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Introduction to English law for translators and/or non-lawyers

English law has been developing for over 1,000 years. Sometimes it is necessary to know some legal history in order to understand English law. This is not the space for a full history, though.

(Lawyers with a few courses on legal history under their belts feel free to look away).

Take the concept of equity. All my introductory notes can do is draw attention to its existence. Translators who suddenly come across a term from equity in the middle of something else should at least have enough orientation to know where to start their research.

What may be of interest are the following areas:

1. The history of the courts, especially those in London. Germany has a nice tidy (at least on the surface) system of courts, with three instances in several branches. England and Wales has a less logical system, which has grown up over a longer period of time. Learning about the development of the courts through the ages may make this clearer.

2. The history of contract and tort. Contract and tort developed out of what are known as the forms of action, and you might encounter references to this part of legal history. A form of action was a writ (very approximately Klageschrift - better Klageformel - see commentary) with a particular wording. If your legal proceeding matched one of the writs/forms of action, you could start proceedings. But if there was no form of action available for your situation, you were helpless.

For example, there was a writ in what was called an action of covenant that could be used to sue someone who had not performed a contract under seal. So contracts under seal have always been valid without any rigmarole. If the contract was not under seal, and A built a house for B, but B did not pay, there was an action of debt that meant A could sue B for the money. However, if B paid but A did not build the house, there was at first no action available for B to sue A.

How this situation was remedied and contract law was developed out of the writ of assumpsit is too long a story for this page, but it is one that may be encountered by translators.

3. Real actions and personal actions

The earliest actions to be permitted related to land - also known as real property or real estate. They helped a person get back land (res, Latin for thing, meaning the thing itself rather than money damages).

Other actions were called personal actions: the remedy was not a right in land against the rest of the world, but a right against an individual person.

4. Common law and equity
In the period up till 1875, two separate systems of law developed: first, common law, and later, equity.

Before 1066, there existed local courts, which provided revenue for the lords who ran them. They were not standardized. They continued in existence after 1066, but gradually lost importance as William I's new centralized system of law came into effect.

After 1066 there was a gradual change to a central system of law under William I and his successors. This central system was known as the common law (meaning law common to the whole of England - the first meaning of the term common law). Much of this change happened not in 1066, but in the 12th century, especially in the reign of Henry II, 1154-1189.

As described above, the common law courts developed a restricted number of writs, so that not everyone could obtain a remedy. On top of this, the usual remedy was damages, but not in every case was that a good remedy.

People turned to the king - known as the 'fountain of justice' - to help them. The Chancellor, the King's chaplain and most important official, decided on behalf of the king whether to help. By the end of the 15th century, the decisions of successive chancellors were forming a new, parallel system of law. A new court came into existence, the Court of Chancery, and the Chancellor became a judge who decided according to his conscience.

There were now two systems of law: common law (this is the second meaning of the term common law, meaning the law apart from equity) and equity.

More about the term common law and more about equity in later entries.

Vocabulary note: a remedy is what you want the court to award you: damages, specific performance. Synonyms are redress and relief. Sometimes it might be translated as Klagebegehren (also prayer for relief). It might be translated as Abhilfe, but the commonly encountered translations Rechtsmittel and Rechtsbehelf are not correct.

Equity is a misleading term. It is not necessarily any fairer than the common law. The German term Billigkeitsrecht has been developed to translate it, but if you translate into French, you should avoid équité.

For an excellent, brief and manageable account in German of English private law and its history, see Dieter Henrich, Einführung in das Englische Privatrecht. I don't know the third edition (2003, co-author Peter Huber). The second edition (1993) was not a major departure from the first (1971), because so much of the book is historical.

Introduction to English law for translators and/or non-lawyers

This is the fourth in an occasional (very occasional) series of updates of my teaching material.

All entries have the tag IEL (introduction to English law - for translators).

This is intended to be a 'bare bones' introduction, and there is a conflict between simplicity and accuracy.

