Editing English law (section)

== Common law ==
{{see|Common law}}
Common law is a term with historical origins in the legal system of England. It denotes, in the first place, the Anglo-Norman legal system that superseded and replaced [[Anglo-Saxon law]] in England following the [[Battle of Hastings]] in 1066. Throughout the [[Late Medieval Period]], English law was codified through judge-made laws and precedents that were created in the proceedings of Royal justices in the [[Circuit court]]s dictated by the [[Eyre (legal term)|Eyres]] throughout the country (these themselves evolving from the early medieval [[Itinerant court]]s). This body of legal scholarship was first published at the end of the 19th century, ''The History of English Law before the Time of Edward I'',<ref>{{cite book|title=The History of English Law before the Time of Edward I|volume = 1 and 2|author= Professor [[S. F. C. Milsom]]|publisher= Cambridge University Press|year= 1968 |url=http://oll.libertyfund.org/titles/pollock-the-history-of-english-law-before-the-time-of-edward-i-2-vols |via=Online Library of Liberty |url-status=live |archive-url=https://web.archive.org/web/20201027103457/http://oll.libertyfund.org/titles/pollock-the-history-of-english-law-before-the-time-of-edward-i-2-vols |archive-date= Oct 27, 2020 }}</ref> in which [[Sir Frederick Pollock, 1st Baronet|Pollock]] and [[Frederic William Maitland|Maitland]]  expanded the work of [[Edward Coke|Coke]] (17th century) and [[William Blackstone|Blackstone]] (18th century). Specifically, the law developed in England's [[Court of Common Pleas (England)|Court of Common Pleas]] and other common law courts, which became also the law of the colonies settled initially under the Crown of England or, later, of the [[United Kingdom]], in [[United States]], [[Canada]], [[Australia]], [[New Zealand]], [[South Africa]], [[Singapore]], [[Indian subcontinent|Indian Subcontient]], [[Israel]] and elsewhere. 

This law further developed after those courts in England were reorganised by the [[Supreme Court of Judicature Act]]s passed in the 1870s. It developed independently, in the legal systems of the United States and other jurisdictions, after their independence from the United Kingdom, before and after the 1870s. The term is used, in the second place, to denote the law developed by those courts, in the same periods, pre-colonial, colonial and post-colonial, as distinct from within the jurisdiction, or former jurisdiction, of other courts in England: the [[Court of Chancery]], the [[ecclesiastical court]]s, and the [[Admiralty court]].

In the [[Oxford English Dictionary]] (1933) "common law" is described as "The unwritten law of England, administered by the King's courts, which purports to be derived from ancient usage, and is embodied in the older commentaries and the reports of abridged cases", as opposed, in that sense, to statute law, and as distinguished from the equity administered by the Chancery and similar courts, and from other systems such as ecclesiastical law, and admiralty law.<ref>OED, 1933 edition: citations supporting that description, before Blackstone, are from the 14th and 16th centuries.</ref>  For usage in the United States the description is "the body of legal doctrine  which is the foundation of the law administered in all states settled from England, and those formed by later settlement or division from them".<ref>OED, 1933 edition: citations supporting that description are two from 19th century sources.</ref>

===Early development===
In 1276, the concept of "[[time immemorial]]" often applied in common law, was defined as being any time before 6 July 1189 (i.e. before [[Richard I of England|Richard I]]'s accession to the [[English throne]]). Since 1189, English law has been a common law, not a [[Civil law (legal system)|civil law]] system. In other words, no comprehensive codification of the law has taken place and [[Precedent|judicial precedents]] are binding as opposed to persuasive. This may be a legacy of the [[Norman Conquest]] of England in 1066, when a number of legal concepts and institutions from [[Norman law]] were introduced to England.<ref>{{Cite web |title=The English legal system |url=https://www.iclr.co.uk/knowledge/topics/the-english-legal-system/ |access-date=2024-01-03 |website=ICLR |language=en-GB}}</ref>

In the early centuries of English common law, the justices and [[judge]]s were responsible for adapting the system of [[writ]]s to meet everyday needs, applying a mixture of precedent and common sense to build up a body of internally consistent law. An example is the [[Law Merchant]] derived from the [[Court of piepowders|"Pie-Powder" Courts]], named from a corruption of the [[Law French|French]] ''pieds-poudrés'' ("dusty feet") implying [[ad hoc]] marketplace courts.

Following [[Montesquieu]]'s theory of the "separation of powers", only Parliament has the power to legislate. If a statute is ambiguous, then the courts have exclusive power to decide its true meaning, using the principles of [[statutory interpretation]]. Since the courts have no authority to legislate, the "[[legal fiction]]" is that they "declare" (rather than "create") the common law. The [[House of Lords]] took this "declaratory power" a stage further in ''DPP v Shaw'',<ref>''Shaw v DPP'' 1962 AC 220 HL [n]</ref> where, in creating the new crime of "conspiracy to corrupt public morals", [[Gavin Simonds, 1st Viscount Simonds|Viscount Simonds]] claimed the court had a "residual power to protect the moral welfare of the state".<ref>[http://e-lawresources.co.uk/Shaw-v-DPP.php ''Shaw v DPP'' case summary]</ref><ref>Viscount Simonds: "There remains in the Courts of Law a residual power to enforce the supreme and fundamental purpose of the law, to conserve not only the safety and order but also the moral welfare of the State, and that it is their duty to guard it against attacks which may be the more insidious because they are novel and unprepared for."</ref> As Parliament became ever more established and influential, Parliamentary [[legislation]] gradually overtook judicial law-making, such that today's judges are able to innovate only in certain, very narrowly defined areas.

