English law, the legal system of England and Wales, is the basis of common law legal systems throughout the world (as opposed to civil law or pluralist systems in other countries, such as Scots law). 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, except in Louisiana, and provides the basis for many American legal traditions and policies, though it has no superseding jurisdiction.
The essence of English common law is that it is made by judges sitting in courts, applying their common sense and knowledge of legal precedent ( stare decisis) to the facts before them. A decision of the highest appeal court in England and Wales, the House of Lords, is binding on every other court in the hierarchy, and they will follow its directions. For example, there is no statute making murder illegal. It is a common law crime - so although there is no written Act of Parliament 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 Common law can be amended or repealed by Parliament; murder, by way of example, carries a mandatory life sentence today, but had previously allowed the death penalty.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, which is a member of the European Union and EU law is effective in the UK. The European Union consists mainly of countries which use civil law and so the civil law system is also in England in this form, and the European Court of Justice, a predominantly civil law court, can direct English and Welsh courts on the meaning of EU law.
The oldest law currently in force is the Distress Act 1267, part of the Statute of Marlborough, (52 Hen. 3). Three sections of Magna Carta, originally signed in 1215 and a landmark in the development of English law, are still extant, but they date to the reissuing of the law in 1297.
England and Wales as a distinct jurisdiction
The United Kingdom is divided into states each with a separate legal system and jurisdiction. For the purposes of Public International Law, a "state" is the nation given de jure recognition so that it may, inter alia, enter into a treaty with another nation. But, for the purposes of Conflict of Laws, Beale defines a "state" as follows (at § 2.1/2.5):
- 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.
Beale offers this example of historical accidents at § 2.2:
- "...when Hawaii was annexed to the United States it remained a separate legal unit; but when Wales was conquered by England it became a part of the legal unit, England."
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.
Some jurisdictions such as Australia 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 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 and Morris (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. Great Britain is a single state for the purposes of the Companies Act 1985. Traditionally authors referred to the legal unit or state of England and Wales as England although this usage is becoming politically unacceptable in the last few decades.
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 Assembly Government to produce 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 state 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 England. 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 can also be spoken in Welsh courts.
The Interpretation Act 1978, Schedule 1 distinctively identifies the following: "British Islands", "England", and "United Kingdom". The use of the 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 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 by custom, while Harman v Bolt (1931) 47 TLR 219 expressly confirms that Lundy 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 and Scotland including its adjacent territorial waters and the islands of Orkney and Shetland, the Hebrides, and Rockall (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, 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.
Since 1189, English law has been described as a common law rather than a civil law system (i.e. there has been no major codification of the law, and judicial precedents are binding as opposed to persuasive). In the early centuries, the justices and judges were responsible for adapting the Writ 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 "pieds-poudrés" or "dusty feet", meaning ad hoc marketplace courts). As Parliament developed in strength, and subject to the doctrine of separation of powers, legislation 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.
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 society. Thus, a standardised procedure slowly emerged, based on a system termed stare decisis. Thus, the ratio decidendi 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 House of Lords (the judicial members of which are termed Law Lords or, specifically if not commonly Lords of Appeal in Ordinary) 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 the lower courts, and so on. Since joining what is now termed the European Union, European Union Law has direct effect in the UK, and the decisions of the European Court of Justice bind the UK courts.
The influences are two-way.
- The United Kingdom exported its legal system to the Commonwealth countries during the British Empire, 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 American legal traditions and policies. Many states that were formerly subject to English law (such as Australia) continue to recognise 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 British 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 law of England as their own - subject, of course, to statutory modification and judicial revision - and decisions from the English 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 laws, 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 has allowed individuals to make complaints to the European Commission on Human Rights since 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 trading nation, international consistency of decision making is of vital importance, so the Admiralty is strongly influenced by Public International Law and the modern commercial treaties and conventions regulating shipping.
English law has significant antiquity. The oldest law currently in force is the Distress Act 1267, part of the Statute of Marlborough (52 Hen. 3). Three sections of Magna Carta, originally signed in 1215 and a landmark in the development of English law, are still extant, but they date to the reissuing of the law in 1297.