Legal Systems and Sources of Law PDF

2. Legal systems and sources of law Legal Systems & Skills (5th edn) Scott Slorach, Judith Embley, Catherine Shephard, and Peter Goodchild p. 38 2. Legal systems and sources of law Scott Slorach, Judith Embley, Peter Goodchild, and Catherine Shephard https://doi.org/10.1093/he/9780192874429.003.0002 Published in print: 07 July 2023 Published online: August 2023 Abstract This chapter focuses on the sources of law in England & Wales, and is organised as follows. Section 2.1 describes the key jurisdictions relevant to lawyers in England and Wales. Section 2.2 deals with the issue of where the law comes from: sources of law. Section 2.3 reviews the development of the two ‘traditional’ sources of law in England and Wales: case law and statutes. Sections 2.4 and 2.5 consider the status and operation of EU and international law, including the potential effect of Brexit. Section 2.7 goes on to discuss public and private law, common law, and civil law, and other classifications used by lawyers. This is followed by a discussion of legal systems and their cultures across the world. Keywords: jurisdictions, private law, public law, common law, civil law, case law, statutes, English legal system, legal sources, EU law, International law, Sharia law, Legal systems, Brexit Learning objectives After studying this chapter you should: Understand the concept of a ‘legal system’ and some significant manifestations. Differentiate key jurisdictions relevant to lawyers in England & Wales. Identify sources of law relevant to lawyers. Demonstrate a basic understanding of the development of case law and statutes. Understand in outline the Brexit process, the role of EU law and retained EU law. Understand the impact and typical operation of international law, including ECHR law. Distinguish between important legal cultures, focusing mainly on the common and civil law traditions. Page 1 of 47 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 16 January 2025 2. Legal systems and sources of law Identify important classifications and terms used by English lawyers. Introduction In Chapter 1 we looked at general theories of law, and placed the law in its political, cultural, and historical context. In this chapter we look at how this is manifested in legal systems, focusing on England & Wales. The first thing that might surprise you is the term, ‘England & Wales’. This is not a function of any bias among lawyers in relation to Scotland or Northern Ireland, merely that their legal systems are largely different from those of England & Wales. This chapter also addresses the basic ‘language’ of law in the jurisdiction of England & Wales. (‘Jurisdiction’ is defined at 2.1.) An understanding of the essential terms introduced in this chapter is essential for any lawyer. Lawyers need to know where they are practising. Section 2.1 concerns the fundamental issue of which law a lawyer in England & Wales will be working with. Section 2.2 deals with the issue of where that law comes from: that is, sources of law. You will not be surprised that there is no single source of law in England & Wales, and that it is a fascinating hybrid of different types of law, not all of which are wholly compatible with the others. Section 2.3 examines the development of case law and statutes in the English legal system, and its wider importance. This groundwork is essential before we explore in more detail the court system, statutes, and case law, in Chapters 3, 4, and 5, respectively. We then widen the focus at 2.4 and 2.5 to 1 p. 39 ↵ look at retained EU law and international law, their status and operation. Section 2.7 draws out key classifications used by lawyers within England & Wales, and introduces some further important terminology. At 2.8 we examine the distinctions between different legal cultures around the world. The final section reviews some of the key terms introduced in the chapter. 2.1 Legal systems 2.1.1 What is a ‘legal system’? A lawyer’s ability to practise is limited by matters of ‘jurisdiction’. Essential explanation Jurisdiction ‘Jurisdiction’ is a term you will come across often. It is most commonly used to refer to a political entity where a particular law has application. This could be the EU, the UK, Greater London, the London Borough of Camden, or even a local parish. This is the context in which this book will use the term. Page 2 of 47 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 16 January 2025 2. Legal systems and sources of law The term is sometimes used in another sense, that of a body or court having ‘jurisdiction’, or, conversely, lacking ‘jurisdiction’, over a particular issue. What this means is that it does, or does not, have the power to make law or settle disputes in that area of human endeavour. So, for instance, a particular court may not have jurisdiction to decide on certain issues of immigration. Indeed, later in this chapter we distinguish between courts with ‘criminal’ jurisdiction, and courts with ‘civil’ jurisdiction. Legal system In many ways, a ‘legal system’ is synonymous with a ‘jurisdiction’. The legal system describes the body of institutions that make, execute, and resolve disputes on the law of a jurisdiction, together with the law they deal with. You may encounter the term ‘legal system’ in a narrower sense, meaning the courts of a jurisdiction. The boundaries between the legal and the political frames of reference are very blurred. We saw at 1.1.2 that this is by no means an inappropriate analysis. These key concepts are not merely academic. They have practical significance to lawyers in many situations. For instance, in a modern contract two important common clauses are about ‘jurisdiction’ (where litigation happens if there is a dispute in relation to the contract) and ‘choice of law’ (which country’s law applies to that dispute). 2.1.2 Legal systems in Britain The legal system in the ‘British Isles’ (this very loose term is used deliberately) is idiosyncratic and complex. There are overlapping jurisdictions for different types of law. What is peculiar is the variety of p. 40 combinations of states and nations which have, to varying degrees, been ↵ associated with, or unified with, England. As a result, there is a multiplicity of different forums. This is very much an accident of history. This is not unusual; for instance many nations like Germany or the US have several layers of law. But the legal systems in the ‘British Isles’ do have a quirkiness that bemuses even some practising lawyers. Another eccentricity is the continuous, evolutionary, and extended development of the political system. Each change has left a legacy in the legal system. Figure 2.1 summarises the key distinctions. Page 3 of 47 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 16 January 2025 2. Legal systems and sources of law Figure 2.1 Jurisdictions within the British Isles We start by looking at all the British Isles, and gradually narrow the focus. At 2.2.3 we broaden the focus again, to place these jurisdictions in the (post-) EU context. 2.1.2.1 ‘The British Isles’ The British Isles is a geographical, rather than legal or political, term. It is made up of two sovereign states: the Republic of Ireland and the United Kingdom. The Monarch (currently King Charles III) (symbolised by a crown in Figure 2.1) is Head of State in all of these islands, except the Republic of Ireland. The Republic gained independence in 1922, ending a state of affairs that had existed from 1801, when the formerly separate kingdoms of Great Britain and Ireland were united. The Republic of Ireland (also known as Eire in the Irish language) is therefore entirely separate from the rest of the UK in political and legal terms; Ireland remains a member of the EU, the UK having left on 31 2 January 2020. The summary in Figure 2.12 places some of these changes in historical context. p. 41 ↵ Guernsey, Jersey, and the Isle of Man are Crown Dependencies, and are independent of the UK, having their own governments, legislatures, and court systems. They are usually represented internationally by the UK, and the latter is responsible for their defence. None was ever a member of the EU 3 (even when the UK was), though some trading aspects of the EU did apply to these islands before Brexit. Often the UK Parliament is asked to extend the jurisdiction of statutes to these dependencies, but it has no formal sovereignty there. Page 4 of 47 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 16 January 2025 2. Legal systems and sources of law 2.1.2.2 The United Kingdom The United Kingdom (formally, ‘The United Kingdom of Great Britain and Northern Ireland’) is the state in which ‘British’ people live and which acts on the international stage. The default position for any legislation produced by Parliament is that its jurisdiction is the whole of the UK. It includes the countries of England, Northern Ireland, Scotland, and Wales. Northern Ireland, Scotland, and Wales all have devolved legislatures (shown with a ‘D’ in Figure 2.1) which have varying degrees of competence or jurisdiction (i.e. power) independently of the UK Parliament. Had the referendum on Scottish Independence of 18 September 2014 decided ‘Yes’, Scotland would have ceased to be part of the UK. This issue may be re-examined in the aftermath of the UK’s withdrawal from the EU. Scotland’s First Minister, Nicola Sturgeon, put Scottish Independence back ‘on the table’ as a result of Scotland’s voters’ strong preference to remain in the EU during the 2016 EU referendum. At the time of writing (September 2022) there is some debate between the Scottish and UK government over whether a referendum will be held in 2023. 