Publish date: September 26, 2010


Law, as it is, is the command of the Sovereign. It means, 1) law has its source in sovereign authority, (2) law is accom­panied by sanctions, and (3) the command to be a law should compel a course of conduct. Being a command the law must flow from a determinate person or group of persons with the threat of displeasure if it is not obeyed. Sovereignty is, however, only a part of the state. So, in ultimate sense, law emanates from the state. Thus the term Law is used to denote rules of conduct organised society have to follow certain common rules, otherwise peaceful living is impossible. It is the function of the State to enforce these rules.

According to Holland, Law is, “a rule of external human action enforced by the sovereign political authority”. From this definition it follows that there are three essential characteristics of law.

1. Law is a rule relating to the actions of human beings.

2. Law attempts to regulate the external actions of human beings.

3. Law is enforced by the State

Anson observes : ‘The object of law is Order, and the result of Order is that men are enabled to look ahead with some sort of security as to the future. Although human action cannot be reduced to the uniformities of nature, men have yet endeavoured to reproduce by Law something approaching to this uniformity’.

2. What is the rule of law?

The rule of law is the ultimate justification for the existence of a legitimate political system. It is a necessary ingredient to provide a governmental system with a moral justification of its laws. When the government can show that their action is legal, in nature it justifies that action no matter how wrong it might seem. At the same time, laws have to be created, advocated and exercised in a fair and reasonable way.

In its broader sense this means that people should obey the law and be ruled by it. In legal theory it is read in a narrow sense i.e that the government should be ruled by law and subject to it. This is often expressed as government by law and not by man because this distinction differentiates the concept of the rule of law against that of rule by law.

The concept rule of law is capable of different interpretations by different people. The rule of law may be interpreted either as a philosophy or political theory, or as a procedural device. In fact, the concept rule of law has gradually developed through different philosophers like Aristotle, Cicero, Karl Marx, Joseph Raz and A.V. Dicey.

Greek philosopher Aristotle ( 384-322 BC) stated in his book ‘The Politics’ that ‘the rule of law is preferable to that of any individual’. The appeal to law as a control over naked power has been apparent throughout history. At a philosophical level, whether theological or secular, instructs that the power of man is not absolute, but is rather controlled and limited by the requirements of a higher law. Traditionally it was thought that over and above all man-made law (positive law), there is a universal law (natural law) which applies to all men everywhere and at all times.

An early-and famous-formulation of the dictates of natural law was offered by Cicero (106 – 43 BC):

True law is right reason in agreement with nature; it is of universal application, unchanging and everlasting: it summons to duty by its commands, and averts from wrongdoing by its prohibitions. We cannot be freed from its obligations by Senate or People, and we need not look outside ourselves for an expounder or interpreter of it. And there will not be different laws at Rome and at Athens, or different laws now and in the future, but one eternal and unchangeable law will be valid for all nations and for all times, and there will be one master and one ruler, that is, God, over us all, for He is the author of this law, its promulgator, and its enforcing judge.

Karl Marx:

Marxism insists that law represents the interests of the powerful within society. In fact, the law serves not to restrict government and protect individual rights but rather to conceal the injustices inherent in the capitalist system. Accordingly, the rule of law represents no more than a false idealization of law designed to reinforce the political structure and economic status quo in society.

Professor Joseph Raz approaches that :

The rule of law is a political ideal which a legal system may lack or may possess to a greater or lesser degree. It is also to be insisted that the rule of law is just one of the virtues which a legal system may possess and by which it is to be judged. It is not to be confused with democracy, justice, equality, human rights of any kind or respect for persons or for the dignity of man.(1979, p 211).

A.V. Dicey:

The British model of the rule of law owes much to Professor Albert Venn Dicey. In his book ‘Introduction to the Study of the Law of the Constitution’ (1885), Dicey suggested that the rule of law has three meanings:

  1. No punishment may be inflicted other than for a breach of the law.
  2. Irrespective of rank and status all are equal under the law.
  3. Rights and freedoms are best protected under the common law (rather than by a formal Bill of Rights).

