Colegiul Națțional ,,Simion Baă rnuțțiu”

Sț imleu Silvaniei

ATESTAT DE COMPETENȚE LINGVISTICE

LA LIMBA ENGLEZĂ

THE ENGLISH LAW

0
Profesor coordonator: Realizator:

Domuțța Gabriela Bozga Dana Alexandra

Clasa: a XII-a C

2018
Colegiul Națțional ,,Simion Baă rnuțțiu”
Sț imleu Silvaniei

ATESTAT DE COMPETENȚE LINGVISTICE

LA LIMBA ENGLEZĂ

1
 THE ENGLISH LAW

Profesor coordonator: Realizator:

Domuțța Gabriela Bozga Dana Alexandra

Clasa: a XII-a C

2018
Table of contents

INTRODUCTION....................................................................................................................................................3

CHAPTER I: HISTORY.............................................................................................................................................4
1.1 HISTORICAL DEVELOPMENT OF CIVIL LAW.................................................................................................................6
1.2 HISTORICAL DEVELOPMENT OF ENGLISH COMMON LAW...............................................................................................7
1.3 CIVIL LAW INFLUENCES IN AMERICAN LAW.................................................................................................................8
1.4 THE JURY SYSTEM.................................................................................................................................................9

CHAPTER II: PRINCIPAL ELEMENTS OF ENGLISH LAW..........................................................................................10

CHAPTER III: LEGAL TERMINOLOGY....................................................................................................................11

3.1 CRIMINAL LAW & CIVIL LAW..................................................................................................................................11
3.2 COMMON LAW & CIVIL LAW.................................................................................................................................11
3.3 COMMON LAW & EQUITY.....................................................................................................................................11
3.4 PUBLIC LAW & PRIVATE LAW.................................................................................................................................12

CHAPTER IV: SOURCES OF ENGLISH LAW............................................................................................................13

CHAPTER V: STATUTE LAW..................................................................................................................................14

CHAPTER VI: COMMON LAW..............................................................................................................................17

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 6.1 EARLY DEVELOPMENT..........................................................................................................................................17
6.2 PRECEDENT.......................................................................................................................................................18
6.3 OVERSEAS INFLUENCES.........................................................................................................................................19
6.3.1 Reciprocity..............................................................................................................................................19
6.3.2 Courts of final appeal.............................................................................................................................19
6.3.3 International law and commerce............................................................................................................19

CHAPTER VII: BRITISH JURISDICTIONS................................................................................................................20

7.1 APPLICATION OF ENGLISH LAW TO WALES...............................................................................................................20

CONCLUSION......................................................................................................................................................21

REFERENCES.......................................................................................................................................................22

Bibliography.............................................................................................................................................................24

Introduction

English law, also called English Common law, is the legal system developed in England in
about 1066 and is still in use today.[1] As a legal system it has spread to former
English colonies including Australia, Canada, the United States and New Zealand, as well as many other
countries.[2] English law is unique in that it is based on applying legal precedent (stare decisis) to present
and future decisions made by judges.[2] A judge must follow past legal decisions made by
higher courts but not necessarily those made by lower courts.[2] English law is not based on
a constitution and there is no codification of laws.[3] However, there are unofficial publications that
provide organized lists of current laws.[3] Parliament has the power to create laws which
are automatically considered valid and may not be reviewed by the courts.[3] Only Parliament has the
power to change a law.[3]
Most nations today follow one of two major legal traditions: common law or civil law. The
common law tradition emerged in England during the Middle Ages and was applied within British
colonies across continents. The civil law tradition developed in continental Europe at the same time and
was applied in the colonies of European imperial powers such as Spain and Portugal. Civil law was also
adopted in the nineteenth and twentieth centuries by countries formerly possessing distinctive legal
traditions, such as Russia and Japan, that sought to reform their legal systems in order to gain economic
and political power comparable to that of Western European nation-states.