2.1.2.3 Great Britain Great Britain does not include Northern Ireland. ‘Great Britain’ is not a commonly used term (except in international sport). Because of the political situation in Northern Ireland during ‘the Troubles’, legislation for Northern Ireland was often created separately from that applying to Great Britain. Northern Ireland and Scotland are said to have separate ‘legal systems’, in the sense of the forum in which legal disputes are settled. This means that a citizen living in Northern Ireland would be tried in Northern Ireland or make civil claims in the courts of Northern Ireland. Likewise a citizen living in Scotland would be tried or make civil claims in the Scottish courts. Although the Northern Irish system resembles that of England & Wales, and is common law in nature (see 2.3.2 for more on the contrast between common law and civil law), the Scottish system does not mirror that of England & Wales. The court system is particular to Scotland, and the law itself is an amalgam of civil, common, and customary law, with certain academic publications having almost the force of law. Scotland has a devolved Parliament and Government—see 4.1.1.1. 2.1.2.4 England & Wales This leaves England & Wales—the ‘English legal system’. References to ‘English’ normally imply ‘Welsh’ p. 42 too in this context. Wales was annexed to England in 1282. The law English lawyers ↵ use is that of England & Wales, and is administered by the English courts. The main focus of this book is the law applicable in the English legal system, although viewed in a wider context. Wales has a devolved Assembly and Government—see 4.1.1.1. Page 5 of 47 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 16 January 2025 2. Legal systems and sources of law 2.1.2.5 Summary The map in Figure 2.2 offers what is perhaps a more familiar summary. Table 2.1 provides a key to the map as well as drawing out important features of each jurisdiction highlighted. Figure 2.2 Legal map of the British Isles Page 6 of 47 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 16 January 2025 2. Legal systems and sources of law Table 2.1 Key to Figure 2.2: Legal and political systems within the British Isles Entity Legal system Political system 1. England England & Wales Part of the UK*. 2. Wales England & Wales Part of the UK*; devolved legislature—Welsh Assembly. 3. Scotland Scottish Part of the UK*; devolved legislature—Scottish Parliament. 4. Northern Ireland Northern Irish Part of the UK*; devolved legislature—Northern Ireland Assembly. 5. Bailiwick of Guernsey, Privy Council is final court Crown dependency. Adopts some UK legislation. Has dependent territories of its own—Alderney and Sark; Guernsey of appeal never part of the EU. 6. Bailiwick of Jersey, Privy Council is final court of Crown dependency. Adopts some UK legislation; never part of the EU. Jersey appeal 7. Isle of Man Isle of Man, Privy Council is final court Crown dependency. Adopts some UK legislation; never part of the EU. of appeal 8. Republic of Irish Republic of Ireland, part of the EU. Ireland * The UK left the EU on 31 January 2020 (as a result of a referendum of 23 June 2016). See the Essential explanation on Brexit at 2.2.3 for further discussion of the consequences, including the possibility of revisiting Scottish independence. Page 7 of 47 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 16 January 2025 2. Legal systems and sources of law p. 43 2.2 Sources of law in England & Wales English legal tradition places a lot of emphasis on the ‘sources’ of law. It is important to find which institution ‘made’ or ‘recognised’ a legal rule, and to identify exactly when it was made, so that you can decide which rule takes precedence. In England & Wales, by an accident of history, the legal system has a varied combination of sources. This is not unique. Most countries possess a blend of legal cultures. As an example, in Norway civil law has been superimposed on common law and customary law. Figure 2.3 summarises the current situation: there are four main sources of law in England & Wales— statutes, case law, retained EU law, and ECHR law (which is a type of international law). This was not always so, and, is continuing to develop as a result of Brexit (see the Essential explanation at 2.2.3). For a long time, the two principal institutions which were said to ‘make’ law in the English legal system were Parliament and the courts, although (as we saw in 1.4.3) Parliament was ultimately sovereign. In 2.5 we explore the separate status of international law. Figure 2.3 Sources of law in England & Wales 2.2.1 Legislation Parliament consists of the House of Commons, the House of Lords, and the King, although the monarch’s role is largely ceremonial. The government usually has a majority in the House of Commons, and is responsible for introducing most of the laws made by Parliament, called ‘Acts of Parliament’, ‘statutes’, or ‘legislation’. Legislation can be divided into primary legislation made by Parliament, and secondary (and tertiary) legislation made with the authority of Parliament, but not by it. It is discussed in detail in Chapter 4. Page 8 of 47 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 16 January 2025 2. Legal systems and sources of law 2.2.2 Case law The courts consist of independent, non-elected judges. By contrast, in some jurisdictions, judges have a more political focus, the epitome being in the US, where they are commonly appointed by politicians. Senior judges create case law by reaching decisions on the cases before them. This is often referred to as p. 44 the ‘common law’ to distinguish it from legislation; at 2.3.2 we see that the term ↵ ‘common law’ can be used in different ways. Case law also includes equity, which is a largely separate body of case law with different historical origins from common law. We explore case law in more detail in Chapter 5. We saw at 1.6 that the functions of the state are divided into distinct roles: the legislature, the executive, and the judiciary. The judiciary is sometimes said also to have a quasi-legislative role when it produces case law. We examine this idea in more detail in Chapter 5. Judges have a law-making role: they develop law in areas where legislation is sparse (e.g. the law of negligence), and, if necessary, fill the gaps in legislation. Figure 2.3 summarises the sources of law in England & Wales, focusing on the operation of case law. 2.2.3 Retained EU law, ECHR law, and international law During the UK’s membership of the EU (1973–2020), both Parliament and the courts were obliged to take into account EU law, incorporated into UK law (until Brexit) by the European Communities Act 1972 (ECA 1972). The European Convention on Human Rights (ECHR) is incorporated into UK law via the Human Rights Act 1998 (HRA 1998). The UK is also part of the international community, so is also bound by international law. We look at international law at 2.5. It is vital to understand that EU law and ECHR law are entirely separate from each other, and also that their judicial branches, the Court of Justice of the EU, including the European Court of Justice (CJEU and ECJ) and the European Court of Human Rights (ECtHR) are entirely distinct. Both areas of law have had a profound effect on the English legal system. We look in detail at the former and current status and impact of EU law and retained EU law at 2.4 and the HRA 1998 (derived from the ECHR) at 4.6. Law emanating from the European Court of Human Rights is a type of international law—we look at its status at 2.5. Although both areas of law govern relations between states, both also create rights enforceable by individuals. The status of each of the ECJ and ECtHR is examined in Chapter 3 and the effect of their judgments in Chapter 5. Page 9 of 47 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 16 January 2025 2. Legal systems and sources of law Essential explanation Brexit The UK left the EU on 31 January 2020. This was a consequence of a referendum on 23 June 2016 in which the UK voted by 52 per cent to 48 per cent to leave the EU. There was a Withdrawal Agreement, the product of negotiations with two UK Governments under Theresa May and Boris Johnson. This set out the terms of the UK’s withdrawal from the EU and was given effect by the EU (Withdrawal Agreement) Act 2020. The ECA 1972 was repealed in stages by the European Union (Withdrawal) Act 2018 (EU(W)A 2018) and the EU (Withdrawal Agreement) Act 2020. A significant amount of EU law has been adopted as retained EU law under the EU(W)A 2018—see ‘EU law and retained EU law’ at 2.4. Brexit has not meant that EU law has vanished from the UK legal system. Further, as many UK statutes and statutory instruments enacted EU law, many court decisions will be made by reference 4 to EU law or jurisprudence. This means that interpreting and using this law will require reference to the law of the EU, some of it post-dating Brexit. p. 45 ↵ On a practical level, British businesses continue to trade in the EU, so EU law remains directly relevant to them. EU law therefore continues to have relevance in the UK, for lawyers and businesses alike. The Brexit vote has had many ramifications, some of which are still unclear. One is the re- examination of Scotland’s relationship with the rest of the UK. In the EU Referendum, 62 per cent of Scots voted to remain in the EU; as mentioned at 2.1.2.2: this has led many Scots to believe that independence from the UK will need to be revisited to allow Scotland to rejoin the EU. Brexit is placed in historical context in the summary diagram at Figure 2.12. 