Sovereign 49 English Common Law

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=:l1glishlaw - Wikipedia, the free encyclopedia of8

English law is the legal system of England and Wales,[l]

and is the basis of common law[2]~s..used inmost ~

Co~ountries[3] andthe United States~ ~Louisianal'aSop~ivillaw or pluralist systems in use '-

:11other countries). It was exported to Commonwealth

countries while the British Empire was established and

maintained, and it forms the basis of the jurisprudence of

most of those countries. English law prior to the American

Revolution is still part of the law of the United States

through reception statutes, except in Louisiana, and provides

the basis for many American legal traditions and policies,though it has no superseding jurisdiction. The RoyalCourtsof Justice on the Strand,

London is the seatof the HighCourt of

English law in its . test sense applies within the Justice and the Court of Appeal.iurisdiction of England and Wales. llisrWales now has a

devolved Assembly, any legislation which that Assembly

enacts is enacted in particular circumscribed policy areas defmed by the Government of Wales Act

2006, other legislation of the Parliament ofthe 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.[4]

English law= - romWikipedia, the free encyclopedia

The essence of English common law is that it is made by judges sitting in courts, applying their common

sense and knowledge oflegal precedent (stare decisis) to the facts before them. A decision of the highest

appeal court in England an1 Wales, the Supreme Court of the United Kingdom, is binding on every

other court in th(§erarchYJ and they will follow its directions. ~ample, there is no statute making

murder illegal. [ci ta t IOn nee ded ! It is a common law crime - so although there is no written Act of Parliament

making mur er illegal, it is ille a y virtue of the constitutiona au onty onhe courts an .their

previous decision~. Common-law can e amended or repea e - y ar rament; murder, by way of

exa~ mandatory life sentence today, but had previously allowed the death penalty.

E?-gland and Wales are constituent countries of the United Kin~~~ of the f ! fEuro~ean Union. Hence, EU law is a part of English law. The Europearr'Hni s s mai fOf-Couri\es wlifcll use CIVIl law and so tlie civittaw-system is also in England in this form. The European

Court of Justice can direct English and Welsh courts on the meaning of areas of law in which the EU has

passed legislation.

The oldest written law currently in force is the Distress Actl...partof the Statute of Marlborough, 126(52 Hen. 3).5] Three see iOilsofMagna Carta, ·orig~ally signed in 1215 and a landmark in t e

development ofEllgnsn a~ are ex t but arguably t ey a e to the consolidation of the c m "297.-II

• 1England and Wales as a distinct jurisdiction IContents

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I



:= : nglish law - Wikipedia, the free encyclopedia of8

• 1.1 Wales

• 2 Statutory law

• 2.1 Statutory framework

• 2.2 Citation style

• 3 Common law

• 3.1 Precedent

• 3.2 Overseas influences• 4 Subjects and links

• 4.1 Criminal law

• 4.2 Constitutional law

• 4.3 Administrative law

• 4.4 Family law

• 4.5 Tort

• 4.6 Contract

• 4.7 Property

• 4.8 Trusts

• 4.9 Labour law

• 4.10 Evidence• 4.11 Miscellaneous

• 5 See also

• 6 Notes

• 7 References I

. J

England and Wales as a distinct jurisdiction

The United Kingdom is a state consisting of several legal jurisdictions: (a) England and Wales, (b)

Scotfarur and (c) Northern Ireland. The formed s ~urisdiction ofWa es was a sorbed mfO-;.

Englan e II u~ By the Act of Union, 1707 Scotland retained an in ependent c urdrand

judiciary. Ireland lost its mdependent 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 ofIreland is completely separate from that of the Ll.K , now, but that of

Northern Ireland retains some links from the Imperial past, inasmuch as it is based on the medieval

English common law system, there are many English statutes from the time of Poynings' Law on that

apply in Northern Ireland and there is an appeal to the Supreme Court of the United Kingdom from the

Court of Appeal of Northern Ireland.

"The civilized portion of the earth is divided up into certain units of territory in each of which a

particular law proper to that territory alone prevails, and that territory is for legal purposes a unit."