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 Chapter I: History

The first system of laws in written history is that left by the Romans.
[4]
Considering the Romans came to Britain in 53 BC and left in 410, a period of
over 450 years, English historians disagree as to how much modern English law
was influenced by Roman civil law.[5] Written in about 602, the Law of
Æthelberht is the oldest example of Anglo-Saxon law.[6] Anglo-Saxon law was
based on Ancient Germanic law which was a system of laws based on kinship.
[7]
The kinship group was responsible for the acts of their members as well as for
their protection. Wrongs against another were paid by Weregild, a value placed on every person and piece
of property.[7] No longer based on kinship, they organized themselves to protect others in the hundred
and to enforce the laws.[7] A hundredsmann was in charge of a hundred and was responsible to see that
all disputes were settled.[7]

4
 In 1066, the Norman conquest of England brought with it many changes in the law.[8] While much
of Anglo-Saxon law was kept, new laws were added over time by the Normans.[8] Before the Norman
invasion, most laws in England were local laws and enforced by local courts.[9] Royal courts were
introduced and were based on the Curia regis or King's Council.[9] They did not take over local laws right
away, but did so over a period of time.[9] The royal courts took the best and fairest of the local laws and
used them throughout England.[9] This established English common law, or a system of laws common to
the entire country.[9] By this time a second court system developed known as equity and administered by
the Court of Chancery.[2] Equity addressed situations not covered by common law. Examples of equity
decisions include imposing a lien, correcting a property line or ordering someone to do something to

prevent damage.[10]
The 18th century legal scholar, William Blackstone, wrote a four-volume Commentaries on the
Laws of England which for the first time provided a complete overview of English law.[11] Originally
published 1765–1769, it has since been republished many times.[11] Used well into the 19th century, his
Commentaries were the main instruction tool in learning the law in both England and America.
[11]
Abraham Lincoln read Blackstone's Commentaries as part of teaching himself the law.[12]

Common law is generally uncodified. This means that there is no comprehensive compilation of
legal rules and statutes. While common law does rely on some scattered statutes, which are legislative
decisions, it is largely based on precedent, meaning the judicial decisions that have already been made in
similar cases. These precedents are maintained over time through the records of the courts as well as
historically documented in collections of case law known as yearbooks and reports. The precedents to be
applied in the decision of each new case are determined by the presiding judge. As a result, judges have
an enormous role in shaping American and British law. Common law functions as an adversarial system,

5
a contest between two opposing parties before a judge who moderates. A jury of ordinary people without
legal training decides on the facts of the case. The judge then determines the appropriate sentence based
on the jury’s verdict.

Civil Law, in contrast, is codified. Countries with civil law systems have comprehensive,
continuously updated legal codes that specify all matters capable of being brought before a court, the
applicable procedure, and the appropriate punishment for each offense. Such codes distinguish between
different categories of law: substantive law establishes which acts are subject to criminal or civil
prosecution, procedural law establishes how to determine whether a particular action constitutes a
criminal act, and penal law establishes the appropriate penalty. In a civil law system, the judge’s role is to
establish the facts of the case and to apply the provisions of the applicable code. Though the judge often
brings the formal charges, investigates the matter, and decides on the case, he or she works within a
framework established by a comprehensive, codified set of laws. The judge’s decision is consequently
less crucial in shaping civil law than the decisions of legislators and legal scholars who draft and interpret
the codes.

