English law is the
legal system of
England and Wales, and is the basis of
common law legal systems used in most
Commonwealth countriesand
the United States (as opposed to
civil law or
pluralist systems in other countries, such
as
Scots law). It was exported to
Commonwealth countries while the
British
Empire was established and maintained, and it forms the basis
of the
jurisprudence of most of those
countries.
English law prior to the American revolution is still part of the
law of the United States
through reception statutes,
except in Louisiana
, and provides the basis for many American legal
traditions and policies, though it has no superseding
jurisdiction.
English law in its strictest sense applies within the
jurisdiction of England and Wales. Whilst Wales
now has a devolved Assembly, any legislation which that Assembly
enacts is enacted in particular circumscribed policy areas defined
by the
Government of Wales
Act 2006, other legislation of the U.K. Parliament, or by
orders in council given under the authority of the 2006 Act.
Furthermore that legislation is, as with any by-law made by any
other body within England and Wales, interpreted by the undivided
judiciary of England and Wales. Also see
below.
The essence of English common law is that it is made by
judges sitting in
courts,
applying their common sense and knowledge of
legal precedent (
stare decisis) to the facts before them.
A decision
of the highest appeal court in England
and Wales, the Supreme Court of the United
Kingdom
, is binding on every other court in the hierarchy, and they will
follow its directions. For example, there is no
statute making
murder illegal. It is a common law
crime - so although there is no written
Act of Parliament making murder illegal,
it is illegal by virtue of the constitutional authority of the
courts and their previous decisions. Common law can be amended or
repealed by Parliament; murder, by way of example, carries a
mandatory life sentence today, but had previously allowed the
death penalty.
England
and Wales are constituent
countries of the United Kingdom
, which is a member of the European Union. Hence,
EU law is a part of English law. The European Union
consists mainly of countries which use civil law and so the civil
law system is also in England in this form. The
European Court of Justice can
direct English and Welsh courts on the meaning of areas of law in
which the EU has passed legislation.
The oldest law currently in force is the
Distress Act 1267, part of the
Statute of Marlborough, (52
Hen. 3). Three sections of
Magna Carta,
originally signed in 1215 and a landmark in the development of
English law, are extant, but they date to the reissuing of the law
in 1297.
England and Wales as a distinct jurisdiction
The
United
Kingdom is a state consisting of several legal jurisdictions: (a) England and Wales, (b)
Scotland and (c) Northern Ireland. The formerly separate
jurisdiction of Wales was absorbed into England by
Henry VII Tudor. By the
Act of Union, 1707 Scotland retained an
independent church and judiciary. Ireland lost its independent
parliament later than Scotland but its established Anglican church
was historically an archbishopric of the Church of England headed
by the king or queen and deferring to the Archbishop of Canterbury,
for the most part the legal system is separate from that of England
and Wales.
The legal system of Ireland
is completely separate from that of the U.K. now,
but that of Northern Ireland retains some links from the Imperial
past, inasmuch as it is based on the medieval English common law
system, there are many English statutes from the time of Poynings' Law on that apply in Northern
Ireland and there is an appeal to the Supreme Court of
the United Kingdom from the Court of Appeal of Northern
Ireland.
- "The civilized portion of the earth is divided up into certain
units of territory in each of which a particular law proper to that
territory alone prevails, and that territory is for legal purposes
a unit."
- "§ 2.2. What Determines the State. — It has been seen
that the existence of separate legal units within the dominions of
a single sovereign is a fact, the result of historical accidents…
when Hawaii
was annexed
to the United
States
it remained a separate legal unit.
Statehood is also defined in public international law by the
Montevideo Convention, which
refers to the following criteria as necessary to establish true
statehood: (a) a permanent population; (b) a defined territory; (c)
government; and (d) capacity to enter into relations with the other
states.
Some jurisdictions such as
Australia use
the term "law unit" and some authors use the word "country",
believing that these words are less confusing than the use of the
word "state". The majority view is that "state" is the best term.
Hence, for Conflict purposes, England and Wales constitute a single
state.
This is important for a number of reasons, one of the more
significant being the distinction between
nationality and
domicile.
Thus, an individual would have a British nationality and a domicile in one of the
constituent states, the latter law defining all aspects of a
person's status and capacity. Dicey and Morris (p26) list
the separate states in the
British
Islands.
"England, Scotland
, Northern
Ireland
, the Isle of
Man
, Jersey
, Guernsey
, Alderney
, and Sark
. . .
is a separate country in the sense of the
conflict of laws, though not one of them is
a State known to public international law." But this may be varied
by statute. The United Kingdom is one state for the purposes of the
Bills of Exchange Act 1882.
