English law
English law is the common law legal system of England and Wales, comprising mainly criminal law and civil law, each branch having its own courts and procedures.[1][2][3]
Principal elements of English law
Although the common law has, historically, been the foundation and prime source of English law, the most authoritative law is statutory
Common law is made by sitting
Not being a civil law system, it has no comprehensive codification.[c] However, most of its criminal law has been codified from its common law origins, in the interests both of certainty and of ease of prosecution.[7][8] For the time being, murder remains a common law crime rather than a statutory offence.[9][d]
Although Scotland and Northern Ireland form part of the United Kingdom and share Westminster as a primary legislature, they have separate legal systems outside English law.
- ^ English regulations are not to be confused with EU Regulations
- ^ The old estates in land were replaced by new provisions in the 1925 property legislation
- ^ Two areas of commercial law, sale of goods and marine insurance, were codified into (respectively) the Sale of Goods Act 1893 and the Marine Insurance Act 1906.
- mercy killings, English juries have been glad of the ability to treat a clear murder as though it were manslaughter.[10]
- ^ Now renamed as Treaty on the Functioning of the European Union
Legal terminology
Criminal law and civil law
Criminal law is the law of crime and punishment whereby the Crown prosecutes the accused. Civil law is concerned with tort, contract, families, companies and so on. Civil law courts operate to provide a party[a] who has an enforceable claim against another party with a remedy such as damages or a declaration.[13]
- ^ ... or "claimant", "plaintiff", "petitioner" etc.
Common law and civil law
In this context, civil law is the system of codified law that is prevalent in Europe. Civil law is founded on the ideas of Roman law.[a]
By contrast, English law is the archetypal common law jurisdiction, built upon case law.[14]
- ^ An example of civil law is the Napoleonic Code in France
Common law and equity
In this context, common law means the judge-made law of the King's Bench; whereas equity is the judge-made law of the (now-defunct) Court of Chancery.[15] Equity is concerned mainly with trusts and equitable remedies. Equity generally operates in accordance with the principles known as the "maxims of equity".[a]
The reforming
- ^ Equitable maxims include: "Equity will not suffer a wrong to be without a remedy", "Equity acts on the person" and "He who comes into equity must come with clean hands".[16]
Public law and private law
Public law[a] is the law governing relationships between individuals and the state. Private law encompasses relationships between private individuals and other private entities (but may also cover "private" relationships between the government and private entities).
- ^ This distinction is borrowed from civil law systems, and is neither as useful nor as appropriate in England as in Europe.
Legal remedies
A
Formerly, most civil actions claiming damages in the
- ^ Using repudiation or rescission, (as the case may be)
- ^ If the other party feels that the first was wrong to cancel, he may ask a court to "declare the contract subsisting".[19]
Sources of English law
In England there is a hierarchy of sources, as follows:[24]
- Legislation (primary and secondary)
- The case law rules of common law and equity, derived from precedent decisions
- Parliamentary conventions[a]
- General customs
- Books of authority[b]
The rule of European Union law in England, previously of prime importance, has been ended as a result of Brexit.[25]
- ^ Parliamentary conventions should not be confused with international conventions, which are treaties adopted and ratified by Parliament.
- ^ Such as Coke and Blackstone.
Statute law
Primary legislation in the UK may take the following forms:
- Acts of Parliament
- Acts of the Scottish Parliament
- measures of the National Assembly for Wales
- Statutory rules of the Northern Ireland Assembly
Orders in Council are a sui generis category of legislation.
Secondary (or "delegated") legislation in England includes:
- ministerial orders
- By-laws of metropolitan boroughs, county councils, and town councils
Statutes are cited in this fashion: "
- ^ Before 1963 Acts were cited with a comma between the Short Title and the year, e.g. "Acts of Parliament Numbering and Citation Act, 1962".[1] The comma has since been dropped, e.g. "British Museum Act 1963"
- ^ Although in the past this was all spelled out, together with the long title.
Common law
Common law is a term with historical origins in the legal system of England. It denotes, in the first place, the Anglo-Norman legal system that superseded and replaced
This law further developed after those courts in England were reorganised by the Supreme Court of Judicature Acts passed in the 1870s. It developed independently, in the legal systems of the United States and other jurisdictions, after their independence from the United Kingdom, before and after the 1870s. The term is used, in the second place, to denote the law developed by those courts, in the same periods, pre-colonial, colonial and post-colonial, as distinct from within the jurisdiction, or former jurisdiction, of other courts in England: the Court of Chancery, the ecclesiastical courts, and the Admiralty court.