2.2.4 Other sources of law in England & Wales Beyond the law described in 2.2.1–2.2.3, there are some specialised areas of law concerning discrete areas of activity. Ecclesiastical and military law both have their own forums for litigation, with their own procedures. In this context, any law not within the relevant specialist area of law is called ‘civil law’. The legal implications of actions by members of a body such as the clergy or the military can be the subject both of litigation in the specialist courts (e.g. courts Christian and courts martial), and if necessary the ‘civil’ courts, which are those courts that have jurisdiction over citizens generally. Ecclesiastical courts derive their authority directly from the Crown, as the monarch is the Supreme 5 Governor of the Church of England, and courts martial derive theirs from the Armed Forces Acts 2006 and 6 2016. Page 10 of 47 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 16 January 2025 2. Legal systems and sources of law Two other sources of law have a residual role in the English Legal System—and are occasionally of use to lawyers and citizens. Whilst textbooks are normally regarded as secondary sources of law (see Chapter 8 for the distinction between primary and secondary sources), there are some historical texts that, in the absence of direct authority in the sources discussed earlier in this chapter, have authoritative status. This diminishing category of texts includes Glanvill’s Treatise, Coke’s Institutes, and Blackstone’s Commentaries from the 12th, 17th, and 18th centuries respectively. Finally, as described later in this chapter, the common law emerged from sources including local customs. However, it is sometimes argued that local customary legal rules exist independently of the common law in some spheres, e.g. agrarian disputes. The ambit of customary law in England is very limited indeed. 2.3 Development of the English legal system 2.3.1 Why study the history of the English legal system? In Chapter 1 we looked at the concept of the gründnorm. The origins of a body of law are significant because they relate to its legitimacy. In addition, the development of case law has wide significance because all ‘common law’ legal systems (as distinguished from ‘civil law’—see 2.3.2) can trace their origins back to the pre-Victorian English legal system. Most were at one time colonies of Great Britain. The development of English case law is consequently of broad relevance. p. 46 ↵ Finally, we have seen that the law does not operate in isolation; it is one of a suite of disciplines. History has impacted directly on how the law has developed. Politics has, and continues to, weigh heavily on how the law develops. Throughout this section you may wish to keep track of this interaction using the timeline in Figure 2.12. In this section we look at the development of the two ‘traditional’ sources of law in England & Wales—case law and statutes. 2.3.2 Case law 2.3.2.1 Development of the common law The development of English case law is important to any lawyer dealing with the law of a common law jurisdiction. Page 11 of 47 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 16 January 2025 2. Legal systems and sources of law Essential explanation ‘Common Law’ and ‘Civil Law’ The vast majority (but not all) of the world’s legal systems fall into one of two categories —‘common law’, or ‘civil law’—as illustrated in Figure 2.4. A common law jurisdiction has a system of binding judicial precedent which generates a body of case law. Examples are England & Wales, the US, the Philippines, Israel, and Australia, and others in the same tradition. In these jurisdictions, legislation is not the only source of law; principles of law stated in some courts will bind many later judges. Legislation grows organically to meet demands and deal with problems as they arise, so in a given area there may be many relevant statutes. By contrast, civil law (sometimes called, ‘civilian’) jurisdictions, tend not to have binding case law. Notable examples are France, Germany, Brazil, Quebec and Thailand. Civil law jurisdictions do, of course, have litigation, but cases do not coalesce into a self-standing system of legal principles. Instead civil law systems usually adopt one or more comprehensive ‘codes’ which attempt to define all the rules in a given area. The foundation of many codified civil law systems is Roman law. Roman Law was adopted in the late middle ages by legal scholars in the continent of Europe, from legal sources discovered from the Roman Empire. Roman Law was for a long time a staple of university courses. It is important to note that many English legal principles (in particular those in equity) also borrow from Roman law. The standardisation of rules within the EU also owes much to the ideas of codification within Roman law. Figure 2.4 illustrates common law and civil law jurisdictions; at 2.8 we look in more detail at the distinction between common and civil law states. Page 12 of 47 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 16 January 2025 2. Legal systems and sources of law Figure 2.4 Legal systems of the world, compared with states formerly within the British Empire (inset) We shall now examine how English case law has developed over time. You may wish to refer to Figure 2.12 as you read on to help keep each feature in context. William the Conqueror invaded England from Normandy in 1066. He realised that it would be easier to control the country if he also controlled the legal system. He imposed his authority by travelling around the country accompanied by his court, listening to and then ruling upon his subjects’ grievances. The King would literally sit on a bench to hear these cases, which is why the most important court became known as the Court of King’s Bench. This name is still used today, although it is currently called the King’s Bench (formerly ‘Queen’s Bench’). Later monarchs were less conscientious and this role was gradually delegated to Justices, who held ‘Assizes’ (sittings) of the royal courts. There was no unified or national set of laws. Local customs were p. 47 applied. The local sheriff and later justices of the peace would deal with ↵ less serious offences. The King’s courts gradually achieved ascendancy over local courts as the preferred forum for resolving disputes, when litigants (the parties) had a choice. Page 13 of 47 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 16 January 2025 2. Legal systems and sources of law The system was formalised under Henry II (1154–89). Henry divided the country into ‘circuits’ or areas for the judges to visit on a regular basis. Judges as a group began to adopt the best of the local customs, and eventually a ‘common’ law emerged. If you turn to the timeline in Figure 2.12, you can see this interaction between Norman high politics and the need for legal uniformity. This system of circuit judges from the King’s Bench and the Assizes was not abolished until 1971, and a version of this system still exists in the US. The Rule of Law was so well entrenched by Henry’s reign that, when he was accused of ordering the death of his Archbishop of Canterbury, Thomas Becket, the King accepted the punishment of a public whipping. Respect for the Rule of Law required some consistency, and the ‘common law’ gradually coalesced into a body of binding case law. This doctrine of stare decisis, which means ‘standing by previous decisions’, still exists. 2.3.2.2 Drawbacks of the common law A person could only litigate in the King’s courts if a ‘writ’ was available, covering the facts of the case (e.g. a writ for entry onto land). By the 13th century, the number of writs became limited. The writs themselves were extremely formulaic and inflexible, and the slightest error by the plaintiff (now the ‘claimant’) would lead to the collapse of the case. For example, there were particular problems with mortgages: in common law, once the loan repayment date had passed the land became the property of the lender and the borrower had no title to the land. It was common for lenders deliberately to make themselves unavailable on the date for payment, so the borrower lost the land. p. 48 ↵ In addition, only one remedy was available for civil wrong: damages (compensation). This was not always appropriate, for instance if the plaintiff wanted the defendant to stop doing something, or to perform their obligations. Essential explanation Equity The word ‘equity’ has several meanings. You may have used it in the past to mean ‘fairness’. Alternatively, you may have encountered the word in a financial context, to refer to the property held by a person in a house (once a mortgage is paid off), or a shareholding in a company (once any liabilities are paid off). Both senses are related to the legal meaning, which we explore in this section. Page 14 of 47 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 16 January 2025 2. Legal systems and sources of law Equity began as an alternative system of legal rules, which morphed over time into a body of rules supplementing the common law with rights based on fairness. You will often read that ‘Equity follows the law’. Today this means that the common law position is normally considered before any equitable rules. Many of the rules relating to ‘equity’ finance derive from equity’s status as ‘supplementing’ the common law. 2.3.2.3 Emergence of equity By the 14th century the common law had become distorted and entrenched. The number of dissatisfied litigants was growing, and claimants started to petition the King in person to exercise his royal prerogative as the ‘fountain of justice’. This function was gradually delegated to the Lord Chancellor, who became known as the ‘Keeper of the King’s Conscience’. The Court of Chancery evolved and the Chancellor began issuing decrees in his own name by 1474, separately from the King and the common law courts. The Chancellor (as the Court of Chancery) developed the law of equity (see Figure 2.12). No writ was necessary and cases were determined purely on grounds of fairness. Remedies were not limited to damages, and procedure was simple—litigants made their claim to the Chancellor. To take the example of the trust (which is explained in the next Essential explanation), in common law no writ was available in respect of a trust, a vital concept in law today. But equity recognised trusts very early in its development, during the Crusades (1095–1291). Nobles would leave the country for years at a time to fight holy wars in the Middle East. Often, landowners would transfer their property to a trusted friend, on