Keith Mack
The common law system in England, which has been applied to Wales since 1536, has directly influenced the legal system in Ireland and partially influenced the distinct legal system in Scotland. Common law is a body of law based on court decisions rather than codes or statutes. It originated in the practices of the courts of the English kings in the centuries following the Norman Conquest in 1066. It is named so because it was common to all the king's courts across England. The common law system stands in contrast to the civil law system, which is based on a code of laws. Common law still has practical applications in some areas of law, such as contract law and the law of torts.
| Characteristics | Values |
|---|---|
| Definition | Common law is a body of law based on court decisions rather than codes or statutes. |
| History | Common law originated in the practices of the courts of the English kings in the centuries following the Norman Conquest in 1066. |
| Influence | Common law has influenced the legal systems of former British colonies, including the United States and most members of the Commonwealth. |
| Current Status in the UK | England and Wales operate under a common law system, while Scotland and Northern Ireland have separate legal systems. |
| Relationship with Statutes | Statutes can supersede, codify, or overrule common law. Common law has practical applications in areas such as contract law and the law of torts. |
| Judicial Precedent | Common law follows the principle of stare decisis, where courts and judges adhere to previous decisions and rulings in similar cases, also known as case law or judicial precedent. |
| Benefits | Common law promotes stability, consistency, and efficiency by providing a framework for judges to follow precedents, saving time and costs in court proceedings. |
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What You'll Learn
Common law in the UK today
Common law, which originated in the practices of the courts of the English kings following the Norman Conquest in 1066, still exists in the UK today. It is a body of law based on court decisions rather than codes or statutes. It is derived from custom and precedent and is applied in the king's courts across England.
The UK has three major legal systems: England and Wales, Scotland, and Northern Ireland. England and Wales operate under a common law system, which combines the passing of legislation with the creation of precedents through case law. Common law is still applied in some areas of law, including contract law and the law of torts. For example, disputes over contracts may concern whether a contract ever existed, what its terms meant, or whether one party broke the contract.
Common law is distinct from civil law, which is based on a code of laws and is the system used in continental Europe. In a civil law system, judges' decisions are not binding in later cases, even if the facts are similar. In contrast, common law promotes stability and consistency because everyone knows that the outcome will be based on previous case law, not subjective viewpoints.
Common law has directly influenced the legal system in Ireland and partially influenced the distinct legal system in Scotland.
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Common law's history
The common law in the UK has a long and complex history that dates back to the early Middle Ages. It originated in the practices of the courts of the English kings following the Norman Conquest in 1066. The Norman Conquest did not bring an immediate end to Anglo-Saxon law, but it did bring about significant changes. Land was allocated to feudal vassals of the king, and serious wrongs were regarded as public crimes punishable by death and forfeiture of property. The degree to which common law drew from earlier Anglo-Saxon traditions, such as the jury, ordeals, and writs, is still a subject of debate among scholars.
During the Middle Ages, the main sources of common law were the plea rolls and the Year Books. The plea rolls were the official court records for the Courts of Common Pleas and King's Bench, written in Latin and bundled by law term. The doctrine of precedent, which is a key characteristic of common law, developed during the 12th and 13th centuries, with judicial decisions based on tradition, custom, and precedent. This form of reasoning is known as casuistry or case-based reasoning.
Over time, the English common-law system directly influenced the legal systems in Wales (since 1536) and Ireland, but only partially influenced Scotland's distinct legal system. Scotland has a unique system that combines elements of uncodified civil law with its own common law traditions, which predate the Treaty of Union with England in 1707. Scottish common law differs in its approach to precedent, with courts seeking to discover the underlying principles rather than specific examples.
In 1973, the legal systems in the United Kingdom became integrated with European Union (EU) law, which influenced the domestic law of its constituent states. However, the UK exited the EU in 2020, and the European Convention on Human Rights and the Human Rights Act of 1998 continue to have a similar influence on UK law.
Today, common law in England and Wales combines the passing of legislation with the creation of precedents through case law. The laws are established by the passing of legislation by Parliament, which consists of the Monarch, the House of Commons, and the House of Lords. The Court System and case law are controlled by the judiciary, which operates independently of Parliament. While statutes generally supersede common law, common law still has practical applications in areas such as contract law and the law of torts.
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Common law vs civil law
Common law, which originated in England in the Middle Ages, is a body of unwritten law based on judicial decisions and embodied in reports of decided cases. It is administered by the common-law courts of England, and has been adopted by several other countries, including those that were formerly British colonies or protectorates, such as the United States. Common law is less prescriptive than civil law, and generally permits everything that is not expressly prohibited. It is characterised by its heavy reliance on judicial precedent, and decisions of the highest court can only be overturned by that same court or through legislation.