1)       No punishment may be inflicted other than for a breach of the law.

Dicey believed that individuals should not be subject to wide discretionary powers. It is now common for discretionary power to be granted on a Minister by Parliament. He felt that wherever there is discretion, there is room for arbitrariness. However, in contemporary Britain, Ministers (and other executive bodies) are often given wide discretionary powers like `to act as he thinks fit’ or `if he is satisfied’. It seems that such discretionary powers are often virtually unreviewable. Therefore, Dicey favoured a system of government based on laws (rules) and not men (discretion), and Geoffrey Wilson claims that this principle that `government should not have arbitrary power’ gives the rule of law `real force today’

Dicey further condemned the issue of retrospectivity. Retrospective legislation is legislation which relates to a situation which occurred prior to its enactment. Remember that Parliament is supreme, so it has the power to pass retrospective legislation. In Burmah Oil Co. Ltd v Lord Advocate [1965] AC 75, where compensation was awarded to an oil company whose installations had been destroyed to prevent them falling into enemy hands. However, no compensation was paid due to the retrospective effect of the War Damages Act 1965. This statute, which was passed following the House of Lords decision, abolished any right at common law to compensation from the Crown in respect of the destruction of property on the authority of the Crown during or in contemplation of war.

On the other hand, the Diceyean approach is no longer relevant in the late 20th century

As K.C. Davis observes: the elimination of all discretionary power is both impossible and undesirable. The sensible goal is development of a proper balance between rule and discretion.

2 ) Irrespective of rank and status all are equal under the law:

[The rule of law] means… equality before the law, or the equal subjection of all classes to the ordinary law of the land administered by the ordinary law courts; the `rule of law’ in this sense excludes the idea of any exemption of officials or others from the duty of obedience to the law which governs other citizens or from the jurisdiction of the ordinary tribunals… (Dicey, p. 202).

Dicey is not arguing here that all persons have equal powers and rights.

Dicey suggested that all citizens should be treated equally before the law. Therefore, as long as laws were applied equally, without irrational bias or unreasonable distinction, this aspect of the rule of law would be complied with.

No matter how attractive Dicey’s theory of equality before the law may appear in theory, there are obvious exceptions to it in practice. Some of these exceptions include: (a) The powers of the Queen, (b) Diplomatic immunity, (c) High Court judges, (d) Parliamentary privilege, (e) Special powers, (f) Homosexuality.

3) Rights and freedoms are best protected under the common law (rather than by a formal Bill of Rights).

Dicey here revealed that the rights to liberty and to assembly are determined by the courts in the course of ordinary legal proceedings. This reflects the (now abandoned) traditional view that citizens are free to do whatever the law does not prohibit – they are what remains of the notion of `freedom unrestrained by law’. However, this places citizens in a fragile position: in order to know, for example, what freedom of speech entails, citizens must understand all the legal restraints on freedom of expression – the law relating to sedition, to race hatred speech, to support for terrorist organisations, to speech likely to cause a breach of the peace, the law of defamation and so on. Add all the restrictions together and seek out the remainder, and that remainder is freedom of speech.


3.1.The term ‘sources of law’ is used in several different senses.

(a) Historical sources – generally regarded as common law and equity.

(b)Legal sources – the means by which the law is currently brought into existence.

There are four legal sources:

(i) Judicial precedent,

(ii) Legislation,

(iii) EC law, and

(iv) Custom.

(c)Subsidiary sources– not currently responsible for the direct creation of law. They include, for example, Law Merchant, Roman Law and Canon Law.


