English law

English law is the common lawlegal system of England and Wales, comprising mainly criminal law and civil law, each branch having its own courts and procedures.^[1][2][3] The judiciary is independent, and legal principles like fairness, equality before the law, and the right to a fair trial are foundational to the system.

Although the common law has, historically, been the foundation and prime source of English law, the most authoritative law is statutory legislation, which comprises Acts of Parliament, regulations^[a] and by-laws. In the absence of any statutory law, the common law with its principle of stare decisis forms the residual source of law, based on judicial decisions, custom, and usage.^[4][5]

Common law is made by sitting judges who apply both statutory law and established principles, which are derived from the reasoning from earlierdecisions. Equity is the other historic source of judge-made law. Common law can be amended or repealed by Parliament.^[6][b]

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.

International treaties such as the European Union's Treaty of Rome^[e] or the Hague-Visby Rules have effect 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 of parliamentary sovereignty. This principle was established in the case of R (Miller) v Secretary of State for Exiting the European Union in 2017.

In English common law there is a number of sources which are commonly referred to:^[24]

• Legislation (primary and secondary)
• The case law rules of common law and equity, derived from precedent decisions
• Parliamentary conventions^[l]
• General customs
• Books of authority^[m]

The rule of European Union law in England, previously of prime importance, has been ended as a result of Brexit.^[25]

There are also sources which are referred to somewhat less but are still important.

This includes King Alfred in his Domboc (doom book). This documents principles such as mercy, as well as trial by jury, which still exist in English law.

Magna Carta is also considered to be an important sources on law, documenting again the right to trial by jury and the evolution of English law.

According to Lord Justice Laws there is theoretically a distinct set of statutes called constitutional statutes.

Primary legislation in the UK may take the following forms:

• Acts of Parliament
• Acts of the Scottish Parliament
• Acts of the Senedd, or previously Acts of the National Assembly for Wales and 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:

• Statutory instruments and ministerial orders
• By-laws of metropolitan boroughs, county councils, and town councils

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 their long title with the regnal year of the parliamentary session when they received royal assent, and the chapter number. For example, the Pleading in English Act 1362 (which required pleadings to be in English and not Law French) was referred to as 36 Edw. 3. c. 15, meaning "36th year of the reign of Edward III, chapter 15".^[o] (By contrast, American convention inserts "of", as in "Civil Rights Act of 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 replaced Anglo-Saxon law in England following the Battle of Hastings in 1066. Throughout the Late Medieval Period, English law was codified through judge-made laws and precedents that were created in the proceedings of Royal justices in the Circuit courts dictated by the Eyres throughout the country (these themselves evolving from the early medieval Itinerant 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 which Pollock and Maitland expanded the work of Coke (17th century) and Blackstone (18th century). Specifically, the law developed in England's Court 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 the United Kingdom, in United States, Canada, Australia, New Zealand, South Africa, Singapore, Indian subcontinent, Israel and elsewhere.

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]

Overseas influences

Reciprocity

England exported its common law and statute law to most parts of the British 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 on American 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 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.^[34]

Courts of final appeal

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 the Judicial Committee of the Privy Council in London.^[q] 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.^[r]

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.

International law and commerce

Britain is a dualist in its relationship with international law, so international treaties must be formally ratified by Parliament and incorporated into statute before such supranational 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 of shipping and maritime trade. The English law of salvage,^[36]collisions,^[37] ship arrest,^[38] and carriage 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]

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 appeal court is the Supreme 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 in Donoghue v Stevenson, a Scots case that forms the basis of the UK's law of negligence.^[40]

• 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 edn. London: Sweet & Maxwell (formerly Eddey on the English legal system) ISBN 978-0-414-05785-2 (not the same as below)
• Dicey, A. V., J. H. C. Morris, & Lawrence Collins (1993). Dicey and Morris on the Conflict of Laws, 12th edn. London: Sweet & Maxwell ISBN 978-0-420-48280-8
• Slapper, Gary & Kelly, David (2016). The English legal system (18 ed.). London: Routledge. ISBN 978-1-138-94445-9.
• Barnett, Hilaire (2008). Constitutional & Administrative Law. London: Routledge-Cavendish. ISBN 978-0-415-45829-0.

• 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 26 March 2023. Retrieved 18 February 2019. (2013) 36(3) University of New South Wales Law Journal 1002.