English Law: An introduction

The English Legal System

One of the major European legal systems, Roman law being the other,  English law has spread to many other countries, including former English colonies such as the USA, Canada, Australia, and New Zealand.

English law has an evolving history dating from the local customs of the Anglo-Saxons, traces of which survived until 1925.  After the Norman Conquest they grew up, side by side with the Saxon shire courts, the feudal courts of the barons and the ecclesiastical (church) courts.  From the king’s council developed the royal courts, presided over by professional judges, which gradually absorbed the jurisdictions (legal powers) of the baronial and ecclesiastical courts.  By 1250 the royal judges had amalgamated the various local customs into the system of common law – that is, law common to the whole country. A second system known as equity developed in the Court of Chancery, in which the Lord Chancellor considered petitions.

In the 17th and 18th centuries common law absorbed the Law Merchant, the international code of mercantile customs.  During the 19th century virtually the whole of English law was reformed by legislation; for example, the number of capital offences was greatly reduced.

Judicial Precedents

A unique feature of English law is the doctrine of judicial precedents, whereby the reported decisions of the courts form a binding source of law for future decisions. A judge is bound by decisions of courts of superior jurisdiction but not necessarily by those of inferior courts.

Classification of Law

Criminal

The criminal law is concerned with offences against society at large – crimes.  Prosecuted by the State.  Punish and deter.

Civil

Civil law is concerned with disputes between private parties, for example, consumer and supplier, employer and employee.  Injured party sues.  Damages or injunction.

Principal areas of non-statutory civil law

Contract; torts (wrongs); trusts.  Torts include negligence, nuisance, trespass, defamation, and inducing breach of contract.

Sources of Law

The principal sources of UK law are:

  • Statutes: Legislation from the UK Parliament and devolved parliaments.
  • ‘Common’ law: law made through principles established in cases over the centuries during the standardisation of law throughout England and Wales from the eleventh century onwards.
  • Law from the EU.

Statutes

Sources of statutes

Statutes originate from Parliament.  Example: Employment Rights Act 1996.  Each Act has a chapter number: ERA 1996 is ch.18.

Formation of statutes

Starting point is usually a green (consultative) paper.  Then draft proposals (white paper); and a bill before Parliament.  Ultimately, after Royal Assent, an Act.

Delegated legislation

An Act may allow a Minister or some other party the authority to make legal provisions.  Principal vehicles are statutory instruments (Ministerial Orders or sets of regulations.)

Case Law and Precedent

Ratio decidendi

Case law arises from judicial decision-making.  A judgment will contain the facts of the case, the correct legal position (the reason for the decision – ‘ratio’) and the decision itself.  The ratio sets a binding precedent for courts below.  Flexibility is built into the system by the ability to overrule (usually at a higher level) and to distinguish (one case from another).

Ratio overruled

A ratio is set out in the case of A v B.  In a later case between C and D, on the same point, in the same or a higher court, the ratio in A v B is held to be incorrect and is therefore overruled.  (It might have been correct and been affirmed). Contrast this with the decision in A v B being reversed (on appeal).

Decision reversed

A is unsuccessful against B and appeals to a higher court on the ground that the lower court misinterpreted the law. The higher court holds the ratio given by the lower court to be incorrect law and reverses the decision.  A, the appellant, succeeds.

Legal Personality

Only legal ‘persons’ can become liable or pursue an action under the law.

Types of legal person

  • A natural person i.e. a human being
  • An artificial person i.e. a corporation

Corporations

These may be chartered, statutory, or registered.

Key Points

  • Law may be classified as civil or criminal
  • Its source may be statute, common law or the EU
  • Cases are used as precedents, with binding authority
  • Only legal persons can become legally liable or pursue a legal action
  • Although the UK does not have a written constitution, saying there isn’t a British constitution is not strictly true.

 

Useful Links

British Constitution The United Kingdom constitution

Rule of Law The rule of Law in England and Wales