"§ 2.2. What Determines the State. - It has been seen that the existence of separate legal units

within the dominions of a single sovereign is a fact, the result of historical accidents ... when Hawaii

was annexed to the United States it remained a separate legal unit.

Statehood is also defined in public international law by the Montevideo Convention, which refers to the

following criteria as necessary to establish true statehood: (a) a permanent population; (b) a defined

territory; (c) government; and (d) capacity to enter into relations with the other states.

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Since 1967 most lawyers have referred to the legal system of England and Wales as "the Laws of

England and Wales" following the Welsh Language Act 1967,[6](see below) as may be seen by looking

at the applicable law section of most commercial agreements from these countries. Before, from 1746- J. ~

1967 this was not necessary (see below) but may have been done quite often nonetheless.

:= : nglish law - Wikipedia, the free encyclopedia of8

Some jurisdictions such as Australia use the term "law unit" and some authors use the word "country",

:'elieving that these words are less confusing than the use of the word "state". The majority view is that

.,state" is the best term. Hence, for Conflict purposes, England and Wales constitute a single state.

This is important for a number of reasons, one of the more significant being the distinction between

nationality and domicile. Thus, an individual would have a British nationality and a domicile in one of

the constituent states, the latter law defining all aspects of a person's status and capacity. Dicey andMorris (P26) list the separate states in the British Islands. "England, Scotland, Northern Ireland, the Isle

of Man, Jersey, Guernsey, Alderney, and Sark. .. is a separate country in the sense of the conflict of

laws, though not one of them is a State known to public international law." But this may be varied by

statute. The United Kingdom is one state for the purposes of the Bills of Exchange Act 1882. GreatBritain i a sm state or t e !!!poses 0 the omp ·es-Acl-1-98-~aditi(')nalty-atttJ.:i(;)l:S..r.eferrs.r::I-trr11ii',

legal unit or state of England and Wales as ng anQ,atffioug m recent decades this usage has

increasingly become politically and culturally unacceptable.

Wales

See also: Contemporary Welsh Law

Although devolution has accorded some degree of political autonomy to Wales in the National

Assembly for Wales, it did not have sovereign law-making powers until after the 2007 Welsh general

election when the Government of Wales Act 2006 granted powers to the Welsh Government to enact

some primary legislation. The legal system administered through both civil and criminal courts remains

unified throughout England and Wales. This is different from the situation of Northern Ireland, for

example, which did not cease to be a distinct jurisdiction when its legislature was suspended (see

Northern Ireland (Temporary Provisions) Act 1972).

A major difference is also the use of the Welsh language, as laws concerning it apply in Wales and not

in the rest of the United Kingdom. The Welsh Language Act 1993 is an Act of the Parliament of the

United Kingdom, which put the Welsh language on an equal footing with the English language in Wales

with regard to the public sector. Welsh may also be spoken in Welsh courts.

Statutory law

Statutory framework

The first schedule of the Interpretation Act 1978, defmes the following terms: "British Islands",

"England", and "United Kingdom". The use ofthe term "British Isles" is virtually obsolete in statutes

and, when it does appear, it is taken to be synonymous with "British Islands". For interpretation

purposes, England includes a number of specified elements:

• Wales and Berwick Act 1746, section 3 (entire Act now repealed) formally incorporated

Wales and Berwick-upon-Tweed into England. But section 4 Welsh Language Act 1967

provided that references to England in future Acts of Parliament should no longer include

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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 Wight and Anglesey are a part of England and Wales bycustom, while Harman v Bolt (1931) 47 TLR 219 expressly confirms that Lundy is a part of

England .

• the "adjacent territorial waters" by virtue ofthe 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

.he islands of Orkney and Shetland, the Hebrides, and Rockall (by virtue of the Island of Rockall Act

:972). The "United Kingdom" means Great Britain and Northern Ireland and their adjacent territorial

',aters. It ~oes not include t~~ nor t~ Channel Islands, whose independent status .was

.iiscussed illRover Internationa fd. v Canon Film a es ta. - 7) 1WLR 1597 and Chloride

'ndustrial Batteries Ltd. v F. & W Freight Ltd. (1989) 1 WLR 823. The "British Islands" means theUnited Kingdom", the Isle of Man, and the Channel Islands.