the understanding it would be used for the crusader’s family if he did not return. The legal interest in the land vested in the ‘friend’. This is known as ‘legal title’, and was enforceable at common law. The family did not have legal title, and therefore had no rights at common law. Until equity developed, crusaders’ families were frequently left homeless. Equity imposed a ‘trust’ where the friend held the land as trustee for the benefit of the crusader and his family as beneficiaries. They had ‘equitable title’. The friend was obliged to transfer legal title to the crusader or his family on request. Essential explanation A trust A trust arises when one person (the ‘trustee’) is obliged to hold property on behalf of another person (the ‘beneficiary’) so that the benefit of the property is ultimately given to the beneficiary. p. 49 ↵ A trust allows the separation of administration and enjoyment of property. The trustee has management and control of the property subject to the trust (the ‘trust property’), but the beneficiary is the ‘real’ owner in the sense that he will eventually enjoy the benefit of the property. Page 15 of 47 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 16 January 2025 2. Legal systems and sources of law The trust is still a significant element of most common law legal systems. It is used by individuals in tax planning, the shared ownership of property, or in making provision for dependants. It is also important in matters of corporate or public interest, such as pension funds and charities. Paradoxically, one criticism of equity was that it was simply too erratic: Equity is a roguish thing: for law we have a measure, know what to trust to; equity is according to the conscience of him that is Chancellor, and as that is larger or narrower, so is equity. ‘Tis all one as if they should make the standard for the measure we call a foot, a Chancellor’s foot; what an uncertain measure would this be? One Chancellor has a long foot, another a short foot, a third an 7 indifferent foot: ‘tis the same thing in a Chancellor’s conscience. Take a look at Figure 2.5. In the top box you will see that principles of equity gradually emerged and equity became a separate branch of the law with its own rules and procedure, rather than simply being the application of natural justice to a case. Page 16 of 47 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 16 January 2025 2. Legal systems and sources of law Figure 2.5 Development of the relationship between common law and equity: initially separate legal systems (top box) overlap causing conflict (middle box). The lower box illustrates the unified legal system created by the Judicature Acts. p. 50 2.3.2.4 Equitable maxims You will read about equitable ‘maxims’. These were developed by the Court of Chancery and remain relevant when using equity today. There are at least 20, but important ones include: Equity looks on that as done which ought to be done: this means that equity will observe the parties’ intention instead of rigid procedure. This means that it is more flexible and litigation less formulaic. He who comes to equity must come with clean hands: an equitable remedy is not available to a claimant who is not acting in good faith. Page 17 of 47 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 16 January 2025 2. Legal systems and sources of law Delay defeats equity: a claimant cannot wait too long before making a claim as this may prejudice the other party. This is frequently a problem for litigants who seek injunctions to stop others from doing something. Equity will not suffer a wrong to be without a remedy. 2.3.2.5 Equitable remedies Equitable remedies developed because receiving damages in common law was not always adequate to meet the claimant’s needs. These remedies still have a vital role in English law. They remain discretionary: the court has discretion as to whether litigants deserve the exercise of equity on their behalf. This contrasts with common law remedies, which are available as of right to those who can prove their case. Two significant equitable remedies today are: An injunction: here the court orders someone to perform an action or to refrain from an action, for example to stop using the claimant’s trade mark. Injunctions can be issued in a matter of hours if they are equitable. For instance, if a celebrity seeks to prevent a newspaper from publishing a defamatory story, or if someone wants to prevent the publication of confidential information about them, they may seek an injunction to prevent publication. The BBC, for instance, failed to obtain an injunction preventing 8 publication of Ben Collins’ memoirs revealing his identity as ‘The Stig’ from Top Gear. A decree of specific performance: here the court orders someone to perform their obligations under a contract or trust. The following fictional example illustrates a situation where an order of specific performance might be appropriate: Andrew makes a contract to sell a famous painting to Ben, and then changes his mind. If Andrew refuses to sell the painting, he will be in breach of contract. Money (in the form of damages) may not be an appropriate remedy for Ben—it may be more suitable for a court to order the transfer of the painting itself from Andrew to Ben. This would be an order of specific performance. 2.3.2.6 Discord between common law and equity Equity developed to supplement the common law, often as an alternative forum for settling disputes. Conflicts arose between it and the common law. By the 16th century, equity did not merely supplement the common law, but directly challenged it. 9 p. 51 ↵ In 1615, James I personally decided that in cases of conflict, equity should prevail over common law. You can see this stage in the development of the relationship illustrated in the middle box in Figure 2.5. This resolution lost much of its value as equity itself hardened into a system of law with rules which sometimes became as inflexible as those of the common law. Both jurisdictions needed reform by the 19th century. There were too many courts with overlapping jurisdictions and it was expensive and slow to obtain justice. Page 18 of 47 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 16 January 2025 2. Legal systems and sources of law 2.3.2.7 Amalgamation of courts of common law and equity The courts of common law and equity were merged by the Supreme Court of Judicature Acts of 1873 and 1875. Both systems of law remained but these were administered by all courts when it was necessary to discuss equity. Some significant effects were: Civil courts can now grant both common law and equitable remedies in the same action, which you can see in the lower box in Figure 2.5. For example, an injunction to stop unlawful behaviour can be ordered, in 10 addition to damages for losses accrued to date. In a classic Lord Denning case, it was found that the repeated hitting of ‘sixes’ out of a cricket ground into neighbours’ gardens constituted a private nuisance. The court was happy to award damages for losses, but (and this romanticism was a theme of Denning’s judgments) used its discretion not to award an injunction to stop the cricket. Rights in common law and in equity are recognised by the same courts, for example an equitable right of way over land held at common law by someone else, or an equitable interest in shares held at common law by another. Equity sometimes provides defences to common law claims. In contract law, for instance, you will read about a defence to a common law debt claim, called promissory estoppel. It was developed almost singlehandedly by Lord Denning, to prevent creditors going back on promises to ease repayments by debtors. Equity may have developed in England & Wales, but it was inherited by most of the common law jurisdictions, and in many, most notably the US, it continues to play an important role in the courts. Essential debate In India, equity was a key element of the law until independence from Great Britain in 1947. In 1963, the Indian Parliament abolished and replaced most equitable rights and remedies with 11 statutory rights. Is there an argument for replacing the idiosyncratic principles of equity in England & Wales with a statement of rights and remedies in a statute? Would this be more open and authoritative? What drawbacks would there be? p. 52 2.3.2.8 Summary In summary, the English legal system has developed from largely local customs, into law ‘common’ to the country (‘common law’). We have seen the development of equity in the 14th century to mitigate the worst problems with the common law. Until the mid-19th century equity comprised a system of law entirely separate from the common law. While this is no longer the case, there remain two distinct bodies of case law—common law and equity—the latter being considerably more flexible than the former. Page 19 of 47 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 16 January 2025 2. Legal systems and sources of law 2.3.3 Statutes 2.3.3.1 Origins In England & Wales, there are records of the formal enactment of statutes from the accession of William the Conqueror in 1066, and written evidence of laws purporting to be statutes going back to Anglo-Saxon times (around 600). The legislation.gov.uk website reveals a trickle of statutes in force starting in 1262, and increasing significantly in volume after the ‘Glorious Revolution’ in 1688. If you look at the timeline in Figure 2.12, you can appreciate the historical context to this development. But this is only part of the story. Incredibly, the early statutes listed on that website are still in force. As the role of the state has increased, so statutes have replaced the common law as the primary source of law in England & Wales. Until the 15th century, however, a ‘statute’ was merely a law passed with Royal authority. Try to look at old statutes today, and you may find the variety surprising and content often unfamiliar. 