Sources of English law

The first task in legal study is not to have an opinion about the law. It is to find the law, identify its authority, read it accurately, and state it with appropriate caution. This Week 1 topic is therefore foundational for the whole Durham LLB. Contract, Tort, UK Constitutional Law, EU Constitutional Law, The Individual and the State, and the legal-method module all assume that students can distinguish a binding authority from a persuasive one, a ratio decidendi from an obiter dictum, primary law from commentary, and a legal rule from the reasons offered for it.

English law is not found in one code. It is drawn from several sources which differ in constitutional status and practical use. The principal sources are Acts of Parliament, delegated legislation, decided cases, retained or assimilated European Union law where relevant, Convention rights as mediated through the Human Rights Act 1998, and constitutional principles such as the rule of law. Academic writing, Law Commission reports, government materials, and parliamentary debates may assist, but they are not ordinarily sources of binding law in the same sense.

This distinction between source and assistance is vital. A textbook may explain a rule more clearly than a judgment, but it does not make the rule. A ministerial statement may illuminate the purpose of legislation in limited circumstances, but it is not itself the statute. A Supreme Court judgment binds lower courts, but not every sentence in that judgment is the ratio of the case. Legal method is the discipline of handling these materials without collapsing their different levels of authority.

For first-year Durham students, this is also a matter of assessment technique. In a Contract or Tort problem question, the strongest answers begin with the relevant rule and its authoritative source, then apply it to the facts. In Constitutional Law, the same habit prevents vague appeals to principle from replacing doctrine. In The Individual and the State, where statute, common law, Convention rights, and administrative discretion frequently intersect, the ability to rank sources is indispensable.

The central question for Week 1 is therefore simple but demanding: when a proposition is asserted to be law, what makes it law, and how should it be used? The answer depends on institutional source, hierarchy, context, and interpretive method. English law is both historical and practical: its categories are inherited, but its day-to-day operation depends on disciplined reading.

The English legal system developed without the single codifying moment characteristic of some civil-law systems. Its modern structure is the product of institutional evolution: royal courts, equity, Parliament, the Judicature reforms, the modern appellate hierarchy, administrative government, membership of and withdrawal from the European Union, and the incorporation of Convention rights through the Human Rights Act 1998.

The common law emerged from the central royal courts after the Norman Conquest. It was common not because it was popular custom in a modern democratic sense, but because it became the law administered by the King’s courts across the realm. Its methods were forensic and incremental. Rules were refined through disputes. The authority of earlier decisions became increasingly important, though the strict modern doctrine of precedent is a later development associated with reliable law reporting and a settled hierarchy of courts.

Equity developed as a corrective jurisdiction associated with the Chancellor. It did not simply contradict the common law; rather, it responded to the rigidity of common-law forms and remedies. Trusts, injunctions, specific performance, fiduciary obligations, rescission, and equitable maxims became central parts of English private law. The Judicature Acts fused the administration of law and equity, not their substantive principles. This remains important in first-year Contract and later Trusts: equitable remedies and common-law damages are not interchangeable merely because they are administered by the same courts.

Parliamentary legislation became increasingly central with the growth of the modern state. In constitutional theory, an Act of Parliament is the highest ordinary domestic source of law. Courts interpret statutes; they do not refuse to apply a valid Act because they consider it unwise or unjust. Yet this does not mean legislation operates mechanically. Statutory meaning is often contested, and interpretive principles shape how enacted words are applied to new circumstances.

The nineteenth and twentieth centuries strengthened the doctrine of precedent. The House of Lords treated itself as bound by its own decisions until the Practice Statement of 1966. The Court of Appeal developed its own rules, particularly in Young v Bristol Aeroplane Co Ltd. The creation of the Supreme Court in 2009 altered institutional form but did not fundamentally alter the hierarchy of precedent.

The later twentieth century also complicated the domestic picture. European Union law, during the United Kingdom’s membership, had a special status in domestic law through the European Communities Act 1972. The Human Rights Act 1998 required courts to take Strasbourg jurisprudence into account and to interpret legislation compatibly with Convention rights so far as possible. Brexit changed the legal status of EU-derived norms, but it did not remove the need to understand how domestic legal sources interact with external legal orders.