English law’s historical sources are those procedures, rules and ways of thinking which have given rise to today’s current sources of law. Hence a legal problem today may be decided on the rules of the legal sources, but these in themselves (particularly judicial precedent) have been derived from the historical sources of common law and equity.

i) Common law:

At the time of the Norman Conquest in 1066 there was no system of common law to the whole country. Rules of local custom were applied by local manorial courts. To improve the system, the King sent royal commissioners on tour (circuit) of different parts of the realm to deal with crimes and civil disputes. These commissioners, who often heard their cases with the assistance of a local jury, at first applied the local customary law of the neighborhood. On their return from circuit the commissioners sat in the royal courts at Westminster to try cases there. In time the commissioners in their judicial capacity developed rules of law, selected from the differing local customs which they had encountered, as a common law (ius commune) which they applied uniformly in all trials {before the King’s courts) throughout the kingdom.

ii) Equity:

Citizens who could not obtain redress for grievances in the King’s common law courts petitioned the King to obtain relief by direct royal intervention. These petitions came before the King in Council and by custom were referred to the principal civil minister – the Chancellor, who was usually a cleric. In dealing with each petition his concern was to establish the truth of the matter and then to impose a just solution without undue regard for technicalities or procedural points. The Chancellor enforced his authority by summoning the parties to attend for interrogation; the penalty for failure to comply could be imprisonment or confiscation of property. Thus royal power was made available to make the law more effective.

Because the principles on which the Chancellor decided points were based on fair dealing between two individuals as equals, it became known as equity.

The system of equity, developed and administered by the Court of Chancery, was not a complete alternative to the common law. It was a method of adding to and improving on the common law; it provided a gloss on the law. This interaction of equity and common law produced three major changes.

The development of equity was based on a number of ‘equitable maxims’, or principles. These are still applied today if an equitable remedy is sought. The following are examples.

(a) he who comes to equity must come with clean hands. To be fairly treated, the plaintiff must have acted fairly himself.

(b) Equality is equity.The law attempts to play fair and redress the balance; hence what is available to one person must be available to another.

(c) He who seeks equity must do equity.Similar to (a) above, this means that a person wanting equitable relief must be prepared to act fairly in future himself.

(d) Equity looks at the intent, not the form.However a person may try to pretend that he is doing something in the correct form, equity will look at what he is actually trying to achieve.


The development of common law and equity have led to one of the main legal sources of law – judicial precedent – and informs much of the other main source – the passing of statutes.

i) Judicial precedent:

Both common law and equity are the product of decisions in the courts. They are judge-made law but based on a principle of consistency. Once a matter of principle has been decided (by one of the higher courts) it becomes a precedent. In any later case to which that principle is relevant the same principle should (subject to’ certain exceptions) be applied. This doctrine of consistency, following precedent, is expressed in the ‘maxim stare decisis – ‘to stand by a decision’.

Judicial precedent is based on three elements.

(a)There must be adequate and reliable reports of earlier decisions.

(b)there must be rules for extracting from each earlier decision on a particular set of facts the legal principle to be applied in reaching a decision on a different set of facts.

(c)Precedents must be classified into those which are binding and those which are merely persuasive.

It is only decisions of the higher courts – the High Court, Court of Appeal and Judicial Committee of the House of Lords – which are included in the general law reports. Only the important cases (in the effect on the law) are included in the law reports (though certain libraries hold a copy of the judgments in unreported cases also).

The principal legal sources of law, judicial precedent and statute, both comprise a vast amount of detailed judgments and rules. In order to apply these to the particular facts of a case, certain principles of legal reasoning have been evolved in order to ensure that the law’s objectives of consistency and fairness are maintained.

Judges must inevitably create law. Sometimes an Act of Parliament will deliberately vest a wide discretion in the judiciary. In other cases there may be no statutory provision and no existing precedent relevant to the particular dispute. Even so,(the doctrine of judicial precedent is based on the view that it is not the function of a judge to make law, but to decide cases in accordance with existing rules The Latin for this idea is stare decisis – to stand by a decision.

The doctrine of judicial precedent is designed to provide consistency in the law. In order that this should be done in a coherent manner, three things must be considered when examining a precedent before it can be applied to a case:

  • the ratio decidendi. which may be binding, must be identified;
  • the material facts must be the same; and
  • the preceding court must have had a superior (or in some cases, equal) status to the later court.

