Text 6. The sources of English law

On the Continent the writings of legal authors form an important source of law. In England, in accordance with the tradition the courts are the interpreters of the law. The “sources” of law are the sources to which the courts turn in order to determine what it is. From the aspect of their sources, laws are traditionally divided into two main categories according to the form in which they are made. They may either be written or unwritten. These traditional terms are misleading, because the expression “written” law signifies any law that is formally enacted, whether reduced to writing or not, and the expression “unwritten” law signifies all unenacted laws. For example, judicial decisions are often reduced to writing in the form of law reports, but as they are not formal enactments they are “unwritten” law.

Under the influence of the Code Napoleon many continental countries have codified their law, public and private. On the Continent, therefore, the volume of written law is more than the volume of unwritten. In England in accordance with the tradition writings of the laws had comparatively little respect in the past and for the most part have never been enacted. So in England where more of the laws derive from judicial precedents, unwritten law is predominant. This does not, of course, mean that none of English law is codified. Many parts of it are codified: such as the law on the sale of goods (Sale of Goods Act 1979) and the law on partnership (Partnership Act 1890). All that means that although Parliament may and does make any laws it pleases, there is no whole system of codification which prevails in many continental countries.

Two principal and two subsidiary sources of English law must be mentioned. These principal sources are Legislation, and Judicial Precedent, the subsidiary sources are Custom and Books of Authority which carry a weight of authority almost equal to that of precedents.