2.3.3.2 Crown and Parliament In the 15th century, the consent of the House of Commons became necessary when a statute was passed, a 12 process formalised by the Tudors in the 16th century. The 17th century saw a struggle for supremacy 13 between the Monarchy and Parliament, resolved initially by the Case of Proclamations in which it was declared that ‘The King has no prerogative but that which the law of the land allows him’, and eventually confirmed by the ‘Glorious Revolution’ of 1688 (see Figure 2.12). This was a key moment in English law, as it confirmed (via the Bill of Rights 1688) that Parliament was the pre-eminent law-making body in the UK —it created parliamentary sovereignty. 2.3.3.3 Legislating for the industrial age As the country expanded, so the territorial extent of statutes also grew. Social and industrial development (particularly associated with the industrial revolution of the 18th and 19th centuries) required a significant expansion in regulation—it is difficult to believe that until the mid-19th century social provision was limited to the medieval Poor Laws and that there was hardly any regulation of workplace conditions. Bigger cities and more dangerous workplaces combined with an antiquated electoral system to create p. 53 pressure for social and political ↵ reform. Look again at Figure 2.12; the Reform Acts of 1832, 1867, and 1884 were reactions to the clamour for greater representation of the growing middle and working classes. The same pressures, along with rapidly evolving attitudes within the House of Commons, led to early workplace safety legislation. 2.3.3.4 Regulating the modern UK The 20th century saw further significant changes in society and politics. Up to 900,000 servicemen perished and a further 1,700,000 were wounded in World War I (1914–18) (see Figure 2.12). Resentment grew against the ruling elites around Europe that were seemingly out of touch and unwilling to Page 20 of 47 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 16 January 2025 2. Legal systems and sources of law countenance wholesale changes to the structure and politics of their countries. Revolutions occurred around mainland Europe as a reaction to these related factors. Without recognition of the sacrifices of ordinary people, there would almost certainly have been revolution in the UK. Parliament passed unprecedentedly interventionist housing, health, and welfare legislation, including the establishment of a 14 state pension. Many women got the vote in 1918. The apparatus of the state grew: the civil service 15 numbered only around 50,000 in 1910, rising to 221,000 at the end of World War I in 1918, to a peak of 16 733,800 in 1977. A larger state needed more regulation. In the 19th and 20th centuries, Parliament, and hence also statutes, reflected the democratisation of society. World War II (1939–45) witnessed another terrible death toll (around 400,000 UK military deaths) and an enormous growth of the state to drive forward war production and the control of infrastructure. In 1945, a Labour government was elected on a platform of extensive state intervention, including the establishment of the National Health Service, and the extension of welfare ‘from the cradle to the grave’. By the 1950s largely Keynesian theories of economics (named after John Maynard Keynes—see also 20.1.2) became the default in most Western economies. This meant a social democratic model, incorporating state 17 ownership of utilities and central planning. Wide-ranging legislation was necessary in the short term to provide the complex legal framework for this, and the need for these rules continues to this day. Eventually even primary legislation could not keep up with the demand for regulation, and secondary legislation (i.e. not passed directly by Parliament) such as statutory instruments (see 4.2.2) grew in importance. 2.3.3.5 Statutes today Some rather sensationalist headlines have bemoaned a jump in regulatory legislation in recent years, p. 54 allegedly burdening businesses with red tape; others lament the torrent of ↵ criminal legislation 18 overwhelming the justice system with new offences. Lord Phillips of Sudbury has said, ‘We legislate more than any other major democratic country. I’m talking 200–300 per cent more. And you don’t need to be a soothsayer to see that the downstream consequences of all that law-making are parlous—more 19 bureaucratisation, centralisation, more demoralisation.’ You might be surprised to learn that the number of statutes has decreased consistently since the 1960s. This is arguably a result of two factors: first, a significant increase in the amount of statutory instruments; and second, that the complexity and comprehensiveness of Acts has increased. This is supported by looking at the number of pages of legislation per year. Figure 2.6 shows how the volume of legislation has 20 increased since the early 20th century —an average for each decade is set out in the graph. Until the 1950s, the pages of legislation emanating from Parliament numbered in the low hundreds; since the 1950s there has been a steady (and seemingly inexorable) rise to the 2000s level of roughly 3,000 each year. The Companies Act 2006 is an illuminating example of the increasing complexity of primary legislation. It was p. 55 passed to bring together the content of several preceding statutes and ↵ to give statutory footing to common law and equitable principles. It also amended the law in some areas. It runs to 1,300 sections, divided into 47 parts. It also includes 16 schedules. The Act totals 571 pages. This is before we consider the 32 statutory instruments relating to its implementation, passed by mid-2012. Page 21 of 47 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 16 January 2025 2. Legal systems and sources of law Figure 2.6 Volume of statutes, annual mean per decade 21 A study examined the length of companies legislation since 1844, providing an excellent illustration of the increased volume of law passed by Parliament. Figure 2.7 shows that the volume of legislation in this important field has increased each time it has been legislated. The Companies Act 2006 contains almost twice as many sections as the 1985 Act. Page 22 of 47 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 16 January 2025 2. Legal systems and sources of law Figure 2.7 Size of the Companies Acts 2.4 EU law and retained EU law 2.4.1 EU law and retained EU law: Introduction In a referendum held on 23 June 2016, the UK voted by 52% to 48% to leave the EU (formerly the EEC). As a result, the UK left the EU on 31 January 2020, ending 43 years’ membership. You might justifiably ask why this book addresses EU law. At 2.2.3 we examined Brexit. You will therefore recall that the following section has continuing relevance in the UK, especially for lawyers. In this section we will look at the legal aspects of the UK’s membership of the EU, before examining the impetus for leaving it. We will then trace the process through to its conclusion in the legal context. Finally we will look at the current status of EU law and retained EU law. p. 56 ↵ In Chapters 4 and 5, we will then unpick types of retained EU law—the reader should be forewarned that some areas of retained EU law are quite technical, and that this volume will seek to draw out the most basic concepts without dwelling on the many complexities of its application. Page 23 of 47 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 16 January 2025 2. Legal systems and sources of law 2.4.2 The European Union and the UK The UK became a member of the European Economic Community (EEC) on 1 January 1973 (having signed the Treaty of Rome 1957 in 1972). During the UK’s membership, EU law applied throughout the UK. The Treaty of Rome was subsequently renamed the Treaty on the Functioning of the European Union (TFEU) and is the foundational treaty of the EU. The EEC (as it was then) was created in 1957 to promote trade within the European common market (then constituting six member states) by seeking to create a level playing field for commercial activity in Europe. The EU’s role is now significantly greater, incorporating a wide range of economic matters (notably monetary union), justice, education, health, and foreign relations. Since the UK left, the EU has had 27 member states. It is important to remember that the jurisdiction and institutions of the EU are entirely separate from those of the ECHR (although the EU is a signatory to the ECHR). International law is not regarded as part of our legal system (see 2.5). As a consequence, it was necessary to enact the European Communities Act 1972 (ECA 1972), incorporating EU legislation into UK law without Parliament having to legislate on each separate occasion. The UK system in this context was known as a ‘dualist’ system because EU law was not automatically binding; it needed to be incorporated into domestic legislation by Parliament, via the ECA 1972. This is why, as part of the Brexit process, Parliament needed to abolish the ECA 1972, and with it the automatic incorporation of EU law into UK law. In contrast, some other jurisdictions (e.g. France) are ‘monist’ in that, on ratification of the EU Treaty (then the EEC Treaty) by the French government, (French) domestic legislation was not needed for EU law to become part of domestic law. Three examples will help illustrate the direct impact EU law had on the life of a UK citizen: Article 102 TFEU prohibits the abuse by a party of its dominant market position. There are various practices that can constitute abuse, but one is called ‘tying’, whereby a consumer is strongly encouraged to use one product because it is tied to another. This happened in the Microsoft case, where certain programs (e.g. Internet Installer and Windows Media Player) were ‘bundled’ into the Microsoft Windows operating system, so inhibiting take-up of competitor products. A series of cases before the ECJ resulted in Microsoft being found to be in breach of Article 102 (then