Compulsory and voluntary law: lessons in categorisation for English law from continental models

Civil law countries recognise two different categories of law: law which cannot be excluded by the agreement or declaration of those to whom the the law applies; and law which can be so excluded. It seems convenient to describe these two categories as compulsory and voluntary law respectively. These categories must necessarily exist in English law also, but there appears to be a lack of awareness on the part of legislators, judges and academics in the English legal system on this subject which can easily result in confusion. The two categories are not not however the only ones; there are also some hybrid types of law which are compromises between these two extremes. These need to be identified and exploited, because it is often not appropriate that the will of a legislator or the will of individuals should simply prevail in all circumstances.