Ratio decidendi and obiter dicta

A judgment will start with a description of the facts of the case and probably a review o: earlier precedents and possible alternative theories. The judge will then make statements of law applicable to the legal problems raised by the material facts. Provided these statements are the basis for the decision, they are known as the ratio decidendi of the case The ratio decidendi (which literally means `reason for deciding’) is the vital element which binds future judges.)f s judge’s statements of legal principle do not form the basis of the decision (e.g. a dissenting (minority) judgment) or if his statements are not based on the existing material facts, but on hypothetical facts, they are known as obiter dicta statements – something said `by the way’. A later court may respect such statements, but it is not bound to follow them. They are only of persuasive authority.

ii) Statute law:

Statute law is made by Parliament (or in exercise of law-making powers delegated by Parliament). Until the United Kingdom entered the European Community in 1973 the UK Parliament was completely sovereign – its law-making powers were unfettered. In that respect there was a marked contrast with the position in some other countries, eg. USA, where there is a written constitution and it is possible to challenge in the courts (as unconstitutional) legislation made by the statutory law-making body.

iii) EC law:

On becoming a member of the European Community in 1973, the United Kingdom adhered to the Treaty of Rome (and the related treaties on coal, steel and atomic energy) and agreed to conform to EC law which is concerned with free trade in manufactured goods, agricultural support price policies, transport, company law and many other economic matters..

New EC law is created in the following ways:

(a)Regulations e.g. to implement Article 85 of the Treaty of Rome, may be issued. These are .self-executing’ – they have the force of law in every EC state without need of national legislation. In this sense regulations are described as `directly applicable’. If they confer rights and impose obligations on individuals, regulations are also said to have ‘direct effect’.

(b) Decisions of an administrative nature are made by the EC Commission in Brussels mainly to implement the common agricultural policy. Such decisions are immediately binding on the persons to whom they are addressed.

(c)Directives are issued to the governments of the EC member states requiring them within a specified period (usually two years) to alter the national laws of the state so tha, they conform to the directive. Thus the Financial Services Act 1986 gave force to Directives 79,81 and 82 on company securities and the Companies Act 1989 gave force to the Eighth Directive.

iv) Custom:

In early mediaeval times the courts created law by enforcing selected customs. Custom is now of little importance as a source of law, but it is still classified as a legal source of law. In determining what are the implied terms of a contract, the court may take account of local or trade customs which the parties intended should be part of their contract.

Case: Hutton v Warren 1836

The parties were landlord and tenant of a farm. The landlord gave notice to the tenant to quit. Disputes arose as to the tenant’s obligation to continue to cultivate the farm until the notice expired and as to his entitlement to allowances for work done and seed supplied.

Held: these matters were to be resolved according to local custom which had been incorporated in the contract.

In disputes over claims to customary rights, such as to use the land of another or to remove things from it, the alleged custom may be established subject to the following conditions.

(a) It must have existed since’ time immemorial’, in theory since 1189 AD. It usually suffices to show that the custom has existed without interruption from as far back as records (if any) exist.

(b) It must have been enjoyed openly as of right. If it has only been enjoyed secretly, by force, or with permission of the landowner, it is not a custom which amounts to a right.

(c)The custom must be reasonable, certain in its terms, consistent with other custom or law and exercised within a definite locality.


The main sources of law as set out above are judicial precedent (derived from common law and equity) and parliamentary and EC legislation. However, a number of subsidiary sources have had some influence on the law’s development, and are still recognizable today.

i) Law merchant

In mediaeval times, traders (who were often foreigners) submitted their disputes to courts at main ports, fairs and markets which applied mercantile custom. The law of negotiable instruments was brought to England as a commercial practice recognised by bankers and traders in Northern Italy, Germany and elsewhere in late mediaeval times. The work of these courts was absorbed (with the Law Merchant) into common taw in the seventeenth century. But a separate Court of Admiralty existed – to deal with shipping matters – down to modern times and still exists as a special court within the Queen’s Bench Division of the High Court.

ii) Roman law

Although it is the basis of most continental systems of law, Roman law is of little importance as a source of English law. Its influence was mainly felt in the ecclesiastical courts and in the rules relating to the requirements of a valid will. A soldier’s privileged will (a verbal will) is an example of a current law which has Roman origins. Ecclesiastical law


The laws of a country relate to many subjects, e.g, inheritance and transfer of property, relationship between persons, crimes and their punishment, as well as matters relating to industry, trade and commerce. The term Commercial Law or Mercantile Law is used to include only the last of the aforesaid subjects, viz., rules relating to industry, trade and commerce.

