Introduction
In the legal system of England and Wales, the term 'sources of law' refers to the origins from which legal rules and principles are derived. A fundamental aspect of legal study involves understanding the hierarchy and nature of these sources. The most important distinction is between primary and secondary sources of law. Primary sources are the authoritative statements of the law itself; they create legal obligations and are binding on courts, legal professionals, and the public. In contrast, secondary sources do not create law but instead offer commentary, analysis, or a summary of it. They can be persuasive and assist in legal understanding, but they are not formally binding. This essay will distinguish between these two categories by examining the specific types of legal materials that fall under each. It will first explore primary sources, focusing on legislation and case law, before moving on to analyse the role and nature of secondary sources such as academic writing and law reform reports. Ultimately, it will be shown that while primary sources constitute the law, secondary sources are essential tools for its interpretation, development, and critique.
Primary Sources of Law
Primary sources are the foundations of the English legal system, as they contain the rules and principles that are enforced by the state. They have formal legal authority and must be followed. The two principal primary sources in England and Wales are legislation and case law.
Legislation
Legislation, also known as statute law, is law created by the UK Parliament. It is the most important source of law, based on the constitutional principle of Parliamentary Sovereignty. This doctrine means that Parliament is the supreme law-making body, and an Act of Parliament is the highest form of law, which courts must apply and cannot challenge the validity of (Elliott and Quinn, 2020). A key example of this principle in action was seen in R (Miller) v The Prime Minister [2019] UKSC 41, where the Supreme Court did not question the power of Parliament but rather the limits on the executive's power in relation to Parliament.
Acts of Parliament, or statutes, are the primary form of legislation. They can create entirely new areas of law, update existing laws, or repeal old ones. For instance, the Equality Act 2010 is a major statute that consolidated and replaced previous anti-discrimination laws, creating a single legal framework to protect individuals from unfair treatment and promote a fair and more equal society. Similarly, the Human Rights Act 1998 incorporated rights from the European Convention on Human Rights into domestic UK law, placing a duty on public bodies to act in a way that is compatible with those rights.
A further type of legislation is delegated (or secondary) legislation. This is law made by bodies other than Parliament, such as government ministers, under powers 'delegated' to them by a 'parent' or 'enabling' Act of Parliament. The most common form is the Statutory Instrument (SI). While not made directly by Parliament, SIs are still a primary source of law because their authority derives from a statute. They are often used to add detail to an Act or to make technical changes. For example, the parent Health and Safety at Work etc. Act 1974 gives the Secretary of State powers to make detailed regulations concerning workplace safety, which are then published as Statutory Instruments. Delegated legislation is essential for the efficient running of government, although it can be criticised for lacking the same level of democratic scrutiny as a full Act of Parliament (Slapper, 2018).
Case Law
The second main primary source of law is case law, also known as common law or judge-made law. This is the body of law developed through the decisions of judges in courts. The English legal system operates a doctrine of judicial precedent, or stare decisis, which means 'to stand by things decided'. This doctrine dictates that courts are bound to follow the decisions of courts above them in the judicial hierarchy, and appellate courts are generally bound by their own previous decisions. This ensures consistency and predictability in the law.
The binding element of a judicial decision is the ratio decidendi, which is the legal principle or reason for the decision. This is the part of the judgment that forms the precedent for future cases. Anything else said by the judge, such as hypothetical scenarios or broader comments on the law, is known as obiter dicta ('things said by the way'). While not binding, obiter dicta from senior judges can be highly persuasive in later cases.
A landmark example of the creation of law through precedent is the case of Donoghue v Stevenson [1932] AC 562. In this case, the House of Lords established the 'neighbour principle', which became the foundation of the modern law of negligence. There was no statute that created this duty of care; it was developed by the judges and has since been followed and refined in thousands of subsequent cases. This demonstrates the power of the judiciary to create and develop legal principles that are just as binding as any statute.
Secondary Sources of Law
Secondary sources of law are materials that discuss, explain, interpret, and analyse the law, but do not themselves form part of it. They do not have binding legal authority, but they can be influential and are often used by judges, lawyers, and students to understand legal principles. Their value is persuasive rather than mandatory.
