, or precedent, underpins this source, binding lower courts to follow decisions made by higher courts (Holland and Webb, 2019). A notable example is the principle of negligence established in Donoghue v Stevenson [1932] AC 562, which laid the foundation for modern tort law. Unlike written law, the creation of unwritten law is less predictable, as it develops incrementally through judicial rulings rather than premeditated legislative action. This distinction in form and creation highlights a fundamental divergence in how these sources establish legal authority.
Adaptability and Application in Legal Practice
The second key difference lies in the adaptability and application of written and unwritten sources within legal practice. Written laws are generally rigid, as they are fixed texts that require formal amendment or repeal through legislative procedures to reflect societal changes. While this rigidity ensures consistency and clarity, it can also limit responsiveness to emerging issues. For example, statutes may lag behind technological advancements, necessitating updates that can be time-consuming (Slapper and Kelly, 2015). However, written laws provide a definitive reference point, ensuring uniformity in application across cases and jurisdictions.
Conversely, unwritten sources, particularly common law, exhibit greater flexibility, as they evolve through judicial interpretation to address contemporary challenges. Judges can adapt precedents to suit the specifics of a case, thereby allowing the law to remain relevant. Indeed, this adaptability is evident in how courts have expanded privacy rights in response to digital age concerns, even in the absence of specific legislation (Holland and Webb, 2019). Nevertheless, this flexibility can lead to uncertainty, as outcomes depend on judicial discretion and may vary between cases. Therefore, while unwritten sources offer dynamic application, they lack the predictability inherent in written law, posing potential challenges in ensuring consistent legal practice.
Conclusion
In summary, written and unwritten sources of law differ significantly in their form and creation process, as well as their adaptability and application in legal practice. Written laws, with their formal codification and legislative origins, provide clarity and uniformity but often lack the flexibility to address rapid societal changes. Unwritten laws, grounded in judicial precedents, offer adaptability but can introduce uncertainty due to their reliance on case-by-case interpretation. These differences underscore the complementary nature of both sources within the English legal system, where written law establishes a stable foundation, and unwritten law facilitates evolution. Understanding these distinctions is crucial for law students, as they highlight the complexity of legal authority and the need for a balanced approach in legal interpretation and reform. Furthermore, this analysis reveals the importance of ongoing review to ensure that both sources remain relevant and effective in meeting contemporary legal demands.
References
- Elliott, C. and Thomas, R. (2017) Public Law. 3rd edn. Oxford: Oxford University Press.
- Holland, J. and Webb, J. (2019) Learning Legal Rules: A Students’ Guide to Legal Method and Reasoning. 10th edn. Oxford: Oxford University Press.
- Slapper, G. and Kelly, D. (2015) The English Legal System. 16th edn. Abingdon: Routledge.
