Introduction to the English Legal System

Defining a Legal System

  • A legal system is a system of rules enforced through institutions, governing individuals and groups in society, backed by state power.

  • H.L.A. Hart defines it as a union of primary rules (duties) and secondary rules (powers), creating a unified legal framework.

  • Ronald Dworkin views it as an interpretive practice involving moral reasoning, critiquing a purely rule-based approach.

  • A legal system regulates behavior, resolves disputes, and enforces rights and obligations, providing a framework for creating, interpreting, and applying laws.

Key Components of a Legal System

  • Laws and Statutes: Written rules from legislative bodies or derived from tradition/custom.

  • Judiciary: Courts and judges interpreting and applying laws.

  • Law Enforcement: Police and agencies ensuring compliance.

  • Legal Professionals: Lawyers, judges, and legal scholars.

  • Institutions: Government bodies like parliaments and ministries.

  • Conventions/Treaties: Compliance with international norms.

  • Legal Regime: Constitution (written/unwritten), primary/secondary legislation, judicial decisions, customs/tradition, and treaties/conventions.

Types of Legal Systems

  • Common Law: Based on judicial decisions and precedent (e.g., United States, United Kingdom).

  • Civil Law: Based on codified statutes and laws (e.g., France, Germany).

  • Religious Law: Based on religious texts and principles (e.g., Sharia law).

  • Customary Law: Based on long-standing traditions and practices.

  • Mixed Systems: Incorporate elements from multiple legal systems.

The English Legal System: An Overview

  • The UK has no unitary legal system.

  • Legal System of England and Wales

  • Legal System of Scotland

  • Legal System of Northern Ireland

  • The legal systems of England and Wales, Scotland, and Northern Ireland are substantially different in law and procedure.

Brief History/ Important Timelines of the English Legal System

  • Before 1066 (Norman conquest): No unitary law; different areas governed by customs and traditions.

  • William the Conqueror (1066): Sought a central justice system to standardize the law.

  • King's Representatives: Sent to countryside to check local administration and adjudicate disputes according to local laws.

  • Itinerant Justices: Rejected unreasonable customs and accepted rational ones to form consistent rules.

  • Stare Decisis: Decisions formed a rule for similar cases, increasing predictability.

  • Common Law Development: The common law developed during this time (over two centuries).

Historical Timeline of the English Legal System

  • Early Laws and Customs (Pre-1066):

    • Governed by local customary laws (Anglo-Saxon, Danish).

    • Justice administered by local assemblies or lords.

  • Norman Conquest (1066 onward):

    • William the Conqueror centralized power.

    • Royal courts standardized law, creating Common Law.

    • Judges traveled to hear cases and record decisions, establishing precedent.

  • Magna Carta (1215):

    • Established principles like no one is above the law and fair trial rights (habeas corpus).

  • Development of Courts (13th–15th Centuries):

    • Legal system split into Court of Common Pleas, King’s Bench, Exchequer.

    • Equity emerged as alternative to rigid common law, administered by Court of Chancery.

  • Modern Era (20th Century–Today).

    • Human Rights Act 1998 incorporated the European Convention on Human Rights into UK law.

    • Supreme Court of the United Kingdom was established in 2009, replacing the House of Lords as the highest court.

    • Today, English law is a common law system that blends centuries of tradition with modern legislation and human rights principles.

Significance of the English Legal System (ELS)

  • ELS is among the oldest established legal systems in the world.

  • English Common Law is the oldest system of laws in the world. It refers to the ancient kings’ law, applied commonly throughout the kingdom of England, replacing the customs and laws of the former kingdoms.

  • After the Norman invasion of 1066, the common law emerged in the 12th century when the Norman kings used the existing governmental infrastructure and their judges to spread the king’s law, replacing the old Anglo-Saxon laws.

