English law
Encyclopedia
Legal systems of the world
The legal systems of the world today are generally based on one of three basic systems: civil law, common law, and religious law – or combinations of these...
of England and Wales
England and Wales
England and Wales is a jurisdiction within the United Kingdom. It consists of England and Wales, two of the four countries of the United Kingdom...
, and is the basis of common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
legal systems used in most Commonwealth
Commonwealth of Nations
The Commonwealth of Nations, normally referred to as the Commonwealth and formerly known as the British Commonwealth, is an intergovernmental organisation of fifty-four independent member states...
countries and the United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
except Louisiana
Louisiana
Louisiana is a state located in the southern region of the United States of America. Its capital is Baton Rouge and largest city is New Orleans. Louisiana is the only state in the U.S. with political subdivisions termed parishes, which are local governments equivalent to counties...
(as opposed to civil law
Civil law (legal system)
Civil law is a legal system inspired by Roman law and whose primary feature is that laws are codified into collections, as compared to common law systems that gives great precedential weight to common law on the principle that it is unfair to treat similar facts differently on different...
or pluralist
Legal pluralism
Legal pluralism is the existence of multiple legal systems within one geographic area. Plural legal systems are particularly prevalent in former colonies, where the law of a former colonial authority may exist alongside more traditional legal systems...
systems in use in other countries). It was exported to Commonwealth countries while the British Empire
British Empire
The British Empire comprised the dominions, colonies, protectorates, mandates and other territories ruled or administered by the United Kingdom. It originated with the overseas colonies and trading posts established by England in the late 16th and early 17th centuries. At its height, it was the...
was established and maintained, and it forms the basis of the jurisprudence
Jurisprudence
Jurisprudence is the theory and philosophy of law. Scholars of jurisprudence, or legal theorists , hope to obtain a deeper understanding of the nature of law, of legal reasoning, legal systems and of legal institutions...
of most of those countries. English law prior to the American Revolution
American Revolution
The American Revolution was the political upheaval during the last half of the 18th century in which thirteen colonies in North America joined together to break free from the British Empire, combining to become the United States of America...
is still part of the law of the United States
Law of the United States
The law of the United States consists of many levels of codified and uncodified forms of law, of which the most important is the United States Constitution, the foundation of the federal government of the United States...
through reception statutes, except in Louisiana
Louisiana law
Law in the State of Louisiana is based in part on civil law. Louisiana is unique among the 50 U.S. states in having a legal system partially based on French and Spanish codes and ultimately Roman law, as opposed to English common law...
, 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
Jurisdiction
Jurisdiction is the practical authority granted to a formally constituted legal body or to a political leader to deal with and make pronouncements on legal matters and, by implication, to administer justice within a defined area of responsibility...
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
Government of Wales Act 2006
The Government of Wales Act 2006 is an Act of the Parliament of the United Kingdom that reforms the National Assembly for Wales and allows further powers to be granted to it more easily...
, other legislation of the Parliament of the United Kingdom, 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.
The essence of English common law is that it is made by judge
Judge
A judge is a person who presides over court proceedings, either alone or as part of a panel of judges. The powers, functions, method of appointment, discipline, and training of judges vary widely across different jurisdictions. The judge is supposed to conduct the trial impartially and in an open...
s sitting in court
Court
A court is a form of tribunal, often a governmental institution, with the authority to adjudicate legal disputes between parties and carry out the administration of justice in civil, criminal, and administrative matters in accordance with the rule of law...
s, applying their common sense and knowledge of legal precedent (stare decisis
Stare decisis
Stare decisis is a legal principle by which judges are obliged to respect the precedents established by prior decisions...
) to the facts before them. A decision of the highest appeal court in England and Wales, the Supreme Court of the United Kingdom
Supreme Court of the United Kingdom
The Supreme Court of the United Kingdom is the supreme court in all matters under English law, Northern Ireland law and Scottish civil law. It is the court of last resort and highest appellate court in the United Kingdom; however the High Court of Justiciary remains the supreme court for criminal...
, is binding on every other court in the hierarchy
Courts of England and Wales
Her Majesty's Courts of Justice of England and Wales are the civil and criminal courts responsible for the administration of justice in England and Wales; they apply the law of England and Wales and are established under Acts of the Parliament of the United Kingdom.The United Kingdom does not have...