The topic is the meaning of English law. I am avoiding the term common law, which has even more meanings and is the topic for the next entry.

1. First of all, when did it start?

The easiest answer is: some time after 1066, when William the Conqueror laid claim to the whole of England as the successor to the crown. Under his successors, the legal system intended for the whole of England spread out over most of the British Isles (but not Scotland - Scots (or Scottish) law developed separately and is quite different from English law).

(1066 is both too late - there was no clean break from pre-1066 law - and too early - the centralized system of law did not really bite until into the 12th century.)

Before 1066 there were local courts, from which the local barons earned money. They continued after 1066 but gradually became less important. From 1066 on, William I introduced a central system of courts in London, with jurisdiction over the whole country. Through travelling judges, it spread out to the provinces. But the main work of developing the law was done after William I.

2. Today, English law means the law of England and Wales. The UK has one parliament, but three legal systems: for England and Wales; Northern Ireland; and Scotland. The House of Lords is the highest civil (not criminal) court of appeal for England, Scotland and Northern Ireland. Some Acts passed in Westminster apply to Scotland too, some apply in part to Scotland, some apply to Scotland only. On top of that, Scotland has its own parliament now, and some domestic Scottish matters have been devolved to it (education, health, agriculture and justice). Lawyers qualify in one of the three jurisdictions.

English law was exported to colonies and became the basis of the legal system in nearly all of the USA (not Louisiana), Canada (not Quebec), Australia and so on. It is also the basis of law in the Republic of Ireland. The law of most US states is based on the law of England up to the 18th century. US lawyers still study old English cases, and even cases decided after 1776.

English law has been developing for a period of over 1,000 years. It has evolved gradually, especially through the decisions of judges. There has never been codification, although some statutes have codified smaller areas of law (for example, Sale of Goods Act 1893/1979).

Introduction to English law for translators and/or non-lawyers

Following the list of geographical and political terms around the islands, I now turn to the legal systems in the United Kingdom.

The first point is that there are three legal systems in the UK: in England and Wales; in Scotland; and in Northern Ireland.

We don't usually talk about UK law or British law.

To compare:

Germany is a unitary state with federal law. There is some law that varies from Land to Land, but most law is federal. It's German law.

The USA has fifty states and a federal district - these are separate jurisdictions. Thus you get the law of New York, the law of California, the law of Texas and so on. It also has federal law, not a huge amount but some: U.S. law.

But the UK has no federal law, although it has a central parliament in Westminster, and a central government and monarch (there has been some devolution in recent years to the Scottish Parliament and the Welsh Assembly, and Northern Ireland has an Assembly too and has intermittently had some self-government since it came into existence).

This is put succinctly by the New Oxford Companion to Law:

The United Kingdom is an unusual state in that it is comprised of three separate legal systems ... This reflects the history of relationships amongst these entities. When the United Kingdom came into being in 1801, it was not a traditional unitary state. While a head of state, government, and Parliament were all shared, when the new United Kingdom Parliament legislated for this new state it was not making United Kingdom or British law, but rather making common provisions which would apply in all of the three legal systems. This continues under the devolution arrangements which have been in place since 1999. There is no separate system of federal law in respect of those powers which have not been devolved from the Westminster Parliament to the Scottish Parliament, the Welsh Assembly, and the Northern Ireland Assembly.

Terms: Jurisdiction: One could say: there are three legal systems, or three jurisdictions. One meaning of jurisdiction is an area with its own legal system. Thus the term 'English law' is short for 'English and Welsh law' and refers to the legal system in the jurisdiction of England and Wales. This term has no simple equivalent in German. Jurisdiction can also mean the area of a court's jurisdiction (Gerichtsbezirk, Zuständigkeit).

The best translation into German of 'in various/several/other jurisdictions' is often 'in ... Ländern'.

One sometimes encounters the German term Jurisdiktion translated as Rechtsprechung or die rechtsprechende Gewalt. Here we are getting into deeper waters. Problems my students had here may have resulted from the fact that they weren't really familiar with the terms in German, so the English equivalent didn't register either. Die rechtsprechende Gewalt, one of the three branches of power, is the judiciary (Richterschaft).

