The Sources of Law

The sources of law are the origins from which legal rules are created and developed within the English legal system. They provide the authority for laws and determine how legal principles are established, interpreted, and applied. Understanding the sources of law is important for A-Level Law students because they form the foundation of the legal system and explain where legal rules come from and how they evolve over time.

This topic appears in:

• AQA A-Level Law | Component 1: The Nature of Law and the English Legal System | Topic 1: Nature of Law 
• OCR A-Level Law | Component 3: The Nature of Law and Human Rights | Component 4: The Nature of Law and the Law of Contract | Topic 1: Introduction to the Nature of Law 

Definitions

• Source of Law: The origin from which legal rules and principles are derived.
• Legislation: Law made by Parliament through the formal legislative process.
• Delegated Legislation: Law made by individuals or bodies under authority granted by Parliament.
• Judicial Precedent: Law developed by judges through decisions made in previous cases.
• Common Law: Law developed through judicial decisions rather than Acts of Parliament.

Key Features

Legislation

Legislation is the most important source of law in England and Wales because it is created by Parliament, the supreme law-making body. Acts of Parliament establish legal rules on a wide range of issues, including criminal offences, civil rights, and constitutional matters. Examples include the Theft Act 1968 and the Human Rights Act 1998. Legislation provides clear and authoritative legal rules that apply throughout the jurisdiction. Because Parliament is democratically elected, legislation is often viewed as the most legitimate source of law.

Judicial Precedent and Common Law

Judicial precedent is a source of law created through decisions made by judges in cases that come before the courts. Under the doctrine of stare decisis, courts generally follow legal principles established in earlier decisions made by higher courts. This creates consistency and predictability within the legal system. Common law has developed over centuries through judicial decisions and continues to influence many areas of law. For example, important principles relating to negligence and contract law have largely been developed through case law.

Delegated Legislation

Delegated legislation consists of laws made by ministers, local authorities, and other bodies acting under powers granted by Parliament. This source of law allows detailed rules to be created without requiring a new Act of Parliament for every issue. Examples include statutory instruments, by-laws, and orders in council. Delegated legislation is widely used because it enables technical matters to be addressed efficiently and allows laws to be updated more quickly than primary legislation. However, it remains subject to parliamentary control and judicial review.

Evaluation

Advantages

• Provides Flexibility: Having multiple sources of law allows the legal system to respond to new circumstances through legislation, judicial decisions, and delegated powers.
• Promotes Legal Development: Judicial precedent enables the law to evolve gradually as judges interpret and apply legal principles to new situations.
• Ensures Democratic Legitimacy: Legislation is created by Parliament, ensuring that many important legal rules are made by elected representatives.

Disadvantages

• Can Be Complex: The existence of multiple sources of law can make it difficult for individuals to identify and understand the applicable legal rules.
• Risk of Excessive Delegated Powers: Delegated legislation may reduce direct parliamentary scrutiny because detailed rules are often created outside Parliament.
• Precedent Can Limit Change: The doctrine of judicial precedent promotes certainty but can make legal development slower where courts are reluctant to depart from earlier decisions.

Summary

• Sources of law are the origins from which legal rules are created and developed.
• Legislation is law made by Parliament and is the primary source of law.
• Judicial precedent creates law through decisions made by judges in previous cases.
• Common law develops through judicial decisions and legal principles established by the courts.
• Delegated legislation allows authorised bodies to create detailed legal rules under powers granted by Parliament.