Keith Mack
The United Kingdom comprises three major legal systems: those of England and Wales, Scotland, and Northern Ireland. The UK has a common-law system, which is a body of law primarily developed through judicial decisions rather than statutes. Common law is deeply rooted in stare decisis, meaning that courts follow precedents established by previous decisions. The English common law originated in the early Middle Ages in the King's Court, a single royal court set up for most of the country at Westminster, near London.
| Characteristics | Values |
|---|---|
| Origin | The English common law originated in the early Middle Ages in the King's Court (Curia Regis) |
| Location | England and Wales, Scotland, and Northern Ireland |
| Basis | Precedent and custom |
| International treaties | International treaties must be formally ratified by Parliament and incorporated into statutes before becoming binding in the UK |
| Criminal law | Most of its criminal law has been codified from its common-law origins |
| Murder | Murder remains a common law crime rather than a statutory offence |
| Scotland | Scotland has a unique system that combines elements of an uncodified civil law with its own common law |
| Judicial decisions | Common law is primarily developed through judicial decisions rather than statutes |
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What You'll Learn
The history of common law in the UK
The common law of the United Kingdom has a long and complex history that dates back to the early Middle Ages. During this period, the English common law originated in the King's Court (Curia Regis), a single royal court established in Westminster, near London. This court served most of the country and laid the foundation for the legal traditions of English-speaking countries, known as the "Common Law".
The term "common law" was coined in the late 1100s during the reign of King Henry II, when a shift occurred from local, informal power arrangements to a more centralised system of royal justice. This expansion of royal justice aimed to provide a uniform set of laws that applied equally across the entire country, as opposed to the diverse regional and local laws that previously existed. The doctrine of binding precedent, also known as "stare decisis", emerged during this time, establishing a hierarchy of courts and a consistent approach to legal decision-making.
In the early centuries of English common law, justices and judges played a crucial role in adapting the system of writs to meet everyday needs. They applied a combination of precedent and common sense to create a coherent body of law. An example is the Law Merchant, derived from the "Pie-Powder" Courts, which implies ad hoc marketplace courts. The 12th century also witnessed the establishment of permanent royal courts, such as the Courts of the King's Bench and of Common Pleas, marking a significant step towards a more formal and organised system of justice.
The influence of English common law extended beyond its borders, particularly to Ireland, where it directly shaped the legal system. However, Scotland, while part of the United Kingdom, has a unique legal system that combines elements of civil law and its own long-standing common law traditions. The integration of the United Kingdom's legal systems into the European Union (EU) law in 1973 further influenced the domestic law of its constituent states, introducing elements of the civil-law tradition into the predominantly common-law systems.
Today, the United Kingdom comprises three major legal jurisdictions: England and Wales, Scotland, and Northern Ireland, each with its own distinct legal nuances. While common law traditions continue to play a significant role, the UK's relationship with international law and the process of devolution have also contributed to the evolution and complexity of the country's legal landscape.
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Common law in criminal cases
Common law is a term with historical origins in the English legal system. It is the law declared by judges, derived from custom and precedent. It originated with the legal reforms of King Henry II in the 12th century and was called "common" because it applied equally across the whole country. English criminal law derives its main principles from common law. The main elements of a crime are the actus reus (doing something which is criminally prohibited) and a mens rea (having the requisite criminal state of mind, usually intention or recklessness).
Common law offences are crimes under English criminal law and the related criminal law of some Commonwealth countries, as well as under some U.S. state laws. They are offences under the common law, developed entirely by the law courts, having no specific basis in statute. In England and Wales, the Law Commission's programme of codification of criminal law included the aim of abolishing all remaining common law offences and replacing them, where appropriate, with offences precisely defined by statute. Common law offences were seen as unacceptably vague and open to development by the courts in ways that might offend the principle of certainty.
However, neither the Law Commission nor the UK Parliament have completed the necessary revisions of the law, so some common law offences still exist. In England and Wales, unless a specific maximum sentence has been codified, common law offences are punishable by unlimited fines and unlimited imprisonment. Murder, for example, remains a common law crime rather than a statutory offence. In some U.S. states, the elements of many crimes are defined mostly or entirely by common law, i.e., by prior judicial decisions. For instance, Michigan's penal code does not define the crime of murder: while the penalties for murder are laid out in statute, the actual elements of murder and their meaning are entirely set out in case law.
In all criminal trials, there are a number of procedural protections for defendants, stemming from both common law and the obligations of the European Convention on Human Rights, particularly Article 6. These include the presumption of innocence, the right to silence, and the qualified rule against double jeopardy.
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Common law in civil cases
The United Kingdom of Great Britain and Northern Ireland is made up of three legal jurisdictions: England and Wales, Scotland, and Northern Ireland. Scotland and Northern Ireland have separate legal systems from England and Wales, but they share the Supreme Court for civil cases.