Scope: The scope of commercial law is large. It includes the laws relating to contract, partnership, negotiable instruments, sale of goods, companies etc.

It must be noted that there is no fixed line of division between commercial law and other branches of law, nor is there any conflict or contradiction between them. The law of contract, which is a very important part of commercial law, is applicable not only to merchants and bankers but also to other persons. When a merchant files a suit in a court of law the procedure is not materially different from that of other suits. When a trader commits an offence he is punishable under the criminal law exactly in the same way as any other person. The subjects studied under the heading of commercial law do not form a comprehensive code dealing with all aspects of mercantile activity. Commercial law deals with only those parts of law which are of special importance to the mercantile community. The same laws are applicable to other citizens under appropriate circumstances.

Sources of the commercial law:

The commercial law of Bangladesh is based upon statutes of the legislature, English mercantile law and mercantile usages, modified and adapted by judicial decisions. We are stating below the sources from which the rules of commercial law of Bangladesh have been derived.

a. Statutes of the Bangladesh Legislatures: The legislature is the main source of law in modern times. In Bangladesh, the State legislatures possess law making powers and have exercised their powers extensively. The greater part of Bangladeshi commercial law is statutory.

b. English Mercantile Law: Many rules of English Mercantile Law have been Incorpo­rated into Bangladeshi Law through statutes and judicial decisions. English Mercantile Law is a mixture of diverse elements. It contains rules originating from the following sources:

c. Judicial Decisions or Precedents : .

Judges interpret and explain statutes. Rules of equity and good conscience are incorporated into law through judicial decisions. Whenever the law is silent on a point, the judge has to decide the case according to his idea of what is equitable. Prior to 1947, die Judicial Committee of the Privy Council of Great Britain was the final court of appeal for Indian cases and its decisions were binding on Indian courts. After, independence, the Supreme Court of India is the final court of appeal. But decisions of the superior English courts like the Courts of Appeal, Privy Council, and the House of Lords, are frequently referred to as precedents which might be followed in interpreting Indian statutes and as rules of equity and good conscience.

d. Custom and Usage  :

A customary rule is binding where it is ancient, reasonable, and not opposed to any statutory rule. A custom becomes legally recognised when it is accepted by a court and incorporated in a judicial decision


The courts have to be organized to accommodate the working of the legal system. There are four main functional aspects of the court system which underlie its structure.

(a)Civil and criminal law differ so much in substance and procedure that they are best administered in separate courts.

(b) Local courts allow the vast bulk of small legal proceedings to be decentralized. But important civil cases, in which large sums of money are at stake, begin in the High Court in London.

(c)Although the courts form a single system (as a result of the Judicature Acts 1873-75), there is some specialization both within the High Court (split into three divisions) and in other courts with separate functions.

(d) There is a system of review by appeals to higher courts.

The system of appeals is very important and you should make sure that you are clear which higher courts hear which type of appeal from which lower courts.


As can be seen, some courts deal only with civil cases and some only with criminal. Most, however, can deal with both. But a court is a court by virtue of its constitution, not of its situation – the Old Bailey, for instance, is a court-room, but a judge and jury who visit the scene of an alleged crime are a court.

Magistrates’ courts deal with criminal cases as follows.

(a)They try summarily (without a jury) all minor offences and may try offences triable summarily or on indictment with a jury, if the accused consents and the magistrates’ court considers that the case is suitable for trial in that court.