The result is a system whose sources are layered. The beginning student must resist two errors: imagining English law as a tidy code, and imagining it as an unstructured mass of cases. It is neither. It is an institutional order in which legislation, precedent, interpretation, and constitutional principle operate according to recognisable rules.

The first principle is the distinction between primary and secondary sources. Primary sources are materials that can themselves constitute law: statutes, statutory instruments, decided cases, and certain constitutional instruments. Secondary sources explain, criticise, synthesise, or propose reform. Textbooks, journal articles, practitioner works, encyclopaedias, and lecture notes are secondary. They are useful, often indispensable for learning, but they do not bind a court. A Durham first-year essay should use secondary sources to frame analysis, not to replace authority.

The second principle is hierarchy. Not all sources have equal force. An Act of Parliament prevails over inconsistent common law. A Supreme Court decision binds the Court of Appeal, the High Court, and lower courts. A Court of Appeal decision binds the High Court and county courts, and ordinarily binds later panels of the Court of Appeal subject to recognised exceptions. High Court decisions are generally persuasive for other High Court judges and binding on lower courts in practical terms, though the precise language of bindingness should be handled carefully. Decisions of courts outside England and Wales are usually persuasive, not binding, unless a specific statutory or constitutional rule provides otherwise.

The third principle is ratio decidendi. A case is not authority for every statement made in it. The ratio is the legal principle necessary to the decision on the material facts. Obiter dicta are observations not necessary for the decision. They may be highly persuasive, especially when made by the Supreme Court, but they are not binding in the same way. The skill lies in relating the court’s reasoning to the facts and outcome. A case about a decomposed snail in a bottle is not cited for snails; it is cited for the broader principle of negligence developed from those facts.

The cases selected for this topic are not to be learned as isolated facts. They illustrate the architecture of sources. Some concern precedent; some concern statutory interpretation; some concern the relationship between domestic law and external legal orders; some show the common law developing through adjudication.

London Street Tramways v London County Council represents the older strict conception of precedent at the highest appellate level. The House of Lords held itself bound by its previous decisions. The attraction was certainty: litigants and lower courts could rely on settled authority. The cost was rigidity. If the highest court was wrong, the error could persist until Parliament intervened.

The 1966 Practice Statement modified that position. The House of Lords announced that it would depart from its own previous decisions when it appeared right to do so, while recognising the importance of certainty. The present Supreme Court inherited that approach. The Practice Statement is central because it marks the balance between law as stable authority and law as a system capable of correction.

Young v Bristol Aeroplane Co Ltd remains the leading authority on the Court of Appeal’s relationship with its own prior decisions. It sets out exceptions to the general rule that the Court of Appeal is bound by itself: conflicting Court of Appeal decisions, inconsistency with a later higher authority, and decisions given per incuriam. This matters constantly in legal research: a Court of Appeal authority cannot be treated as freely revisable merely because a later panel dislikes it.

Donoghue v Stevenson is included because it shows the common law making principle from facts. The case is not important because ginger beer bottles are common in modern litigation. It is important because Lord Atkin’s neighbour principle articulated a general approach to duties of care. Common-law reasoning moves from particular dispute to broader rule, but the breadth of the ratio must be argued, not assumed.

Pepper v Hart concerns statutory interpretation and extrinsic materials. The House of Lords accepted that, in limited circumstances, reference may be made to parliamentary materials where legislation is ambiguous or obscure or leads to absurdity, and where the material relied on consists of clear statements by a minister or other promoter of the Bill. The case is often overused by students. It does not permit free-ranging resort to parliamentary debates whenever a statutory argument is difficult.

R v R demonstrates common-law development in a morally and socially significant field. The House of Lords recognised that the supposed marital rape exemption no longer formed part of English law. The case is a reminder that common law is not merely historical sediment. It may develop, especially where an existing rule is no longer coherent with principle and social reality. Yet its development occurs through legal reasoning, not legislative generality.

Factortame and Miller show constitutional interaction between sources. Factortame demonstrated the domestic effect of EU law during membership under the European Communities Act 1972. Miller confirmed that ministers could not use prerogative power to alter domestic law and statutory rights without parliamentary authority. Both cases are fundamental to understanding the source of legal authority in public law.

See practice questions section below.

See further reading section below.