===Overseas influences===
[[File:The-queens-dominions.jpg|right|thumb|upright=1.45|A map of the British Empire under [[Queen Victoria]] at the end of the nineteenth century. "Dominions" refers to all territories belonging to [[the Crown]].]]

====Reciprocity====
England exported its common law and statute law to most parts of the [[British Empire]]. Many aspects of that system have survived after Independence from British rule, and the influences are often reciprocal. "English law" prior to the American Revolutionary Wars (American War of Independence) is still an influence on [[Law of the United States|American law]], and provides the basis for many American legal traditions and principles.

After independence, English common law still exerted influence over American common law – for example, ''[[Byrne v Boadle]]'' (1863), which first applied the ''[[res ipsa loquitur]]'' doctrine. Jurisdictions that have kept to the common law may incorporate modern legal developments from England, and English decisions are usually persuasive in such jurisdictions.

In the United States, each state has its own supreme court with final appellate jurisdiction, resulting in the development of state common law. The US Supreme Court has the final say over federal matters. By contrast, in Australia, one national common law exists.<ref>Liam Boyle, ''[http://epublications.bond.edu.au/cgi/viewcontent.cgi?article=1473&context=blr An Australian August Corpus: Why There is Only One Common Law in Australia]'',  Bond Law Review, Volume 27, 2015</ref>

====Courts of final appeal====
After Britain's colonial period, jurisdictions that had inherited and adopted England's common law{{efn|In this context, "common law" has been described as a body of judge-made law enforced and developed by the courts which ''includes'' equity and admiralty law, and which has always been "unintelligible without reference to the statute".<ref>Liam Boyle: ''An Australian August Corpus: Why There is Only One Common Law in Australia'',  Bond Law Review, Volume 27, 2015. p.29 II ''[http://epublications.bond.edu.au/cgi/viewcontent.cgi?article=1473&context=blr Some Preliminary Propositions]''</ref>}} developed their courts of final appeal in differing ways: jurisdictions still under the British crown are subject to the [[Judicial Committee of the Privy Council]] in London.{{efn|The US, Britain's first colony to be "lost", has a central federal Supreme Court as well as a "supreme court" in each state.}} For a long period, the British [[Dominion]]s used London's Privy Council as their final appeal court, although one by one they eventually established their local [[supreme court]]. New Zealand was the last Dominion to abandon the Privy Council, setting up its own [[Supreme Court of New Zealand|Supreme Court]] in 2004.{{efn|Any decisions of the Privy Council made before the change of jurisdiction remain binding legal precedent.}} 

Even after independence, many former British colonies in the [[Commonwealth of Nations|Commonwealth]] continued to use the Privy Council, as it offered a readily available high-grade service. In particular, several Caribbean Island nations found the Privy Council advantageous.

====International law and commerce====
Britain is a [[Dualism (law)|dualist]] in its relationship with international law, so international treaties must be formally ratified by Parliament and incorporated into statute before such [[supranationalism|supranational]] laws become binding in the UK.{{efn|Mere agreement to the final text of a treaty is only the first stage, hence "dualist". For instance, Britain has yet to ratify the terms of the [[Arrest Convention 1999]], so the earlier 1952 treaty is still in place.}}{{efn|Ratification after agreement of a final text often takes decades. In the case of the [[Maritime Labour Convention]] of 2006, even though the [[European Union|EU]] instructed member states to adopt the MLC, this "fast-tracked" treaty still did not come into force until 2013.}}{{efn|For example, the [[European Convention on Human Rights|European Convention on Human Rights and Fundamental Freedoms]] was signed in 1950 and Britain allowed individuals to directly petition the [[European Commission on Human Rights]] from 1966. Now s6(1) [[Human Rights Act 1998]] (HRA) makes it unlawful "... for a public authority to act in a way which is incompatible with a convention right", where a "public authority" is any person or body which exercises a public function, expressly including the courts but expressly excluding Parliament.}}{{efn|Although the European Convention has begun to be applied to the acts of non-state agents, the Human Rights Act (HRA) does not make the convention specifically applicable between private parties. Courts have taken the convention into account in interpreting the common law. They also must take the convention into account in interpreting Acts of Parliament, but must ultimately follow the terms of the Act even if inconsistent with the convention (s3 HRA).}}

Britain has long been a major trading nation, exerting a strong influence on the law of [[maritime law|shipping]] and [[international trade law|maritime trade]].  The English law of [[Marine salvage|salvage]],<ref>[[International Convention on Salvage|1989 Salvage Convention]]</ref> [[collisions]],<ref>[[International Regulations for Preventing Collisions at Sea|COLREGS]]</ref> ship arrest,<ref>[[1952 Arrest Convention]]</ref> and [[Law of Carriage of Goods by Sea|carriage of goods by sea]]<ref>The [[Hague-Visby Rules]]</ref> are subject to international conventions which Britain played a leading role in drafting. Many of  these conventions incorporate principles derived from English common law{{efn|Such as the rule on [[Deviation (law)|deviation]]}} and documentary procedures.{{efn|Such as the [[Lloyd's Open Form]]}}