The three branches of power: the executive, the legislature, the judiciary (Exekutive, Legislative, Judikative).

But Rechtsprechung is more commonly used to mean case law.

Of course, the literal translation from the Latin of Jurisdiktion is Rechtsprechung, but that doesn't help.

English law: (now) the law of England and Wales

There are separate legal systems in the Isle of Man and the Channel Isles, but these are not part of the UK.

English law today means the legal system of England and Wales, with its system of courts and lawyers. Historically, England was the country where the common law first developed. It spread from England to Wales and to the whole of the island of Ireland, but it did not spread to Scotland. Scots law is a hybrid system, a mixture of civil law (kontinentaleuropäisch) and common law. Thus the legal system in the independent country Ireland is closer to that of England than the legal system in Scotland, a part of the UK.

Introduction to English law for translators and/or non-lawyers



This Euler diagram of British Isles terminology (Wikipedia, GNU Free Documentation Licence) seems a good place to start. By 'start', I mean get a few terms straight before plunging into how the common law came into existence on the islands.

On the diagram, red means 'geographic' and blue means 'political entities (may also be geographic)'.

But note that the Wikipedia article Terminology of the British Isles has many other maps and comments on this terminology.

Now let's consider some, but not all, of the terms.

Geographical terms

Great Britain: the name of the large island. It comes from the Old French for Brittany. OED Britain: 'The proper name of the whole island containing England, Wales, and Scotland, with their dependencies; more fully called Great Britain; now also used for the British state or empire as a whole.'

Great Britain also includes a number of offshore islands, although they are not mentioned separately here, for instance the Shetlands, the Orkneys, the Hebrides, Anglesey, the Isle of Wight. It does not include the Channel Isles or the Isle of Man - or does it?

The British Isles: Two comments on this. First, as it's a geographical term, I have always assumed it did not include the Channel Isles, which are geographically much closer to Europe. Second, it's a controversial term, especially in Ireland. Some alternatives are mooted here, for instance Great Britain and Ireland (but that apparently omits the Isle of Man from the group).

Political terms

British Islands: This is a fairly uncommon term, but it is defined in the Interpretation Act.

“British Islands” means the United Kingdom, the Channel Islands and the Isle of Man. [1889]

United Kingdom: the full political name is The United Kingdom of Great Britain and Northern Ireland. As the diagram shows, it doesn't include the Channel Islands and the Isle of Man. These are Crown dependencies, so they are politically associated with the UK.

Republic of Ireland: This term is widely used, especially in Britain. But the name of the country is Ireland (or in Irish Éire). That's what it's called in the EU, too.

Introduction to English law for translators and/or non-lawyers

About this introduction

I've been considering revising some notes I used to use with students, originally entitled Introduction to English Law (should it be the Law of England and Wales, or Law in English?).

The original idea was that one booklet should briefly cover many areas of law. Then, if a written or at-sight translation text dealt with a topic that had not yet been taught, all the students could be referred to the relevant pages.

This was at the Institut für Fremdsprachen in Erlangen. At the SDI in Munich, I think the text used was Law Made Simple, by Colin Padfield (now by Barker and Padfield; ISBN of the 2007 edition is 978-0750684941).

But things have changed since 1994 (I was teaching till 2002, with more up-to-date handouts not integrated into the script). Indeed, the syllabus in Bavaria has changed and sounds much more useful for translators.

In the UK, Wales and Scotland now have their own parliaments. Some of the courts have changed their names. There is a Ministry of Justice.

The notes are intended for translators, and there is a place for both PC and non-PC terms. Thus The British Isles is a controversial term in some quarters, especially Ireland, but at the same time it's used as a geographical term for all the islands without any intention to insult.

The whole complex of geographical and political terms is a tin of worms, to coin a phrase. I'll introduce it in a separate entry. No comments on those terms under this entry.