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 Common law can be amended or repealed by Parliament.[6][b]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.
Criminal law is the law of crime and punishment whereby the Crown prosecutes the accused. Civil law is concerned with tort, contract, families, companies and so on. Civil law courts operate to provide a party[f] who has an enforceable claim against another party with a remedy such as damages or a declaration.[13]
Common law and civil law
In this context, civil law is the system of codified law that is prevalent in Europe. Civil law is founded on the ideas of Roman law.[g]
By contrast, English law is the archetypal common law jurisdiction, built upon case law.[14]
The reforming Judicature Acts of the 1880s amalgamated the courts into one Supreme Court of Judicature which was directed to administer both law and equity.[17] The neo-GothicRoyal Courts of Justice in The Strand, London, were built shortly afterwards to celebrate these reforms.
Public law and private law
Public law[i] is the law governing relationships between individuals and the state. Private law encompasses relationships between private individuals and other private entities (but may also cover "private" relationships between the government and private entities).
Legal remedies
A remedy is "the means given by law for the recovery of a right, or of compensation 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 the High Court were commenced by obtaining a writ 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 the Woolf 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]
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 Subcontient, 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]
Possible Islamic Origins
Professor John Makdisi's article "The Islamic Origins of the Common Law" in the North Carolina Law Review[30] theorised that English common law was influenced by medieval Islamic law.[31] Makdisi drew comparisons between the "royal English contract protected by the action of debt" and the "Islamic Aqd", the "English assize of novel disseisin" (a petty assize adopted in the 1166 at the Assizes of Clarendon) and the "Islamic Istihqaq", and the "English jury" and the "Islamic Lafif" in the classical Maliki school of Islamic jurisprudence.[30]
He argued that these institutions were transmitted to England by the Normans,[30] "through the close connection between the Norman kingdoms of Roger II in Sicily — ruling over a conquered Islamic administration — and Henry II in England."[32] Makdisi argued that the "law schools known as Inns of Court" in England, which he asserts are parallel to Madrasahs, may have also originated from Islamic law.[30] He states that the methodology of legal precedent and reasoning by analogy (Qiyas) are similar in both the Islamic and common law systems.[33]
Other legal scholars such as Monica Gaudiosi, Gamal Moursi Badr and A. Hudson have argued that the English trust and agency institutions, which were introduced by Crusaders, may have been adapted from the Islamic Waqf and Hawala institutions they came across in the Middle East.[34][35] Paul Brand notes parallels between the Waqf and the trusts used to establish Merton College by Walter de Merton, who had connections with the Knights Templar.[31]
Early development
In 1276, the concept of "time immemorial" often applied in common law, was defined as being any time before 6 July 1189 (i.e. before Richard I's accession to the English throne). Since 1189, English law has been a common law, not a civil law system. In other words, no comprehensive codification of the law has taken place and judicial precedents are binding as opposed to persuasive. This may be a legacy of the Norman Conquest of England in 1066, when a number of legal concepts and institutions from Norman law were introduced to England.[36]
In the early centuries of English common law, the justices and judges were responsible for adapting the system of writs to meet everyday needs, applying a mixture of precedent and common sense to build up a body of internally consistent law. An example is the Law Merchant derived from the "Pie-Powder" Courts, named from a corruption of the Frenchpieds-poudrés ("dusty feet") implying ad hoc marketplace courts.
Following Montesquieu's theory of the "separation of powers", only Parliament has the power to legislate. If a statute is ambiguous, then the courts have exclusive power to decide its true meaning, using the principles of statutory interpretation. Since the courts have no authority to legislate, the "legal fiction" is that they "declare" (rather than "create") the common law. The House of Lords took this "declaratory power" a stage further in DPP v Shaw,[37] where, in creating the new crime of "conspiracy to corrupt public morals", Viscount Simonds claimed the court had a "residual power to protect the moral welfare of the state".[38][39] As Parliament became ever more established and influential, Parliamentary legislation gradually overtook judicial law-making, such that today's judges are able to innovate only in certain, very narrowly defined areas.
Overseas influences
Reciprocity
England exported its common law and statute law to most parts of the 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.[40]
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,[42]collisions,[43] ship arrest,[44] and carriage of goods by sea[45] 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.[46]
Any reference to England in legislation between 1746 and 1967 is deemed to include Wales. As to later legislation, any application to Wales must be expressed under the Welsh Language Act 1967 and the jurisdiction is, since, correctly and widely referred to as England and Wales.
This is different from Northern Ireland, for example, which did not cease to be a distinct jurisdiction when its legislature was suspended (see Northern Ireland (Temporary Provisions) Act 1972). A major difference is use of the Welsh language, as laws concerning it apply in Wales and not in the rest of the United Kingdom. The Welsh Language Act 1993 is an Act of the Parliament of the United Kingdom, which put the Welsh language on an equal footing with the English language in Wales with regard to the public sector. Welsh may also be spoken in Welsh courts.
