Introduction
Law is a fundamental part of any organised society, providing a framework for behaviour and a mechanism for resolving disputes. For those studying tourism, an understanding of the law is important as the industry is governed by a wide range of legal rules, from contracts with customers to health and safety regulations in hotels. To understand these specific rules, it is first necessary to understand what ‘law’ is and how the legal system we have today came into being. This essay will first explain the meaning and purpose of law, identifying its key characteristics and functions. It will then discuss the historical development of the English legal system, tracing its origins from ancient principles through to the modern combination of common law, equity, and statute law that exists today. This historical journey demonstrates how the law has evolved over centuries to meet the changing needs of society.
What is Law?
At its simplest, law can be defined as a system of rules that a country or community recognises as regulating the actions of its members and which it may enforce by the imposition of penalties (Martin and Law, 2009). These rules are created and enforced through social or governmental institutions to govern behaviour. The main purpose of law is to maintain order, protect individual rights and liberties, resolve disputes peacefully, and set standards for society. Without law, society could descend into chaos, as described by the philosopher Thomas Hobbes who imagined a 'state of nature' where life would be "solitary, poore, nasty, brutish, and short" (Hobbes, 1651, Chapter XIII).
Law provides the structure within which businesses, including those in the tourism and hospitality sector, must operate. For instance, contract law governs the agreements between a tour operator and a holidaymaker, ensuring that both parties fulfil their promises. Tort law, specifically the tort of negligence, imposes a duty on hotel owners to ensure their premises are safe for guests. Employment law dictates the rights and responsibilities of hospitality employers and their staff. These examples show that law is not an abstract concept but has real-world consequences for individuals and businesses.
Laws in England and Wales are made by two main bodies: Parliament and the courts. Law made by Parliament is known as statute law or legislation. These are Acts of Parliament, which are the highest form of law in the UK due to the principle of parliamentary sovereignty. This means that Parliament can, in theory, make or unmake any law it chooses (Slapper and Kelly, 2017). Law made by the courts is known as common law or case law. This is created by judges when they decide cases and set precedents, which are legal principles that later courts are expected to follow in similar cases. The English legal system is therefore a mixture of rules created by both the legislature (Parliament) and the judiciary (the courts). This combination of sources is a direct result of its unique historical development.
The Historical Development of Law
The English legal system was not created at a single point in time but has evolved over more than a thousand years. Its history can be understood as a gradual process of centralisation and standardisation, moving from fragmented local customs to a unified system applicable to the whole country.
Ancient and Roman Law
While the English system is unique, its roots can be traced back to ancient legal ideas. One of the earliest known written legal codes was the Code of Hammurabi from ancient Babylon (c. 1754 BC). This code was based on the principle of lex talionis, or the law of retaliation, famously summarised as "an eye for an eye, a tooth for a tooth". More significant for European legal development was Roman Law. The Romans developed a sophisticated legal system that covered matters like property, contracts, and inheritance. After the fall of the Roman Empire, Roman law was largely forgotten in England, but it was rediscovered in Europe during the Middle Ages and formed the basis of the 'civil law' systems used today in most of continental Europe (Stein, 1999). Although England took a different path, Roman legal ideas did influence English law in specific areas, particularly commercial and maritime law.
The Birth of the Common Law
Before the Norman Conquest in 1066, England had no single, unified legal system. Instead, law consisted of local customs that varied from one community to another, administered in local courts known as 'moots'. The turning point was the invasion by William the Conqueror, who established a strong central government. The Norman kings began the process of creating a 'common law' for the whole kingdom (Baker, 2019).
This process was significantly advanced by King Henry II (1154-1189). He did not abolish the local courts but established the permanence of the King's own courts and sent judges to travel around the country to hear cases. These travelling judges would then return to Westminster to discuss the cases and the customs they had encountered. Over time, they began to select the best customs and apply them uniformly across the country, creating a law that was 'common' to all (Partington, 2018). This was the origin of the English common law. A key principle that developed during this period was stare decisis, a Latin term meaning "to stand by things decided". This is the doctrine of binding precedent, where a court is bound to follow the decisions of higher courts in cases with similar facts. This principle ensures consistency and predictability in the law.
Another crucial development was the signing of Magna Carta in 1215. This charter, forced on King John by his barons, established the principle that everyone, including the king, is subject to the law. Clause 39 famously stated that "No free man shall be seized or imprisoned…except by the lawful judgment of his equals or by the law of the land." This document is now seen as a cornerstone of the British constitution and a symbol of the rule of law.
The Development of Equity
By the 14th and 15th centuries, the common law had become rigid and beset by technicalities. The only remedy the common law courts could typically offer was damages (monetary compensation). This was not always a just solution. For example, if someone agreed to sell a unique painting for a hotel lobby but then refused, damages might not be an adequate remedy for the hotel owner who wanted that specific painting.
People who could not get justice in the common law courts began to petition the King directly. The King, as the 'fountain of justice', had the power to deliver justice where the law was failing. These petitions were delegated to the King’s chief minister, the Lord Chancellor, who was traditionally a clergyman and known as the "keeper of the King’s conscience" (Hudson, 2017). The Chancellor was not bound by the strict rules of precedent and could make decisions based on fairness and justice. This led to the creation of a separate court, the Court of Chancery, and a new body of law called 'equity'. Equity developed new remedies to supplement the common law, such as specific performance (an order to force someone to perform their part of a contract) and the injunction (an order to stop someone from doing something). For many years, common law and equity were administered in separate courts, but they were finally merged by the Judicature Acts of 1873-1875, which created the single High Court we have today.
The Rise of Statute Law
For much of its history, English law was primarily judge-made common law. However, from the late Middle Ages onwards, the power and importance of Parliament grew. Following the political struggles of the 17th century, the principle of parliamentary sovereignty was firmly established. This means that Parliament is the supreme law-making body in the UK. Today, statute law made by Parliament is the most important source of law. It can create entirely new areas of law and can overrule or change existing common law and equity. Much of the law that regulates the tourism industry, such as the Package Travel and Linked Travel Arrangements Regulations 2018, is contained in statutes and the statutory instruments made under them.
Conclusion
In conclusion, law is a formal system of rules, enforced by the state, which provides the foundation for an orderly society. It sets standards, protects rights, and provides a mechanism for resolving conflicts. This is vital for all sectors, including the tourism industry, which relies on a stable legal framework for contracts, safety, and employment. The English legal system that provides this framework is the product of a long and complex history. It began with the standardisation of local customs into a 'common law' after the Norman Conquest. This was later supplemented by the flexible principles of 'equity' to ensure fairness where the common law was too rigid. Finally, with the rise of democratic government, statute law made by Parliament became the supreme source of law. The modern legal landscape of England and Wales is therefore a rich tapestry woven from these three historical threads: common law, equity, and statute, which together create the system that governs society today.
References
Baker, J.H. (2019) An Introduction to English Legal History. 5th edn. Oxford: Oxford University Press.
Hobbes, T. (1651) Leviathan. (Available through various publishers).
Hudson, A. (2017) Equity and Trusts. 9th edn. Abingdon: Routledge.
Martin, E.A. and Law, J. (eds.) (2009) A Dictionary of Law. 7th edn. Oxford: Oxford University Press.
Partington, M. (2018) Introduction to the English Legal System. 13th edn. Oxford: Oxford University Press.
Slapper, G. and Kelly, D. (2017) The English Legal System. 18th edn. Abingdon: Routledge.
Stein, P. (1999) Roman Law in European History. Cambridge: Cambridge University Press.