Academic Commentary
A significant category of secondary sources is academic commentary, which includes textbooks, articles in academic journals, and scholarly monographs. Textbooks, such as those by Elliott and Quinn (2020) or Slapper (2018) on the English legal system, provide a structured and comprehensive overview of a legal subject. They are invaluable for students and practitioners seeking to understand the general principles of an area of law.
Academic articles published in law journals, like the Law Quarterly Review or the Modern Law Review, offer more detailed and critical analysis of specific legal issues. An influential article might challenge the reasoning in a particular case or suggest a new way of interpreting a statute. While a judge is never bound to follow the opinion of an academic, such writings can shape legal thinking over time and may be cited in judgments to support a particular line of reasoning. For example, the writings of scholars like Sir John Smith on criminal law have been referred to by judges in court when grappling with complex legal problems.
Law Reform Reports
Another important secondary source comes from official bodies established to review the law. The most prominent of these in England and Wales is the Law Commission. The Law Commission is an independent body that reviews areas of law and recommends reforms to Parliament. Its reports often contain a detailed analysis of the existing law, its defects, and proposals for new legislation.
These reports are not law in themselves, but they are highly persuasive. The government and Parliament take them very seriously due to the expertise and thorough research that informs them. Many Acts of Parliament have started life as a Law Commission report. For example, the Law Commission’s report, Third Report on Occupiers' Liability to Trespassers and Other Uninvited Entrants (1976), highlighted problems with the common law rules and directly led to Parliament enacting the Occupiers' Liability Act 1984. This shows the direct, albeit indirect, influence that a secondary source can have on the creation of primary law.
Other Secondary Sources
Other materials can also be classified as secondary sources. Legal encyclopaedias, such as Halsbury's Laws of England, provide a comprehensive statement of the law, organised by subject. While an authoritative starting point for legal research, they are a summary of the law, not the law itself. Similarly, records of parliamentary debates (Hansard) can provide context for why a statute was enacted. While traditionally courts could not refer to Hansard to interpret legislation, the case of Pepper v Hart [1993] AC 593 created a limited exception, allowing its use to clarify ambiguity in a statute. However, its primary function remains as a secondary source, providing background information rather than a binding legal rule.
Conclusion
In summary, the distinction between primary and secondary sources of law is clear and of central importance to the English legal system. Primary sources, comprising legislation (both Acts of Parliament and delegated legislation) and binding case law, are the authoritative origins of legal rules. They create the rights, duties, and obligations that are enforceable in the courts. Legislation represents the will of the democratic Parliament, while case law embodies the principle of stare decisis which ensures consistency and fairness.
Secondary sources, by contrast, serve a different but complementary function. Materials such as academic textbooks and articles, and reports from bodies like the Law Commission, do not create law. Instead, they provide explanation, critique, and proposals for reform. They are persuasive resources that aid in the understanding and development of the law, sometimes influencing judges or prompting Parliament to enact new primary legislation. Therefore, a comprehensive understanding of any legal topic requires engagement with both categories: the primary sources to know what the law is, and the secondary sources to understand why it is that way and what it could become.
References
Elliott, C. and Quinn, F. (2020) English Legal System. 21st edn. Harlow: Pearson.
Law Commission (1976) <a href="https://s3-eu-west-2.amazonaws.com/lawcom-prod-storage-11jsxou24uy7q/uploads/2016/08/LC.-075-LIABILITY-FOR-DAMAGE-OR-INJURY-TO-TRESPASSERS.pdf">Third Report on Occupiers' Liability to Trespassers and Other Uninvited Entrants (Law Com No 75)</a>. London: HMSO.
Slapper, G. (2018) The English Legal System. 19th edn. Abingdon: Routledge.
Cases
Donoghue v Stevenson [1932] AC 562
Pepper v Hart [1993] AC 593
R (Miller) v The Prime Minister [2019] UKSC 41
Legislation
Equality Act 2010
Health and Safety at Work etc. Act 1974
Human Rights Act 1998
Occupiers' Liability Act 1984
