English law

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English law is the legal system of England and Wales,[1] and is the basis of common law[2] legal systems used in most Commonwealth countries[3]and the United States (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.

English law in its strictest sense applies within the jurisdiction of England and Wales. Whilst Wales now has a devolved Assembly, any legislation which that Assembly enacts is enacted in particular circumscribed policy areas defined by the Government of Wales Act 2006, other legislation of the U.K. Parliament, or by orders in council given under the authority of the 2006 Act. Furthermore that legislation is, as with any by-law made by any other body within England and Wales, interpreted by the undivided judiciary of England and Wales. [4] Also see below

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 Common law can be amended or repealed by Parliament; murder, by way of example, carries a mandatory life sentence today, but had previously allowed the death penalty.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. Hence, EU law is a part of English law. The European Union consists mainly of countries which use civil law and so the civil law system is also in England in this form. The European Court of Justice can direct English and Welsh courts on the meaning of areas of law in which the EU has passed legislation.

The oldest law currently in force is the Distress Act 1267, part of the Statute of Marlborough, (52 Hen. 3).[5] Three sections of Magna Carta, originally signed in 1215 and a landmark in the development of English law, are extant, but they date to the reissuing of the law in 1297.

England and Wales as a distinct jurisdiction

England

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The United Kingdom is a state consisting of several legal jurisdictions. Notably (a) England and Wales; (b) Scotland and (c) Northern Ireland. The formerly separate jurisdiction of Wales was absorbed into England by Henry VII Tudor. By the Act of Union, 1707 Scotland retained an independent church and judiciary. Ireland lost its independent parliament later than Scotland but its established Anglican church was historically an archbishopric of the Church of England headed by the king or queen and deferring to the Archbishop of Canterbury, for the most part the legal system is separate from that of England and Wales. The legal system of Ireland is completely separate from that of the U.K. now, but that of Northern Ireland retains some links from the Imperial past, inasmuch as it is based on the medieval English common law system, there are many English statutes from the time of Poyning on that apply in Northern Ireland and there is an appeal to the Judicial Committee of the House of Lords from the Court of Appeal of Northern Ireland.

"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… when Hawaii was annexed to the United States it remained a separate legal unit.

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.