1.1 Historical Development of Civil Law

The term civil law derives from the Latin ius civile, the law applicable to all Roman cives or
citizens. Its origins and model are to be found in the monumental compilation of Roman law
commissioned by the Emperor Justinian in the sixth century CE. While this compilation was lost to the

West within decades of its creation, it was rediscovered and made the basis for legal instruction in

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eleventh-century Italy and in the sixteenth century came to be known as Corpus iuris civilis. Succeeding
generations of legal scholars throughout Europe adapted the principles of ancient Roman law in the
Corpus iuris civilis to contemporary needs. Medieval scholars of Catholic church law, or canon law, were
also influenced by Roman law scholarship as they compiled existing religious legal sources into their
own comprehensive system of law and governance for the Church, an institution central to medieval
culture, politics, and higher learning. By the late Middle Ages, these two laws, civil and canon, were
taught at most universities and formed the basis of a shared body of legal thought common to most of
Europe. The birth and evolution of the medieval civil law tradition based on Roman law was thus integral
to European legal development. It offered a store of legal principles and rules invested with the authority
of ancient Rome and centuries of distinguished jurists, and it held out the possibility of a comprehensive
legal code providing substantive and procedural law for all situations.

As civil law came into practice throughout Europe, the role of local custom as a source of law
became increasingly important—particularly as growing European states sought to unify and organize
their individual legal systems. Throughout the early modern period, this desire generated scholarly
attempts to systematize scattered, disparate legal provisions and local customary laws and bring them into
harmony with rational principles of civil law and natural law. Emblematic of these attempts is the Dutch
jurist Hugo Grotius’ 1631 work, Introduction to Dutch Jurisprudence, which synthesized Roman law and
Dutch customary law into a cohesive whole. In the eighteenth century, the reforming aspirations of
Enlightenment rulers aligned with jurists’ desire to rationalize the law to produce comprehensive,
systematic legal codes including Austria’s 1786 Code of Joseph II and Complete Civil Code of 1811,
Prussia’s Complete Territorial Code of 1794, and France’s Civil Code (known as the Napoleonic Code) of
1804. Such codes, shaped by the Roman law tradition, are the models of today’s civil law systems.

1.2 Historical development of English Common Law

Magna Carta, 1297 exemplar

Originally issued in the year 1215, the Magna Carta was first confirmed into law in 1225. This
1297 exemplar,

7
some clauses of which are still statutes in England today, was issued by Edward I. National Archives,
Washington, DC.

English common law emerged from the changing and centralizing powers of the king during the
Middle Ages. After the Norman Conquest in 1066, medieval kings began to consolidate power and
establish new institutions of royal authority and justice. New forms of legal action established by the
crown functioned through a system of writs, or royal orders, each of which provided a specific remedy
for a specific wrong. The system of writs became so highly formalized that the laws the courts could
apply based on this system often were too rigid to adequately achieve justice. In these cases, a further
appeal to justice would have to be made directly to the king. This difficulty gave birth to a new kind of
court, the court of equity, also known as the court of Chancery because it was the court of the king’s
chancellor. Courts of equity were authorized to apply principles of equity based on many sources (such as
Roman law and natural law) rather than to apply only the common law, to achieve a just outcome.

Courts of law and courts of equity thus functioned separately until the writs system was abolished
in the mid-nineteenth century. Even today, however, some U.S. states maintain separate courts of equity.
Likewise, certain kinds of writs, such as warrants and subpoenas, still exist in the modern practice of
common law. An example is the writ of habeas corpus, which protects the individual from unlawful
detention. Originally an order from the king obtained by a prisoner or on his behalf, a writ of habeas
corpus summoned the prisoner to court to determine whether he was being detained under lawful
authority. Habeas corpus developed during the same period that produced the 1215 Magna Carta, or Great
Charter, which declared certain individual liberties, one of the most famous being that a freeman could
not be imprisoned or punished without the judgment of his peers under the law of the land—thus
establishing the right to a jury trial.

In the Middle Ages, common law in England coexisted, as civil law did in other countries, with
other systems of law. Church courts applied canon law, urban and rural courts applied local customary
law, Chancery and maritime courts applied Roman law. Only in the seventeenth century did common law
triumph over the other laws, when Parliament established a permanent check on the power of the English
king and claimed the right to define the common law and declare other laws subsidiary to it. This
evolution of a national legal culture in England was contemporaneous with the development of national
legal systems in civil law countries during the early modern period. But where legal humanists and
Enlightenment scholars on the continent looked to shared civil law tradition as well as national legislation
and custom, English jurists of this era took great pride in the uniqueness of English legal customs and
institutions.

