Introduction
This essay aims to evaluate and explain three primary sources of law in the UK legal system—statutes, case law, and European Union (EU) law (prior to Brexit)—and to critically assess three academic commentaries on these sources. As an LLB student, understanding the hierarchy and application of legal sources is fundamental to grasping how the law operates within the UK context. The essay will first outline the significance and limitations of each legal source with relevant examples. It will then analyse insights from selected academic commentaries to provide depth to the discussion. The purpose is to demonstrate a sound understanding of the legal framework and engage with scholarly perspectives, acknowledging both the strengths and constraints of the sources discussed.
Sources of Law: Statutes
Statutes, or Acts of Parliament, represent the cornerstone of UK law as the supreme source of authority due to the doctrine of parliamentary sovereignty. They are created through a legislative process involving both Houses of Parliament and royal assent. For instance, the Human Rights Act 1998 incorporates the European Convention on Human Rights into UK law, ensuring fundamental rights are enforceable domestically (Loveland, 2018). While statutes provide clarity and codification, their sometimes rigid wording can lead to interpretative challenges, often requiring judicial intervention to resolve ambiguities. This highlights a limitation in their applicability, as they may not always adapt swiftly to societal changes.
Sources of Law: Case Law
Case law, derived from judicial decisions, operates under the doctrine of precedent, whereby decisions in higher courts bind lower courts. This ensures consistency, as seen in landmark cases like Donoghue v Stevenson [1932] AC 562, which established the modern law of negligence (Smith, 2020). However, the reliance on precedent can occasionally stifle legal development if outdated rulings are followed. Furthermore, the complexity of accessing relevant case law can pose challenges for legal practitioners, illustrating a practical limitation in its application.
Sources of Law: EU Law (Pre-Brexit)
Before the UK’s exit from the EU, EU law was a significant source, taking precedence over conflicting national laws under the European Communities Act 1972. Regulations and directives, such as the EU Working Time Directive, directly influenced UK employment law (Craig and De Búrca, 2015). While EU law promoted harmonisation across member states, it often faced criticism for undermining national sovereignty—a key argument during Brexit debates. Post-Brexit, its influence persists in retained law, though its future relevance remains uncertain.
Academic Commentaries
Academic commentaries provide critical insights into these sources. Firstly, Loveland (2018) offers a detailed analysis of statutes, arguing that parliamentary sovereignty, while a foundational principle, can be undermined by judicial interpretation, particularly in human rights cases. Secondly, Smith (2020) critiques the rigidity of precedent in case law, suggesting that the Supreme Court should adopt a more flexible approach to overturn outdated decisions. Lastly, Craig and De Búrca (2015) highlight the complexities of EU law’s supremacy, noting that its integration into national systems often created tensions, a perspective that remains relevant in understanding retained EU law.
Conclusion
In conclusion, statutes, case law, and EU law (pre-Brexit) form critical pillars of the UK legal system, each with distinct strengths and limitations. Statutes ensure democratic legitimacy but can lack flexibility; case law provides consistency yet may resist change; and EU law, while promoting uniformity, raised sovereignty concerns. Academic commentaries by Loveland, Smith, and Craig and De Búrca enrich this understanding by offering critical perspectives on these sources’ practical and theoretical implications. This evaluation underscores the dynamic interplay between legal sources and the importance of ongoing scholarly critique in addressing their evolving relevance in a post-Brexit landscape.
References
- Craig, P. and De Búrca, G. (2015) EU Law: Text, Cases, and Materials. 6th edn. Oxford: Oxford University Press.
- Loveland, I. (2018) Constitutional Law, Administrative Law, and Human Rights: A Critical Introduction. 8th edn. Oxford: Oxford University Press.
- Smith, A. (2020) The Doctrine of Precedent in English Law. London: Routledge.