Citation style

Main article: Short title

<tatutory law is referred to as "Title of Act Year" ,[7] where the title is the "short title", and ends in "Act",

,5 in "Interpretation Act 1978". Compare with American convention, which includes "of", as in "Civil

:>JghtsAct of 1964" .

-:-hisbecame the usual way to refer to Acts in the second half of the 19th century, starting in the 1840s;~~eviously Acts were referred to by their long title together with the regnal year of the parliamentary

-ession in which they received Royal Assent, and the chapter number. For example, the Pleading in

:::nglish Act 1362 was referred to as 36 Edw. III c. 15, meaning "36th year of the reign of Edward III,

.napter 15", though in the past this was all spelt out, together with the long title.

Common law

-ince 1189, English law has been described as a common law rather than a civil law system (i.e. there

.as been no major codification of the law, and judicial precedents are binding as opposed to persuasive).

-:-hismay have been due to the Norman conquest of England, which introduced a number of legal

.oncepts and institutions from Norman law into the English system. In the early centuries of English

.ornmon law, the justices and judges were responsible for adapting the Writ system to meet everyday

·,ceds, applying a mixture of precedent and common sense to build up a body of internally consistent

2W, e.g. the Law Merchant began in the Pie-Powder Courts (a corruption of the French "pieds-poudres''

::-"dusty feet", meaning ad hoc marketplace courts). As Parliament developed in strength legislation

.radually overtook judicial law making.so.that, today, 'ud es are onl able to innovate in certain very

-,3.ITowlydefined areas. Time before 1189 wasdetlned in 1276 as being time immemorial.

Precedent

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English law - Wikipedia, the free encyclopedia of8

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 ositio~y by virtue of their rank In SOCIe. us, a standar ise proce ure slowty-em6f.ge

based on a system terme stare decisis. Thus, the ratio decidendi of each case will bind future cases on

theS3.iiiegenenc set offacts both or ontally and vertically. The highest appellate court in the UK is

the Supreme Court of the United Kingdom and its decisions are binding on every other court in the

hierarchy which are obliged to apply its rulings as the law of the land. The Court of Appeal binds thelower courts, and so on.

Overseas influences

The influences are two-way.

• The United Kingdom exported the English legal system to the Commonwealth countries

during the British Empire, and many aspects of that system have persisted after the.Britisl;

withdrew or granted independence to former dominions., n lish la rior 0the Wars of

c-Tna~. still an influence on United States law, and provides asis y

Amencan egal traditions an po ICIes.Many states t a were formerly subject to English law(such as Australia) 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 Council

remains the ultimate court of appeal. Many jurisdictions which were formerly subject to

English law (such as Hong Kong) continue to recognise the common lawOf England as tnerro w n - subject, of course, to statutory mod~ctahevtston-ana eciSlOns om

the Eng IS niue to e cited from time to time as persuasive authority in present

day judicial opinions.

• The UK is a dualist in its relationship with international law, i.e. international obligations have

to be formally incorporated into English law before the courts are obliged to apply

supranational laws. For example, the European Convention on Human Rights and

Fundamental Freedoms was signed in 1950 and the UK allowed individuals to directly

petition the European Commission on Human Rights from 1966. Now s6(1) Human Rights

Act 1998 (HRA) makes it unlawful" ... for a public authority to act in a way which is

incompatible with a convention right", where a "public authority" is any person or body which

exercises a public function, expressly including the courts but expressly excluding Parliament.

Although the European Convention has begun to be applied to the acts of non-state agents, the

HRA does not make the Convention specifically applicable between private parties. Courts

have taken the Convention into account in interpreting the common law. They also must take

the Convention into account in interpreting Acts of Parliament, but must ultimately follow the

terms of the Act even if inconsistent with the Convention (s3 HRA).