In the Oxford English Dictionary (1933) "common law" is described as "The unwritten law of England, administered by the King's courts, which purports to be derived from ancient usage, and is embodied in the older commentaries and the reports of abridged cases", as opposed, in that sense, to statute law, and as distinguished from the equity administered by the Chancery and similar courts, and from other systems such as ecclesiastical law, and admiralty law.[28] For usage in the United States the description is "the body of legal doctrine which is the foundation of the law administered in all states settled from England, and those formed by later settlement or division from them".[29]
Possible Islamic Origins
Professor John Makdisi's article "The Islamic Origins of the Common Law" in the
He argued that these institutions were transmitted to England by the
Other legal scholars such as Monica Gaudiosi, Gamal Moursi Badr and A. Hudson have argued that the English
Early development
In 1276, the concept of "
In the early centuries of English common law, the justices and
Following Montesquieu's theory of the "separation of powers", only Parliament has the power to legislate. If a statute is ambiguous, then the courts have exclusive power to decide its true meaning, using the principles of statutory interpretation. Since the courts have no authority to legislate, the "legal fiction" is that they "declare" (rather than "create") the common law. The House of Lords took this "declaratory power" a stage further in DPP v Shaw,[37] where, in creating the new crime of "conspiracy to corrupt public morals", Viscount Simonds claimed the court had a "residual power to protect the moral welfare of the state".[38][39] As Parliament became ever more established and influential, Parliamentary legislation gradually overtook judicial law-making, such that today's judges are able to innovate only in certain, very narrowly defined areas.
Overseas influences
Reciprocity
England exported its common law and statute law to most parts of the
After independence, English common law still exerted influence over American common law – for example, Byrne v Boadle (1863), which first applied the res ipsa loquitur doctrine. Jurisdictions that have kept to the common law may incorporate modern legal developments from England, and English decisions are usually persuasive in such jurisdictions.
In the United States, each state has its own supreme court with final appellate jurisdiction, resulting in the development of state common law. The US Supreme Court has the final say over federal matters. By contrast, in Australia, one national common law exists.[40]
Courts of final appeal
After Britain's colonial period, jurisdictions that had inherited and adopted England's common law[a] developed their courts of final appeal in differing ways: jurisdictions still under the British crown are subject to the Judicial Committee of the Privy Council in London.[b] For a long period, the British Dominions used London's Privy Council as their final appeal court, although one by one they eventually established their local supreme court. New Zealand was the last Dominion to abandon the Privy Council, setting up its own Supreme Court in 2004.[c]
Even after independence, many former British colonies in the Commonwealth continued to use the Privy Council, as it offered a readily available high-grade service. In particular, several Caribbean Island nations found the Privy Council advantageous.
- ^ In this context, "common law" has been described as a body of judge-made law enforced and developed by the courts which includes equity and admiralty law, and which has always been "unintelligible without reference to the statute".[41]
- ^ The US, Britain's first colony to be "lost", has a central federal Supreme Court as well as a "supreme court" in each state.
- ^ Any decisions of the Privy Council made before the change of jurisdiction remain binding legal precedent.
International law and commerce
Britain is a
Britain has long been a major trading nation, exerting a strong influence on the law of
- ^ Mere agreement to the final text of a treaty is only the first stage, hence "dualist". For instance, Britain has yet to ratify the terms of the Arrest Convention 1999, so the earlier 1952 treaty is still in place.
- ^ Ratification after agreement of a final text often takes decades. In the case of the Maritime Labour Convention of 2006, even though the EU instructed member states to adopt the MLC, this "fast-tracked" treaty still did not come into force until 2013.
- 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 Human Rights Act (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).
- ^ Such as the rule on deviation
- ^ Such as the Lloyd's Open Form
British jurisdictions
.The United Kingdom of Great Britain and Northern Ireland comprises three legal jurisdictions: England and Wales, Scotland, and Northern Ireland. Although Scotland and Northern Ireland form part of the United Kingdom and share the Parliament at Westminster as the primary legislature, they have separate legal systems. Scotland became part of the UK over 300 years ago, but Scots law has remained remarkably distinct from English law.
The UK's highest civil
Application of English law to Wales
Unlike
Any reference to England in legislation between 1746 and 1967 is deemed to include Wales. As to later legislation, any application to Wales must be expressed under the Welsh Language Act 1967 and the jurisdiction is, since, correctly and widely referred to as England and Wales.
This is different from Northern Ireland, for example, which did not cease to be a distinct jurisdiction when its legislature was suspended (see Northern Ireland (Temporary Provisions) Act 1972). A major difference is 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 may also be spoken in Welsh courts.