, and they will follow its directions. For example, there is no statute
Statute
A statute is a formal written enactment of a legislative authority that governs a state, city, or county. Typically, statutes command or prohibit something, or declare policy. The word is often used to distinguish law made by legislative bodies from case law, decided by courts, and regulations...
making murder
Murder in English law
Murder is an offence under the common law of England and Wales. It is considered the most serious form of homicide, in which one person kills another either intending to cause death or intending to cause serious injury .-Actus reus:The definition of the actus reus Murder is an offence under the...
illegal. It is a common law crime - so although there is no written Act of Parliament
Act of Parliament
An Act of Parliament is a statute enacted as primary legislation by a national or sub-national parliament. In the Republic of Ireland the term Act of the Oireachtas is used, and in the United States the term Act of Congress is used.In Commonwealth countries, the term is used both in a narrow...
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
United Kingdom
The United Kingdom of Great Britain and Northern IrelandIn the United Kingdom and Dependencies, other languages have been officially recognised as legitimate autochthonous languages under the European Charter for Regional or Minority Languages...
, which is a member of the European Union
European Union
The European Union is an economic and political union of 27 independent member states which are located primarily in Europe. The EU traces its origins from the European Coal and Steel Community and the European Economic Community , formed by six countries in 1958...
. 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
European Court of Justice
The Court can sit in plenary session, as a Grand Chamber of 13 judges, or in chambers of three or five judges. Plenary sitting are now very rare, and the court mostly sits in chambers of three or five judges...
can direct English and Welsh courts on the meaning of areas of law in which the EU has passed legislation.
The oldest written law currently in force is the Distress Act, part of the Statute of Marlborough
Statute of Marlborough
The Statute of Marlborough was a set of laws passed by King Henry III of England in 1267. There were twenty-nine chapters, of which four are still in force...
, 1267 (52 Hen. 3). Three sections of Magna Carta
Magna Carta
Magna Carta is an English charter, originally issued in the year 1215 and reissued later in the 13th century in modified versions, which included the most direct challenges to the monarch's authority to date. The charter first passed into law in 1225...
, originally signed in 1215 and a landmark in the development of English law, are extant but arguably they date to the consolidation of the act in 1297.
England and Wales as a distinct jurisdiction
The United KingdomUnited Kingdom
The United Kingdom of Great Britain and Northern IrelandIn the United Kingdom and Dependencies, other languages have been officially recognised as legitimate autochthonous languages under the European Charter for Regional or Minority Languages...
is a state consisting of several legal jurisdiction
Jurisdiction
Jurisdiction is the practical authority granted to a formally constituted legal body or to a political leader to deal with and make pronouncements on legal matters and, by implication, to administer justice within a defined area of responsibility...
s: (a) England and Wales, (b) Scotland and (c) Northern Ireland. The formerly separate jurisdiction of Wales was absorbed into England by Henry VIII
Henry VIII of England
Henry VIII was King of England from 21 April 1509 until his death. He was Lord, and later King, of Ireland, as well as continuing the nominal claim by the English monarchs to the Kingdom of France...
Tudor
Tudor dynasty
The Tudor dynasty or House of Tudor was a European royal house of Welsh origin that ruled the Kingdom of England and its realms, including the Lordship of Ireland, later the Kingdom of Ireland, from 1485 until 1603. Its first monarch was Henry Tudor, a descendant through his mother of a legitimised...
. 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
Republic of Ireland
Ireland , described as the Republic of Ireland , is a sovereign state in Europe occupying approximately five-sixths of the island of the same name. Its capital is Dublin. Ireland, which had a population of 4.58 million in 2011, is a constitutional republic governed as a parliamentary democracy,...
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
Supreme Court of the United Kingdom
The Supreme Court of the United Kingdom is the supreme court in all matters under English law, Northern Ireland law and Scottish civil law. It is the court of last resort and highest appellate court in the United Kingdom; however the High Court of Justiciary remains the supreme court for criminal...
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 HawaiiHawaiiHawaii is the newest of the 50 U.S. states , and is the only U.S. state made up entirely of islands. It is the northernmost island group in Polynesia, occupying most of an archipelago in the central Pacific Ocean, southwest of the continental United States, southeast of Japan, and northeast of...
was annexed to the United StatesUnited StatesThe United States of America is a federal constitutional republic comprising fifty states and a federal district...
it remained a separate legal unit.
