BAC: A &F LEVEL 5: LAW, AUDIT

AND REGULATION
LECTURE 1 A: THE ENGLISH
LEGAL SYSTEM: A SYNOPSIS
 The United Kingdom

 The United Kingdom means Great Britain and Northern

Ireland; Great Britain means England, Scotland and
Wales
 The United Kingdom is a unitary state, but it does not
have a single body of law
 England, Scotland, Wales and Northern Ireland have
their own legal systems and courts
 The separation of powers

 The great political philosopher Montesquieu

coined the phrase the ‘separation of powers’ in
the 18th century
“Government should be set so that no man need
be afraid of another”
Three individual elements of the state:
The executive, the legislature and the judiciary
Classification by source
 Who makes the law?

 Parliament
 Courts
 The European Union
 The Council of Europe
 English Law

1. EU Law – law that emanates from the Institutions of

the EU
2. Statute law – mabe by Parliament
3. Common Law (customary law, judge-made law, case
law) – made by the decisions of the judges
4. Equity – created by the Chancery court under the
Lord Chancellor to ‘fill in the gaps’ in the common law
 EU Law

 The EU was established in 1951 by the

creation of the European Coal and Steel
Community (ESCS)
 The UK joined the EU on January 1, 1973
 EU legislation has primary legislation (treaties)
and secondary legislation (regulations,
directives, decisions and recommendations)
 EU Law can overrule national law
 In 2016, the UK voted to exit the EU and
appropriate steps might take 3 years.
 Written and unwritten law

 Two main categories of law:

Written (formally enacted) and unwritten (unenacted)
 A statute is drawn up in a definite form of words, and
these words have been approved by Parliament and
have received the Royal Assent (written law)
 There is no authoritative text of the Common Law
(unwritten law) – law reports
 Rules of equity
 Rules of equity grew up through the practice of
medieval Lord Chancellors
 “keepers of the king’s conscience” – initially claimants
petitioned the king; in the 15th century the king handed
the responsibility to the Lord High Chancellor who
created a specialist court to deal with such matters (the
Court of Chancery)
 Alternative legal remedies – more flexible
 Equity gradually became more rigid and was fused with
common law by the Judicature Act of 1873
 Common Law

 Unwritten law is predominant

 More precedents than legislative enactment
 Common law (the general law contained in
decided cases; unwritten or judge-made law)
means ancient customs, precedents and books
of authority (writings of jurists)
Principal sources of English Law

 Statute Law: Legislation (enacted law; statutes

or Acts passed by Parliament); the doctrine of
parliamentary sovereignty
 Common Law: Precedent (courts are
interpreters of law); previous decisions by
superior courts on similar facts
Subsidiary sources of English Law

 Common law means judicial precedents, but

also ancient customs and writing of jurists -
books of authority
 The subsidiary sources are customs and books
of authority
 Customs

 Customs are social habits or patterns of

behaviour
 “Conventional”rules
 Many of early rules of the common law were
general customs which the courts adopted
 The customs must be reasonable, certain and
“ancient” – must go back to 1189
 Books of authority

 The writings of legal authors

 Cited in courts
 Some books by prominent authors are as
authoritative as precedents e.g. Blackstone’s
Commentaries (1765)
 Why it is called ‘common’
 The first legal system that became common to the
whole country (England and Wales) in 1066 – after the
Norman Conquest
 Prior to the Norman Conquest there were many
different rules of law found all over the country –
custom law
 William the Conqueror decided to set up a central
system of government that would include the justice
system
 Curia Regis (King’s Court)
 Common law v. Roman law

 Common law is a native product of Britain

 It absorbed only a few rules of Roman law
 A unique legal system
Common Law and Statute Law

 Common Law has grown rather then being

made
 Statutes began with the reissue of Magna
Carta in 1225 in the reign of Henry III
 A large volume is added every year
 Much of the fundamental part of English law is
still Common law
Sovereignty of Parliament

 Where Statute Law and Common Law come

into competition, Statute Law prevails
 The sovereignty of Parliament is the dominant
characteristics of English political institutions
 No court or judge can refuse to enforce an Act
of Parliament and therefore the doctrine of
sovereignty of Parliament
 No development of Common Law (judicial
precedent) can repeal an Act of Parliament
Advantages of case law

 Certainty: the fact that decided cases are binding

makes it certain that every future case which is
essentially similar will be decided in the same way
 The possibility of growth: new rules meet new
circumstances
 A great wealth of detailed rules: English law is richer
than any code of law
 Practical character: rules laid down by the cases are in
close touch with the needs of everyday life
Disadvantages of case law

 Rigidity: once a rule has been decided, it is

difficult to depart from it
 Lack of logical distinctions: Rules which are
logically inconsistent with each other are
sometimes developed along distinct lines of
cases – conflict
 Bulk and complexity – more than 2,000
volumes of law reports make the case law
difficult to apply
The British Constitution

 It has evolved over many centuries

 It is not set out in any single document
 It is made up of statute law, common law and
conventions
 Conventions are rules and practices which are not
legally enforceable, but which are regarded as
indispensable to the working of government
 The constitution can be altered by Act of Parliament, or
by general agreement to alter a convention
 Varieties of English Law

 Law can be classified by the type of law (the

matters that the law is regulating)
 Classification by types of law includes
distinctions between international or national
and public or private
 National and international law

 National (domestic, internal) law – the law of a

state regulating its domestic affairs
 International law – A body of rules that
regulates relations between states and rights
and duties of individuals in their relations to
foreign states and with each other
 Public and private law

 National law can be divided into public law and

private law
 Public law involves the State in some way; it is
the area of law in which the state has a direct
interest (administrative law, constitutional law,
revenue law, criminal law)
 Private law controls the relationships between
individuals
 Public law

 Administrative law – the body of law which

deals with the powers of the executive organs
of the state
 Constitutional law – the area of law that deals
with the interpretation and construction of
constitutions
 Revenue law – the area of law concerned with
income and taxes
 Criminal and civil law

 Criminal law – a branch of law concerned with

behaviour that is considered to be harmful to
society as a whole: the state (prosecutor) takes
legal action against the wrong-doer in the
name of society. The standard of proof is
beyond reasonable doubt.
 Civil law – a branch of law that deals with
disputes between individuals.The injured party
(plaintiff or claimant) takes legal action. The
standard of proof is on a balance of
probabilities
 Subcategories of civil law

 Law of contract
 Law of torts
 Family law
 Patents and copyrights