Law in United Kingdom
History of Law in Britain
“Roman law and English law, both widely influential, are characterized -in accordance to Bamber Gascoigne´ Encyclopedia of Britain about “law”– by very different approaches. In broad terms Roman law follows a coherent written code and a set of principles, while English law relies more on case law (an accumulation of previous decisions by judges, known as precedents). The division is seen within the United Kingdom itself, where Scotland is strongly influenced by Roman law.
The developing common law was mainly concerned with penalties and damages after an offence was committed. It therefore often conflicted with people’s sense of natural justice (where there was a need, for example, for a contract to be enforced or for legal authority to prevent something happening). This led to another strand of law known as equity (fairness); such cases, where the common law offered no remedy, began to be referred to the lord chancellor (the Court of Chancery). The third element, developing with the growth of parliament, has been statute law – the accumulated body of laws established by successive acts of parliament.
There is no evidence that any trace of their legal system survived the departure of the Romans from Britain, and in the succeeding centuries of settlement by Anglo-Saxons and Danes the law was largely a matter of local tribal customs. It was the strong centralized rule of the Normans which introduced the basis of English law. Itinerant judges, sent round the country to standardize legal practice, gradually formed the common law (in the sense of common to the whole kingdom). Common law was linked with the inns of court; university lawyers at the time concentrated on canon law, the legal structure of the Roman Catholic church.
The Roman element in Scottish law is the result of major legal reforms in the 17C, when Scotland looked to France and Holland for its models. The Scots and the English therefore had different legal systems at the time of the Act of *Union in 1707, a situation resulting in their differing courts of law today.”
Concept of Law
The following is an old definition of Law , a term which has several meanings:1.A rule of action dictated by a superior being.” The command of a superior. A command addressed by the sovereign of the state to his subjects, imposing duties, and enforced by punishments. Laws are made for the government of actions. The parts of a law are: the ” declaratory ” part, which defines the right to be observed and the wrong to be eschewed; the ” directory ” part, which enjoins observance of the right and abstaining from the wrong; the ” remedial ” part, which provides a method to recover a right or to redress a wrong; and, the “vindicatory” part, which prescribes the penalty for a transgression.0 2. In an important use “law” excludes the methods and remedies peculiar to equity and admiralty, and confines the idea to the action of tribunals proceeding by fixed rules, and employing remedies operative directly upon the person or property of the individual; as, in the expressions, a court of law, a remedy at law, an action at law, at law.1 Compare Common Law. 3. A positive law; an enactment; an act of the legislative department of government; a statute. 2 4. ” Law ” and ” the law ” frequently refer to systematized rules of action, – the science of jurisprudence as a study or a profession.The primary end of law is to maintain and regulate the absolute rights of individuals. The law is a science which distinguishes the criterions of right and wrong, and teaches to establish the one and to prevent, pimish, or redress the other. Locke’s division of law: divine law – the law of God, natural or revealed; civil law – the municipal law; law of reputation – morality. Austin’s division: divine law – the revealed law of God; positive human law – municipal law; positive morality – morality; laws metaphorically so called – the laws of animate and inanimate nature. The “laws of a state” usually mean the rules and enactments promulgated by the legislative authority thereof, or long established local customs having the force of laws. The decisions of the courts are only evidence of what the laws are. The term ” laws ” includes not only written expressions of the governing will, but also all other rules of property and conduct in which the supreme power exhibits, and according to which it exerts, its governmental force. Natural law, or law of nature. The rule of human action prescribed by the Creator, and discoverable by the light of reason. Divine or revealed law. The law of nature, imparted by God himself. Law of nations, or international law. The law which regulates the conduct and mutual intercourse of independent states with each other by reason and natural justice. Law of the flag. The law of the nation to which a vessel belongs. Civil law. The law of citizens: the law which the people of a state ordain for their own government. (1) By ” the civil law,” absolutely taken, is understood the civil or municipal law of the Roman empire, as comprised in the institute, code, and digest of the emperor Justinian, and the novel constitutions of himself and predecessors. Whatever strength these Imperial laws may have obtained in Great Britian is due to immemorial usage in particular cases and in particular courts, or to introduction by express consent of Parliament. See Pandects. (2) The laws which a community or state has established for the regulation of its own affairs, as distinguished from the law of nations; also, that portion of such laws which regulates dealings between subjects or citizens, in distinction from criminal law, military law, maritime law, and the general law-merchant. Compare Municipal Law. Organic law. The fundamental law of a community or state; whether written or unwritten. Positive law. May refer to