Statehood is also defined in public international law by the Montevideo Convention
Montevideo Convention
The Montevideo Convention on the Rights and Duties of States was a treaty signed at Montevideo, Uruguay, on December 26, 1933, during the Seventh International Conference of American States. The Convention codified the declarative theory of statehood as accepted as part of customary international...
, 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
Australia
Australia , officially the Commonwealth of Australia, is a country in the Southern Hemisphere comprising the mainland of the Australian continent, the island of Tasmania, and numerous smaller islands in the Indian and Pacific Oceans. It is the world's sixth-largest country by total area...
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
Nationality
Nationality is membership of a nation or sovereign state, usually determined by their citizenship, but sometimes by ethnicity or place of residence, or based on their sense of national identity....
and domicile
Domicile (law)
In law, domicile is the status or attribution of being a permanent resident in a particular jurisdiction. A person can remain domiciled in a jurisdiction even after they have left it, if they have maintained sufficient links with that jurisdiction or have not displayed an intention to leave...
. Thus, an individual would have a British
United Kingdom
The United Kingdom of Great Britain and Northern IrelandIn the United Kingdom and Dependencies, other languages have been officially recognised as legitimate autochthonous languages under the European Charter for Regional or Minority Languages...
nationality and a domicile in one of the constituent states, the latter law defining all aspects of a person's status
Status (law)
A person's status is a set of social conditions or relationships created and vested in an individual by an act of law rather than by the consensual acts of the parties, and it is in rem, i.e. these conditions must be recognised by the world. It is the qualities of universality and permanence that...
and capacity
Capacity (law)
The capacity of both natural and legal persons determines whether they may make binding amendments to their rights, duties and obligations, such as getting married or merging, entering into contracts, making gifts, or writing a valid will...
. Dicey and Morris (p26) list the separate states in the British Islands
British Islands
British Islands is a term within the law of the United Kingdom which since 1889 has referred collectively to the following four states:*the United Kingdom of Great Britain and Northern Ireland ;...
. "England, Scotland
Scotland
Scotland is a country that is part of the United Kingdom. Occupying the northern third of the island of Great Britain, it shares a border with England to the south and is bounded by the North Sea to the east, the Atlantic Ocean to the north and west, and the North Channel and Irish Sea to the...
, Northern Ireland
Northern Ireland
Northern Ireland is one of the four countries of the United Kingdom. Situated in the north-east of the island of Ireland, it shares a border with the Republic of Ireland to the south and west...
, the Isle of Man
Isle of Man
The Isle of Man , otherwise known simply as Mann , is a self-governing British Crown Dependency, located in the Irish Sea between the islands of Great Britain and Ireland, within the British Isles. The head of state is Queen Elizabeth II, who holds the title of Lord of Mann. The Lord of Mann is...
, Jersey
Jersey
Jersey, officially the Bailiwick of Jersey is a British Crown Dependency off the coast of Normandy, France. As well as the island of Jersey itself, the bailiwick includes two groups of small islands that are no longer permanently inhabited, the Minquiers and Écréhous, and the Pierres de Lecq and...
, Guernsey
Guernsey
Guernsey, officially the Bailiwick of Guernsey is a British Crown dependency in the English Channel off the coast of Normandy.The Bailiwick, as a governing entity, embraces not only all 10 parishes on the Island of Guernsey, but also the islands of Herm, Jethou, Burhou, and Lihou and their islet...
, Alderney
Alderney
Alderney is the most northerly of the Channel Islands. It is part of the Bailiwick of Guernsey, a British Crown dependency. It is long and wide. The area is , making it the third-largest island of the Channel Islands, and the second largest in the Bailiwick...
, and Sark
Sark
Sark is a small island in the Channel Islands in southwestern English Channel, off the French coast of Normandy. It is a royal fief, geographically located in the Channel Islands in the Bailiwick of Guernsey, with its own set of laws based on Norman law and its own parliament. It has a population...
. . . is a separate country in the sense of the conflict of laws
Conflict of laws
Conflict of laws is a set of procedural rules that determines which legal system and which jurisdiction's applies to a given dispute...