8
 That pride, perhaps mixed with envy inspired by the contemporary European movement toward
codification, resulted in the first systematic, analytic treatise on English common law: William
Blackstone’s (1723-1780) Commentaries on the Laws of England. In American law, Blackstone’s work
now functions as the definitive source for common law precedents prior to the existence of the United
States.

1.3 Civil law influences in American law

The American legal system remains firmly within the common law tradition brought to the North
American colonies from England. Yet traces of the civil law tradition and its importance in the
hemisphere maybe found within state legal traditions across the United States. Most prominent is the
example of Louisiana, where state law is based on civil law as a result of Louisiana’s history as a French
and Spanish territory prior to its purchase from France in 1803. Many of the southwestern states reflect
traces of civil law influence in their state constitutions and codes from their early legal heritage as
territories of colonial Spain and Mexico. California, for instance, has a state civil code organized into
sections that echo traditional Roman civil law categories pertaining to persons, things, and actions; yet
the law contained within California’s code is mostly common law.

And while Blackstone prevails as the principal source for pre-American precedent in the law, it is
interesting to note that there is still room for the influence of Roman civil law in American legal tradition.
The founding fathers and their contemporaries educated in the law knew not only the work of English
jurists such as Blackstone, but also the work of the great civil law jurists and theorists. Thomas Jefferson,
for example, owned several editions of Justinian’s Institutes, and praised the first American translated
edition from 1812, with its notes and annotations on the parallels with English law, for its usefulness to
American lawyers. Indeed, a famous example of its use is the 1805 case of Pierson v. Post, in which a
New York judge, deciding on a case that involved a property dispute between two hunters over a fox,
cited a Roman law principle on the nature and possession of wild animals from the Institutes as the
precedent for his decision. Today Pierson v. Post is often one of the first property law cases taught to
American law students. United States v. Robbins, a 1925 California case that went to the Supreme Court
and paved the way for the state’s modern community property laws, was based upon a concept of
community property that California inherited not from English common law but from legal customs of
Visigothic Spain that dated to the fifth century CE. Cases such as these illuminate the rich history that
unites and divides the civil and common law traditions and are a fascinating reminder of the ancient
origins of modern law.

9
 1.4 The jury system

The jury system probably came to England just after the Norman conquest.[13] At first, jurors acted
as witnesses in court. But over time, certainly by the reign of Henry II of England, they became the trier
of fact in a court case.[13] Juries began to deliberate the evidenceprovided by the parties in a dispute.

Chapter II: Principal

elements of English law

England's most authoritative law is statutory legislation, which comprises Acts of

Parliament, regulations[3] and bye-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]

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 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.[6][7]
Not being a civil law system, English law 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.[8][9] For the time being, murder remains a common law crime rather than a statutory
offence.[10] [11][12][13]
Although Scotland and Northern Ireland form part of the United Kingdom and share Westminster
as a primary legislature, they have separate legal systems outside of English Law.
International treaties such as the European Union's Treaty of Rome[14] or the Hague-Visby
Rules have effect in English law only when adopted and ratified by Act of Parliament.[15] Adopted treaties
may be subsequently denounced by executive action.[16]

Chapter III: Legal terminology

3.1 Criminal law & 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[17] who has an enforceable claim with a remedy such
as damages or a declaration.[18]

3.2 Common law & 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.[19] By contrast, English law is the
archetypal common law jurisdiction, relying on judge-made
law.[20]

11
 3.3 Common law & 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.[21] Equity is concerned mainly
with trusts and equitable remedies. Equity generally operates in accordance with the principles known as
the "maxims of equity".[22][23]
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.[24] The neo-gothic Royal Courts of
Justice in The Strand, London, were built shortly
afterwards to celebrate these reforms.