Civil law, on the other hand, is the most common legal system in the world, with about 150 countries practising it. It is rooted in the Roman Empire and was comprehensively codified and disseminated in the 19th century, with notable examples including France's Napoleonic Code and Germany's Bürgerliches Gesetzbuch. Civil law is more prescriptive than common law, and places less importance on setting out all the terms governing the relationship between the parties to a contract in the contract itself. This is because inadequacies or ambiguities can be resolved by operation of law. Civil law is characterised by its reliance on legal codes as the primary source of law, and judges tend to give less weight to precedent.
In the United Kingdom, England and Wales operate under a common law system, which combines the passing of legislation with the creation of precedents through case law. Scotland, on the other hand, has a separate criminal law system from the rest of the UK, with its own distinct legal system.
Common law and civil law systems have different approaches to contracts. Common law systems have extensive freedom of contract, with few provisions implied into the contract by law. In civil law systems, there are more provisions implied into a contract, and contracts tend to be shorter as a result.
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Common law in Scotland
Common law still exists in the UK, with England and Wales operating a common law system. However, Scotland has a separate criminal law system from the rest of the UK, with its own criminal code and distinct legal traditions.
Scotland's legal system is a hybrid of civil law and common law elements, with roots that can be traced to various historical sources. The country recognises four sources of law: legislation, legal precedent, specific academic writings, and custom.
The common law of Scotland is influenced by the customary laws of the different cultures that inhabited the region, mixed with feudal concepts. It is important to note that Scotland's common law is distinct from that of England, with different historical roots. The historical roots of Scottish common law lie in the customary laws of the various cultural groups that inhabited the region, including the Gaels, Britons, Anglo-Saxons, and Norse.
The influence of English-trained judges on Scottish common law through rulings of the Supreme Court of the United Kingdom has been significant, especially in areas where conformity across the UK was required for pragmatic reasons. This has resulted in interpretations of Scottish common law that some believe are strained, such as in the case of Smith v Bank of Scotland.
Scotland's legal system, including its common law, has also been influenced by Roman law, particularly in the period before the Union with England in 1707, when Scotland adopted much of the Roman law developed by Dutch and French jurists. However, it is important to note that Scottish law is not founded on Roman law but rather turned to it when there were gaps in their own common or customary law.
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Common law in contract law
Common law, which is a body of law based on judicial decisions and embodied in reports of decided cases, has been administered in England since the Middle Ages. It is distinct from civil law, which is widespread in continental Europe. Common law has directly influenced the legal systems in Ireland and Wales, but only partially influenced the distinct legal system in Scotland.
In the context of contract law, common law still has practical applications. The modern law of contract is primarily a product of the Industrial Revolution and 20th-century social legislation. However, its foundations can be traced back to Ancient Athenian and Roman law, and the formal development of English contract law began after the Norman Conquest of 1066. During the Middle Ages, access to courts for contractual disputes was restricted to a privileged few due to onerous requirements. The resolution of these restrictions came in 1585 with the establishment of the Court of Exchequer Chamber to hear common law appeals.
In 1602, the case of Slade v Morley set a precedent for contract law. Slade, a grain merchant, claimed that Morley had agreed to purchase wheat and rye for a set price but then reneged on the agreement. The Court of Common Pleas, which had jurisdiction over debt actions, required proof of the debt and a subsequent promise to repay it to find deceit for non-payment. However, the Court of the King's Bench allowed "assumpsit" actions based solely on proof of the original agreement. This case established that "every contract importeth in itself an Assumpsit".
Another significant case in English contract law is Bret v JS, which established that "natural affection of itself is not a sufficient consideration to ground an assumpsit", and there must be an "express quid pro quo". Additionally, the Statute of Frauds in 1677 codified the contract types that required specific formalities. Over time, principles of international trade law and custom were incorporated into English common law, including commercial certainty, good faith, fair dealing, and the enforceability of seriously intended promises.
Common law continues to influence contract law in the UK, with statutes superseding, codifying, or overruling common law. The 1999 Act, for example, preserved the promisee's right to enforce a contract as per common law. However, there is disagreement about the extent to which a promisee can claim damages on behalf of a third party when they have suffered no personal loss.
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Frequently asked questions
Yes, common law still exists in the UK.
Common law is a body of law based on court decisions rather than codes or statutes. It is a legal principle known as stare decisis, which means "to stand by things decided". In practice, this means that judges need to follow previous rulings when dealing with similar cases later.
England and Wales operate a common-law system that combines the passing of legislation with the creation of precedents through case law. The laws are established by the passing of legislation by Parliament, which consists of the Monarch, the House of Commons, and the House of Lords. The House of Commons is directly elected by the people, and the Prime Minister is traditionally a member of this House. The Court System and case law are controlled by the judiciary, which is completely separate from Parliament.
While common law systems rely on caselaw and legal precedent to guide their decisions, civil law systems rely primarily on codes and statutes. Civil law, which originated in mainland Europe, centres around a comprehensive code of statutes that clearly outlines everything from procedures for handling claims to the punishment for offences. Unlike common law systems, civil law court decisions are not binding in other cases, even if the facts are similar.
