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claimant, will make the appropriate order, and usually award the claimant his/her costs. It is the jury, however, which fixes the amount of the damages. If the case goes in favour of the defendant, the judge will normally award costs to be paid by the claimant. Should the judge be sitting alone without a jury, he/she decides both fact and law, the amount of damages, and all other matters.

The Set of Rules

Law, then, must consist of a set of rules which are known or readily discoverable by those who must obey them. It is, of course, a maxim of English law that "ignorance of the law is no defence". However, this does not mean that each citizen is expected to know all the rules which are in force – which is clearly impossible – but that knowledge of them is available, since they are all published. The citizen, therefore, must have a general idea of the principles upon which English law is built, e.g. rights of property, person, contract, and must be prepared to consult an expert in law for finer points, when necessary. A permitted defence of ignorance of the law would, clearly, make the administration of justice impossible.

Objectivity

"No man can read the thoughts of another" is a principle of wide application in law. Clearly, no authority can impose sanctions upon the thoughts of its subjects, although in some societies in the past this has been attempted. The law will recognise motives but only as far as they are apparent and can be imputed from the actions following them. In other words, it is with actions, and not with thoughts and feelings, that law is concerned.

Enforcement

It is essential, if law is to operate efficiently, that it should operate only within an area controlled by an effective government. This may vary for different laws, since there may be different authorities operating within the same area, e.g. state law and federal law in the United States of America, and bylaws of local authorities in England – but, nevertheless, the principle of territorial limits is preserved. If a government loses control of an area of its territory, in that portion its law will not prevail.

It is the duty of the government of the area concerned to make its laws effective by establishing a judicial machinery for the investigation of alleged breaches of the law and for the enforcement of the law by sanctions, i.e. penalties or rewards designed to influence the human will to conform to the law.

Impartiality

Although it is not an essential component of law, in most civilised countries it is regarded as fundamental that the rules of law should apply to all citizens alike. This principle of impartiality is one of the principles of natural justice which has influenced English law in particular.

The Rule of Law

The rule of law is an essential doctrine of the British constitution. It is not a written code of rules but a general principle implicit in the common law which the courts will apply, unless some statute can be quoted modifying its application. It has three important aspects:

(a)No person can be punished except for a definite breach of the law, established in the ordinary law courts of the land.

(b)No person is above the law and everyone must bear the legal consequences of his/her own acts, i.e. there is equality before the law.

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(c)There is an absence in the UK of any special body of courts to try cases where the citizen is in conflict with the government, unlike in France where litigation between citizens and state officials is dealt with by special administrative courts.

It is often said that it is from the principle of the rule of law that all forms of British liberty – personal liberty, liberty of speech and of the press, liberty of meeting and discussion – are derived.

During the 20th century the growth of the welfare state was necessarily accompanied by a huge increase in legislation and a corresponding increase in the state's interference in the lives of individuals. To this extent the rule of law may seem to have been eroded, but it is still valid and of importance.

B. HISTORICAL ORIGINS

Since the development of English law has been a gradual process, we shall give a brief account of its historical origins before discussing the various streams which, together, make up the whole.

The Anglo-Saxons

In the early days, after the Saxon conquest of England in the 5th to 7th centuries, there was no law in the modern sense. The tribal chiefs, aided by the experienced "elders" of the community, were the depositories and guardians of the ancient customary law or "custom", and enforced the observance of such customs or usages dealing with religion, morality and sanitation by applying sanctions of various kinds. At a later stage, from the 9th century onwards, the Saxon kings began to put many of the old customs into writing. Such compilations are generally referred to collectively as the laws of the Anglo-Saxons. Although occasionally such collections refer to changes made by a powerful king (and this gives a hint as to the future of law), they were promulgated as existing laws confined to preexisting customs. New laws were exceptional, although the conversion to Christianity naturally introduced fresh concepts issuing from divine revelations. Such codifications were not classified: criminal law, civil law, ecclesiastical law, procedure, public law, etc. but were all intermingled.

The Danes

The Danish invaders brought a second element into English law, and the great legislator, King Cnut, crystallised this Scandinavian importation in the laws of the Danelaw, a district north-east of Watling Street where the Danes lived under their old Norse customs.

Position before the Norman Conquest

By the middle of the 11th century, the time of the Norman Conquest, the local customary laws had crystallised into the laws of Mercia, the laws of Wessex and the laws of the Danelaw, all separate districts of England. Note that there was no law common to the whole land. The laws were scattered on all sides: in counties or shires, hundreds (divisions of a shire) and boroughs (towns) there was material ready to be transferred into a single system of law by a centralising agency. This material was largely made up of customs administered by the freemen of the district in the local courts of the county or shire, the hundred and the borough.