• Similarly, because the UK remains a strong international !@din nation igternillionJlL--,

consistency of decision making is of vital im ortance, so the Admiralty is strongly influenced

by Public International Law and the modem comriiercial treaties and -conven 1uns--regU lafii

6 s m P ~·ng. - - -

-Subjects and links

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Criminallaw

Main article: English criminal law

- - - - - - - - - - - - - - - - ~

Enzl i --" - aw derives its main principles from the common law. (he main elements of a crime

are t, e actus 1 : . .s:.~metliinKWlIic is criminaIIfR!Olii15ired) arrd/a 11}ensrea (having th~1"e uisite

crimina -:-- Jnind usuall intenti n or recklessIress -:A-prosecutor must show that a person has,:-aused1:lieOffenslve conduct, or that the culprit had some pre-existing duty to take steps to avoid a

crim ina l consequence. The types of different crimes range from those well known ones like

:nanslaughter, murder, theft and robbery to a plethora of regulatory and statutory offences. It is

estimated that in the UK, there are 3,500 classes of criminal offence. Certain defences may exist to

crimes, which include self-defence, invitation, necessity, duress, and in the case of a murder charge,

under the Homicide Act 1957, diminished responsibility, provocation and, in very rare cases, survival of

a suicide pact. It has often been suggested that England should codify its criminal law in an English

Criminal Code, but there has been no overwhelming support for this in the past.

Constitutional law

• Fundamental Laws of England

• Rights of Englishmen

• Constitution of the United Kingdom

Administrative law

Main article: English administrative law

Family law

Main article: Family law system in England and Wales

• Alimony

• Residence in English family law

• Bastard

Tort

Main article: English tort law

Contract

Main article: English contract law

Property

Main article: English property law

• Chose

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Trusts

Main article: Trust law in England and Wales

Labour law

Main article: British labour law

Evidence

• Hearsay

• Ladd v Marshall

Miscellaneous

• Alcohol licensing laws of the United Kingdom

See also

• Commonlaw• Leading cases in English law

• Law Commission (England and Wales)

• Scots law

• Welsh law• Contemporary Welsh law (New powers for the Welsh Assembly)

• Constitutional status of Cornwall

Notes

1. A Jurisdiction Of Courts In England And Wales And Their Recognition Of Foreign Insolvency Proceedings

(http://www.insolvency.gov. ukifreedomofinfonnationitechnicallTechnicaIManual/Ch49-

60/Chapter52/partllpart _l.htm)

2. A http://dictionary.law.comldefinition2.asp?selected=248

3. A The Common Law in the British Empire (http://www.h-

net.msu.edu/-law/ ASLHlconferences/2000conferencell 0 1900345b.htm)

4. A "Website of the government in

Wales" (http://new. wales.gov. uklabout/constitutional/govwalesact2006Ibrieflegcomp?lang=en) .

http://new. wales.gov. uklabout/constitutional/ govwalesact2006Ibrieflegcomp?lang=en. Retrieved 2008-04-15.

5. A Legal oddities (http://www.davros.org/legal/oddities.html)6. A "Notaries in England & Wales - a comeback?; Footnote

1" (http://www.notaries.org.uklpage32/page108/pagel08.html) . www.notaries.org.

http://www .notaries.org. uklpage32/page 108/page 108.html. Retrieved 2009-01-13.

7. A There was originally a comma after the name of the Act, as is usual to separate a qualifier, but this has

been dropped, yielding the more abrupt current form.

References

• Beale, Joseph H. (1935) A Treatise on the Conflict a/Laws. ISBN ISBN 1-58477-425-8

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-.glish law - Wikipedia, the free encyclopedia of8

• Dicey & Morris (1993). The Conflict of Laws 12th edition. London: Sweet & Maxwell Ltd.

ISBN 0-420-48280-6

• Slapper, Gary; David Kelly (2008-07-15). The English Legal System. London: Routledge-

Cavendish. ISBN 978-0-415-45954-9.

• Barnett, Hilaire (2008-07-21). Constitutional & Administrative Law. London: Routledge-

Cavendish. ISBN 978-0-415-45829-0.

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.ntegories: English law: Legal codes

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