  • Foundation of Common Law

  • Doctrine of Precedent

  • Judicial Independence

  • Influence on Global Legal Systems

  • Flexibility and Adaptability

Common Law

  • “COMMON LAW” also means the system of legal principles developed by judges in the system of binding principle (precedent) and applied in later cases.

  • ELS is said to be the mother of all common law legal systems, worldwide, in Britain’s ex-colonies and the commonwealth.

  • The English Legal System is the original common law system.

  • The Common-law Legal System forms a major part of the law in many countries, especially those with a history as British territories or colonies.

  • Today common law is generally thought of as applying only to civil disputes; originally it encompassed the criminal law before criminal codes were adopted in most common law jurisdictions in the late 19th century.

  • The common law, as applied in civil cases was devised as a means of compensating someone for wrongful acts known as torts, including both intentional torts and torts caused by negligence and as developing the body of law recognizing and regulating contracts.

  • Common Law Legal Systems: England and Wales,, Australia, New Zealand, Malaysia, Singapore, Hong Kong, and many other generally English-speaking countries or Commonwealth Countries.

  • Works on the Common Law: Halsbury's Laws of England (covers both common and statutory English law).

Defining Law

  • Sir John Salmond: Law is "The Body Of Principles Recognized And Applied By The State In The Administration Of Justice."

  • John Austin: Law is "A Command Issued From A Superior (The State) To An Inferior (The Individual) And Enforced By Sanctions."

  • Law could be described as a formal mechanism of social control

  • It is formal because there are set rules set down and can be enforced through the courts and the legal system.

  • Law covers a wide variety of matters, and affects many aspects of our lives

  • Laws must be just and fair and consider issues of morality

  • Legal Positivists: Believe that the only legitimate sources of law are those written rules, regulations and principles that have been expressly enacted, adopted or recognized by a governmental entity or political institution, including administrative, executive , legislative & judicial bodies.

  • The Natural Law/Lawyers: all written laws must conform with universal principles. A law that is not fair and just may not rightly be called “the law”

Sources of Law in the English Legal System (E.L.S)

  • Major Sources:

    • Acts of Parliament (subject to statutory interpretation)

    • Case Law

    • Equity

    • Delegated Legislation

    • European Law (European Community/European Union Law, European Convention On Human Rights And ECtHR Case Law)

  • Minor Sources:

    • Custom

    • International Treaties

    • Authoritative Texts/Writings on Law

Sources of Law in The E.L.S

  • Acts of Parliament:

    • Laws passed by Parliament (House of Commons + House of Lords + Royal Assent).

    • Draft acts not yet passed are called bills.

    • Acts of Parliament are the highest source of law due to parliamentary sovereignty.

    • The Welsh Parliament can pass primary legislation in devolved areas.

  • Case Law:

    • Judgments from the High Court, Court Of Appeal, House Of Lords (Until 2009), The Supreme Court (2009 Onwards), and The Privy Council.

    • Binding precedent (stare decisis) influences decisions.

    • Certain areas (contract, tort) are largely judge-made.

  • Delegated/Subordinate Legislation:

    • Government ministers or departments issue laws under the authority of a ‘parent’ act of parliament

    • Three forms: statutory instruments (sis), bye-laws and orders-in-council.

Sources of Law In The E.L.S - Equity

  • Equity:

    • Mitigates harshness of common law.

    • Administered by the Lord Chancellor and the Court of Chancery.

    • Offers remedies like injunctions, specific performance, rectification, rescission.

    • In conflict, equity prevails (Earl of Oxford’s Case [1615] 1 ch rep 1).

    • Equity principles: Fairness, natural justice.

  • Equitable Remedies:

    • Injunctions: Order to do or stop doing something.

    • Specific Performance: Carry out a contract as agreed.

    • Rescission: Return parties to pre-contract position.

  • Some Equitable Maxims:

    • Equity will not suffer a wrong without a remedy.

    • Equity follows the law.

    • Where there is equal equity, the law shall prevail.

    • He who seeks equity must do equity.

    • He who comes into equity must come with clean hands.