There have been calls from both Welsh academics and politicians for a separate Welsh justice system.[47][48][49]
Classes of English law
- Administrative law
- Arbitration law
- Charities
- Civil procedure in England and Wales and Legal Services and Institutions
- Commercial law
- Company law
- Constitutional law
- Contract law
- Criminal law[a]
- Criminal (law) procedure
- Agency[b]
- Equity
- Financial services and institutions[c]
- Actionability
- Family law (private and public regarding local authorities)
- Insolvency
- Probate (and intestacy) law
- Property law (with tort, contract and criminal overlap) (includes land, landlord and tenant, occupancy, housing conditions and intellectual property law, sales, auctions and repossessions)
- Maritime law and law of the sea(mainly private and public international law)
- Taxation, tax credits and benefits law[d]
- Tort law
- Trust law
- necessity, duress, and in the case of a murder charge, diplomatic immunity and under the Homicide Act 1957, diminished responsibility, provocation and, in very rare cases, the survival of a suicide pact. It has often been suggested that England and Wales should codify its criminal law in an English Criminal Code, but there has been no overwhelming support for this in the past.
- ^ Subject to general laws from incorporated European Regulations and Directives and mainly regulated in the same way across the United Kingdom
- ^ Almost uniform throughout the UK
- ^ Harmonised, not uniform, across the UK
See also
Case law categories | ||||
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References
Notes
- ^ For Civil procedure, see Civil procedure in England and Wales
- ^ For Criminal procedure, see the Criminal Procedure and Investigations Act 1996
- ^ Note: "English law" is more accurately, termed the law of England and Wales and is applied in agreements that parties will adopt the jurisdiction of England and Wales as well as for matters within the physical jurisdiction.
- ^ Collins English Dictionary
- ^ It is characteristic of the common law to adopt an approach based "on precedent, and on the development of the law incrementally and by analogy with established authorities", Robinson v Chief Constable of West Yorkshire Police, Supreme Court, [2018] UKSC 4, para. 21
- Carriage of Goods by Sea Act 1992 repealed the rule in Grant v Norway(1851) 10 CB 665.
- ^ Law Commission Report on the Codification of the Criminal Law
- ^ Fisher v Bell [1961] 1 QB 394
- ^ Law Commission Consultation Paper no. 177 - "A New Homicide Act for England and Wales?"
- ^ "Woman walks free after mercy killing case". The Independent. Retrieved 2018-08-03.
- ^ Carriage of Goods by Sea Act 1971: s.1(1)In this Act, "the Rules" means the International Convention for the unification of certain rules of law relating to bills of lading (...). s.1(2)The provisions of the Rules, as set out in the Schedule to this Act, shall have the force of law.
- ^ Arrest Convention 1952 Art. 17
- ^ Other remedies include equitable relief such as an injunction and account of profits.
- ^ Penny Darbyshire writes: "... in England ... at no time was it felt necessary to look outside the principles of common law or equity for assistance. Inevitably, through the ecclesiastical courts in particular, some Roman law influence can be traced, but in general terms, this is very limited". - Darbyshire on the English Legal System (2017)
- ^ The Judicature Acts of 1873-75 abolished the Court of Chancery and "fused" law and equity. Today, equity cases are mostly dealt with in the Chancery Division of the High Court.
- ^ Snell, Edmund Henry Turner; Megarry, R.E.; Baker, P.V. (1960). Snell's Principles of Equity (25 ed.). London: Sweet & Maxwell. p. 24
- ^ Snell, Edmund Henry Turner; Megarry, R.E.; Baker, P.V. (1960). Snell's Principles of Equity (25 ed.). London: Sweet & Maxwell. p. 10
- ^ Law Dictionary (10th ed) - E.R.Hardy Ivamay - Butterworths
- ^ See Hong Kong Fir Shipping Co Ltd v Kawasaki Kisen Kaisha Ltd 1961] EWCA Civ 7
- ^ Misrepresentation Act 1967 s.2
- ^ Rules of the Supreme Court (Writ and Appearance) 1979 (Statutory Instrument 1979, No. 1716), discussed in House of Lords in 1980
- ^ ...as prescribed by Rules 7 How to start proceedings and 8 Alternative procedure for claims of the Civil Procedure Rules)
- ^ The Civil Procedure Rules 1998
- ^ Slapper; Kelly (2016). English Legal System. Routledge.
- ^ "Retained EU Law". www.lawsociety.org.uk. Retrieved 2024-01-03.
