English law is thecommon lawlegal system ofEngland and Wales, comprising mainlycriminal law andcivil law, each branch having its owncourts andprocedures.[1][2][3] The judiciary isindependent, and legal principles likefairness,equality before the law, and theright to a fair trial are foundational to the system.
Although thecommon law has, historically, been the foundation and prime source of English law, the most authoritative law is statutorylegislation, which comprisesActs of Parliament,regulations[a] andby-laws. In the absence of any statutory law, the common law with its principle ofstare decisis forms the residual source of law, based on judicial decisions, custom, and usage.[4][5]
Common law is made by sittingjudges who apply bothstatutory law and established principles which are derived from thereasoning fromearlierdecisions.Equity is the other historic source of judge-made law. Common law can be amended or repealed byParliament.[6][b]
Not being acivil law system, it has no comprehensivecodification.[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.
International treaties such as theEuropean Union'sTreaty of Rome[e] or theHague-Visby Rules haveeffect in English law only when adopted and ratified by Act of Parliament.[11] Adopted treaties may be subsequently denounced by executive action,[12] unless the denouncement or withdraw would affect rights enacted by Parliament. In this case, executive action cannot be used owing to the doctrine ofparliamentary sovereignty. This principle was established in the case ofR (Miller) v Secretary of State for Exiting the European Union in 2017.
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Criminal law is the law of crime and punishment whereby theCrown prosecutes the accused.Civil law is concerned withtort, contract, families, companies and so on. Civil law courts operate to provide a party[f] who has anenforceable claim against another party with aremedy such asdamages or adeclaration.[13]
In this context,civil law is the system ofcodified law that is prevalent in the rest of Europe. Civil law is founded on the ideas ofRoman law.[g]
By contrast, English law is the archetypalcommon law jurisdiction, built uponcase law.[14]
In this context, "common law" means the judge-made law of theKing's Bench; whereasequity is the judge-made law of the (now-defunct)Court of Chancery.[15] Equity is concerned mainly withtrusts andequitable remedies. Equity generally operates in accordance with the principles known as the "maxims of equity".[h]
The reformingJudicature Acts of the 1880s amalgamated the courts into one Supreme Court of Judicature which was directed to administer both law and equity.[17] Theneo-GothicRoyal Courts of Justice in The Strand, London, were built shortly afterwards to celebrate these reforms.
Public law[i] is thelaw governing relationships between individuals and thestate. Private law encompasses relationships between private individuals and other private entities (but may also cover "private" relationships between the government and private entities).
Aremedy is "the means given by law for the recovery of aright, or ofcompensation for its infringement".[18] Most remedies are available only from the court, but some are "self-help" remedies; for instance, a party who lawfully wishes to cancel[j] a contract may do so without leave;[k][20] and a person may take his own steps to "abate a private nuisance".
Formerly, most civil actions claiming damages in theHigh Court were commenced by obtaining awrit issued in the Queen's name. After 1979, writs have merely required the parties to appear, and writs are no longer issued in the name of the Crown.[21] After theWoolf Reforms of 1999, almost all civil actions other than those connected with insolvency are commenced by the completion of a Claim Form[22] as opposed to a writ, originating application, or a summons.[23]
In England there is a hierarchy of sources, as follows:[24]
The rule ofEuropean Union law in England, previously of prime importance, has been ended as a result ofBrexit.[25]
Primary legislation in the UK may take the following forms:
Orders in Council are asui generis category of legislation.
Secondary (or "delegated") legislation in England includes:
Statutes are cited in this fashion: "Short Title Year", e.g.Theft Act 1968.[n][26] This became the usual way to refer to Acts from 1840 onwards; previously Acts were cited by theirlong title with theregnal year of theparliamentary session when they receivedroyal assent, and the chapter number. For example, thePleading in English Act 1362 (which requiredpleadings to be in English and notLaw French) was referred to as36 Edw. 3. c. 15, meaning "36th year of the reign ofEdward III, chapter 15".[o] (By contrast, American convention inserts "of", as in "Civil Rights Actof 1964").
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 replacedAnglo-Saxon law in England following theBattle of Hastings in 1066. Throughout theLate Medieval Period, English law was codified through judge-made laws and precedents that were created in the proceedings of Royal justices in theCircuit courts dictated by theEyres throughout the country (these themselves evolving from the early medievalItinerant courts). This body of legal scholarship was first published at the end of the 19th century,The History of English Law before the Time of Edward I,[27] in whichPollock andMaitland expanded the work ofCoke (17th century) andBlackstone (18th century). Specifically, the law developed in England'sCourt of Common Pleas and other common law courts, which became also the law of the colonies settled initially under the Crown of England or, later, of theUnited Kingdom, inUnited States,Canada,Australia,New Zealand,South Africa,Singapore,Indian Subcontient,Israel and elsewhere.