    • Delay defeats equities.

Sources of Law in the E.L.S - The Status of European Union (previously European Community) Law

  • Following a referendum in 2016 which produced a 51.89% majority in favour of leaving the EU, the UK started the process of withdrawing (known as “Brexit”).

  • Under the terms of the UK-EU Withdrawal Agreement, the UK formally withdrew from the EU on 31 January 2020.

  • There was an ‘implementation period’ until 31 December 2020 in which the UK and the EU made legal preparations for the exit of the UK.

  • The European Union (Withdrawal) Act 2018 and the European Union (Withdrawal Agreement) Act 2020 set out the basic legal terms of the UK’s withdrawal.

Post Brexit and EU Laws- Current Application

  • Following the UK's exit from the EU on January 31, 2020, and the end of the transition period on December 31, 2020, EU law no longer directly applies in the UK.

  • However, many EU laws were "retained" into UK law, becoming known as retained EU law (REUL).

  • The UK government has the power to amend, repeal, or replace REUL, and in some cases, REUL is now "assimilated law", meaning it is interpreted independently of EU principles.

Key changes in summary

  • Reul: The UK incorporated many EU laws into its own legal system at the end of the transition period to ensure continuity, which are now known as REUL.

  • Assimilated law: REUL that was not revoked by the end of 2023 became "assimilated law" and is no longer interpreted in line with EU principles of interpretation.

  • Government's role: The UK government can amend, repeal, or replace REUL, and has the power to decide how REUL is interpreted and applied.

  • EU Court of Justice: UK courts are no longer bound by decisions of the Court of Justice of the European Union (CJEU) related to REUL.

Sources of Law in the E.L.S - European Convention on Human Rights and European Court of Human Rights Cases

  • European Convention on Human Rights and European Court of Human Rights Cases (‘ECtHR Jurisprudence’)

    • The ECHR is an international convention for the recognition and protection of fundamental human rights, drawn up by a different organization called the Council of Europe in 1950.

    • The Convention framework includes the European Court of Human Rights (ECtHR) which can hear cases against member states (‘Contracting Parties’), interpret the ECHR and its application to these cases, and if necessary award damages against member states.

    • ECHR rights and ECtHR jurisprudence apply in the UK under the framework established by the Human Rights Act 1998.

    • This is different from EU/EC law and is not affected by the UK’s withdrawal from the EU.

Minor Sources of Law in the E.L.S

  • Custom

    • Usage obtaining the force of law (Tanistry’s Case (1608) Dav Ir 28).

    • Regulates minor aspects not regulated by statute with long-established local practice.

    • General requirements for a custom to be recognized:

      • Existed continuously since 1189.

      • Reasonable (not conflicting with basic principles).

      • Sufficiently certain and clear.

      • Specific to a geographical area.

      • Exercised as of right (not by permission).

      • Consistent with other local customs.

  • International Treaties:

    • Agreements between the UK and other countries.

    • A ‘minor’ source of law because treaties do not automatically become a source of law in the UK. The UK is a ‘dualist’ system (international and domestic spheres of law are considered separate), as compared to a ‘monist’ one where international treaty obligations can be directly enforced in domestic law.

    • May become a source if incorporated into domestic law by an act of parliament (e.g., Human Rights Act 1998).

    • Courts may consider UK's obligations under international law to avoid conflict but this cannot be done if the position in domestic law is clearly in conflict

Categories of Law

  • The broadest categories of law are International law and Domestic law

  • International Law: Includes laws that govern independent nations in their relationships with one another.

    • Nations sign treaties and are considered binding as law (eg UNCHR, Extradition treaties, North Atlantic Treaty Organization (NATO) etc)

    • Some organizations have international legal status (United Nations and International Courts of Justice (ICJ))

    • Difficult to enforce international law

    • See role of United Nations Security Council as enforcement mechanism

  • Domestic Law: Law that governs activity within a nation’s borders.