, 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
Great Britain
Great Britain or Britain is an island situated to the northwest of Continental Europe. It is the ninth largest island in the world, and the largest European island, as well as the largest of the British Isles...
is a single state for the purposes of the Companies Act 1985
Companies Act 1985
The Companies Act 1985 is an Act of the Parliament of the United Kingdom of Great Britain and Northern Ireland, enacted in 1985, which enabled companies to be formed by registration, and set out the responsibilities of companies, their directors and secretaries.The Act was a consolidation of...
. Traditionally authors referred to the legal unit or state of England and Wales as England, although in recent decades this usage has increasingly become politically and culturally unacceptable.
Wales
Although devolutionDevolution
Devolution is the statutory granting of powers from the central government of a sovereign state to government at a subnational level, such as a regional, local, or state level. Devolution can be mainly financial, e.g. giving areas a budget which was formerly administered by central government...
has accorded some degree of political autonomy to Wales
Wales
Wales is a country that is part of the United Kingdom and the island of Great Britain, bordered by England to its east and the Atlantic Ocean and Irish Sea to its west. It has a population of three million, and a total area of 20,779 km²...
in the National Assembly for Wales
National Assembly for Wales
The National Assembly for Wales is a devolved assembly with power to make legislation in Wales. The Assembly comprises 60 members, who are known as Assembly Members, or AMs...
, it did not have sovereign
Sovereignty
Sovereignty is the quality of having supreme, independent authority over a geographic area, such as a territory. It can be found in a power to rule and make law that rests on a political fact for which no purely legal explanation can be provided...
law-making powers until after the 2007 Welsh general election when the Government of Wales Act 2006
Government of Wales Act 2006
The Government of Wales Act 2006 is an Act of the Parliament of the United Kingdom that reforms the National Assembly for Wales and allows further powers to be granted to it more easily...
granted powers to the Welsh Government to enact some primary legislation
Primary legislation
Primary legislation is law made by the legislative branch of government. This contrasts with secondary legislation, which is usually made by the executive branch...
. The legal system administered through both civil and criminal courts remains unified throughout England
England
England is a country that is part of the United Kingdom. It shares land borders with Scotland to the north and Wales to the west; the Irish Sea is to the north west, the Celtic Sea to the south west, with the North Sea to the east and the English Channel to the south separating it from continental...
and Wales
Wales
Wales is a country that is part of the United Kingdom and the island of Great Britain, bordered by England to its east and the Atlantic Ocean and Irish Sea to its west. It has a population of three million, and a total area of 20,779 km²...
. This is different from the situation of Northern Ireland
Northern Ireland
Northern Ireland is one of the four countries of the United Kingdom. Situated in the north-east of the island of Ireland, it shares a border with the Republic of Ireland to the south and west...
, for example, which did not cease to be a distinct jurisdiction when its legislature was suspended (see Northern Ireland (Temporary Provisions) Act 1972
Northern Ireland (Temporary Provisions) Act 1972
The Northern Ireland Act 1972 was an Act of the Parliament of the United Kingdom that introduced direct rule in Northern Ireland with effect from 30 March 1972....
).
A major difference is also the use of the Welsh language
Welsh language
Welsh is a member of the Brythonic branch of the Celtic languages spoken natively in Wales, by some along the Welsh border in England, and in Y Wladfa...
, as laws concerning it apply in Wales and not in the rest of the United Kingdom
United Kingdom
The United Kingdom of Great Britain and Northern IrelandIn the United Kingdom and Dependencies, other languages have been officially recognised as legitimate autochthonous languages under the European Charter for Regional or Minority Languages...
. The Welsh Language Act 1993
Welsh Language Act 1993
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....
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.
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
Welsh Language Act
Welsh Language Act refers to two different acts of the United Kingdom Parliament:*Welsh Language Act 1967*Welsh Language Act 1993...
, 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 framework
The first schedule of the Interpretation Act 1978Interpretation Act 1978
The Interpretation Act 1978 is an Act of the Parliament of the United Kingdom. The Act makes provision for the interpretation of Acts of Parliament, Measures of the General Synod of the Church of England, Measures of the Church Assembly, subordinate legislation, "deeds and other instruments and...
, defines the following terms: "British Islands", "England", and "United Kingdom". The use of the term "British Isles
British Isles
The British Isles are a group of islands off the northwest coast of continental Europe that include the islands of Great Britain and Ireland and over six thousand smaller isles. There are two sovereign states located on the islands: the United Kingdom of Great Britain and Northern Ireland and...