Common law is a term with historical origins in the English legal system. It is a body of unwritten laws based on legal precedents established by the courts. It originated with the legal reforms of King Henry II in the 12th century and was called "common" because it applied equally across the whole country. The doctrine of binding precedent, also known as stare decisis, is a history of judicial decisions that form the basis of evaluation for future cases. Common law relies on detailed records of similar situations and statutes because there is no official legal code that can be applied to a specific case. The judge presiding over a case determines which precedents apply to that particular case.
In the context of civil cases, common law was devised as a means of compensating someone for wrongful acts known as torts, including both intentional torts and torts caused by negligence, and as a way of developing the body of law recognizing and regulating contracts. A tort is a legal wrong, and a claim based on a tort requires the claimant to establish that the defendant owed a 'duty of care' and that they breached that duty. Common law also covers disputes over contracts, such as whether a contract existed, what its terms meant, and whether it was breached.
The common law of England was largely created in the period after the Norman Conquest of 1066. It continued to be developed primarily by judges rather than legislators until the late 19th century. The reliance on judicial opinion is a strength of common law systems and has contributed to the robust commercial systems in the United Kingdom and the United States.
However, the traditions of common law have historically led to the unfair marginalization or disempowerment of certain groups. Past decisions, whether outdated or biased, continue to shape future rulings until societal changes prompt a judicial body to overturn the precedent. For example, in England, common law held until the 1970s that fathers were entitled to custody of the children in cases of divorce, effectively keeping women trapped in marriages.
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Common law in Scotland
The United Kingdom comprises three major legal systems: those of England and Wales, Scotland, and Northern Ireland. While the common-law system in England has directly influenced that of Ireland, it has only partially influenced the distinct legal system in Scotland.
Scots law is a hybrid or mixed legal system containing civil law and common law elements, tracing its roots back to several different historical sources. It recognises four sources of law: legislation, legal precedent, specific academic writings, and custom.
The historical roots of the common law of Scotland are the customary laws of the different cultures that inhabited the region, mixed with feudal concepts. The influence that English-trained judges have had on the common law of Scotland through rulings of the Supreme Court of the United Kingdom (and formerly the House of Lords) has been significant, especially in areas of law where conformity was required across the United Kingdom.
The common law of Scotland should not be confused with that of England, which has different historical roots. English common law originated in the early Middle Ages in the King's Court (Curia Regis), a single royal court set up for most of the country at Westminster, near London. It was largely created in the period after the Norman Conquest of 1066.
Common law is an important legal source in Scotland, especially in criminal law, where a large body of legal precedent has been developed. Sources of common law in Scotland are the decisions of the Scottish courts and certain rulings of the Supreme Court of the United Kingdom.
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Common law and international treaties
The United Kingdom is a unitary state in international law, but it comprises three distinct legal systems: England and Wales, Scotland, and Northern Ireland. While Scotland and Northern Ireland share the Westminster Parliament as their primary legislature, they have separate legal systems from England.
The English common law, which also applies in Wales, has its origins in the early Middle Ages in the King's Court (Curia Regis). It is a body of customary law based on judicial decisions and embodied in reports of decided cases. It has been administered by the common-law courts of England since the Middle Ages. The common law includes both substantive rules, such as the offence of murder, and procedural ones, such as court procedure rules derived from the inherent jurisdiction of the court.
International law, on the other hand, governs relations between nations and sets forth mandates for those nations to follow. Treaties are a key component of international law and are binding agreements between nations that outline the rights and obligations of participating countries. Treaties can be bilateral, between two states, or multilateral, between three or more states. They can also include the creation of rights for individuals. For example, the Geneva Conventions treaty requires national law to conform to its provisions.
In the UK, international treaties must be formally ratified by Parliament and incorporated into statute before they become binding. Treaties like the European Union's Treaty of Rome or the Hague-Visby Rules only have effect in English law when adopted and ratified by an Act of Parliament. This is because Britain is a dualist in its relationship with international law.
The relationship between national legal systems and international law is complex and variable. While international law is not strictly enforceable upon nations, treaties and the possibility of economic sanctions incentivise compliance. Additionally, national law may become international law when treaties permit national jurisdiction to supranational tribunals, such as the European Court of Human Rights.
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Frequently asked questions
Common law is a body of law primarily developed through judicial decisions rather than statutes. It is deeply rooted in stare decisis, which means "to stand by things decided".
The UK does have common law, which has been administered by the common-law courts of England since the Middle Ages.
The English common law originated in the early Middle Ages in the King's Court (Curia Regis), a single royal court set up for most of the country at Westminster, near London.
Common law is based on precedent—judicial rulings made in previous similar cases. The presiding judge determines which precedents to apply in deciding each new case.
Common law includes both substantive rules, such as the offence of murder, and procedural ones, such as court procedure rules derived from the inherent jurisdiction of the court.
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