Structure, Sources, and Principal Groups of English Common Law
Unlike countries of the Romano-Germanic legal family, where the principal source of law is a law introduced into operation, in countries of the Anglo-Saxon legal family the principal source of law is a norm formulated by judges and expressed in judicial precedents.
The legal family of the Common law, just as Roman law, developed according to the principle "ibi jus ibi remedium" (where there is law, there is a remedy); therefore, despite all attempts to codify (Jeremy Bentham and others), the English Common law augmented and improved by provisions of the "law of equity" is fundamentally precedential law created by courts. This does not exclude the growing role of statutory (legislative) law.
Thus, English law acquired a troika structure: Common law is the basic source; the law of equity augmenting and adjusting the basic source; and statutory law-written law of parliamentary origin. To be sure, this is a somewhat simplified, schematic image.
English law continues to remain fundamentally judicial law worked out by judges in the process of considering specific eases. A judge, unlike the legislator, does not create decisions of a general character by foreseeing a series of instances which may occur in future. I le is occupied by the fact that justice is required in a particular instance: his task is to settle the judicial dispute. Taking into account the rules of precedent, this approach makes norms of the Common law more flexible and less abstract than norms of Romano-Germanic systems but simultaneously more causistic and less definite. In England, thanks to the Common law and rule of precedent, the distinction between jus and lex bears a somewhat different and simultaneously more clearly expressed character than the distinction between jus and lex on the continent.
The structure of law in the Anglo-Saxon legal family (division into branches and institutions of law), the very conception of law, the system of sources of law, and legal language are completely different than in the legal systems of the Romano-Germanic legal family. The division of law into public and private is absent in English law.
Branches of English law are expressly not so precisely as in Romano-Germanic legal systems, and much less attention is devoted to the problems of classification. The absence of a sharply expressed division of law into branches is conditioned primarily by two factors. First, all courts have general jurisdiction; that is, may examine various categories of cases: public and private law, civil, trade, criminal. Divided jurisdiction leads to a delimination of the branches of law, and unified jurisdiction operates, obviously, in the opposite direction. Second, since in England there are no branch codes of the European type, law to an English jurist seems to be homogeneous. English doctrine does not know a discussion concerning the structural divisions of law.
Over many centuries of activity of the legislative organ - parliament - the total number of acts adopted by it occupies about fifty weighty volumes (more than 3000 acts). Law was formed under the impact of the requirements of judicial practice, which dictated a certain structure and character of the exposition of norms. Hence the causistic style of legislative technique. The growth of the number of laws exacerbated the problem of systematisation. It is resolved by means of consolidation - the combining of legislative provisions on one question into a single act.
In Great Britain, unlike the Romano-Germanic legal systems, executive organs were from the outset deprived of the competence to adopt acts "in execution of a law". To issue such an act the executive organ should have been endowed with respective statutory powers which parliament delegates to it. Therefore, the norm-creation of executive organs is called "delegated".
In no country has the problem of the correlation of statute and judicial practice acquired such a specific character as in England.
At first glance this problem is resolved simply: rules operate according to which law may repeal a precedent, and in the event of a conflict between law and precedent, priority is accorded to the first. However, the reality is much more complex since the role of judicial interpretation of a law is great. The rules according to which a law enforcement agency is bound not only by the very text of the law but also by its interpretation, which is given in preceding judicial decisions, called precedents of interpretation.
Legislation as a source of law is in a less advantageous position in the sense that an act of parliament requires judicial interpretation, which itself becomes a judicial precedent. Therefore, it would be a simplification to treat parliamentary legislation as a source of law standing above precedent.
Thus, an English court is endowed with broad opportunities of discretion with respect to statutory law. These possibilities grow if one turns from the legislative part of statutory law to the subordinate part thereof. As regards delegated legislation, a court officially has the right of repeal, having deemed an act ultra vires. With respect to other executive acts a court may repeal them also without resort to the doctrine ultra vires on various grounds.
Together with England there are within the group of English law Northern Ireland, Canada (except Quebec), Australia, New Zealand, and also the former colonies of the British Empire (presently 36 States are members of the Commonwealth). England was the largest colonial power and the English Common law was disseminated in many countries of the world. As a result, almost one-third of the population of the world lives to a significant extent under norms of English law.
The second group forms the law of the United States, which having as its source the English common law, is presently wholly autonomous.