English law is the common law legal system of England and Wales, comprising mainly criminal law and civil law, each branch having its own courts and procedures.For Civil procedure, see Civil procedure in England and WalesFor Criminal procedure, see the Criminal Procedure and Investigations Act 1996Note: "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. 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.
Principal elements 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 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.Collins English DictionaryIt 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, UKSC 4, para. 21
Common law is made by sitting judges who apply both statutory law and established principles, which are derived from the reasoning from earlier decisions. Equity is the other historic source of judge-made law. Common law can be amended or repealed by Parliament.For example, section 4 of the Carriage of Goods by Sea Act 1992 repealed the rule in Grant v Norway (1851) 10 CB 665.
Not being a civil law system, it has no comprehensive codification. 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.Law Commission Report on the Codification of the Criminal LawFisher v Bell 1 QB 394 For the time being, murder remains a common law crime, rather than a statutory offence.Law Commission Consultation Paper no. 177 - "A New Homicide Act for England and Wales?"
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 or the Hague-Visby Rules have effect in English law only when adopted and ratified by Act of Parliament.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. Adopted treaties may be subsequently denounced by executive action,Arrest Convention 1952 Art. 17 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.
Legal terminology Criminal law and civil 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 who has an enforceable claim against another party with a remedy such as damages or a declaration.Other remedies include equitable relief such as an injunction and account of profits.
Common law and civil law In this context, civil law is the system of codified law that is prevalent in the rest of Europe. Civil law is founded on the ideas of Roman law.
By contrast, English law is the archetypal common law jurisdiction, built upon case 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)
Common law and equity In this context, "common law" means the judge-made law of the King's Bench; whereas equity is the judge-made law of the (now-defunct) Court of Chancery.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. Equity is concerned mainly with trusts and equitable remedies. Equity generally operates in accordance with the principles known as the "maxims of equity".
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.Snell, Edmund Henry Turner; Megarry, R.E.; Baker, P.V. (1960). Snell's Principles of Equity (25 ed.). London: Sweet & Maxwell. p. 10 The neo-Gothic Royal Courts of Justice in The Strand, London, were built shortly afterwards to celebrate these reforms.
Public law and private law Public law 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".Law Dictionary (10th ed) - E.R.Hardy Ivamay - Butterworths Most remedies are available only from the court, but some are "self-help" remedies; for instance, a party who lawfully wishes to cancel a contract may do so without leave;Misrepresentation Act 1967 s.2 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.Rules of the Supreme Court (Writ and Appearance) 1979 (Statutory Instrument 1979, No. 1716), discussed in House of Lords in 1980 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 ...as prescribed by Rules 7 How to start proceedings and 8 Alternative procedure for claims of the Civil Procedure Rules) as opposed to a writ, originating application, or a summons.The Civil Procedure Rules 1998
Sources of English law
In English common law there is a number of sources which are commonly referred to: Legislation (primary and secondary) The case law rules of common law and equity, derived from precedent decisions Parliamentary conventions General customs Books of authority The rule of European Union law in England, previously of prime importance, has been ended as a result of Brexit.
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.
Statute law
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.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". 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". (By contrast, American convention inserts "of", as in "Civil Rights Act of 1964").
Common law
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, 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.OED, 1933 edition: citations supporting that description, before Blackstone, are from the 14th and 16th centuries. 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".OED, 1933 edition: citations supporting that description are two from 19th century sources.
Early development