(b)They conduct committal proceedings, which are preliminary investigations of the prosecution case, when the offence is triable only on indictment (by a crown court), or if it is an offence triable either way which (see (a) above) it is decided should not be tried summarily. If the magistrates are satisfied they commit the defendant for trial in a crown court.

Magistrates’ civil jurisdiction includes domestic proceedings for separation or maintenance, affiliation orders, custody of children, various types of licensing and enforcement of local authority rates. On domestic matters, appeals are to a divisional court of the family division of the High Court.

Country courts

County courts have civil jurisdiction only but deal with almost every kind of civil case arising within the local areas for which the courts are established. The main financial limits of county court jurisdiction are:

(a)contract and tort claims up to £ 5,000, unless the parties agree to waive the limit (no limit in the case of defamation);

(b) equitable matters concerning trusts, mortgages and partnership dissolution up to f 30,000, again unless the parties waive the limit;

(c)disputes concerning land where the ratable value is less than £ 5,000, although there is unlimited jurisdiction where the Rent Acts are concerned, or where the parties agree;

(d) undefended matrimonial cases;

(e)probate matters (disputes concerning the grant of authority to personal representatives etc) where the estate of the deceased is less than f 30,000;

(f)miscellaneous matter conferred by various statutes, for example the Consumer Credit Act 1974;

(g) some bankruptcy, company winding-up and admiralty cases.

The practical importance of the county courts is that they deal with the majority of the country’s civil litigation. Over one and a half million actions are commenced each year (about one million are for debt), although only about 596 result in trials since most actions are discontinued or settled out of court before the trial stage is reached.

Crown court

The crown court is theoretically a single court forming part of the Supreme Court, but in fact it comprises local courts in large towns (and also the Central Criminal Court (the 0Id Bailey) in the City of Londor). It tries all indictable (serious criminal) offences with :a jury and heats appeals and deals with committals for sentencing from magistrates’ courts. Lt also deals with s few types of civil cases being appeals from the magistrates’ court on matters of affiliation, betting, gaming and licensing. From the crown court there is a right of appeal on criminal matters to the criminal division of the Court of Appeal. An appeal by way of ‘case stated’ on a point of law may also be made to a Divisional Court of QBD.

There are four classes of offence triable in the Crown Court

(a)Class I Offences: the most serious offences such as murder, treason etc. A High Court judge must preside.

(b)Class 2 offences: serious offences such as rape, manslaughter etc. usually presided over by a ‘High Court judge.

(c)Class 3 offences: less serious offences which must be tried on indictment (not summarily). Examples are robbery and grievous bodily harm. A High Court judge, circuit judge or recorder may preside.

(d)Class 4 offences: offences which may be tried on indictment or summarily, such as burglary and reckless driving.

Usually a circuit judge or recorder presides, though a High Court judge may do so.

The High Court

The High Court is organised into three divisions – Queen’s Bench, Chancery and Family. Except where other special courts have exclusive jurisdiction, the High Court can deal with any civil matter.

In hearing a case for the first time (at first instance) a High Court judge sits alone. A divisional court of two or more High Court judges sits to hear appeals from magistrates (and from crown courts in respect of civil matters tried in those courts). It also exercises the supervisory jurisdiction of the Queen’s Bench Division.

Queen’s Bench Division

The Queen’s Bench Division (QBD) deals mainly with common law matters such as actions based on contract or tort. It includes a separate Admiralty Court (as successor to the Court of Admiralty) to deal with shipping matters such as charter parties, salvage, collisions at sea etc. It is the largest of the three divisions, having 50 judges.

There is also within the Queen’s Bench Division an important Commercial Court which specialises in commercial cases, e.g. insurance claims. The Commercial court offers a rather simpler trial procedure to meet business needs. Judges of the Commercial Court may also sit as arbitrators.

A Divisional Court of QBD has a supervisory role over other courts may issue a writ of habeas corpus, which is an order for the release of a person wrongfully detained, and also prerogative orders against inferior courts, tribunals and other bodies such as local authorities, insofar as they have a duty to exercise a discretion fairly.