law actually existing at a given time, or to enacted law. General law. Relates to a whole genus or kind, to a whole class or order. Opposed, local or special law. See Public Law. A law which affects a class of persons or things less than all, may be a ” general ” law. A general law may not import universality in the subjects or in its operation. General laws relate to or bind all within the jurisdiction of the law-making power, limited as that power may be in its territorial operation or by constitutional restraints. A “special” law is such as, at common law, the courts would not notice unless it were pleaded and proved like any other fact. That a statute be ” public ” it is not necessary that it be equally applicable to all parts of the State. All that is required is that it apply to all persons within the territorial limits described in the act. ” Special ” laws provide for individual cases. “Local” laws, while applicable to all persons, are confined in their operation to certain prescribed or defined territorial limits. Public law. (1) International law. (2) A law involving public interests. Opposed, private law: a law for the benefit of an individual or individuals. In one sense ” public ” law designates international law, as distinguished from the laws of a particular nation or state; and in another sense, a law or statute that applies to the people generally of the nation or state adopting or enacting it, as opposed to a “private ” law which affects an individual or a small number of persons. Legislative acts concerning public interests are necessarily ” public ” laws. These may be abolished at the will of the legislature. . . The Dartmouth College Case has no application where a statute is a public law relating to a public subject within the dominion of the general legislative power of the State, and involving the public rights and public welfare of the entire community. Foreign law. A law of another sovereignty or nation. Foreign laws and usages are to us matters of fact, and must be proved as facts; but not so with the law of nations. The existence of a foreign law is not judicially noticed, unless proved as a fact. A written law is proved by a copy properly authenticated; unwritten law, by the testimony of experts, that is, by those acquainted with the law. As to the manner of authentication there is no general rule, except this: that no proof shall be received which presupposes better attainable testimony. A written law may be verified by an oath, or by an exemplification of a copy, under the seal of the state, or by a copy proved to be a true copy by a witness who has examined and compared the copy with the original, or by a certificate of an officer authorized to give a copy, the certificate being duly proved. But these modes are not exclusive of others, especially of codes and accepted histories. The courts of one state not being presumed to know, are not bound to take judicial notice of, the laws of another State. In this respect they are foreign to each, other. The Supreme Court, exercising an appellate jurisdiction, takes judicial notice of the laws of every State, because those laws are known to the court below as laws alone, needing no averment or proof. See Comity; Faith and Credit. Municipal law. The rule of civil conduct prescribed by the supreme power in a state, commanding what is right and prohibiting what is wrong; also, the laws of a locality. The municipal laws of England are the unwritten or common law, and written or statute laws. See Written Law. Pertains solely to the citizens and inhabitants of a state, and is thus distinguished from political law.commercial law, and the law of uations. Is now more usually applied to the customary laws that obtain in any particular city, or province, and which have no authority in neighboring places. Defines the just and necessary limits of natural liberty. A city ordinance (see, in this resource, the term) is not a law in this sense. A constitution is a law in the sense that no State shall pass any law impaiiing the obligation of contracts. See further Impair. Common law. The law common to all the realm. A collection of maxims and customs, of higher antiquity than memory or history can reach. Nothing else but custom, arising from the universal agreement of the whole community. Custom handed down by tradition, use, and experience. See Unwritten Law. Reason dealing by the light of experience with human affairs. A system of elementary principles and of general juridical truths, which are continually expanding with the progress of society. Common law develops with new ideas of right and justice. Common law grows out of the general customs of the country, and consists of definitions of them and of those ancillary principles that naturally accompany them, or are deduced from them. The common law of our country or century is not necessarily the common law of another, because customs change. It is a sort of law created by the people themselves. When the judges declare it, they merely discover and declare what they find existing in the life of the people as a rule of their relations. When the custom ceases, the law ceases. It is this law that people emigrating take with them – by tacit adoption, as far as is consistent with their new circumstances.0 The term may be used in distinction to “statute law,” to “equity law,” and the “Roman law” or “civil law.” Every country has its common law. Ours is composed partly of the common law of England, and partly of our own usages. When our ancestors emigrated from England they took with them such of the English principles as were convenient for the situation in which they were about to place themselves. . . By degrees, as circumstances demanded, we adopted the English usages, or substituted others better suited to our wants, till at length, before the time of the revolution, we