Nowadays, there is a continuing concern if there has changeable of values and demand of society, the sources of law can adopt accords with those situations or not. The reason is that society might change every time that is why any law may not align with the values and various changing situations of society. The general definition of the source of law refers to something which may as any law include treaty or custom that supports the power for court decisions and legislation.[1] One example is it used to have the equality claims for whoever wants same-sex marriage which argued that same-sex marriage was equable to heterosexual marriage or not.[2] Moreover, equal marriage law should not more specific gender of the person because anyone have the right equivalent.[3] Thus, it is interesting to study how the source of law can apply the value and changing society.
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Regarding the sources of law, it seems that the term the sources of law will refer to a legal condition which may happen from civil law, tradition and common law depending on the background of various countries including a legal system with judges adapting important regulations. Especially, the legal system has an aim organized human behavior within societies.[4] The term civil law will refer to a legal system has the judge adopted significant regulations include principles align with civil codes and statutes.[5] Nonetheless, common law can be defined as one of the legal systems has developed from court judgments by methods of application and interpretation from legal norms depending on the situation of cases.[6] This paper will focus on the sources of law in case of marriage has application for society and values that changing under the common law system in the United Kingdom.
In terms of the common law system, if the court judges any case, this decision has enforced similar cases in the future.[7] In contrast, the United Kingdom has imposed legislation by Parliament which can cancel or edit any law under UK constitutional law.[8] It is worth noting that the United Kingdom used case law for adjusting and interpreting from legal norms in the common law system. Nonetheless, the common law system usually not defined the basis of principles for legislation but there has specific legislation to enforce real situations.[9] That is why the United Kingdom has brought the legislation for applying in-country that must be using some more specific rule by Parliament, namely Marriage Act 1949. It seems that this Act may purpose for enforcing legal for people who married in this country and according to local customs or religion depending on the background of each person. Furthermore, this Act identifies one of qualifying of marriage that “a marriage of a man and a woman according to the rites of the Church of England in any church or chapel in which banns of matrimony may be published”.[10] It is believed that religion was one part of society which has influenced with a concept and the values of people in society. When it happens to change values and concept of society, the legal can adapt according to this changing of society. Hence, it can be seen that the previous cohabit of husband and wife according to local tradition or religion is normal of people in the past but when it has necessary to achieve a legal marriage from changing of society and the values. The reason why the UK Parliament must impose act accord with the changing society and values at the moment.
In the case of same-sex marriage, it is one of the controversial problematic. For this reason, the legislation may not cover for this case from many causes like religion. For instance, the doctrine of the Church of England identifies the marriage arise between one man and one woman from living together permanently and long life.[11] This case may occur to people who believe the Church because some people might conflict or confused with this doctrine from changing society in the current. It is also worth noting that most people well-known a traditional custom which a man and a woman must marry together the only way, while, the society has changed.
According to the changing society, it has influenced with an improvement of Marriage Act in England and Wales for same-sex marriage is that Marriage (Same-Sex Couples) Act 2013. The cause of this situation is that when the marriage of two persons has various motivations such as law, customs, religion or the status of society.[12] Furthermore, this Act identifies qualifying of same-sex marriage that no necessary used section 26 under Marriage Act 1949. For example, same-sex marriage has not necessarily a man and woman accord with rites of the Church of England.[13] This case possible to happen same-sex marriage more than the present because the statute admitted religious institute to choose for making marriage with same-sex couples.[14] The reason why the society to adjust to comply with the changed values and the legislation gradually adapts to those situations that change. It means there is not just only a man and woman can be married in one method of the present but recognized by the legislation. Moreover, it is clear that the source of the law can be applied to change values and society from this case. For this reason, when the values and society arise an alteration, it promotes the legal to be developed according to the changing situation. Though it may take time and adjust to the changing circumstances.
In summary, it is observed that the United Kingdom use court judgement as a norm in judicial proceedings under the common law system that is the source of law. In contrast, there is specific legislation by Parliament which is another source of law because there was the development of the law at that time from society and values that change. Also, the Parliament has legislated a Marriage Act showing that the state wants people to have rights and obligations when they are a legal marriage. However, this Act might not cover changes in values and society now because there have been claims of same-sex marriage rights. This situation is that society and values have changed from the previous which the law has adapted to the current situation. Therefore, the law can adapt to the changing situation of society and values.
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Bibliography
Primary source
legislation
- Marriage Act 1949, s 26
- Marriage (Same-Sex Couples) Act 2013, s 3
Secondary source
Books
- Garner BA and Black HC, Black’s Law Dictionary (8th edn, Thomson/West 2004)
- Slapper G and Kelly D, The English Legal System (6th edn, Cavendish Pub 2003)
Articles
- Carver N, ‘‘For Her Protection and Benefit’: The Regulation of Marriage-Related Migration to the UK’ (2016) 39 Ethnic and Racial Studies 2758
- Dainow J, ‘The Civil Law and The Common Law: Some Points of Comparison’ (1966) 15 The American Journal of Comparative Law 419
- Jowett A, ‘‘But If You Legalise Same-Sex Marriage…’: Arguments Against Marriage Equality in The British Press’ (2013) 24 Feminism & Psychology 37
- Murphy J, ‘Same-Sex Marriage in England: A Role for Human Rights’ (2004) 16 Child and Family Law Quarterly 245
- Pejovic C, ‘Civil Law and Common Law: Two Different Paths to The Same Goal’ (2001) 2001 VUWLR 817
- Smith C, ‘The Church of England And Same-Sex Marriage: Beyond A Rights-Based Analysis’ (2019) 21 Ecclesiastical Law Journal 153
Other secondary sources
- Parliament, ‘The Law of Marriage’ (UK Parliament, 2019) <https://www.parliament.uk/ about/living-heritage/transformingsociety/private-lives/relationships/overview/lawof marriage-/> accessed 28 September 2019
[1] Bryan A Garner and Henry Campbell Black, Black’s Law Dictionary (8th edn, Thomson/West 2004) 1429-1430.
[2] John Murphy, ‘Same-Sex Marriage in England: A Role for Human Rights’ (2004) 16 Child and Family Law Quarterly 245.
[3] Adam Jowett, ‘‘But If You Legalise Same-Sex Marriage…’: Arguments Against Marriage Equality in The British Press’ (2013) 24 Feminism & Psychology 37, 47.
[4] Joseph Dainow, ‘The Civil Law and The Common Law: Some Points of Comparison’ (1966) 15 The American Journal of Comparative Law 419.
[5] Caslav Pejovic, ‘Civil Law and Common Law: Two Different Paths to The Same Goal’ (2001) 32 VUWLR 817, 820.
[6] ibid.
[7] Dainow (n 4) 424.
[8] Gary Slapper and David Kelly, The English Legal System (6th edn, Cavendish Pub 2003) 5.
[9] Dainow (n 4) 425.
[10] Marriage Act 1949, s 26.
[11] Charlotte Smith, ‘The Church of England And Same-Sex Marriage: Beyond A Rights-Based Analysis’ (2019) 21 Ecclesiastical Law Journal 153, 158.
[12] Natasha Carver, ‘‘For Her Protection and Benefit’: The Regulation of Marriage-Related Migration to the UK’ (2016) 39 Ethnic and Racial Studies 2758, 2761.
[13] Marriage (Same-Sex Couples) Act 2013, s 3.
[14] Parliament, ‘The Law of Marriage’ (UK Parliament, 2019) <https://www.parliament.uk/ about/living-heritage/transformingsociety/private-lives/relationships/overview/lawofmarriage -/> accessed 28 September 2019.
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