The Normans

It was the task of the Norman kings, who seized control of England from 1066, through their judges to weld these customs into a uniform mass, the common law of the realm. In this way the state took over and enforced summary rules of conduct which were originally

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formulated spontaneously by the people themselves for regulating their actions and behaviour.

The Norman Conquest was a vital incident in the development of English law. However, William the Conqueror did not violently impose a foreign system of law on the conquered inhabitants. He expressly announced that all men were to enjoy the laws of Edward the Confessor, a previous king. William's statutes, in so far as they were legal enactments, were restorations of the old law of accepted tradition, i.e. the preservation of the "rights they held on the day when King Edward was alive and dead".

Before the Conquest, as we have seen, there was no law common to the whole of England but many local customs, varying from place to place; remember that, under the Anglo-Saxon regime in England, there were local shire and hundred courts. Immediately following the Norman Conquest, these became strengthened. The Anglo-Saxon "shire-reeve" became the Norman sheriff, a royal officer responsible to the King. The hundred court had petty civil and criminal jurisdiction in the villages and townships, while the shire courts had a more extensive jurisdiction, and also heard appeals from the hundred courts. As a result of this extension of their jurisdiction, the courts met more frequently than in Anglo-Saxon times.

William I, a man of high political wisdom, realised that he must unify the English people by a strong government. National unity could be achieved only by the methodical fusion of diverse local customs into a common law, running through the whole length of England. This process of unification was largely completed by his great successors, Henry I, Henry II and Edward I, and by the middle of the 13th century there had been established a system of royal courts of justice dispensing a common law of the realm.

Curia Regis

The supreme court in England under the Norman kings was Curia Regis, or the King's Council. It consisted of the royal household, officers of state, such as the Justiciar and the Chancellor, and the judges. This body exercised judicial, legislative and administrative functions. The Council was originally an advisory body which the kings consulted on matters of state, and through which orders were issued to be executed at local level. It was also, however, a body in which royal justice could be secured. It tried all cases in which the Crown was directly interested, e.g. crimes of a varying nature, breaches of the King's peace and infringements of the King's proprietary rights but, in addition, for ordinary people, it was an emergency court of last resort when all other methods of justice had failed. The courts of the shire, the hundred and the major one remained, with the Norman sheriff as the head of the first two, but there was now an ultimate appeal to the royal court.

Do not confuse Curia Regis with Magnum Concilium (the Great Council) which consisted not only of officials and judges but also of all the tenants-in-chief or great barons who held their lands direct from the King.

In time, Curia Regis became the Privy Council and Magnum Concilium turned into Parliament. Gradually, there emerged from Curia Regis three separate courts.

The Court of Exchequer

This court's principal jurisdiction was that of royal revenue but later it acquired a jurisdiction in cases of debt between citizen and citizen. In early times, the judges were badly paid and depended largely on court fees for their remuneration, and as a result judges tried to attract litigants to their court. The Court of Exchequer came in time to take many cases of debt which should have been heard in the Court of Common Pleas (see below). It would sell the writ to commence the action for a sum slightly below the charge demanded by the Court of Common Pleas.

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The Court of Common Pleas

This court's jurisdiction was to hear civil cases between citizen and citizen. At a later time, it tended to interfere with the jurisdiction of the Court of Admiralty to hear cases that were also within Admiralty jurisdiction.

The Court of King's Bench

This court's jurisdiction was "pleas of the Crown", i.e. criminal cases. In addition, however, it came to supervise inferior courts by prerogative writs, enjoyed certain jurisdiction for appeals, and took certain cases which were within the jurisdiction of the Court of Common Pleas.

Itinerant Judges

Early in Norman times, the King began to send out bodies of royal officials, known as commissioners, to perform various duties in his name, e.g. the compilation of the Domesday Book, and soon this custom developed into a regular system of itinerant justices, who were royal judges travelling periodically round the kingdom to hear legal and financial disputes in the shires. This system familiarised the justices with the varying local customs, which they would naturally discuss among themselves on their return to Westminster between the circuits, when they would hear cases in the King's central courts.

Centralisation of power naturally led to a desire for uniformity in administration, and this was brought about as these itinerant justices and the sheriffs accumulated and fused local practices and made them applicable to the whole realm, first in the royal courts and then by their gradual application of these merged local customs to the shires. Here we have the origin of the common law of the land. Royal justice superseded all other justice and the surviving customary law was the custom of the King's court put into shape and authoritatively laid down by the judges, but of native origin in its essence.