3.4 Public law & private law

Public Law[25] 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).
A remedy is "the means given by law for the
recovery of a right, or of compensation for its
infringement".[26] Most remedies are available only
from the court, but some are "self-help" remedies;
for instance, a party who lawfully wishes to
cancel[27] a contract may do so without leave;[28][29]
[30]
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
12
name of the Crown.[31] Now, 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 [32] as opposed to a Writ,
Originating Application, or Summons.[33]

Chapter IV: Sources of English Law

In England, there is a hierarchy of sources, as follows:[34]


Legislation (primary and secondary)

13
 
The case law rules of common law and equity, derived from precedent decisions.


Parliamentary conventions[35]


Genera
l Customs


Books
of authority.[36]

Chapter V: Statute law

Primary legislation in the UK may take the following forms:

 Acts of Parliament

In the United Kingdom, Acts of Parliament are primary legislation passed by the Parliament of the
United Kingdom. Acts of the Parliament of the United Kingdom, as a result of the Glorious
Revolution and the assertion of parliamentary sovereignty, are supreme law that cannot be overturned by
any body other than Parliament.
As a result of devolution, the National Assembly for Wales, the Northern Ireland Assembly, and
the Scottish Parliament are able to create primary legislation for their respective devolved institutions.
These devolved legislatures are able to
create legislation regarding all but reserved
and excepted matters. However, Acts of the
Parliament of the United Kingdom remain
supreme and can overrule the devolved

14
legislatures. By convention, the Parliament of the United Kingdom does not do this without a legislative
consent motion.
A draft piece of legislation is called a bill, when this is passed by Parliament it becomes an Act
and part of statute law.

 Acts of the Scottish Parliament

An Act of the Scottish Parliament (Scottish

Gaelic: Achd Pàrlamaid na h-Alba) is primary
legislation made by the Scottish Parliament. The power
to create Acts was conferred to the Parliament by
section 28 of the Scotland Act 1998 following the
successful 1997 referendum on devolution.
Prior to the establishment of the Parliament
under the 1998 Act, all post-union laws specific to
Scotland were passed at the Westminster Parliament. Although the Westminster Parliament has retained
the ability to legislate for Scotland, by convention it does not do so without the consent of the Scottish
Parliament. Since the passing of the 1998 Act, the Westminster Parliament has passed five public general
acts that apply only to Scotland.
A draft Act is known as a Bill. Once it is passed by the Scottish Parliament and receives royal
assent, the Bill becomes an Act and is then a part of Scots Law.

 Acts and Measures of the National Assembly for Wales

A Measure of the National Assembly for Wales (informally, an Assembly Measure) is primary
legislation in Wales that is a category lower than an Act of Parliament. In the case of Contemporary
Welsh Law, the difference with Acts is that the competence to pass Measures is subject to 'LCOs'
or Legislative Competence Order, which transfers powers to the Assembly by amending Schedule 5 of
the Government of Wales Act 2006.
It was a lower form of primary legislation as it did not
contain a large bulk of powers compared to the power to make acts.
In Wales each Assembly Measure had to be accompanied with a
Matter which was transferred using the Legislative Competence
Order (LCO) system. Each Assembly Measure, like an Act of
Parliament, had to have made provision for a matter within the
remit of the legislative competency of the Assembly.
15
 Following a referendum held in 2011, the assembly gained powers to make primary legislation
known as Acts of the Assembly. These powers came into force after the 2011 assembly elections and the
assembly is no longer able to pass Measures. Existing measures will remain valid unless repealed by the
assembly in the future.

 Statutory Rules of the Northern Ireland Assembly

The statutory rules of Northern Ireland are the principal form in which delegated legislation is
made in Northern Ireland.
Statutory rules are made under the Statutory Rules (Northern Ireland) Order 1979. They
replaced statutory rules and orders made under the Rules Publication Act (Northern Ireland) 1925 and are
comparable with statutory instruments in the rest of the United Kingdom.
Secondary (or "delegated") legislation in England includes:

 Statutory Instruments and Ministerial Orders.