" 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 1746Wales and Berwick Act 1746The Wales and Berwick Act 1746 was an Act of the Parliament of Great Britain which created a statutory definition of "England" as including England, Wales and Berwick-upon-Tweed. This definition applied to all acts passed before and after the Act's coming into force, unless a given Act provided an...
, section 3 (entire Act now repealed) formally incorporated Wales and Berwick-upon-TweedBerwick-upon-TweedBerwick-upon-Tweed or simply Berwick is a town in the county of Northumberland and is the northernmost town in England, on the east coast at the mouth of the River Tweed. It is situated 2.5 miles south of the Scottish border....
into England. But section 4 Welsh Language Act 1967Welsh Language Act 1967The Welsh Language Act 1967 , is an Act of the Parliament of the United Kingdom which gave some rights to use the Welsh language in legal proceedings in Wales and gave the relevant Minister the right to authorise the production of a Welsh version of any documents required or allowed by the Act...
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 islands" of the Isle of WightIsle of WightThe Isle of Wight is a county and the largest island of England, located in the English Channel, on average about 2–4 miles off the south coast of the county of Hampshire, separated from the mainland by a strait called the Solent...
and AngleseyAngleseyAnglesey , also known by its Welsh name Ynys Môn , is an island and, as Isle of Anglesey, a county off the north west coast of Wales...
are a part of England and Wales by custom, while Harman v Bolt (1931) 47 TLR 219 expressly confirms that LundyLundyLundy is the largest island in the Bristol Channel, lying off the coast of Devon, England, approximately one third of the distance across the channel between England and Wales. It measures about at its widest. Lundy gives its name to a British sea area and is one of the islands of England.As of...
is a part of England.
- 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
Hebrides
The Hebrides comprise a widespread and diverse archipelago off the west coast of Scotland. There are two main groups: the Inner and Outer Hebrides. These islands have a long history of occupation dating back to the Mesolithic and the culture of the residents has been affected by the successive...
, and Rockall
Rockall
Rockall is an extremely small, uninhabited, remote rocky islet in the North Atlantic Ocean. It gives its name to one of the sea areas named in the shipping forecast provided by the British Meteorological Office....
(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
Channel Islands
The Channel Islands are an archipelago of British Crown Dependencies in the English Channel, off the French coast of Normandy. They include two separate bailiwicks: the Bailiwick of Guernsey and the Bailiwick of Jersey...
, 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 titleShort title
The short title is the formal name by which a piece of primary legislation may by law be cited in the United Kingdom and other Westminster-influenced jurisdictions , as well as the United States. It contrasts with the long title which, while usually being more fully descriptive of the...
", and ends in "Act", as in "Interpretation Act 1978". Compare with American convention, which includes "of", as in "Civil Rights Act of 1964
Civil Rights Act of 1964
The Civil Rights Act of 1964 was a landmark piece of legislation in the United States that outlawed major forms of discrimination against African Americans and women, including racial segregation...
".
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
Long title
The long title is the formal title appearing at the head of a statute or other legislative instrument...
together with the regnal year
Regnal year
A regnal year is a year of the reign of a sovereign, from the Latin regnum meaning kingdom, rule.The oldest dating systems were in regnal years, and considered the date as an ordinal, not a cardinal number. For example, a monarch could have a first year of rule, a second year of rule, a third, and...
of the parliamentary session
Parliamentary session
A legislative session is the period of time in which a legislature, in both parliamentary and presidential systems, is convened for purpose of lawmaking, usually being one of two or more smaller divisions of the entire time between two elections...
in which they received Royal Assent
Royal Assent
The granting of royal assent refers to the method by which any constitutional monarch formally approves and promulgates an act of his or her nation's parliament, thus making it a law...
, and the chapter number. For example, the Pleading in English Act 1362
Pleading in English Act 1362
The Pleading in English Act 1362 , often rendered Statute of Pleading, was an Act of the Parliament of England. The Act complained that because the French language was much unknown in England, the people therefore had no knowledge of what is being said for them or against them in the courts, which...
was referred to as 36 Edw. III c. 15, meaning "36th year of the reign of Edward III
Edward III of England
Edward III was King of England from 1327 until his death and is noted for his military success. Restoring royal authority after the disastrous reign of his father, Edward II, Edward III went on to transform the Kingdom of England into one of the most formidable military powers in Europe...