Court of Admiralty

About 1341, the King conferred jurisdiction on the Admiral, which the latter exercised through deputies. The Court of Admiralty exercised criminal jurisdiction over offences committed on the high seas, and also a civil jurisdiction of an ill-defined nature. During the 16th and 17th centuries, it took to hearing mercantile cases from the old Courts Merchant and superseded these courts.

The Law Merchant

There existed in England, as abroad, various local courts which were mercantile(concerned with trade) and administered a body of mercantile law which was recognised in England, as on the Continent, as a definite body of customary law applicable to merchants of all nations attending the great international fairs and markets.

The Courts Merchant existed in the seaport towns and in the fairs and markets where foreign merchants tended to resort. Foreigners in the Middle Ages would be unwilling to submit their disputes to purely national tribunals. Furthermore, what merchants wanted was a system of speedy justice, so that differences could be settled quickly, and they could depart.

The law administered in the Courts Merchant was truly of an international nature. The courts in Bristol, say, would enforce the same mercantile rules as the courts in Barcelona or Venice. English law of bills of exchange and negotiable instruments has come to us through the Lombardy merchants attending England's great international fairs.

Courts Merchant flourished in England from the Norman Conquest onwards but they were driven out of existence during the 16th and 17th centuries through the encroachment of the Court of Admiralty. However, the Law Merchant itself was saved since Lord Mansfield, who died in 1793, incorporated it into the common law. He declared that the Law Merchant was

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part of the common law and, in consequence, mercantile cases came to be heard in the common law courts, the latter keeping the Admiralty jurisdiction in check. Mercantile law, which has much foreign custom as its basis, has become a specialised subject and has taken on an especially English character.

Canon Law

This is the law relating to matters over which the church assumed jurisdiction. It was formulated by ecclesiastical lawyers, mainly on the basis of Roman law, and consisted of the decrees of the general councils of the Catholic Church and declarations of the various Popes. It was administered in special ecclesiastical courts which were established in Norman times.

Differences frequently arose between the spiritual courts, as they were called, and the royal or lay courts, for the church claimed and exercised jurisdiction not only in obvious church matters, such as the discipline of the clergy and the validity of marriages, but also over such civil matters as wills of personal property and the distribution of goods of deceased persons.

By the time of the Reformation and of the Civil War (16th and 17th centuries), the royal courts achieved supremacy over the church courts which, in course of time, lost nearly all the important jurisdiction that they formerly laid claim to. Nevertheless, much of the canon law has become part of the law of the land and may be considered an indirect source of part of English law.

Court of Chancery

The Court of Chancery grew up in the 14th century as a result of the defects in, and the rigidity of, the common law, in which there were only a limited number of writs or forms of action. As a result, many cases of hardship and injustice went unremedied and finally, under Edward III, the Chancellor, who was until the time of Henry VIII always an ecclesiastic, began to hold his own court with litigants presenting petitions for special relief. The basis of the law administered by the Chancellor was conscience, and this led to principles and conclusions opposed to common law, since the aim was to secure moral justice, rather than to follow legal rules. This system of law administered by the Court of Chancery became known as equity.

C. SOURCES OF LAW

Now that we have given a brief outline of the historical origins of the English courts, we are in a position to discuss the various sources from which English law is derived.

Unwritten Law

Common Law

The common law, as we have seen, was originally based on the merging of the various local customary laws of England as a result of the decisions of the royal judges. In fact, in the law report of Henry IV in the 15th century it is said:

"The common law of the realm is the common custom of the realm".

It is therefore unwritten, since it depends originally upon a judge's interpretation of the customs of the realm. When we come to discuss the importance of case law in the English judicial system, we shall show that the decisions of judges are, in fact, binding, but this does not invalidate the fact that the basis of common law, which has also absorbed mercantile law and some canon law, is essentially unwritten, although cases heard in the courts appear in written law reports. The reports only relate the unwritten law.

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You should note, at this point, that the expression "common law" has come to be used in four distinct senses, as follows:

Historically, as above, to denote the body of law common to all England that arose to supplant the previous local systems of law.

As opposed to equity (see below).

As opposed to statute law, also considered below.

Thus, in this sense, it is sometimes said that a certain rule of common law was modified by an Act of Parliament.