A statutory instrument (SI) is the principal form in which delegated legislation is made in Great
Britain.
Statutory instruments are governed by the Statutory Instruments Act 1946. They
replaced statutory rules and orders, made under the Rules Publication Act 1893, in 1948.
Most delegated legislation in Great Britain is made in the form of a statutory instrument.
(In Northern Ireland, delegated legislation is organised into statutory rules, rather than statutory
instruments.) The advent of devolution in 1999 resulted in many powers to make statutory instruments
being transferred to the Scottish and Welsh governments, and oversight to the Scottish
Parliament and National Assembly for Wales. Instruments made by the Scottish Government are now
classed separately as Scottish statutory instruments.

 Bye-laws of metropolitan boroughs, county councils, and town councils.

A by-law (or bye-law or bylaw) is a rule or law established by an organization or community to

regulate itself, as allowed or provided for by some higher authority. The higher authority, generally a
legislature or some other government body, establishes the degree of control that the by-laws may
exercise. By-laws may be established by entities such as a business corporation, a neighborhood
association, or depending on the jurisdiction, a municipality.
In the United Kingdom, Republic of Ireland and some Commonwealth countries, the local laws
established by municipalities are referred to as by-laws because their scope is regulated by the central
governments of those nations. Accordingly, a bylaw enforcement officeris the Canadian equivalent of the
16
American Code Enforcement Officer or Municipal Regulations Enforcement Officer. In the United
States, the federal government and most state governments have no direct ability to regulate the single
provisions of municipal law. As a result, terms such as code, ordinance, or regulation, if not
simply law are more common.

Statutes are cited in this fashion: "Short Title Year", e.g. Theft Act 1968.[37][38] 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 was referred to as 36 Edw. III c. 15, meaning "36th year
of the reign of Edward III, chapter 15". [39] (By contrast, American convention inserts "of", as in "Civil
Rights Act of 1964").

Chapter VI: Common law

Common law is a term with historical origins in

the legal system of England. It denotes, in the first place,
the judge-made law that developed from the early Middle
Ages as described in a work published at the end of the
19th century, The History of English Law before the Time
of Edward I,[40] 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 North America and elsewhere; and this law as further developed after those
courts in England were reorganised by the Supreme Court of Judicature Acts passed in the 1870s, and
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 ecclesiasical law, and admiralty law.[41] For usage in the United States the

17
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".[42]

6.1 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, when a number of legal concepts
and institutions from Norman law were introduced to England. 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 French pieds-poudrés ("dusty feet") implying ad hoc marketplace courts.
Following Montesquieu's theory of the "separation of powers", only Parliament has the power to
legislate; but in the event of a statute being ambiguous, 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[43], 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".[44][45] 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.

6.2 Precedent

One of the major challenges 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 which roughly means "let the
18
decision stand". The doctrine of precedent which requires similar cases to be adjudicated in a like
manner, falls under the principle of stare decisis. Thus, the ratio decidendi (reason for decision) of each
case will bind future cases on the same generic set of facts both horizontally and vertically in the court
structure. 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 the lower courts, and so on.
In England, judges have devised a number of rules as to how to deal with precedent decisions.

6.3 Overseas influences

6.3.1 Reciprocity

England exported its common law and statute law to most parts of the British Empire, and 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 United States law, and provides the basis for many American legal traditions and
principles. (In the United States each state has its own supreme court with final appellate jurisdiction,
while the US Supreme Court has the final say over federal matters).[46]
Jurisdictions that have kept to the common law may incorporate modern legal developments from
England, and English decisions are usually persuasive in such jurisdictions.

6.3.2 Courts of final appeal

After Britain's colonial period, jurisdictions that had inherited and adopted England's common
law[47] 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.[48] 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.[49] 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.

