Why create the EU?

All the member states of the EU have declared a belief in certain fundamental values and aims. Those fundamental values include the securing of lasting peace, unity, equality, freedom, security, solidarity, democracy and the rule of law (Article 6 [1] TEU). Remember that the creation and growth of the EU, like the European Convention on Human Rights, was achieved through the efforts of individuals and states that experienced the horrors and economic aftermath of the Second World War. Since it
Author(s): The Open University

License information
Related content

Except for third party materials and/or otherwise stated (see terms and conditions) the content in OpenLearn is released for use under the terms of the Creative Commons Attribution-NonCommercial-Share

3.2 The evolution of the EU

The EU has grown out of a series of intergovernmental political initiatives which have been expressed in a number of treaties. These treaties form the building blocks that give authority and power to the institutions and law-making bodies of the EU. The process is evolutionary, as treaties are reviewed and amended to reflect both the changing membership and the vision of the EU.

The EU is founded on several treaties:

  1. The treaty that established
    Author(s): The Open University

    License information
    Related content

    Except for third party materials and/or otherwise stated (see terms and conditions) the content in OpenLearn is released for use under the terms of the Creative Commons Attribution-NonCommercial-Share

2.4 The European Court of Human Rights

Common law and the court hierarchy, statutory interpretation and judicial precedent are all peculiar to the domestic English law. The European Court of Human Rights operates in a different way. The rights in the European Convention on Human Rights are stated in general terms and are interpreted according to international legal principles. For example, Article 31(1) of the Vienna Convention on the Law of Treaties states:

<
Author(s): The Open University

License information
Related content

Except for third party materials and/or otherwise stated (see terms and conditions) the content in OpenLearn is released for use under the terms of the Creative Commons Attribution-NonCommercial-Share

6.5.1 Presumptions

When determining the meaning of particular words the courts will make certain presumptions about the law. If the statute clearly states the opposite, then a presumption will not apply and it is said that the presumption is rebutted. The main presumptions are:

  1. A presumption against change in the common law.

    It is assumed that the common law will apply unless Parliament has made it plain in the Act that the common law has been altered.

  2. <
    Author(s): The Open University

    License information
    Related content

    Except for third party materials and/or otherwise stated (see terms and conditions) the content in OpenLearn is released for use under the terms of the Creative Commons Attribution-NonCommercial-Share

6.5 The purposive approach

This approach has emerged in more recent times. Here the court is not just looking to see what the gap was in the old law, it is making a decision as to what they felt Parliament meant to achieve. Lord Denning in the Court of Appeal stated in Magor and St. Mellons Rural District Council v Newport Corporation (1950), ‘we sit here to find out the intention of Parliament and of ministers and carry it out, and we do this better by filling in the gaps and making sense of the enactment by
Author(s): The Open University

License information
Related content

Except for third party materials and/or otherwise stated (see terms and conditions) the content in OpenLearn is released for use under the terms of the Creative Commons Attribution-NonCommercial-Share

6.4 The mischief rule

This third rule gives a judge more discretion than either the literal or the golden rule. This rule requires the court to look to what the law was before the statute was passed in order to discover what gap or mischief the statute was intended to cover. The court is then required to interpret the statute in such a way to ensure that the gap is covered. The rule is contained in Heydon's Case (1584), where it was said that for the true interpretation of a statute, four things have to be
Author(s): The Open University

License information
Related content

Except for third party materials and/or otherwise stated (see terms and conditions) the content in OpenLearn is released for use under the terms of the Creative Commons Attribution-NonCommercial-Share

6.2 The literal rule

Under this rule the judge considers what the statute actually says, rather than what it might mean. In order to achieve this, the judge will give the words in the statute a literal meaning, that is, their plain ordinary everyday meaning, even if the effect of this is to produce what might be considered as an otherwise unjust or undesirable outcome. The literal rule says that the intention of Parliament is best found in the ordinary and natural meaning of the words used. As the legislative dem
Author(s): The Open University

License information
Related content

Except for third party materials and/or otherwise stated (see terms and conditions) the content in OpenLearn is released for use under the terms of the Creative Commons Attribution-NonCommercial-Share

4.2.11 Neutral citation

In line with the ongoing modernisation of the whole legal system, the way in which cases are to be cited has been changed. Since January 2001 a new neutral system was introduced, and cases in the various courts are now cited as follows (‘EW’ means England and Wales):


Author(s): The Open University

License information
Related content

Except for third party materials and/or otherwise stated (see terms and conditions) the content in OpenLearn is released for use under the terms of the Creative Commons Attribution-NonCommercial-Share

4.2.9 European Community reports

Although European cases may appear in the reports considered above, there are two specialist reports relating to EU cases.

  • European Court Reports (ECR)

    These are the official reports produced by the European Court of Justice. As such, they are produced in all the official languages of the Community and consequently suffer from delay in reporting.

  • Common Market Law Reports (CMLR)

    These are unofficial reports published wee
    Author(s): The Open University

    License information
    Related content

    Except for third party materials and/or otherwise stated (see terms and conditions) the content in OpenLearn is released for use under the terms of the Creative Commons Attribution-NonCommercial-Share

4.2.8 Specialist reports

There are a number of specialist reports. Indeed, there are more than can be mentioned here, but amongst the most important are:

House of Lords [year] UKHL case no.
Court of Appeal
Industrial Relations Law Review (IRLR)
Knight's Local Government Reports (LGR)
Lloyd's Law Reports (Lloyd's Rep.)
Report on Tax Cases (TC or Ta
Author(s): The Open University

License information
Related content

Except for third party materials and/or otherwise stated (see terms and conditions) the content in OpenLearn is released for use under the terms of the Creative Commons Attribution-NonCommercial-Share

3.3.6 Summary of the system of precedent

The basis of the system of precedent is the principle of stare decisis and this requires a later court to use the same reasoning as an earlier court where the two cases raise the same legal issues. For example:

  • House of Lords’ decisions are binding on all other courts in the legal system, except the House of Lords itself.