    • Nation’s law-making authority comes from the power to govern - usually comes from a constitution or monarchy

    • Includes both case law and statute law

    • All within a country’s borders are subject to that nation’s laws

Divisions of Domestic Law

  • Domestic law is divided into substantive and procedural law

  • Substantive Law: Statutory or written law that governs the rights and obligations of everyone within its jurisdiction. It defines crimes and punishments, as well as civil rights and responsibilities.

    • Your conduct is governed by substantive law

    • Examples include right to own and protect property, entering contracts, and the rules of the road etc

  • Procedural Law: Law that prescribes the methods of enforcing the rights and obligations of substantive law.

    • Ensures that all citizens are treated fairly

    • Ensures that neither the police nor courts act arbitrarily

    • Examples include proper procedures to gather evidence, requirements for lawful arrest, and trial procedures

Divisions of Substantive Law

  • Substantive law is divided into public and private law

  • Public Law: Regulates the relationship between government and its citizens

    • Three categories of public law:

      • Administrative law

      • Criminal law

      • Constitutional law

  • Types of Public Law:

    • Administrative Law: Law related to the relationship between people and government departments, boards, and agencies

      • Administrative law specifically deals with the such administrative agencies’ decision-making capabilities, as they carry out laws passed by state and federal legislatures

      • Examples: worker’s compensation, social security assistance, health and safety at work, immigration, taxation

    • Criminal Law: Law that identifies crimes and punishments as described in the Criminal Law statutes of domestic laws.

      • Laws prohibit behavior such as bank robbery, kidnapping and tax evasion. Prohibits behavior that causes harm to others, such as murder, assault, and robbery

      • Crimes are against society

    • Constitutional Law: Body of law dealing with the distribution and exercise of government powers

      • Limits the powers of government; divides power between the federal government and the states

      • Courts interpret these laws to ensure all others are ‘constitutional’

  • Private Law (Civil Law): Law governing the relationships between private individuals and between individuals and organizations

    • Also known as civil or case law

    • Excludes government organizations

    • Regulates conduct and compensates those who have been harmed by the wrongful actions of others

    • Refers to torts (civil injuries), contracts, property law, and family law

    • Tort Law: Branch of civil law that holds persons or private organizations responsible for damage they cause another person as a result of an accident or deliberate action

    • Contract Law: Branch of civil law that provides rules regarding agreements between people and businesses

    • Family Law: Deals with various aspects of family life including marriage, property division upon separation, and child custody

    • Wills and Estates (Estate Law): Deals with the division of property after death including if a person dies without having a will

    • Property Law: Governs ownership rights in property including the buying and selling of real estate

    • Employment Law: Governs employer/employee relations including minimum age a person can work, restricting the number of hours required to work, and specifying the minimum wage

Aims of Civil and Criminal Law

  • Civil Law: Focus on compensating/ protecting the victim; regulates rights, duties and liabilities between individuals.

  • Criminal Law: Enforces and regulates social conduct; prohibiting threats, harm to person, safety and social order and other threats; persons who violate the laws will be punished.

5 Things Laws Do

  • Provide law & order

  • Provide remedies

  • Settle Disputes

  • Provide for our general safety

  • Protect rights of citizens

Differences Between Civil and Criminal Law

  • Civil:

    • Remedies: Compensation

    • Burden of Proof: Party asserting the matter/claimant

    • Balance of Probability

    • Parties: Smith v Jones

  • Criminal:

    • Penalty: Punish the offender

    • Burden of Proof Lies with the Prosecution

    • Beyond Reasonable Doubt

    • Parties: R v Smith

How is the law applied to a case?

  • Law & Facts

    • Law: Legal rules (as above)

    • Facts: Evidence, Observation, Objects, Expert opinions

  • A court is concerned with Law & Facts

  • A judge who sits alone in court: Law & Facts

  • A judge who sits with jury:

    • Judge - Law

    • Jury - Facts