6.3.3 International law and commerce

19
 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.[50][51] [52][53]
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,[54] collisions,[55] ship arrest,[56] and carriage of
goods by sea[57] are subject to international conventions which Britain played a leading role in drafting.
Many of these conventions incorporate principles derived from English common law[58] and documentary
procedures.[59]

Chapter VII: British jurisdictions

The United Kingdom of Great Britain and Northern Ireland comprises

three legal jurisdictions: England & 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 are binding on all three UK jurisdictions, as
in Donoghue v Stevenson, a Scots case that forms the basis of the UK's law of negligence. [60]

7.1 Application of English law to Wales

Unlike Scotland and Northern Ireland, Wales is not a separate jurisdiction within the United
Kingdom. The customary laws of Wales within the Kingdom of England were abolished by King Henry
VIII's Laws in Wales Acts which brought Wales into legal conformity with England. While Wales now
has a devolved Assembly, any legislation which that Assembly passes is enacted in particular
circumscribed policy areas defined by the Government of Wales Act 2006, other legislation of the British
Parliament, or by Orders in Council given under the authority of the 2006 Act.
Between 1746 and 1967, any reference to England in legislation was deemed to include Wales.
This ceased with the enactment of the Welsh Language Act 1967 and the jurisdiction is now commonly
referred to as "England and Wales". Although devolution has accorded some degree of political autonomy
to Wales in the National Assembly for Wales, it did not have the ability to pass primary legislation until
the Government of Wales Act 2006 came into force after the 2007 Welsh general election. That said, the

20
Welsh legal system remains English common law, in that 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.

Conclusion

"English law" is a term of art. It refers to the legal system administered by the courts in England
and Wales, which rule on both civil and criminal matters. English law is renowned as being the mother of
the common law and is based on those principles. English law can be described as having its own legal
doctrine, distinct from civil law legal systems since 1189.
There has been no major codification of the law, rather the law is developed by judges in court,
applying statute, precedent and case-by-case reasoning to give explanatory judgments of the relevant
legal principles. These judgments are binding in future similar cases (stare decisis), and for this reason
are often reported.
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, see Court of Piepowder (a
corruption of the Law French "pieds-poudrés" or "dusty feet", meaning ad hoc marketplace courts). As
Parliament developed in strength, 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. The year 1189 was defined in 1276 as being the boundary of time immemorial.
After the Acts of Union, in 1707 English law became one of two legal systems in different parts of
the same, united, kingdom and has been influenced by Scots law, most notably in the development and
integration of the law merchant by Lord Mansfield and in time the development of the law of negligence.
Scottish influence may have influenced the abolition of the forms of action in the nineteenth century and
extensive procedural reforms in the twentieth.
For me, the law is very important and I would like to study it and someday become a lawyer and
why I have this view for the law is because the Law affects every part of our lives and it is really not

21
difficult to find examples ot that: driving a car, buying something from a shop, getting into a fight, being
employed, renting a house and my own motivation came from seeing a small part of the law in action.
There is no right answer, just a convincing one.