  • The Court of Appeal is bound by previous decisions of the House of Lords. The Court of Appeal generally i
    Author(s): The Open University

    License information
    Related content

    Except for third party materials and/or otherwise stated (see terms and conditions) the content in OpenLearn is released for use under the terms of the Creative Commons Attribution-NonCommercial-Share

3.3.1 Supreme Court of the United Kingdom

This is the highest appeal court in the UK and was created by the Constitutional Reform Act 20045. The court became operational on 1 October 2009. Generally permission to appeal must be sought before a case can be brought to the UK Supreme Court.

As the highest court of appeal it hears matters which involve points of law of general public importance and concentrates on cases of the greatest public and constitutional importance. Its decisions are binding on all courts lower in the court
Author(s): The Open University

License information
Related content

Except for third party materials and/or otherwise stated (see terms and conditions) the content in OpenLearn is released for use under the terms of the Creative Commons Attribution-NonCommercial-Share

3.2 The hierarchy of the courts

A court hierarchy establishes which decisions are binding on which courts. There are some exceptions and complications to what follows but, in general and for most purposes, the higher up a court is in the hierarchy, the more authoritative its decisions. I mean ‘authoritative’ in the sense that decisions of the higher courts will bind lower courts to apply the same decided principle.

Activity 5 asks you to explore the court structure further.

Author(s): The Open University

License information
Related content

Except for third party materials and/or otherwise stated (see terms and conditions) the content in OpenLearn is released for use under the terms of the Creative Commons Attribution-NonCommercial-Share

3.1 Introduction

Precedent is the basis of the common law. The doctrine of binding precedent is known as the doctrine of stare decisis, which is Latin meaning ‘to stand by/adhere to decided cases’, i.e. to follow precedent. In other words, once a principle is decided it should be followed in future cases. The doctrine refers to the fact that, within the hierarchical structure of the English courts, the decision of a higher court will be binding on a lower court. In general terms, this means that wh
Author(s): The Open University

License information
Related content

Except for third party materials and/or otherwise stated (see terms and conditions) the content in OpenLearn is released for use under the terms of the Creative Commons Attribution-NonCommercial-Share

2.3 Summary of Part A

In Part A you have learned:

  • that the English legal system is a common law system;

  • that this means that much of the law has been developed over time by the courts;

  • how to develop your use of language.


Author(s): The Open University

License information
Related content

Except for third party materials and/or otherwise stated (see terms and conditions) the content in OpenLearn is released for use under the terms of the Creative Commons Attribution-NonCommercial-Share

2.2.1 Prefixes and suffixes

Prefixes and suffixes can offer clues to the meaning of words. Prefixes come before the main part of the word:

  • In ‘antenatal’, ‘ante’ is a prefix meaning ‘before’ and the whole word means ‘before birth’.

Suffixes are added to the end of the word:

  • -ive, -ing, -ness and -ion are all suffixes and are used to form words such as active, willing, willingness and action.


  • Author(s): The Open University

    License information
    Related content

    Except for third party materials and/or otherwise stated (see terms and conditions) the content in OpenLearn is released for use under the terms of the Creative Commons Attribution-NonCommercial-Share

2.1 The history of the common law

Prior to the Norman Conquest of England in 1066, there was no unitary, national legal system. Before 1066 the English legal system involved a mass of oral customary rules, which varied according to region. The law of the Jutes in the south of England, for example, was different from that of the Mercians in the middle of the country (see map below). Each county had its own local court dispensing its own justice in accordance with local customs that varied from community to commun
Author(s): The Open University

License information
Related content

Except for third party materials and/or otherwise stated (see terms and conditions) the content in OpenLearn is released for use under the terms of the Creative Commons Attribution-NonCommercial-Share

1 The role of the courts and the judiciary

This unit will explore the role of the courts and the judiciary in England and Wales. The English legal system is often referred to as a ‘common law’ legal system. Before medieval times the law in what we now call Great Britain was largely regional. Different regional kingdoms had different law. Over time, the same law was applied by judges across the single kingdom established after 1066 and so became common to all parts of the country. This was known as ‘the common law’. (The common
Author(s): The Open University

License information
Related content

Except for third party materials and/or otherwise stated (see terms and conditions) the content in OpenLearn is released for use under the terms of the Creative Commons Attribution-NonCommercial-Share

Learning outcomes

After studying this unit you should be able to:

  • understand what is meant by a common law system;

  • demonstrate a good knowledge and understanding of what is meant by the common law and how its rules are made and changed;

  • demonstrate an understanding of how the common law has developed;

  • describe what is meant by a system of binding precedent;

  • explain the court hierarchy;

  • discuss how a precedent can be altere
    Author(s): The Open University

    License information
    Related content

    Except for third party materials and/or otherwise stated (see terms and conditions) the content in OpenLearn is released for use under the terms of the Creative Commons Attribution-NonCommercial-Share

Introduction

This unit considers the way that judges make law, how the common law system works and the advantages and disadvantages of a system like the British one that relies heavily on such rules and rule making. The unit will set out the basic differences between ‘civil code’ systems and ‘common law’ systems, and consider the relationship between judge-made law and statutory law.

This unit is an adapted extract from the course Author(s): The Open University