Chancery division

This division deals with traditional equity matters such as:

(a) trusts and mortgages; (b) revenue matters; (c)bankruptcy (though outside London this is a county court subject); (d) disputed wills and administration of estates of deceased persons; (e) partnership and company matters.

There is a separate Companies Court within the Division which deals with liquidations and other company proceedings.

Family division

This division deals with matrimonial cases (though most undefended divorce cases are heard in county courts), family property cases, and proceedings relating to children (ward ship, guardianship, adoption, legitimacy etc). It has long been suggested that the family division should be merged with the county court matrimonial jurisdiction to create a separate family court..

Court of appeal

The Civil division of the Court of Appeal can hear appeals from the High Court, county courts the Restrictive Practices Court, the Employment Appeal Tribunal and various other special tribunals such as the Lands Tribunal. It does not conduct a complete re-hearing but reviews th record of the evidence in the lower court and the legal arguments put before it. It may uphold or reverse the earlier decision o: order a new trial. A majority decision is sufficient, and a judge who disagrees gives an express dissenting judgement.

The Criminal division of the Court of Appeal hears appeals from crown courts. It may also be invited to review a criminal case by the Home Secretary or to consider a point of law at the request of the Attorney General. Its powers and procedures are very similar to those of the civil division.

Judicial committee of the House of Lords

Apart from the limited jurisdiction of the European Court, the Judicial Committee of the House of Lords is the highest court of appeal of the English, Scottish and Northern Irish legal system. It hears appeals from both the civil and the criminal divisions of the Court of Appeal (and in certain circumstances direct from the High Court).

Judicial committee of the Privy Council (JCPC)

Some countries of the Commonwealth (though not many) still retain a right of appeal from their national court to the Queen’s Privy Council. The Judicial Committee (with a slightly different representative membership) is in effect the same body as the corresponding Committee of the House of Lords. It also deals with appeals from the English ecclesiastical courts.

The European Court of Justice

Administrative Tribunals:

Administrative tribunals are specialised courts established by statute to deal with dispute; between government agencies and individuals or between two individuals in a simpler and less formal way than is possible in a court of law.


A person possesses legal rights and is subject to legal obligations. The term ‘person’ is used to mean both individual human beings (natural persons) and other bodies.

The importance of a `person’ is that the law attaches rights to a person and imposes legal obligations on him. The owner of property or a party to a contract is necessarily a person. All living individuals are persons. In addition corporate bodies such as the Public Trustee (a separate office filled by a single individual but distinct from him in legal terms), a registered company or a local authority is a person with rights and. obligations. Corporations are artificial persons created by law,

Some types of person have only Limited legal capacity. A company, unlike an individual, cannot marry or make a will. The legal capacity to enter into contracts is limited in the case of companies, minors (individuals under the age of eighteen) and individuals who are insane.


As stated above, all individuals are natural persons in the eyes of the law, although some have limited capacity. Three terms related to the individual need explaining in their legal context  domicile, nationality and residence.

a) Domicile

Every person has a domicile (but only one domicile at any one time). His domicile is the country which he regards as his permanent home. The significance of domicile is that it connects the person concerned with the law of the country in which he has his domicile. If a nation state is divided into constituent parts with their own systems of law (for instance, England and Wales have one legal system and Scotland has another), domicile relates to a territorial legal system of one part of the country.

b) Nationality

In English law a person’s nationality is important mainly to determine his relationship with the state. A person may have dual nationality or none – he may be a stateless person. Nationality may (under English law) determine the rights to vote, to be issued with a British passport for travel abroad, and to enter and reside in the UK.

c) Residence

Residence is important for tax purposes and also determines such matters as the right to De entered on the electoral roll (of the constituency in which the person resides). Residence requires some degree of continuity (though much less titan domicile). It has been held that students at a university are resident (for electoral purposes) in the university town.