- short title", and ends in "Act", as in "Interpretation Act 1978".
- ^ Professor S. F. C. Milsom (1968). The History of English Law before the Time of Edward I. Vol. 1 and 2. Cambridge University Press. Archived from the original on Oct 27, 2020 – via Online Library of Liberty.
- ^ OED, 1933 edition: citations supporting that description, before Blackstone, are from the 14th and 16th centuries.
- ^ OED, 1933 edition: citations supporting that description are two from 19th century sources.
- ^ a b c d Makdisi, John A. (June 1999). "The Islamic Origins of the Common Law". North Carolina Law Review. 77 (5). University of North Carolina School of Law: 1635–1739.
- ^ a b Mukul Devichand (24 September 2008). "Is English law related to Muslim law?". BBC News. Retrieved 2008-10-05.
- ^ Hussain, Jamila (2001). "Book Review: The Justice of Islam by Lawrence Rosen". Melbourne University Law Review. 30.
- ISBN 978-0-521-86414-5.
- S2CID 153149243.
- JSTOR 839667.
- ^ "The English legal system". ICLR. Retrieved 2024-01-03.
- ^ Shaw v DPP 1962 AC 220 HL [n]
- ^ Shaw v DPP case summary
- ^ Viscount Simonds: "There remains in the Courts of Law a residual power to enforce the supreme and fundamental purpose of the law, to conserve not only the safety and order but also the moral welfare of the State, and that it is their duty to guard it against attacks which may be the more insidious because they are novel and unprepared for."
- ^ Liam Boyle, An Australian August Corpus: Why There is Only One Common Law in Australia, Bond Law Review, Volume 27, 2015
- ^ Liam Boyle: An Australian August Corpus: Why There is Only One Common Law in Australia, Bond Law Review, Volume 27, 2015. p.29 II Some Preliminary Propositions
- ^ 1989 Salvage Convention
- ^ COLREGS
- ^ 1952 Arrest Convention
- Hague-Visby Rules
- ^ Donoghue v Stevenson [1932] UKHL [1932] UKHL
- ^ "Written Statement: Update on the development of the justice system and the legal sector in Wales (30 September 2021)". GOV.WALES. 30 September 2021. Retrieved 2022-11-29.
- ^ "Plaid Cymru call for devolution of justice to Wales - 'we can't be treated as an appendage to England'". Nation.Cymru. 2022-11-29. Retrieved 2022-11-29.
- ^ "Devolution a 'necessary step' towards a better Welsh criminal justice system, academics argue". Cardiff University. Retrieved 2023-02-22.
Bibliography
- Beale, Joseph H. (1935). A Treatise on the Conflict of Laws. ISBN 978-1-58477-425-9
- Darbyshire, Penny (2017). Darbyshire on the English Legal System - 12th ed - Sweet & Maxwell - ISBN 978-0-414-05785-2
- Dicey, A. V.; Morris, J. H. C. & Collins, Lawrence (1993). Dicey and Morris on the Conflict of Laws 12th ed. London: Sweet & Maxwell ISBN 978-0-420-48280-8
- Slapper, Gary & Kelly, David (2016). The English Legal System. London: Routledge. ISBN 978-1-138-94445-9.
- Barnett, Hilaire (2008). Constitutional & Administrative Law. London: Routledge-Cavendish. ISBN 978-0-415-45829-0.
Further reading
- Fleming, Justin (1994) Barbarism to Verdict: A History of the Common Law. Sydney, NSW: Angus & Robertson Publishers. ISBN 978-0-207-17929-7
- Greenberg, Daniel & Banaszak, Klara eds. (2012) Jowitt's Dictionary of English Law, 5th ed. London: Sweet & Maxwell.
- Milsom, S. F. C. (2003) A Natural History of the Common Law. New York: Columbia University Press. ISBN 978-0-231-12994-7
- Milsom, S. F. C. (1981) Historical Foundations of the Common Law, 2nd ed. London: Butterworths; Oxford: Oxford University Press. ISBN 978-0-406-62503-8
External links
- The History of English Law before the Time of Edward I, 2 vols., via Online Library of Liberty, with notes, by S. F. C. Milsom, originally published in Cambridge University Press's 1968 reissue.
- "First Edition of Halsbury’s Laws of England Digitized", Legal Sourcery, 21 March 2017, Alan Kilpatrick.
- Leeming, Mark. "Theories and principles underlying the development of the common law" (PDF). Archived from the original (PDF) on 2023-03-26. Retrieved 2019-02-18. (2013) 36(3) University of New South Wales Law Journal1002.