, 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 lawCommon law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
rather than a civil law
Civil law (legal system)
Civil law is a legal system inspired by Roman law and whose primary feature is that laws are codified into collections, as compared to common law systems that gives great precedential weight to common law on the principle that it is unfair to treat similar facts differently on different...
system (i.e. there has been no major codification of the law, and judicial precedents
Precedent
In common law legal systems, a precedent or authority is a principle or rule established in a legal case that a court or other judicial body may apply when deciding subsequent cases with similar issues or facts...
are binding as opposed to persuasive). This may have been due to the Norman conquest of England
Norman conquest of England
The Norman conquest of England began on 28 September 1066 with the invasion of England by William, Duke of Normandy. William became known as William the Conqueror after his victory at the Battle of Hastings on 14 October 1066, defeating King Harold II of England...
, which introduced a number of legal concepts and institutions from Norman law
Norman law
Norman law refers to the customary law of Normandy which developed between the 10th and 13th centuries following the establishment of the Vikings there and which survives today still through the legal systems of Jersey and Guernsey in the Channel Islands....
into the English system. In the early centuries of English common law, the justices and judge
Judge
A judge is a person who presides over court proceedings, either alone or as part of a panel of judges. The powers, functions, method of appointment, discipline, and training of judges vary widely across different jurisdictions. The judge is supposed to conduct the trial impartially and in an open...
s were responsible for adapting the Writ
Writ
In common law, a writ is a formal written order issued by a body with administrative or judicial jurisdiction; in modern usage, this body is generally a court...
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
Law French
Law French is an archaic language originally based on Old Norman and Anglo-Norman, but increasingly influenced by Parisian French and, later, English. It was used in the law courts of England, beginning with the Norman Conquest by William the Conqueror...
"pieds-poudrés" or "dusty feet", meaning ad hoc marketplace courts). As Parliament
Parliament of England
The Parliament of England was the legislature of the Kingdom of England. In 1066, William of Normandy introduced a feudal system, by which he sought the advice of a council of tenants-in-chief and ecclesiastics before making laws...
developed in strength legislation
Legislation
Legislation is law which has been promulgated by a legislature or other governing body, or the process of making it...
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
Time immemorial
Time immemorial is a phrase meaning time extending beyond the reach of memory, record, or tradition, indefinitely ancient, "ancient beyond memory or record"...
.
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 societySociety
A society, or a human society, is a group of people related to each other through persistent relations, or a large social grouping sharing the same geographical or virtual territory, subject to the same political authority and dominant cultural expectations...
. Thus, a standardised procedure slowly emerged, based on a system termed stare decisis
Stare decisis
Stare decisis is a legal principle by which judges are obliged to respect the precedents established by prior decisions...
. Thus, the ratio decidendi
Ratio decidendi
Ratio decidendi is a Latin phrase meaning "the reason" or "the rationale for the decision." The ratio decidendi is "[t]he point in a case which determines the judgment" or "the principle which the case establishes."...
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
Supreme Court of the United Kingdom
The Supreme Court of the United Kingdom is the supreme court in all matters under English law, Northern Ireland law and Scottish civil law. It is the court of last resort and highest appellate court in the United Kingdom; however the High Court of Justiciary remains the supreme court for criminal...
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
Court of Appeal of England and Wales
The Court of Appeal of England and Wales is the second most senior court in the English legal system, with only the Supreme Court of the United Kingdom above it...
binds the lower courts, and so on.
Overseas influences
The influences are two-way.- The United Kingdom exported the English legal system to the CommonwealthCommonwealth of NationsThe Commonwealth of Nations, normally referred to as the Commonwealth and formerly known as the British Commonwealth, is an intergovernmental organisation of fifty-four independent member states...
countries during the British EmpireBritish EmpireThe British Empire comprised the dominions, colonies, protectorates, mandates and other territories ruled or administered by the United Kingdom. It originated with the overseas colonies and trading posts established by England in the late 16th and early 17th centuries. At its height, it was the...