had formed a system of our own, founded in general on the English constitution, but not without considerable variations. The common law of England is not to be taken in all respects as that of America. Our ancestors brought with them its general principles, and claimed it as their birthright; but they brought with them and adopted only that portion which was applicable to their situation. The common law of England can be made part of our Federal system only by legislative adoption. The United States has no common law. Each State may have its own local customs and common law. The power of the United States is expressed in the Constitution, laws, and treaties. The English common law was adopted by the original Thirteen Colonies only so far as it suited their conditions, from which circumstance what is common law in one State is not so considered in another. The judicial decisions, the usages and customs of the respective States, determine to what extent the common law has been introduced into each State. The old common law is the basis of all State laws, modified as each sees fit. It has been repeatedly held that the common law of England, up to the time of the Declaration of Independence, is as much a part of our system of jurisprudence as it is of that of Great Britain. The decisions of the common-law courts of the country show what that common law is. We have modified the law by enactments and practice. The common law being the substratum of the jurisprudence of the Thirteen States by which the Constitution was adopted, and the framers being educated under it, the terms of the -instrument are to be construed by the common law. Nor have the Federal courts jurisdiction of common-law offenses. The laws of the Federal government, as stated, are embodied in the Constitution, acts of Congress, and treaties made by its authority. The Federal courts do not enforce the common law in municipal matters in the States because it is Federal law, but because it is the law of the State. The common law is necessarily referred to by the Federal authorities for definitions. It is a general repository of rules, principles, and forms. Because the Federal criminal jurisprudence has no substantum of common-law crimes upon which to draw for elements of an offense, the courts must follow the statutes exclusively; using the common law, if necessary, only for definitions of terms. When acts of Congress use words which are familiar in the law of England, they are supposed to be used with reference to their meaning in that law. By ” common law ” and ” law,” the tramers of the Constitution meant not merely suits which the common law recognized; but suits in which legal rights were to be ascertained and determined, in contradistinction to those where equitable rights and remedies were regarded; or, where, as in admiralty, a mixture of public law and of maritime law and equity were often found in the same suit. See Judicial, Power. While we have no general system of judicial national common law, in matters not subject to judicial jurisdiction, we have a complete system of “executive national common law,” which frequently differs from the common law administered in the courts. In the administration of the various executive departments, usages have prevailed and are growing up; national and international common-law principles have been, and are being, announced and settled; construction has been, and is being, given to all the written laws, – an entire system of executive national common law is in full operation. This grows put of executive administration, and the perfect independ- ence of co-ordinate departments. There is no common law of the United States, in the sense of a “national customary law,” distinct from the common law of England, as adopted by the several States each for itself, applied as its local law, and subject to such alteration as may be provided by its own statute. A determination in a given case of what that law is may be different in a court of the United States from that which prevails in the judicial tribunals of a particular State. This arises from the circumstance that the courts of the United States, in cases within their jurisdiction, where they are called upon to administer the law of the state in which they sit or by which the transaction is governed, exercise an independent though concurrent jurisdiction, and are required to ascertain and declare the law according to their own judgment. . . There is, however, one clear exception to the statement that there is no national common law. The interpretation of the Constitution is necessarily infiuenced by the fact that its provisions are framed in the language of the English common law, and are to be read in the light of its history. The code of constitutional and statutory construction which, therefore, is gradually formed by the judgments of the Supreme Court, in the application of the Constitution and the laws and treaties made in pursuance thereof, has for its basis so much of the common law as may be implied in the subject, and constitutes a common law resting upon national authority. One of the merits of the common is that, instead of being a series of detailed practical rules, established by positive provisions, and adapted to the precise circumstances of particular cases, which would become obsolete when the course of business ceased or changed, it consists of a few comprehensive principles, founded on reason, natural justice, and enlightened public policy, modified and adapted to the circumstances of all the cases which fall within it. These general principles are rendered precise, specific, and adapted to practical use, by usage, which is the proof of their general convenience, but still more by judicial exposition; so that, when in a course of proceeding by tribunals of the highest authority, the general rule has been