To mean the whole body of English law, including equity and statute law, as distinguished from any foreign system of law. Thus, we frequently speak of "the common-law countries", meaning England, the USA and those Commonwealth countries which have adopted English law, especially when we wish to contrast them with European countries, such as France and Germany, the legal systems of which have been strongly influenced by Roman law.

Just as the Romans had their "jus civile" as the basis of their law, so English common law lies at the foundation of the English legal system. The law of torts is almost wholly based upon the common law, as is a good deal of English contract law. The common law has played its part in the development of the complicated system of English land law, and has covered departments of public law like constitutional law.

Equity

Like common law, equity is also based on judicial decision, and not upon written rules. It originally stemmed from the Chancellor's interpretation of what was fair and just according to his conscience and, while in time it became rigid, it was originally flexible. Its basis is, again, unwritten.

Written Law

We have not yet discussed statute law, because it was a later development than common law and equity. It is true that, from Norman times onwards, decisions of the King-in-Council had the effect of law, but the promulgation of new laws was very rarely carried out, and Magna Carta (1215) is usually regarded as the first published statute.

A statute is a written law passed by the approved legislative process of the state, i.e. nowadays by the Queen-in-Parliament, and it supersedes any other forms of law. Thus, statute law can override both the common law and equity, since it is enacted by the sovereign power and is therefore superior to custom and judicial decision.

Here, an important distinction must be made between "the law" and "a law". The former is the whole body of law, as defined at the beginning of this study unit, while "a law" is a written statute or an order made on the authority of a written statute. Thus, "a law" refers only to statute law. You need to understand this distinction clearly, since it sometimes serves as a basis for examination questions.

It is important to appreciate that, since the UK is a member of the European Union (EU), EU legislation overrides English law, and English legislation must not conflict in any way with the Treaty of Rome and its implementing legislation in the form of directives and regulations. To that extent, EU law must now be regarded as a source of law in England.

The Pattern of English Law

From what we have already said, we can see that English law is composed of three strands. The bulk of English law is common law, which is based on customs and case law. This is modified and supplemented by equity, which is based on the principle of moral and abstract

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justice, rather than upon customary law, and is again chiefly represented by case law. Finally, statute law, enacted by the sovereign authority of the state, is increasingly important in the modern state and is superior in status to both the common law and equity. The diagram below illustrates the pattern.

The Law of the European Union

The accession of the UK to the European Community, as it was then, on 1 January 1973, introduced a system of supranational law in accordance with the Treaty of Rome (which established the EC in 1957) and the UK's Treaty of Accession. Since that date legislation has been passed, and continues to be enacted, aimed at fitting European Union law into the English system and the existing framework of parliamentary sovereignty.

EU law is either embodied in the Treaty of Rome – in which case it is often referred to as the primary legislation of the EU – or it is derived from the Treaty, and termed secondary legislation. The following are the principal forms of EU secondary legislation:

Regulations

Regulations have direct internal effect in member states. They are mainly "selfexecuting", although sometimes they may have to be supplemented by national legislation. In general, they relate to detailed, technical aspects of the EU agricultural policy, transport, customs duties, etc.

Directives

Directives do not have direct internal effect but oblige the governments of member states to ensure that the requirements laid down in them are fully implemented, usually by national legislation. The directives state, in broad terms, what has to be done but leave to the member states the details of implementation. Examples are the various directives on value added tax and company law.

The European Court of Justice is the EU's supreme judicial authority; there is no appeal against its rulings.

Decisions

These are usually concerned with specific problems or issues, and they are not necessarily directed to the EU as a whole. They may be addressed to the government of an individual member state, in which case they impose binding obligations but do not have direct internal effect as law in that state. Alternatively, they may be addressed to companies or individuals in one or more member states.

Since the date of UK membership of the EU, the sources of EU law have become sources of English law. The sources of EU law are essentially the Treaty of Rome (primary legislation); secondary legislation (mainly regulations and directives); and precedents established by the European Court of Justice, which constitute developing sources of law.

The European Court of Justice sits in Luxembourg, and consists of 27 judges and eight Advocates-General; one judge and one advocate-general are from the UK. Its main function

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is to ensure that the law is observed in the interpretation and application of the Treaty, and it is the final arbiter on all legal questions falling within the scope of the Treaty. Apart from its role in interpreting EU law, the Court deals with disputes between member states on EU issues, and between member states and EU organisations. It also hears actions brought by a member state, by the EU Commission, by the EU Council, or by any individual regarding matters covered by the Treaty. Individuals and companies may challenge in the Court the legality of regulations, directives, etc. only in so far as these are of direct concern to them.

