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English
Law
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.
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can be amended or repealed by Parliament; murder, by way of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 and EU law is
effective in the UK.[5] The European Union consists mainly of
countries which use civil law and so the civil law system is
also in England in this form, and the European Court of Justice,
a predominantly civil law court, can direct English and Welsh
courts on the meaning of EU law.
The oldest law currently in force is the Distress Act 1267, part
of the Statute of Marlborough, (52 Hen. 3).[6] Three sections of
Magna Carta, originally signed in 1215 and a landmark in the
development of English law, are still extant, but they date to
the reissuing of the law in 1297.
England and Wales as a distinct jurisdiction
The United Kingdom is a state consisting of several legal
jurisdictions. Notably 1/England and Wales 2/Scotland 3/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; but when Wales was conquered by
England it became a part of the legal unit, England." Beale.
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.
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