References

1. For Civil procedure, see Civil procedure in England and Wales

2. For Criminal procedure, see Criminal Procedure and Investigations Act 1996
3. English regulations are not to be confused with EU Regulations
4. Collins English Dictionary.[1]
5. 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.[2]
6. For example, section 4 of the Carriage of Goods by Sea Act 1992 repealed the rule in Grant v Norway (1851) 10 CB 665.
7. The old estates in land were replaced by new provisions in the 1925 property legislation
8. Law Commission Report on the Codification of the Criminal Law [3]
9. Fisher v Bell [1961] 1 QB 394
10. Law Commission Consultation Paper no. 177 - "A New Homicide Act for England and Wales?"
11. Newspaper report on proposed changes to homicide law [4]
12. 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.
13. "The Independent" report |https://www.independent.co.uk/news/uk/this-britain/woman-walks-free-after-mercy-killing-case-
9143264.html]
14. Now renamed as "Treaty on the Functioning of the European Union
15. E.g. 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.
16. e.g. Arrest Convention 1952 Art. 17 [5]
17. ... or "claimant", "plaintiff", "petitioner" etc.
18. Other remedies include equitable relief such as an injunction and account of profits.
19. E.g. the Napoleonic Code in France
20. 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)
21. 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.
22. Equitable maxims include: "Equity will not suffer a wrong to be without a remedy", "Equity acts on the person" and "He who
comes into equity must come with clean hands".
23. Snell, Edmund Henry Turner; Megarry, R.E.; Baker, P.V. (1960). Snell's Principles of Equity (25 ed.). London: Sweet & Maxwell.
p. 24
24. Snell, Edmund Henry Turner; Megarry, R.E.; Baker, P.V. (1960). Snell's Principles of Equity (25 ed.). London: Sweet & Maxwell.
p. 10
25. This distinction is borrowed from civil law systems, and is neither as useful nor as appropriate in England as in Europe.
26. Law Dictionary (10th ed) - E.R.Hardy Ivamay - Butterworths
27. Using repudiation or rescission, (as the case may be)
28. If the other party feels that the first was wrong to cancel, he may ask a court to "declarethe contract subsisting".
29. See Hong Kong Fir Shipping Co Ltd v Kawasaki Kisen Kaisha Ltd 1961] EWCA Civ 7
30. Misrepresentation Act 1967 s.2
31. Rules of the Supreme Court (Writ and Appearance) 1979 (Statutory Instrument 1979, No. 1716)[6], discussed in House of Lords
in 1980,[7]
22
32. ...as prescribed by Rules 7 How to start proceedings and 8 Alternative procedure for claims of the Civil Procedure Rules)
33. The Civil Procedure Rules 1998.[8]
34. Slapper & Kelly - English Legal System - Routledge- 2016
35. Note: Parliamentary conventions should not be confused with International Conventions, which are Treaties adopted and ratified
by Parliament.
36. Such as Coke and Blackstone.
37. 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".[9] The comma has since been dropped, e.g. "British Museum Act 1963"[10]
38. See also: acts listed in First Schedule to Short Titles Act, 1896)[11] where the title is the "short title", and ends in "Act", as in
"Interpretation Act 1978".
39. Although in the past this was all spelt out, together with the long title.
40. The History of English Law before the Time of Edward I, 2 vols., on line, with notes, by Professor S. F. C. Milsom, originally
published in Cambridge University Press’s 1968 reissue.[12]
41. OED, 1933 edition: citations supporting that description, before Blackstone, are from the 14th and 16th centuries.
42. OED, 1933 edition: citations supporting that description are two from 19th century sources.
43. Shaw v DPP1962 AC 220 HL [n]
44. Shaw v DPP case summary [13]
45. 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."
46. Liam Boyle, An Australian August Corpus: Why There is Only One Common Law in Australia, Bond Law Review, Volume 27,
2015.[14]
47. 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 statute". 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[15]
48. The USA, Britain's first colony to be "lost", has a central federal Supreme Court as well as a "Supreme Court" in each state.
49. Any decisions of the Privy Council made before the change of jurisdiction; these changes resulting from the creation in 2008 of
the UK Supreme Court, remain binding legal precedent.
50. 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.
51. 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.
52. For example, the European Convention on Human Rights and Fundamental Freedomswas 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.
53. 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).
54. 1989 Salvage Convention
55. COLREGS
56. 1952 Arrest Convention
57. The Hague-Visby Rules
58. such as the rule on deviation
59. such as the Lloyd's Open Form
60. Donoghue v Stevenson [1932] UKHL [1932] UKHL
61. 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 range from those well known
ones like manslaughter, 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, intention, 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 and Wales
should codify its criminal law in an English Criminal Code, but there has been no overwhelming support for this in the past.

23
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 White, Jerry. London in the 20th Century: A City and Its People (2001) 544 pages; Social history
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