^In contentious cases, such as the battered wife's revenge, or family mercy killings, English juries have been glad of the ability to treat a clear murder as though it were manslaughter.[10]
^Before 1963 Acts were cited with a comma between the Short Title and the year, e.g. "Acts of Parliament Numbering and Citation Act, 1962".[1] The comma has since been dropped, e.g. "British Museum Act 1963"
^Although in the past this was all spelled out, together with the long title.
^In this context, "common law" has been described as a body of judge-made law enforced and developed by the courts which includes equity and admiralty law, and which has always been "unintelligible without reference to the statute".[41]
^The US, Britain's first colony to be "lost", has a central federal Supreme Court as well as a "supreme court" in each state.
^Any decisions of the Privy Council made before the change of jurisdiction remain binding legal precedent.
^Mere agreement to the final text of a treaty is only the first stage, hence "dualist". For instance, Britain has yet to ratify the terms of the Arrest Convention 1999, so the earlier 1952 treaty is still in place.
^Ratification after agreement of a final text often takes decades. In the case of the Maritime Labour Convention of 2006, even though the EU instructed member states to adopt the MLC, this "fast-tracked" treaty still did not come into force until 2013.
^For example, the European Convention on Human Rights and Fundamental Freedoms was signed in 1950 and Britain 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 Human Rights Act (HRA) does not make the convention specifically applicable between private parties. Courts have taken the convention into account in interpreting the common law. They also must take the convention into account in interpreting Acts of Parliament, but must ultimately follow the terms of the Act even if inconsistent with the convention (s3 HRA).
^English criminal law derives its main principles from the common law. The main elements of a crime are the actus reus (doing something which is criminally prohibited) and a mens rea (having the requisite criminal state of mind, usually intention or recklessness). A prosecutor must show that a person has caused 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 ranging from those well-known ones like manslaughter, murder, theft and robbery to many regulatory and statutory offenses. It is estimated that in the UK, there are 3,500 classes of a criminal offence. Certain defences may exist to crimes, which include self-defence, intention, necessity, duress, and in the case of a murder charge, diplomatic immunity and under the Homicide Act 1957, diminished responsibility, provocation and, in very rare cases, the survival of a suicide pact. It has often been suggested that England and Wales should codify its criminal law in an English Criminal Code, but there has been no overwhelming support for this in the past.
^Subject to general laws from incorporated European Regulations and Directives and mainly regulated in the same way across the United Kingdom
^Note: "English law" is more accurately, termed the law of England and Wales and is applied in agreements that parties will adopt the jurisdiction of England and Wales as well as for matters within the physical jurisdiction.
^It is characteristic of the common law to adopt an approach based "on precedent, and on the development of the law incrementally and by analogy with established authorities", Robinson v Chief Constable of West Yorkshire Police, Supreme Court, [2018] UKSC 4, para. 21
^Carriage of Goods by Sea Act 1971: s.1(1)In this Act, "the Rules" means the International Convention for the unification of certain rules of law relating to bills of lading (...). s.1(2)The provisions of the Rules, as set out in the Schedule to this Act, shall have the force of law.
^Penny Darbyshire writes: "... in England ... at no time was it felt necessary to look outside the principles of common law or equity for assistance. Inevitably, through the ecclesiastical courts in particular, some Roman law influence can be traced, but in general terms, this is very limited". - Darbyshire on the English Legal System (2017)
^The Judicature Acts of 1873-75 abolished the Court of Chancery and "fused" law and equity. Today, equity cases are mostly dealt with in the Chancery Division of the High Court.
^Snell, Edmund Henry Turner; Megarry, R.E.; Baker, P.V. (1960). Snell's Principles of Equity (25 ed.). London: Sweet & Maxwell. p. 24
^Snell, Edmund Henry Turner; Megarry, R.E.; Baker, P.V. (1960). Snell's Principles of Equity (25 ed.). London: Sweet & Maxwell. p. 10
^See also: acts listed in First Schedule to Short Titles Act, 1896) where the title is the "short title", and ends in "Act", as in "Interpretation Act 1978".
^Badr, Gamal Moursi (Spring 1978). "Islamic Law: Its Relation to Other Legal Systems". The American Journal of Comparative Law. 26 (2 – Proceedings of an International Conference on Comparative Law, Salt Lake City, Utah, February 24–25, 1977): 187–198 [196–8]. doi:10.2307/839667. JSTOR839667.
^Viscount Simonds: "There remains in the Courts of Law a residual power to enforce the supreme and fundamental purpose of the law, to conserve not only the safety and order but also the moral welfare of the State, and that it is their duty to guard it against attacks which may be the more insidious because they are novel and unprepared for."
^Liam Boyle: An Australian August Corpus: Why There is Only One Common Law in Australia, Bond Law Review, Volume 27, 2015. p.29 II Some Preliminary Propositions
Darbyshire, Penny (2017). Darbyshire on the English Legal System - 12th ed - Sweet & Maxwell - ISBN978-0-414-05785-2
Dicey, A. V.; Morris, J. H. C. & Collins, Lawrence (1993). Dicey and Morris on the Conflict of Laws 12th ed. London: Sweet & Maxwell ISBN978-0-420-48280-8
Slapper, Gary & Kelly, David (2016). The English Legal System. London: Routledge. ISBN978-1-138-94445-9.