The extent of the British Empire in the past means that today English law forms the basis of common law legal systems throughout the world. The previous influences of English culture and laws have resulted in the English legal system and laws becoming the basic structure from which a number of Countries develop their laws. Even today some Courts in other countries cite English cases as the basis for which their decision has been made.
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The United Kingdom consists of several legal jurisdictions, the four main ones being the countries of England, Wales, Scotland and Northern Ireland. Northern Irish and Scottish law remains largely independent to English law, however the law remains unified in both England and Wales - despite the Welsh Assembly Government now having the power to create legislation thanks to the Government of Wales Act 2006. An exception to this is any legislation concerning the Welsh language, as these laws will only be effective in Wales.
Over time various terms have been used in legislation and require some clarification. The term England refers to both England and Wales despite s.4 Welsh Language Act 1967 providing that any references to “England” in any Acts of Parliament in the future would not be deemed to include Wales. Various cases and statutes have confirmed that the term also includes the Isle of Wight, Anglesey, Lundy and all adjacent territorial waters.
The term “Great Britain” refers to England as described above but also includes Scotland along with Orkney Shetland, Hebridges, Rockall and all adjacent territorial waters.
When the term “United Kingdom” is used it refers to Great Britain and Northern Ireland along with all their territorial waters.
Finally when the term “The British Islands” is used it refers to all of the above as well as including the Isle of Man and Channel Islands.
It is essential to maintain certainty in the law whilst enabling the law to develop and this is why there is the precedent system. The English Court system is based on a hierarchy and once a decision is made in a higher court this decision then becomes precedent for any further decisions made by that Court and all lower courts. The exception to this is the Supreme Court which has the ability to overturn its own decisions. Since the United Kingdom joined the European Union, EU law became effective throughout the United Kingdom and takes precedent over English law. This precedent system is the basis of common law and in fact another way to describe the common law would be “judge made” law.
A vast amount of English law is based on this common law rather than codified in legislation. This is due to the history of law making in England; in the past judges were responsible for using common sense and precedents to create and maintain the law. Although judges are no longer the “creators” of law as such, their role in the interpretation of legislation means that common law is still as important a part of English law as it always has been.
As well as the common law English law is based on legislation passed through Parliament. The Distress Act 1267 is the oldest law currently in force in England today. Problems may arise in the judges interpretation of statutes as one judges view on what a statutes says may differ completely from another’s. Statutes must be updated regularly in order to keep up with the changing times whilst also promoting certainty in the law.
In English criminal law there are considered to be two main elements of a crime. The actus reus is the act of doing something criminal for example killing a man. The mens rea is the person killing the man having the requisite criminal state of mind for example he intends to kill him. For most crimes it must be proved that both elements existed before a person to be found guilty. There are defences to some crimes that a person who satisfies both elements can present to justify their actions for example a person who kills a man with a clear intention to kill him could rely on the defence of insanity.
Before courts are obliged to apply international laws they must first be incorporated into English law and this is usually done through an Act of Parliament. International laws can be considered, however, English law remains the absolute authority in England itself. An example would be the European Convention on Human Rights and Fundamental Freedoms, which was signed in 1950. This was incorporated into English law via the Human Rights Act 1998. The Courts must therefore take the Convention into account when thinking about points of common law and interpreting legislation, however, it is the Human Rights Act that has ultimate and binding authority and it is this Act that must be followed.