Article 82) fined nearly €300 million and being ordered to change its contracts and products to prevent continued abuse. This has had tangible benefits for any 22 consumer who uses Windows PCs. The Transfer of Undertakings (Protection of Employment) Regulations were made in the UK to implement an EU Directive (see 4.5.1) which dealt with protection of employment when one business is 23 sold to another. The House of Lords (now the Supreme Court) has interpreted the Directive and therefore p. 57 the UK regulations to mean that workers whose employment had been terminated by reason of a business transfer should still be considered as employed as at the date of the transfer, and should therefore be able 24 to enforce their accrued employment rights even if they were sacked just before the transfer itself. Page 24 of 47 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 16 January 2025 2. Legal systems and sources of law The Consumer Rights Directive 2011/83/EU required member states to implement extensive protections for consumers. One of many changes in UK law was that consumers now have a 14 day ‘cooling off’ period 25 once they have bought goods over the internet. Essential explanation EU terminology There are several terms that are, or have historically been used to, describe fundamental features of what is now the EU and its law. The EEC, or European Economic Community, created by the Treaty of Rome 1957. The EC, or European Community, created under the Maastricht Treaty 1992. The EU, or European Union, also established under the Maastricht Treaty 1992. There have been key differences in the jurisdiction of each body. Under the Maastricht Treaty in 1992, the EC replaced the EEC, and also the EU was created. The EU at this stage comprised three ‘pillars’—the EC, which had a legal system; the Common Foreign and Security Policy; and Police and Judicial Cooperation in Criminal Matters. The EU did not itself have a legal system, so the law within the EU was called ‘EC law’. The Lisbon Treaty, signed in 2007, and which came into force on 1 December 2009, unified the three ‘pillars’ of the EU into one legal entity. At this stage ‘EC law’ became ‘EU law’. The Lisbon Treaty had many effects; importantly in this context, the Treaty of Rome was at the same time retrospectively renamed the Treaty on the Functioning of the European Union. 2.4.3 Arguments for Brexit During the UK’s membership of the EU, under the ECA 1972, the UK was required to give supremacy to EU law. This led to considerable debate about whether parliamentary sovereignty was compatible with the supremacy of EU law in the event of a conflict between the two. One of the arguments for Brexit was that Parliament should be sovereign, not any external body. Substantial parts of UK law are based on, or are profoundly influenced by, EU law, for instance in particular large swathes of commercial law, employment law (including laws prohibiting discrimination), environmental law, mergers and acquisitions and trade law. EU law and UK law had also become very much intertwined in other areas, e.g. agriculture, consumer protection, public health and tourism. Some of our national law (e.g. land law) was not affected by membership of the EU, but certain highly significant areas were, for example, commercial and consumer law, employment law, the environment, and freedom of movement. Page 25 of 47 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 16 January 2025 2. Legal systems and sources of law p. 58 ↵ Another motivation for Brexit was to reduce the amount of EU-derived law which had such a powerful effect on UK law. Since its creation in 1957 the EU has passed well over 100,000 pages of statute law. During the Brexit campaign it was claimed by Boris Johnson (controversially) that 59% of UK law was EU-derived. 2.4.4 The UK’s withdrawal from the European Union Brexit was a comparatively long process, with extended political upheaval leading to delays and 26 uncertainty. What follows is a description of the process that emerged from this convoluted history. 2.4.4.1 23 June 2016—Brexit referendum—UK votes to leave the EU The UK voted by 52 per cent to 48 per cent to leave the EU. The referendum itself had no legal effect— 27 indeed it was stated to be advisory in nature. 2.4.4.2 29 March 2017—Prime Minister Theresa May invokes Article 50 TFEU This began the withdrawal process. Article 50 TFEU states that ‘Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements’. Even this step was controversial as there was a legal battle over whether the Prime Minister had the right 28 to invoke Article 50 without legislation passed by Parliament. The Miller case decided that such a move required parliamentary approval because it would remove a series of rights created by Acts of Parliament. The European Union (Notification of Withdrawal) Act 2017 empowered the Prime Minister to invoke Article 50. 2.4.4.3 26 June 2018—European Union (Withdrawal) Act 2018 passed, with most provi sions coming into force immediately This statute substantially repealed the ECA 1972 on exit day and established retained EU law. It created the framework for the Brexit process. It also required parliamentary approval for any withdrawal agreement negotiated between the Government and the UK. If, on the UK’s exit from the EU, all EU law had ceased to apply, there would have been a vacuum in the UK’s statute book and regulatory systems. The EU(W)A 2018 provided legal continuity by creating the concept of ‘retained EU law’. EU law as it existed at the date of the UK’s exit from the EU would be preserved as a new category of UK law. The original version of the EU(W)A 2018 was designed to cater for the possibility of the UK leaving the EU without agreement (a ‘no-deal Brexit’); however, the UK did ultimately leave the EU on the basis of the Withdrawal Agreement. Page 26 of 47 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 16 January 2025 2. Legal systems and sources of law p. 59 2.4.4.4 24 January 2020—Withdrawal Agreement signed As the Withdrawal Agreement is an international treaty, the UK Government needed to ensure that its provisions were implemented into UK domestic law. After an extended period of political upheaval (including a change of prime minister and a general election), Parliament therefore eventually enacted the European Union (Withdrawal Agreement) Act 2020 (EU(WA)A 2020) in order to do this. This process was far from straightforward, and illustrated the doctrine of parliamentary sovereignty well because progress stalled until a pro-Brexit majority existed in Parliament. The government was able to negotiate a Withdrawal Agreement with the EU, and to get it approved by Parliament via the EU(WA)A 2020 (Royal Assent, 23 January). 2.4.4.5 31 January 2020—UK leaves the European Union (23:00 GMT) At this moment, the UK ceased to be a member of the European Union. However, the Withdrawal Agreement provided for a transition period. This lasted from the UK’s exit on 31 January 2020 until 31 December 2020 during which, for many purposes, the UK was treated as a Member State. During the transition period, EU law remained in force in the UK. 2.4.4.6 24 December 2020—EU:UK Trade and Cooperation Agreement signed When a member of the EU, the UK was part of a single market in goods and services, incorporating a customs union and free movement of persons. This came to an end after the transition period. The Trade and Cooperation Agreement governs the relationship between the EU and the UK after Brexit, providing for a much more limited degree of free trade (in goods and some services). 2.4.4.7 31 December 2020—transition period ends At this stage the UK ceased to be part of the single market and customs union, and (subject to principles of retained EU law) reasserted its sovereignty. EU law is no longer in force in the UK (except to a limited extent beyond the scope of this book) and has been largely replaced by domestic law including retained EU law (see Chapter 4). The EU(WA)A 2020 gives supremacy to the Withdrawal Agreement in a very similar manner to which the ECA 1972 gave supremacy to the EU treaties. However, s 38(1) of the 2020 Act, entitled ‘Parliamentary sovereignty’, recognises that Parliament is sovereign, whilst s 38(2) states that this sovereignty persists notwithstanding any provisions in the 2020 Act giving direct effect to the provisions of the Withdrawal Agreement. Elements of the Brexit framework remain politically sensitive and subject to change, including: the status of retained EU law, the implementation of the Trade and Cooperation Agreement, and the Northern Ireland Protocol to the Withdrawal Agreement. Page 27 of 47 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 16 January 2025 2. Legal systems and sources of law Readers are invited to keep themselves appraised of this area as it develops. p. 60 ↵ In this section we have looked at how the UK’s withdrawal from the EU was implemented, and how retained EU law was conceived. In Chapter 4 we consider briefly the nature of EU legislation and then, in more depth, how this is reflected in retained EU law. 2.5 International law Essential explanations ‘International law’, ‘public international law’, and ‘private international law’ International law comprises rules governing relations between different states or people within them. Usually ‘international law’ refers to public international law, rather than private international law. Both are explained here, and in Figure 2.8. National (sometimes ‘Federal’) law, by contrast, is the law governing actors within a state. Figure 2.8 National and international law compared Public international law comprises a system of rules and principles that govern the international relations between sovereign states in addition to some other institutions such as the United Nations (UN). With a very few isolated exceptions it does not concern individuals, organisations, or lower levels of government. Page 28 of 47 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 16 January 2025 2. Legal systems and sources of law By contrast, private international law comprises international legal relations between private individuals and organisations. It usually (but not exclusively) relates to commercial endeavour and how to determine which rules apply to transnational trade. EU law is an example of supranational law (as contrasted with international law), under which sovereignty is genuinely ceded to institutions comprising more than one state. 