modified, limited and applied, according to particular cases, such exposition, when settled and acquiesced in, becomes itself a precedent, and forms a rule of law for future cases under like circumstances. The effect of this expansive character of the common law is, that while it has its foundations in the principles of equity, natural justice, and that general convenience which is public policy,- although these general considerations would be too uncertain for practical purposes, in the business of an active commimity, – yet the rules of that law, so far as cases have arisen and practices actually grown up, are rendered precise and. certain by usage and judicial precedent. Another con- sequence is, that when new practices spring up, new combinations of facts arise, and cases are presented for which there is no precedent in decision, they must be governed by the general principle, applicable to cases most nearly analogous, but modified and adapted to new circumstances, by considerations of fitness and propriety, of reason and justice, which grow out of those circumstances. Hence, when a new practice or course of business arises, the rights and duties of parties are not without a law to govern them; the general considerations of reason, justice, and policy, which underlie the rules of the common law, will still apply, modified and adapted, by the same considerations, to the new circumstances. If these are such as give rise to litigation, they, like previous cases, soon come to be settled by jtidicial exposition, and the principles thus settled come to have the effect of precise and practical rules Law of the States. The general system of law regulating the relative rights and duties of persons within the jurisdiction of a State, operating upon tham even when engaged in inter-State commerce, and subject to be modified by State legislation, whether consisting in that customary law which prevails as the common law of the laud in each State, or as a code of positive provisions expressly enacted, is nevertheless the law of the State in which it is administered, and derives its force and effect from the actual or presumed exercise of its legistative power. This law does not emanate from the authority of the National government, nor flow from the exercise of any legislative powers conferred upon Congress, nor can it be implied as existing by force of any other legislative authority than that of the several States in which it is enforced. It has never been doubted that this entire body and system of law, regulating in general the relative rights and duties of persons witliin the territorial jurisdiction of the State, without regard to their pursuits, is subject to change at the will of the legislature of each State, except as that will may be restramed by the Constitution of the United States. It is to this law that persons within the scope of its operation look for the definition of their rights and for the redress of wrongs. It is the source of all those relative obligations and duties enforceable by law, the observance of which the State undertakes to enforce as its public policy. And it was in contemplation of the continued existence of this separate system of law in each State that the Constitution was framed and ordained with such legislative powers as are therein granted expressly or by reasonable implication. Written law; Tinwritten law. The municipal laws of England are: (1) The unwritten or common law, which includes customs, general and particular, and particular laws. General customs, or the common law properly so called, are founded on immemorial universal usage, whereof judicial decisions are the evidence. Particular laws are such as, by special custom, are adopted and used only in particular courts, and under the control of the common and statute laws; naniely, the Roman civil, and canon laws. (2) The written or statute law; being acts of legislative bodies, to supply what is defective, or to amend what is amiss, in the unwritten laws. See Statute. Law of the land. (1) The general public law of a State, binding upon all the members of the community under all circumstances, and not partial or private laws, affecting the rights of private individuals or classes of individuals. Also, due process of law. See Process, 1, Due, etc. (2) ” This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land.” This means that the Federal Constitution, laws and treaties, are to be of paramount obligation when State and Federal laws conflict – the principle on which the authority of the Constitution is based. See Government. The term “law ” accompanies many common words as a prefix or adjective, in senses largely self-explanatory: as, law-adviser, law-blanks, law-clerk, law-firm, law-publications, law-writer, law-language, law- terms, Law-Latin, law-judge, law-maxims, law-maker, law-offcer, law -practice, law-reports, law-stde, law- student. Maxims: The contract makes the law. The law aids the vigilant; forces no one to do a vain, useless, or impossible thing; injures no one ;- never works an injury; does nothing in vain; regards not trifles; regards equity; always gives a remedy; speaks to all with one mouth – is no respecter of persons. What is just and right is the law of laws. Law day. The day appointed in a mortgage for the payment of the money; originally, the time after which all legal rights were to be forfeited. Compare Lex. See By-law; Canon; Church; Code; Commercial; Constitution; Lynch; Maritime; Martial; Merchant; Military; Pamphlet; Political. See also Act, 3; Bill, II; Conflict; Court; Decision; Forum; Judge; Judgment; Jury; Lawful; Lawyer; Learned; Outlaw; Flace, 1; Prescription, 1; Protection; Provided; Relioion; Repeal; Retrospective; Right; Road, 1; Sanction; Technical; Uniform.
Notes and References
- Meaning of Law provided by the Anderson Dictionary of Law (1889)