The Sources of English Law are many and varied, however there are four main types, which have different roles and importance in the British Legal system. According to The Chartered Institute of Legal Executives () ‘The four principal sources of UK law are legislation, common law, European Union law and the European Convention on Human. (a) Describe and explain the three types of delegated legislation identified in the source. Delegated legislation is the law laid by other authorities given that authority by Parliament. This is laid out in an Act or a Bill creating a framework of the law and delegates to others to make it more /5(2). Once delegated legislation comes into force it has full legal authority and the rules must be followed. THE COMMON LAW This is one of the oldest sources of law and it differs from the above in that the law . Hence the phrase sources of law have been used to describe the legal, formal, historical and material sources of law. The various sources of law of Kenya are identified by: 1. Custom is one of the earliest sources of helpmyessay.pw the primitive society all disputes were decided in accordance with the prevailing social customs. In the beginning, when the social organisation was simple, customs were based on the general usage of the family, clan or tribe.
These courts relied on customs to decide cases before them thereby giving such customs the force of law. The court of Kings Bench, Court Exchequer and the court of common pleas are credited from having developed common law. These courts standardized and universalized customs and applied them in dispute resolution.
At first, common law was a complete system of rules both criminal and civil. The development of the common law is traceable to the Norman Conquest of the Iberian Peninsula. The Romans are credited for having laid the foundation for the development of the common law.
Doctrine of stare decisis 1. There were separate writs for separate complaints. Writs were obtained at the Royal office. Often, police officers demanded bribes to compel the defendant appear in court and would not compel an influential defendant.
The writ system did not recognize all possible complains and many would be plaintiffs could not access the courts. It also lengthened the judicial process. At common Law, a judge having once decided a case in a particular manner had to decide all subsequent similar cases similarly. This made the common Law system rigid. Common Law consists of decisions handed down by courts of law on the basis of customs and usages and may be described as the English Customary Law.
There were separate writs for different complaints.
This system did not recognize all possible complaints and many would be plaintiffs had no acess to the courts b. The writ system encouraged corruption c. It lengthened the course of justice 2. The common Law courts applied the doctrine of Stare Decisis. This practice rendered the legal system rigid and hence unresponsive to changes.
The common Law procedure of administration justice was highly technical. Common Law courts paid undue attention to minor points of procedure and many cases were often lost on procedural matters. The administration of justice at common Law was characterized by delays. Defendants often relied on standard defenses to delay the course of justice.
These defenses were referred to as essoins and included; Being out by floods, being unwell or being away on a crusade.
Sources Of English Law
If sickness was pleaded, the case could be adjourned for 1 year and 1 day. Common Law did not recognize the trust relationship. At common Law beneficiaries had no remedies against errant trustees and trustees had no enforceable rights against beneficiaries. Common Law courts had only one remedy to offer namely monetary compensation or damages. They could not compel performance or restrain the same. Inadequate protection of borrowers: At common Law, a borrower who failed to honour his contractual obligations within the contractual period of repayment would lose not only his security but the total amount paid.
It was developed to mitigate the harshness of the common Law. The development of equity is traceable to the early petitions to the king by persons dissatisfied with the common Law. At first, the king heard the petitions and decided the dispute between the parties on the basis of what he thought was fair.
He was overwhelmed by the petitions whereupon he established the office of the Lord Chancellor who would now hear the petitions. More offices of the Lord Chancellor were established due to the number of petitions. The Lord Chancellor decided all petitions on the basis of the principle of fairness. Administration of justice was fast and the writ system was not applicable. However, the decisions handed down by the Lord Chancellor were not legally binding as the Lord Chancellor was not legally trained.
It was not until the beginning of the 16th century that the Lord Chancellors offices were held by legally trained persons and the decisions they made had the force of Law. These decisions are what are referred to as the Doctrines of Equity.
The Lord Chancellors offices had now become courts. The administration of justice by Equity courts was flexible and not tied to the doctrine of stare desicis. The courts had move remedies to offer and had no technicalities of procedure. The Lord Chancellor Courts were guided by the principle of fairness.
These were the so called Maxims of Equity. Equity consists of rules developed by the Lord Chancellor Courts based on the principle of fairness. Equity has an ordinary, legal and a technical meaning. In the ordinary sense, equity means fairness, justice, morality, fair play, equality etc. We are talking about doing good, doing what is morally right.
In a legal sense, equity is the branch of the law which, before the Judicature Act of came into force, was applied and administered by the Court of Chancery. In the technical sense equity refers to a body of rules and some authors have defined equity as that which is not the common law. They distinguish equity from the common law. It is regarded as a body of rules that is an appendage to the general rules of law.
Sources of Kenyan Law Essay Sample
The contribution of Equity may be classified as exclusive, concurrent and ancillary. These maxims of equity are statements which embody rules of equity. They are only guidelines. They are not applied strictly in every case. But they help us to understand what the rules of equity are. No logical sequence and they often overlap. You can have two maxims that actually say the same thing. You can have one maxim of equity which is the exact opposite of another maxim.
The Maxims of Equity include: He who seeks equity must do equity 2. He who comes to equity must come with clean hands 3. Equity is equality Equality is equity 4. Equity looks to the intent or substance rather than the form 5. Equity looks upon as done that which ought to be done 6. Equity imputes an intent to fulfill an obligation 7.
Equity acts in personam 8. Equity will not suffer a wrong to be without a remedy Where there is a wrong there is a remedy for it Ibi jus ibi remedium Equity does not act in vain Delay defeats equity Equity aids the vigilant and not the indolent Vigilantibus non dorminentibus jura subveniunt 1.
And this is most commonly applied in injunctions. The court will normally impose certain conditions for granting the injunction.
There is a limit to this rule. In some cases the court has the discretion whether to apply this maxim. Limit to the extent that maxim can be applied The limit is this: It is not all unclean hands that will deny a plaintiff his remedy.
The conduct must be relevant to the relief being sought. Loughran , Justice Brandeis said equity does not demand that its suitors shall have lead blameless lives. We are not concerned with issues of morality. If the breach is a trifle, a small matter, a minor breach, then that in itself should not deny the plaintiff the remedy.
Upon divorce, the maxim applies. The authority is that equity does not want to concern itself with the activities of a husband and wife — to go into the bedroom and make deep inquiries, hence equal division. Another example relates to trusts. How do you divide the property?
Say there are three beneficiaries. Then one of the beneficiaries passes away, i. What should accrue to the surviving beneficiaries? Equity will give priority to substance intention as opposed to form, if there is a contradiction. This maxim is normally applied to trusts. There have been cases where the court has inferred a trust even where the word trust does not appear.
Another illustration is the remedy of rectification of contract, where equity looks to the intention, where intention matters. This maxim lies at the root of the equitable doctrines governing mortgages, penalties and forfeitures. Equity regards the spirit and not the letter.