2.5.1 Public international law 2.5.1.1 Nature of international law In Chapter 1 we saw that law is a body of rules that a state recognises as governing the actions of its p. 61 subjects. Some legal theorists therefore argue that ‘international law’ is a misnomer because ↵ there is no sovereign body that legislates to bind states to international law in the same way that a sovereign body in a state binds its subjects to that state’s laws. However, this is a minority view, because in reality all states conduct themselves on the assumption that the rules comprising international law are in some sense binding, even if they choose to flout or sidestep them. Much of international law is executed under the auspices of the United Nations (itself a creature of an 29 international treaty, the UN Charter of 1945 ), often via one of its 17 specialised agencies. These include e.g. UNESCO (the UN Educational, Scientific and Cultural Organization), the WHO (World Health Organization), the ILO (International Labour Organization), the IMF (International Monetary Fund), and WIPO (the World Intellectual Property Organization). There are 560 multilateral treaties and conventions deposited at the UN, although this is a fraction of the treaties in force around the world. The International Court of Justice also recognises other sources of international law, including custom (which occupies a more significant role than in UK national law), its own judicial decisions, and other 30 ‘general principles’ —globally accepted standards of behaviour. One hundred and fourteen states, including the UK, have ratified the Vienna Convention on the Law of Treaties 1969, which regulates the entry into and conduct of treaties. This gives treaties even more of the characteristics of ‘hard’ national law. There are different academic analyses of why international law is binding, but most rest on the idea of consent. In much the same way as individuals enter a contract by consenting to be bound, states consent to be bound by treaties. This mechanism is summarised in Figure 2.9. It is important to reflect on this, and to note that international law is not part of the UK or English legal systems. Page 29 of 47 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 16 January 2025 2. Legal systems and sources of law Figure 2.9 Bindingness of international law 2.5.1.2 Example International law governs areas as diverse as the Law of the Sea, the Antarctic, the environment, space law 31 p. 62 (which purports to govern the rights and obligations of Earth’s states ↵ in space), armed conflict, and war crimes. Among the variety of international rules, there is a strong emphasis on human rights. In the aftermath of the human carnage of World War II it was felt that only international action would suffice to prevent a repeat of the atrocities of the 1930s and 1940s. This pressure spawned the UN’s Universal Declaration of Human Rights 1948 (UDHR) and the European Convention on Human Rights 1950 (ECHR, as developed by the Council of Europe). Both have been developed since with the addition of Protocols (not all of which the UK has signed) and an expansion of signatories. To this day the Council of 32 Europe actively promotes democracy, human rights, and the rule of law. Forty-seven states are members including the UK and all EU states, plus others including EFTA (European Free Trade Area) states, Russia, and other eastern European states. Other states have observer status, and Belarus is a candidate member. Like many international institutions, whilst it purports to make international law, enforcement of ECtHR judgments depends on political pressure being applied by other states on transgressor members. The UN lists nine core international human rights instruments, including its International Bill of Rights (the UDHR, the International Covenant on Economic, Social and Cultural Rights 1966, the International Covenant on Civil and Political Rights 1966, and its two Optional Protocols). There are other regional (rather than worldwide) instruments too, for instance the American Convention on Human Rights 1969 and the African Charter on Human and Peoples’ Rights 1979 (signed and ratified by all African states bar South Sudan). Page 30 of 47 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 16 January 2025 2. Legal systems and sources of law 2.5.1.3 Enforcement International law is enforceable in various international courts, most notably the UN court, the International Court of Justice (ICJ). The ICJ may be the UN court but there are other international courts of note. Table 2.2 lists notable international courts by way of example. Table 2.2 Selected International Tribunals and Courts Court Instrument Nature establishing European Court of European Located in Strasbourg, a European-based court regulating human rights Human Rights (also Convention on conduct of 47 member states of the Council of Europe, including the UK. see 3.5.2) Human Rights 1950 Claims made by private individuals against states. International Court UN Charter and Located in the Hague, the principal judicial organ of the UN, settles of Justice Statute of the ICJ disputes submitted by states and gives advisory opinions on legal 1945 questions referred to it by UN organs and agencies. Has jurisdiction over member states. International Rome Statute 1998 Sitting in the Hague, set up under the auspices of the UN, but not part of Criminal Court (see the UN, 124 states are party to the Rome Statute. Individuals of such states also 3.5.3) are subject to the court, if they are suspected of war crimes, etc. At the time of writing 39 individuals had been indicted since 2002. In cases referred by the UN all UN states are subject to the ICC’s decision. There are also ad hoc criminal tribunals set up by the UN to bring justice to victims of international crimes. International UN Convention for Based in Hamburg, an independent judicial body to adjudicate disputes Tribunal for the Law the Law of the Sea arising out of the UN Convention for the Law of the Sea. of the Sea 1982 International Court Based in Paris, part of the International Chamber of Commerce, the ICA of Arbitration deals with international disputes between commercial parties from 85 states. It handles roughly 500 cases a year. Permanent Court of Hague Convention Located in the Hague, it is an organisation (not a court) providing dispute Arbitration for the Pacific resolution services to the international community. 119 countries Settlement of including the UK. 138 cases in 2015. Disputes can concern states or International individual entities. Disputes 1899 There may be courts mediating between states but there are few institutions to enforce international law. There is no police force and no army (the UN peacekeeping force is not an army). The powers of the ICJ are limited, and normally enforcement is via the threat of sanctions or international and regional condemnation. Once again we can draw a parallel with the law of contract. In most circumstances an Page 31 of 47 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 16 January 2025 2. Legal systems and sources of law alleged breach of contract is settled by a negotiation process backed up by the threat of litigation; alleged breaches of international rules are usually the subject of negotiation (often through mediation in international courts) backed by the threat of international censure. For instance, Art. 46 of the European Convention on Human Rights obliges member states to abide by the judgments of the court—but even compliance with the judgments of the court is patchy. In 2016 China came before the Permanent Court of Arbitration as a result of its practice of artificially augmenting islands in the South China Sea to form the basis of a claim to sovereignty. The court found China to be in breach of the Law of the Sea; China’s response via its newspaper The Peoples’ Daily was: ‘The Chinese government and the Chinese people firmly oppose [the ruling] and will neither acknowledge it nor accept it.’ This is a powerful illustration of the difficulties of enforcing international law against all comers. p. 63 ↵ Despite these limitations the European Convention on Human Rights, in particular, has led to impressive improvements in the lives of ordinary people. The ECtHR has required Bulgaria to care properly for people with mental and physical disabilities, France to legislate to protect domestic servants, and Austria to allow same-sex couples to adopt each other’s children. It has obliged the UK to regulate the monitoring of employees’ communications, forced Cyprus to take action against sex trafficking, and Moldova to halt state censorship of TV. Its judgments have compelled improvements in Russian prisons, and more effective punishment of domestic violence in Turkey. Example 1 illustrates the ‘toothless tiger’ syndrome common to much of international law. Only consistent pressure from the outside world coupled with economic incentives forced the junta to change its practices as part of a much wider raft of reforms in the 2010s. Example 1 The ILO and workers’ rights in Burma (also known as Myanmar) The International Labour Organization was formed as part of the Treaty of Versailles 1919 (you may recognise this as the Treaty that formally ended World War I) and is now a specialised agency of the p. 64 UN. ↵ It brings together governments, employers, and workers’ representatives of 187 states, ‘to set labour standards, develop policies and devise programmes promoting decent work for all 33 women and men.’ These are contained within 190 conventions ranging from the Forced Labour Convention 1930 to the Domestic Workers Convention 2011. These conventions must be opted into by each ILO state. But its limitations are typical of international rules. It has three compliance mechanisms: it can give technical assistance to ministries and agencies, it can shame countries into improving working conditions, and under Article 33 of its constitution it can punish countries who do not comply by requesting member governments and other UN organisations to take appropriate action. Page 32 of 47 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 16 January 2025 2. Legal systems and sources of law In post-colonial Burma, successive governments, and most particularly the military junta that seized power in 1988, had routinely forced civilians to work on state infrastructure projects, e.g. building roads and even towns. The junta would demand villages supply labour under threat of fines if households were unable to meet the required quota. On occasion villagers would be forced to act as human minesweepers to clear the way for the safe passage of soldiers. Many prisoners would be sentenced to terms which also included hard labour, often in labour camps. The ILO had been monitoring this situation, but the Burmese government refused to comply with the ILO’s recommendations. In 2000 intense negotiations among the ILO’s members, including Burma and its neighbours, attempted to forestall punishment under Article 33. Eventually the governing body of the ILO asked the International Labour Conference to take measures to lead Burma (at the time called Myanmar) to end the use of forced labour. Even after two years, however, no government, organisation, or workers’ or employers’ group had taken any action against Burma under the resulting resolution. 2.5.2 Private international law The commercial world is increasingly transnational in nature, with parties doing business across borders between states. A significant body of law concerns how such relationships are legally regulated. Like public international law it comprises a body of conventions, model laws, national laws, and other instruments that regulate private relationships across borders. Also, like public international law, it rests on the concept of consent for its bindingness. This consent can either be that of the parties’ states or of the parties themselves. An important part of private international law concerns ‘the conflict of laws’: it is normally very easy for parties to stipulate the laws which apply to a contract and the courts (or arbitrators) which will resolve disputes. Sometimes, however, it is less clear which laws apply or which bodies have jurisdiction to settle disputes. This area occupies whole modules of legal study. Another key area is how parties do business across borders. Commercial parties like certainty, so it is in their interests to have rules stipulating contract terms where they have failed to do so. There are therefore many treaties and instruments which help regulate this. Much of EU law concerns this issue, but outside the EU it is arguably even more important to have rules of this nature. Table 2.3 lists three such instruments by way of an example. Page 33 of 47 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 16 January 2025 2. Legal systems and sources of law Table 2.3 Three instruments allowing trade across borders Instrument Convention/ Originating Institution Nature Treaty United Nations Convention UNCITRAL—the UN A treaty containing default terms for the sale of goods—these on Contracts for the Commission for terms fill gaps in contracts between parties of different International Sale of Goods International Trade Law contracting states. The UK is not a party. 85 parties (18 (CISG or Vienna additional signatories). It is based on the Uniform Commercial Convention) 1988 Code of the United States. Principles of International UNIDROIT (International Parties can opt into these model rules on the sale of goods and Commercial Contracts Institute for the provision of services. There are 63 members of UNIDROIT, (PICC) Unification of Private including the UK, and the institute has ten international Law) conventions under its auspices. Incoterms International Chamber A series of pre-defined commercial terms published by the ICC, of Commerce reflecting common trade practices, most particularly in shipping contracts. Parties commonly opt into one of a variety of packages of terms. p. 65 2.6 Sources of law: conclusions In 2.2–2.5 we have seen that there are several distinct sources of law that impact on the lives and operations of citizens and organisations in the UK. It is clear that, after decades, and even centuries of comparative inertia, these sources are in a state of continual change. This makes the job of the lawyer ever more crucial in advising clients on their legal rights and obligations in a changing world. One way lawyers make sense of these many concepts is by classifying legal rules. 2.7 Classifications of law in England & Wales You will probably have realised from the discussion of the development of the English legal system earlier in this chapter that lawyers have gradually classified the law into a number of broad areas. Every lawyer needs to be aware of the most important classifications. They impact on the nature of legal rules, and on the practice of law and litigation. 2.7.1 Public law and private law Possibly the most fundamental is the distinction between public law and private law. Page 34 of 47 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 16 January 2025 2. Legal systems and sources of law Essential explanation Public law Duties owed to or by the state are matters of public law. Public law is often said to include not only things like administrative law, constitutional law, and human rights, but also criminal law. p. 66 Private law Duties owed to or by individuals (including corporate individuals like companies) are generally matters of private law. Private law includes (among other things) tort, contract, land, and equity. Company law is mainly private because it concerns relations between private people (a company is a legal person, as opposed to a natural person) rather than the state. Figure 2.10 offers a simple summary of this categorisation of law in England & Wales. Figure 2.10 Categorisation of law in England & Wales: public and private The division between public and private law is not always clear-cut; for example, commercial law is a hybrid, as it covers relations between individuals, relations between states, and relations between individuals and the state. The importance of distinction between public and private law can be illustrated by Example 2, which illustrates the differences in approach in the two areas. Page 35 of 47 Printed from Oxford Law Trove. Under the terms of the licence agreement, an individual user may print out a single article for personal use (for details see Privacy Policy and Legal Notice). Subscriber: University of Manchester; date: 16 January 2025 2. Legal systems and sources of law Example 2 Police duties Between 1975 and 1980, 13 young women were murdered (plus eight attempted murders) by the notorious ‘Yorkshire Ripper’. By 1980 it was clear from the evidence available that the Yorkshire Ripper was a man called Peter Sutcliffe, and that it was likely he would kill more young women if not apprehended. In April 1980, he was arrested on a driving offence and released, awaiting trial. In November 1980, in Leeds, he murdered his last victim, Jacqueline Hill. He was arrested and charged with murder only in January 1981. It was claimed that the police had not competently investigated the murders, and that, had they done so, Jacqueline Hill would not have been murdered. Jacqueline Hill’s family sued the police in the civil courts for damages in the tort of negligence. This 34 was a private law claim. The House of Lords confirmed that no duty of care in negligence was owed by the police to the general public as potential victims of crime, because this would impose prohibitively demanding burdens on police officers. This is now called ‘the Hill Principle’. When you study negligence in Tort, you will read that this is a developing area of law, where negligence claims are now possible in narrow circumstances, and also where the Human Rights Act is engaged. By contrast, it has long been the case that police officers owe a duty to the general public to enforce 35 the criminal law. This is enforceable in public law, by ‘judicial review’ of the relevant police p. 67 authority ↵ by the courts. So if the chief police officer concerned has acted unreasonably, someone with an interest can make a complaint to the Administrative Court (a specialist court within the High Court—see Chapter 3 for discussion of courts in England & Wales). 2.7.2 Civil law and criminal law The distinction between criminal law and civil law is also central to English law (and many other systems worldwide). It impacts on people’s rights and obligations, and on how both are enforced in courts. Criminal law is a type of public law concerning the right of the state to sanction individuals (and sometimes other legal persons like companies). There are around 9,000 criminal offences in English law. Civil law (in this sense) concerns the rights that individuals (again including companies, etc.) have against each other—it does not directly involve the state. There is a tendency to believe that most law is criminal in scope, probably because most media coverage of law and most legal dramas concern the criminal law. However, the majority (in terms of pages of legislation) of law is civil. In terms of the number of actions commenced each year, court statistics show that roughly the same number of civil claim

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