One article of the Treaty of Rome, in particular, has an important effect on the administration of justice by UK courts. Article 234 gives jurisdiction to the European Court of Justice to make preliminary rulings on the interpretation of the Treaty, and the validity of actions taken by the institutions of the EU. Where such a question is raised before any court or tribunal of one of the member states, the court or tribunal may, if it considers that a decision on the question is necessary to enable it to give a judgment, request the Court of Justice to give a ruling on it. If the question of interpretation arises before a court from which no further appeal is possible in the national court system, that court must submit a reference to the European Court of Justice.

Remember that all EU law overrides English national law, in the event of conflict or inconsistencies. Furthermore, Parliament has a duty (under international treaty law) to refrain from passing legislation conflicting with EU law. This duty has major implications as regards the judicial interpretation of Acts of Parliament.

Referring to the Treaty of Rome, Lord Denning stated:

"In any transaction which contains a European element we must look to the Treaty ..., for the Treaty is part of our law. It is equal in force to any statute. It must be applied by our courts."

Note, therefore, that EU law, future and present, is automatically binding in the UK, in many cases without local enactments. Judicial notice is taken by English courts of such EU law. Orders in Council and Regulations may be used in the UK to implement EU laws in matters of detail. The whole of existing English law which was inconsistent with EU law was repealed by implication on the UK's accession to the EC, as the EU was then known.

D. THE EUROPEAN UNION AND UK LAW: AN OVERVIEW

Because of the importance of the effect of EU law on UK law we shall look briefly at the composition of the Union and its institutions, as well as some of the significant issues relating to the UK legal system.

Composition of the European Union

When Parliament enacted the European Communities Act 1972, which came into effect on 1 January 1973, Britain became a member of the three European Communities:

European Economic Community (i.e. the Common Market or EC)

European Coal and Steel Community (ECSC)

European Atomic Energy Community (Euratom)

As a member state, Britain became subject to Community, now European Union, law. As at November 2007, there are 27 countries in the European Union with a further five countries with applications pending.

The EU is a separate legal entity in international law. As far as the UK is concerned, the country acceded to the Treaty of Rome in 1971 and became a full member of the EU following the European Communities Act 1972. The EU is made up of a number of

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component parts, having legislative, executive and judicial functions, but the main purpose of the EU is economic and political. The UK has to conform, along with other member states, to EU law, and we will look at the conflict between national and EU law as regards the English legal system later. We will first look at the various bodies making up the EU.

Institutions of the European Union

The Council of Ministers

This is the supreme legislative body, although its powers are limited by having to proceed on proposals from the Commission on most matters. The role of the Council of Ministers is to take executive and legislative decisions and co-ordinate the policies of member states, under the terms of the Treaties.

The Council comprises government ministers from each member state and the presidency rotates among them every six months. The Council is assisted by a small civil service of permanent officials called the Committee of Permanent Representatives, with headquarters in Brussels. The Council works in close cooperation with the Commission, discusses their proposals and ensures that national interests are represented. The heads of government of member states meet to discuss important issues at meetings called European Councils.

The Commission

The Commission is made up of individuals appointed by the member states, with representation depending on the size of the member states. The numbers can be altered as new states are admitted to membership. Individual members are appointed for a period of four years. The President and Vice-President are appointed from amongst the members for a two-year period. The members are chosen for their experience and total independence and are not regarded as representatives of their respective governments. The Commission is aided by a substantial civil service working in concert with the Council of Ministers and the Parliament (see below). The Commission has executive functions, and ensures that the provisions of the Treaty of Rome and other decisions of the EU are carried out. It also helps to draft EU law.

It is misleading to view the Council as the legislature and the Commission as the executive, since the Commission also has legislative powers and the implementation of policy is the responsibility of the institutions of the member states. The Council enacts all important measures but cannot amend Commission proposals except by unanimous agreement. The Commission is the representative body with non-member states and administers EU funds. It answers solely to the Parliament.

The European Parliament

This is the elected body of the EU, and consists of 785 democratically elected European MPs (or MEPs) from all member states, of which 78 are from the UK. It has advisory and supervisory functions. It has no legislative powers – in fact, the only power it has is to dismiss the Commission by a motion of censure passed by a twothirds majority.

The general role of the Parliament is a consultative one, considering proposals from the Commission before they are sent to the Council. A failure by the Council to seek the opinion of the Parliament may leave their actions open to question.

The Court of Justice of the European Communities and the Court of First Instance

We looked at the composition and functions of the court earlier in the study unit.

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