, 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 AmericanUnited StatesThe United States of America is a federal constitutional republic comprising fifty states and a federal district...
legal traditions and policies. Many states that were formerly subject to English law (such as AustraliaAustraliaAustralia , officially the Commonwealth of Australia, is a country in the Southern Hemisphere comprising the mainland of the Australian continent, the island of Tasmania, and numerous smaller islands in the Indian and Pacific Oceans. It is the world's sixth-largest country by total area...
) continue to recognize 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 CouncilJudicial Committee of the Privy CouncilThe Judicial Committee of the Privy Council is one of the highest courts in the United Kingdom. Established by the Judicial Committee Act 1833 to hear appeals formerly heard by the King in Council The Judicial Committee of the Privy Council (JCPC) is one of the highest courts in the United...
remains the ultimate court of appeal. Many jurisdictionJurisdictionJurisdiction is the practical authority granted to a formally constituted legal body or to a political leader to deal with and make pronouncements on legal matters and, by implication, to administer justice within a defined area of responsibility...
s 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 ReportsEnglish ReportsThe English Reports are a reprint in 178 volumes of nominate reports of judgments of the English Courts reported between 1220 and 1866. They contain most, but not all, of the nominate 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 FreedomsEuropean Convention on Human RightsThe Convention for the Protection of Human Rights and Fundamental Freedoms is an international treaty to protect human rights and fundamental freedoms in Europe. Drafted in 1950 by the then newly formed Council of Europe, the convention entered into force on 3 September 1953...
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 1998Human Rights Act 1998The Human Rights Act 1998 is an Act of Parliament of the United Kingdom which received Royal Assent on 9 November 1998, and mostly came into force on 2 October 2000. Its aim is to "give further effect" in UK law to the rights contained in the European Convention on Human Rights...
(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 LawInternational lawPublic international law concerns the structure and conduct of sovereign states; analogous entities, such as the Holy See; and intergovernmental organizations. To a lesser degree, international law also may affect multinational corporations and individuals, an impact increasingly evolving beyond...
and the modern commercial treatiesTreatyA treaty is an express agreement under international law entered into by actors in international law, namely sovereign states and international organizations. A treaty may also be known as an agreement, protocol, covenant, convention or exchange of letters, among other terms...
and conventions regulating shipping.
Criminal law
English criminal law derives its main principles from the common lawCommon law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
. The main elements of a crime are the actus reus
Actus reus
Actus reus, sometimes called the external element or the objective element of a crime, is the Latin term for the "guilty act" which, when proved beyond a reasonable doubt in combination with the mens rea, "guilty mind", produces criminal liability in the common law-based criminal law jurisdictions...
(doing something which is criminally prohibited) and a mens rea
Mens rea
Mens rea is Latin for "guilty mind". In criminal law, it is viewed as one of the necessary elements of a crime. The standard common law test of criminal liability is usually expressed in the Latin phrase, actus non facit reum nisi mens sit rea, which means "the act does not make a person guilty...
(having the requisite criminal state of mind, usually intention
Intention in English law
In English criminal law, intention is one of the types of mens rea that, when accompanied by an actus reus , constitutes a crime.-The standard definitions:...
or recklessness). A prosecutor must show that a person has caused
Causation in English law
Causation in English law concerns the legal tests of remoteness, causation and foreseeability in the tort of negligence. It is also relevant for English criminal law and English contract law....
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
Manslaughter in English law
In the English law of homicide, manslaughter is a less serious offence than murder, the differential being between levels of fault based on the mens rea . In England and Wales, the usual practice is to prefer a charge of murder, with the judge or defence able to introduce manslaughter as an option...
, murder
Murder in English law
Murder is an offence under the common law of England and Wales. It is considered the most serious form of homicide, in which one person kills another either intending to cause death or intending to cause serious injury .-Actus reus:The definition of the actus reus Murder is an offence under the...
, 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
Self-defence in English law
Self-defence is part of private defence, the doctrine in English law that one can act to prevent injury to oneself or others or to prevent crime more generally – one has the same right to act to protect others as to protect oneself. This defence arises both from common law and the Criminal Law Act...
, invitation, necessity
Necessity in English law
In English law, the defence of necessity recognises that there may be situations of such overwhelming urgency that a person must be allowed to respond by breaking the law. There have been very few cases in which this defence has succeeded...