The rules of domicile, nationality and residence may affect the legal rights of an individual. His status may also depend on other factors such as age, matrimony, mental capacity etc.

i) Marriage is a form of contract which alters the status of the parties. They have a legal obligation to cohabit (unless judicially separated); the marriage can only be ended (in the lifetime of the spouses) by order of a court; the husband has a duty to maintain his wife and minor children (if he is destitute and the wife has means, she must maintain him). On death of husband or wife, the law recognises certain actual or potential claim, of the survivor part of the estate of the deceased. Since 1973, a wife does not, on marriage, acquire a domicile of dependence from her husband.

ii) Parents share basic powers of guardianship in relation to a minor child. In many respects the rules relating to an illegitimate child – one whose parents were not married to each other at his birth – have been assimilated to those of a legitimate child. There are also legal rules and procedures for legitimation and adoption.

iii) Minors (under the age of 18) are a special case of natural person. The position of minors is follows.

(a) They cannot vote at general or local elections.

(b) They usually take the nationality and domicile of their father.

(c) They can marry when they are 16, but they must have the consent of their parents.

(d) In criminal law:

(i)they cannot be held liable if under 10 years of age (being deemed incapable criminal intent);

(ii)they can be prosecuted, if between 10 and 14 years of age, only if it can be proved that they knew their acts were wrongful,

(e)They cannot own a legal estate in land.

(f)They cannot make a valid will, except in very restricted circumstances (privileged wills)’

(g) They have limited contractual-capacity. (This is discussed in Chapter 13.)

(h)There is no formal exemption of minors from liability in tort, but their age may be taken into account, especially if they are so young that adult standards would be inappropriate,

(i)There are many other rules concerning, for example, driving, employment, films, drinking and school attendance.

iv) Mental incapacity

A person is presumed to be sane until the contrary is proved – that he either did not know what he was doing or did not know that it was wrong. Insanity is mainly significant as a defense or mitigating factor in trials on criminal charges. It may also restrict capacity to enter into binding contract.


A corporation is a legal entity separate from the natural persons connected with it, for example as members. Corporations are classified as:

(a)corporations sole: an official position which is filled by one person who is replaced fro time to time; for example the Public Trustee and the Treasury Solicitor are corporation sole;

(b) chartered corporations: these .are usually charitable associations and bodies such as  ACCA, CIMA and ICAEW.

(c) Statutory corporations. the Companies Act 1985 provides for the registration of unlimited companies, companies limited by guarantee and companies limited by shares. The latter by far the most numerous and paragraphs 4.5 to 4.18 (below) are devoted to them. .


Trade unions enjoy a special status governed by the Trade Union and Labour Relations Acts 1974­76. They are not corporate bodies but they may make contracts on their own behalf and can sue or be sued in their own name. Their property is vested in trustees (their members having no interest in it). Judgments may be enforceable against union property but not against that of its members. Unions have special immunity in that no action in tort may be against the union, its officials, trustees or members in respect of any act done in contemplation or furtherance of any industrial’ I dispute or any other act provided it was not done by way of negligence, nuisance – or breach of statutory duty which resulted in personal injury.

In recent years trade union immunity has been eroded by statutory provisions providing that in certain circumstances they will be liable in tort where they have failed to hold a secret ballot before embarking on industrial action, or where they have undertaken some form of secondary industrial action.


The entire executive branch of government, ministers and civil service departments (but not local authorities or nationalized industries) is described as `The Crown’. This is because, in theory, the Queen is the head of the government and ministers and civil servants act in her name. The Queen is also by historical tradition the source of judicial authority. It followed that the courts, which derived their powers from the monarch, could not try cases in which complaint was made against the royal government. Hence the maxim’ the King can do no wrong’ and is not subject to the jurisdiction of the courts. That is still the legal position of the Queen personally.

By the Crown Proceedings Act 1947, the immunity of government from action in the courts was terminated. The Crown, or government departments, may now be sued in contract and in tort. But personnel of the armed forces cannot sue the Crown for breach of contracts of employment. The Crown may refuse to produce documents in its possession which are required as evidence by a court in a civil action (but the court may inspect the documents privately and, if it sees fit, overrule the official objection which is based on grounds of public interest in preserving the confidentiality of official papers).