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Sources of law (England and Wales)
There
are two sources of law – common law and statute law.
Common law
Common
law dates from the eleventh century when William I set up Royal Courts to apply
a uniform (common) system of law across the whole of England. Prior to that time,
there was a variation in law, or the interpretation of the same law, from one
town or community to another. Common law is based on judgements made by courts (or
strictly judges in courts). In general, courts are bound by earlier judgements
on any particular point of law – this is known as ‘precedent’. Lower courts
must follow the judgements of higher courts. Hence judgements made by the Law
Lords in the House of Lords form the basis of most of the common law currently
in use.
In
health and safety, the legal definition of negligence, duty of care and terms
such as ‘practicable’ and ‘as far as is reasonably practicable’ are all based
on legal judgements and form part of the common law. Common law also provides
the foundation for most civil claims made on health and safety issues.
Statute law
Statute
law is law which has been laid down by Parliament as Acts of Parliament. In
health and safety, an Act of Parliament, the Health and Safety at Work Act 1974,
lays down a general legal framework. Specific health and safety duties are,
however, covered by Regulations or Statutory Instruments – these are also examples
of statute law. If there is a conflict between statute and common law, statute
law takes precedence.
However,
as with common law, judges interpret statute law usually when it is new or
ambiguous. Although for health and safety, statute law is primarily the basis
of criminal law, there is a tort of breach of statutory duty which can be used
when a person is seeking damages following an accident or illness. Breaches of
the Health and Safety at Work Act 1974 cannot be used for civil action but
breaches of most of the Regulations produced by the Act may give rise to civil
actions.
The relationship between the sub-divisions and sources of law
The
two sub-divisions of law may use either of the two sources of law. For example, murder is a
common law crime. In terms of health and safety, however, criminal law is only
based on statute law, whereas civil law may be based on either common law or
statute law. This relationship is shown in Figure 1.3. Figure 1.3 Sub-divisions
and sources of law.
In
summary, criminal law seeks to protect everyone in society whereas civil law seeks to recompense the individual
citizen.
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