, duress
Duress in English law
Duress in English law is a complete common law defence, operating in favour of those who commit crimes because they are forced or compelled to do so by the circumstances, or the threats of another. The doctrine arises in both English criminal law, and in civil law, where it is relevant to English...
, and in the case of a murder charge, under the Homicide Act 1957, diminished responsibility
Diminished responsibility in English law
In English law, diminished responsibility is one of the partial defences that reduce the offence from murder to manslaughter if successful . This allows the judge sentencing discretion, e.g. to impose a hospital order under section 37 Mental Health Act 1983 to ensure treatment rather than...
, provocation
Provocation in English law
In English law, provocation was a mitigatory defence alleging a total loss of control as a response to another's provocative conduct sufficient to convert what would otherwise have been murder into manslaughter. It does not apply to any other offence. It was abolished on 4 October 2010 by of the...
and, in very rare cases, survival of a suicide pact
Suicide pact
A suicide pact is an agreed plan between two or more individuals to commit suicide. The plan may be to die together, or separately and closely timed. Suicide pacts are important concepts in the study of suicide, and have occurred throughout history, as well as in fiction.Suicide pacts are generally...
. It has often been suggested that England should codify its criminal law in an English Criminal Code
English Criminal Code
The jurisdiction of England and Wales does not have a Criminal Code though such an instrument has been often recommended and attempted. , the Law Commission is again working on the Code.-History:...
, but there has been no overwhelming support for this in the past.
Constitutional law
- Fundamental Laws of EnglandFundamental Laws of EnglandIn the 1760s William Blackstone described the Fundamental Laws of England in Commentaries on the Laws of England, Book the First – Chapter the First : Of the Absolute Rights of Individuals as "the absolute rights of every Englishman" and traced their basis and evolution as follows:*Magna Carta...
- Rights of EnglishmenRights of EnglishmenThe rights of Englishmen are the perceived traditional rights of British subjects. The notion refers to various constitutional documents that were created throughout various stages of English history, such as Magna Carta, the Declaration of Right , and others...
- Constitution of the United KingdomConstitution of the United KingdomThe constitution of the United Kingdom is the set of laws and principles under which the United Kingdom is governed.Unlike many other nations, the UK has no single core constitutional document. In this sense, it is said not to have a written constitution but an uncodified one...
Family law
- AlimonyAlimonyAlimony is a U.S. term denoting a legal obligation to provide financial support to one's spouse from the other spouse after marital separation or from the ex-spouse upon divorce...
- Residence in English family lawResidence in English family lawResidence is a term used to refer to not always similar concepts in various parts of English law including taxation, immigration, and family law. The remainder of this article deals exclusively with English family law...
- BastardBastard (Law of England and Wales)A bastard in the law of England and Wales is a person whose parents, at the time of his/her birth, were not married to each other....
See also
- Common lawCommon lawCommon law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
- Leading cases in English law
- Law Commission (England and Wales)Law Commission (England and Wales)In England and Wales the Law Commission is an independent body set up by Parliament by the Law Commissions Act 1965 in 1965 to keep the law of England and Wales under review and to recommend reforms. The organisation is headed by a Chairman and four Law Commissioners...
- Scots lawScots lawScots law is the legal system of Scotland. It is considered a hybrid or mixed legal system as it traces its roots to a number of different historical sources. With English law and Northern Irish law it forms the legal system of the United Kingdom; it shares with the two other systems some...
- Welsh lawWelsh lawWelsh law was the system of law practised in Wales before the 16th century. According to tradition it was first codified by Hywel Dda during the period between 942 and 950 when he was king of most of Wales; as such it is usually called Cyfraith Hywel, the Law of Hywel, in Welsh...
- Contemporary Welsh lawContemporary Welsh LawContemporary Welsh Law is a term applied to the body of primary and secondary legislation generated by the National Assembly for Wales, according to devolved authority granted in the Government of Wales Act 2006. Each piece of Welsh legislation is known as an Act of the Assembly. The first Assembly...
(New powers for the Welsh Assembly)
- Contemporary Welsh law
- Constitutional status of CornwallConstitutional status of CornwallCornwall is currently administered as a unitary authority and ceremonial county of England.However, a number of organisations and individuals question the constitutional basis for the administration of Cornwall as part of England, arguing that the Duchy Charters of 1337 place the governance of...