Great Britain
is a single state for the purposes of the Companies Act 1985. Traditionally
authors referred to the legal unit or state of England and Wales as
England although this usage is becoming politically unacceptable in
the last few decades.
Wales
Although
devolution has accorded some degree of
political autonomy to Wales
in the
National Assembly for
Wales, it did not have sovereign
law-making powers until after the 2007 Welsh general election when
the Government of Wales Act
2006 granted powers to the Welsh Assembly Government to enact
some primary legislation.
The legal
system administered through both civil and criminal courts remains
unified throughout England
and Wales.
This is
different from the situation of Northern Ireland, for example, which did not cease to be a state when its legislature was suspended (see
Northern
Ireland Act 1972).
A major
difference is also the use of the Welsh
language, as laws concerning it apply in Wales and not in the
rest of the United
Kingdom. The
Welsh Language Act 1993 is an Act of
the Parliament of the United Kingdom, which put the Welsh language
on an equal footing with the English language in Wales with regard
to the public sector. Welsh can also be spoken in Welsh
courts.
Since 1967 most lawyers have referred to the legal system of
England and Wales as "the Laws of England and Wales" following the
Welsh Language Act, 1967,, (see
below) as may be seen by looking at the
Applicable law section of most commercial
agreements from these countries. Before, from 1746-1967 this was
not necessary (see below) but may have been done quite often
nonetheless.
Statutory law
Statutory framework
The
Interpretation Act 1978,
Schedule 1 distinctively identifies the following: "British
Islands", "England", and "United Kingdom".
The use of the term
"British
Isles
" is virtually obsolete in statutes and, when it
does appear, it is taken to be synonymous with "British
Islands". For interpretation purposes, England includes a
number of specified elements:
- Wales
and Berwick Act 1746, section 3 (entire Act now repealed)
formally incorporated Wales and Berwick-upon-Tweed
into England. But section 4 Welsh Language Act 1967 provided
that references to England in future Acts of Parliament should no
longer include Wales (see now Interpretation Act 1978, Schedule 3,
part 1). But Dicey & Morris say (at p28) "It seems desirable to
adhere to Dicey's [the original] definition for reasons of
convenience and especially of brevity. It would be cumbersome to
have to add "or Wales" after "England" and "or Welsh" after
"English" every time those words are used."
- the "adjacent territorial waters" by virtue of the Territorial
Waters Jurisdiction Act 1878 and the Continental Shelf Act 1964 as
amended by the Oil and Gas Enterprise Act 1982.
"Great
Britain" means England (with Wales) and Scotland including its
adjacent territorial waters and the islands of Orkney
and Shetland
, the Hebrides
, and Rockall
(by virtue of the Island of Rockall Act
1972). The "United Kingdom" means Great Britain and Northern
Ireland and their adjacent territorial waters. It does not include
the Isle of Man; nor the
Channel
Islands, whose independent status was discussed in
Rover
International Ltd. v Canon Film Sales Ltd. (1987) 1 WLR 1597
and
Chloride Industrial Batteries Ltd. v F. &
W. Freight Ltd. (1989) 1 WLR 823. The "British
Islands" means the "United Kingdom", the Isle of Man, and the
Channel Islands.
Citation style
Statutory law is referred to as "
Title of Act
Year", where the title is the "
short title", and ends in "Act", as in
"Interpretation Act 1978". Compare with American convention, which
includes "of", as in "
Civil
Rights Act of 1964".
This became the usual way to refer to acts in the second half of
the 19th century, starting in the 1840s; previously acts were
referred to by their
long title together
with the
regnal year of the
parliamentary session in which they
received
Royal Assent, and the chapter
number. For example, the
Pleading in English Act 1362
was referred to as
36 Edw. III c. 15,
meaning "36th year of the reign of
Edward III, chapter 15", though in the
past this was all spelt out, together with the long title.
Common law
Since 1189, English law has been described as a
common law rather than a
civil law system (i.e. there has
been no major
codification of the
law, and
judicial precedents are binding
as opposed to persuasive). This may have been due to the
Norman conquest of England, which
introduced a number of legal concepts and institutions from
Norman law into the English system. In
the early centuries of English common law, the justices and
judges were responsible for adapting the
Writ system to meet everyday needs, applying a
mixture of precedent and common sense to build up a body of
internally consistent law, e.g. the
Law
Merchant began in the Pie-Powder Courts (a corruption of the
French "pieds-poudrés" or "dusty feet",
meaning ad hoc marketplace courts). Obviously the Biblical
influences throughout precedent can be seen throughout the
centuries. As
Parliament
developed in strength
legislation
gradually overtook judicial law making so that, today, judges are
only able to innovate in certain very narrowly defined areas. Time
before 1189 was defined in 1276 as being
time immemorial.