This law further developed after those courts in England were reorganised by theSupreme 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: theCourt of Chancery, theecclesiastical courts, and theAdmiralty court.
In theOxford 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]
In 1276, the concept of "time immemorial" often applied in common law, was defined as being any time before 6 July 1189 (i.e. beforeRichard I's accession to theEnglish throne). Since 1189, English law has been a common law, not acivil law system. In other words, no comprehensive codification of the law has taken place andjudicial precedents are binding as opposed to persuasive. This may be a legacy of theNorman Conquest of England in 1066, when a number of legal concepts and institutions fromNorman law were introduced to England.[30]
In the early centuries of English common law, the justices andjudges were responsible for adapting the system ofwrits to meet everyday needs, applying a mixture of precedent and common sense to build up a body of internally consistent law. An example is theLaw Merchant derived from the"Pie-Powder" Courts, named from a corruption of theFrenchpieds-poudrés ("dusty feet") implyingad hoc marketplace courts.
FollowingMontesquieu'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 ofstatutory interpretation. Since the courts have no authority to legislate, the "legal fiction" is that they "declare" (rather than "create") the common law. TheHouse of Lords took this "declaratory power" a stage further inDPP v Shaw,[31] 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".[32][33] As Parliament became ever more established and influential, Parliamentarylegislation gradually overtook judicial law-making, such that today's judges are able to innovate only in certain, very narrowly defined areas.
England exported its common law and statute law to most parts of theBritish Empire. Many aspects of that system have survived after Independence from British rule, and the influences are often reciprocal. "English law" prior to the American Revolutionary Wars (American War of Independence) is still an influence onAmerican law, and provides the basis for many American legal traditions and principles.
After independence, English common law still exerted influence over American common law – for example,Byrne v Boadle (1863), which first applied theres 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.[34]
After Britain's colonial period, jurisdictions that had inherited and adopted England's common law[p] developed their courts of final appeal in differing ways: jurisdictions still under the British crown are subject to theJudicial Committee of the Privy Council in London.[q] For a long period, the BritishDominions used London's Privy Council as their final appeal court, although one by one they eventually established their localsupreme court. New Zealand was the last Dominion to abandon the Privy Council, setting up its ownSupreme Court in 2004.[r]
Even after independence, many former British colonies in theCommonwealth 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.
Britain is adualist in its relationship with international law, so international treaties must be formally ratified by Parliament and incorporated into statute before suchsupranational laws become binding in the UK.[s][t][u][v]
Britain has long been a major trading nation, exerting a strong influence on the law ofshipping andmaritime trade. The English law ofsalvage,[36]collisions,[37] ship arrest,[38] andcarriage of goods by sea[39] are subject to international conventions which Britain played a leading role in drafting. Many of these conventions incorporate principles derived from English common law[w] and documentary procedures.[x]
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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, butScots law has remained remarkably distinct from English law.
The UK's highest civilappeal court is theSupreme Court of the United Kingdom, whose decisions, and those of its predecessor the House of Lords, are binding on all three UK jurisdictions. Unless obviously limited to a principle of distinct English and Welsh, Scottish or Northern Irish law, as inDonoghue v Stevenson, a Scots case that forms the basis of the UK's law ofnegligence.[40]
UnlikeScotland andNorthern Ireland,Wales is not a separatejurisdiction within theUnited Kingdom. The customary laws ofWales within theKingdom of England were abolished byKing Henry VIII'sLaws in Wales Acts, which brought Wales into legal conformity with England. WhileWales now has a devolvedparliament (the Senedd), any legislation it passesmust adhere to circumscribed subjects under theGovernment of Wales Act 2006, to other legislation of theBritish Parliament, or to anyOrder in Council given under the authority of the 2006 Act.
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 theWelsh Language Act 1967 and the jurisdiction is, since, correctly and widely referred to asEngland and Wales.
Devolution has granted some political autonomy toWales via theWelsh Parliament, which gained its power to pass primary legislation under theGovernment of Wales Act 2006, in force since the2007 Welsh general election. The legal system administered through civil and criminal courts is unified throughoutEngland and Wales.
This is different fromNorthern Ireland, for example, which did not cease to be a distinctjurisdiction when its legislature was suspended (seeNorthern Ireland (Temporary Provisions) Act 1972). A major difference is use of theWelsh language, as laws concerning it apply in Wales and not in the rest of theUnited Kingdom. TheWelsh 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 separateWelsh justice system.[41][42][43]
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