Precedent
One of the major problems in the early centuries was to produce a
system that was certain in its operation and predictable in its
outcomes. Too many judges were either partial or incompetent,
acquiring their positions only by virtue of their
rank in
society. Thus, a standardised procedure slowly
emerged, based on a system termed
stare
decisis. Thus, the
ratio
decidendi of each case will bind future cases on the same
generic set of facts both horizontally and vertically.
The highest appellate
court in the UK is the Supreme Court
of the United Kingdom and its decisions are binding on every other court
in the hierarchy which are obliged to apply its rulings as the law
of the land. The Court of
Appeal
binds the lower courts, and so on.
Overseas influences
The influences are two-way.
- The United Kingdom exported its legal system to the Commonwealth countries during the
British Empire, and many aspects of
that system have persisted after the British withdrew or granted
independence to former dominions. English law prior to the Wars of
Independence is still an influence on United States law, and provides the basis
for many American legal traditions and policies. Many states
that were formerly subject to English law (such as Australia) continue to recognise a link to English
law - subject, of course, to statutory modification and judicial
revision to match the law to local conditions - and decisions from
the English law reports continue to be cited from time to time as
persuasive authority in present day judicial opinions. For a few states, the
Judicial Committee of the Privy
Council
remains the ultimate court of appeal. Many
jurisdictions which were formerly
subject to English law (such as Hong
Kong) continue to recognise the common law of England as their
own - subject, of course, to statutory modification and judicial
revision - and decisions from the English Reports continue to be cited from
time to time as persuasive authority in present day judicial
opinions.
- The UK is a dualist in its
relationship with international law, i.e. international obligations
have to be formally incorporated into English law before the courts
are obliged to apply supranational
laws. For example, the European Convention on Human
Rights and Fundamental Freedoms was signed in 1950 and the UK
allowed individuals to directly petition the European Commission on Human
Rights from 1966. Now s6(1) Human Rights Act 1998 (HRA) makes it
unlawful "... for a public authority to act in a way which is
incompatible with a convention right", where a "public authority"
is any person or body which exercises a public function, expressly
including the courts but expressly excluding Parliament. Although
the European Convention has begun to be applied to the acts of
non-state agents, the HRA does not make the Convention specifically
applicable between private parties. Courts have taken the
Convention into account in interpreting the common law. They also
must take the Convention into account in interpreting Acts of
Parliament, but must ultimately follow the terms of the Act even if
inconsistent with the Convention (s3 HRA).
- Similarly, because the UK remains a strong international
trading nation, international consistency of decision making is of
vital importance, so the Admiralty is strongly influenced by
Public International Law and the
modern commercial treaties and conventions
regulating shipping.
Subjects and links
Criminal law
English criminal law derives its main principles from the
common law. The main elements of a crime are the
actus reus (doing something
which is criminally prohibited) and a
mens
rea (having the requisite criminal state of mind, usually
intention). A prosecutor
must show that a person has
caused the offensive conduct, or
that the culprit had some pre-existing duty to take steps to avoid
a criminal consequence. The types of different crimes range from
those well known ones like
manslaughter,
murder,
theft and
robbery to a plethora of regulatory
and statutory offences. It is estimated that in the UK, there are
3,500 classes of criminal offence. Certain defences may exist to
crimes, which include
self
defence,
necessity,
duress, and in the case of a
murder charge, under the Homicide Act 1957,
diminished
responsibility,
provocation and in very rare
cases, the survivor of a suicide pact. It has often been suggested
that England should codify its criminal law, in an
English Criminal Code, however there
has been no overwhelming support for this in the past.
Constitutional law
Family law
Tort
Contract
Property
Trusts
Labour law
Evidence
Miscellaneous
See also
References
- Beale, Joseph H. A Treatise on the Conflict of Laws.
[12755]
- Dicey & Morris (1993). The Conflict of Laws 12th
edition. London: Sweet & Maxwell Ltd. ISBN 0-420-48280-6
Further reading
and Anglesey
are a part of England and Wales by custom, while
Harman v
Bolt (1931) 47 TLR 219 expressly confirms that Lundy
is a part of
England.
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