Cameron Miranda
The United Kingdom of Great Britain and Northern Ireland comprises three legal jurisdictions: England and Wales, Scotland, and Northern Ireland. While Scotland and Northern Ireland share the Westminster Parliament as their primary legislature, each has its own distinct legal system. England and Wales, on the other hand, operate under a common law system, which combines the passing of legislation and the creation of precedents through case law. This common law system, with its roots in the practices of English kings after the Norman Conquest in 1066, forms the basis of English law and has been spread to various parts of the world through colonisation.
| Characteristics | Values |
|---|---|
| Type of legal system | Common law |
| Basis | Judicial decisions, custom, and precedent |
| Sources of law | Primary and secondary |
| Primary legislation | Acts of the Senedd, Orders in Council |
| Secondary legislation | Statutes |
| Judicial decisions | Binding |
| Scope of contract law | Extensive freedom |
| Commercial funding | Greater flexibility |
| Emphasis when a business gets into financial trouble | Reorganization rather than liquidation |
| Codification | No comprehensive codification |
| Criminal law | Codified from common law origins |
| Civil law | Concerned with tort, contract, families, companies |
| Civil law courts | Provide remedies such as damages or a declaration |
| Civil law basis | Ideas of Roman law |
| Common law | Built upon case law |
| Common law jurisdiction | England, Wales, Northern Ireland |
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What You'll Learn
The UK's legal jurisdictions
The United Kingdom is divided into three main legal jurisdictions or self-contained legal systems: England and Wales, Scotland, and Northern Ireland. Each jurisdiction has its own laws, court system, lawyers, and judges. The UK does not have a single unified legal system because it was formed by the political union of previously independent countries.
English law, which is the common law legal system of England and Wales, is made by the Parliament at Westminster. It comprises mainly criminal law and civil law, each branch having its own courts and procedures. The common law has historically been the foundation and prime source of English law, but the most authoritative law is statutory legislation, which comprises Acts of Parliament, regulations, and by-laws. Common law can be amended or repealed by Parliament.
Scots law has remained distinct from English law, despite Scotland becoming part of the UK over 300 years ago. Similarly, Northern Ireland has a separate legal system outside of English law.
Wales is not generally considered a fourth jurisdiction of the United Kingdom because its judiciary and courts follow England and Wales law. However, since 2007, there have been calls for a fourth type of law, purely Welsh law, as a result of Welsh devolution. A commission set up in 2017 by the First Minister of Wales, known as "The Commission on Justice in Wales", recommended the full devolution of the Welsh justice system. This would formalise Wales as the fourth jurisdiction of the UK.
The UK's highest civil appeal court is the Supreme Court of the United Kingdom, whose decisions are binding on all three UK jurisdictions. The Supreme Court sits above all other courts as the final court of appeal.
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Common law's history
The common law is a body of unwritten laws based on legal precedents established by the courts. It is also known as case law. Common law is derived from custom and precedent and is declared by judges. It is the law of England and Wales, comprising mainly criminal law and civil law, each branch having its own courts and procedures.
The common law has its origins 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 did not originally consist of substantive rights but rather of procedural remedies. Precedents are maintained over time through court records and are historically documented in collections of case law referred to as yearbooks and law reports.
The common law drew from earlier Anglo-Saxon traditions such as the jury, ordeals, the penalty of outlawry, and writs – all of which were incorporated into the Norman common law. The Catholic Church also operated its own court system that adjudicated issues of canon law, which included much of what would today be regarded as family law.
Common law is the foundation and prime source of English law, but the most authoritative law is statutory legislation, which comprises Acts of Parliament, regulations, and by-laws. Common law can be amended or repealed by Parliament. It can also be superseded or replaced by legislation, which is said to "trump" or take precedence over the common law.
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Civil law's foundations
Civil law, also known as continental or Romano-Germanic law, is a legal system with foundations in the Roman Empire. It is the most common legal system globally, practised in about 150 countries. Civil law is characterised by its reliance on legal codes as the primary source of law, in contrast to common law systems like those in the UK, which are heavily based on judicial precedent.
Civil law is rooted in the concept of 'jus civile' or 'citizens' law' in Latin, referring to the legal system of the Roman Empire as distinct from the laws governing conquered peoples ('jus gentium'). The Justinian Code, titled ''Corpus Juris Civilis', forms the basis of civil law, which draws heavily from Roman law. Civil law systems are organised and favour cooperation, order, and predictability, reflecting a logical and dynamic taxonomy derived from Roman law.
Civil law codes are systematically arranged collections of interrelated articles, providing citizens and judges with a written collection of applicable laws. These codes explain the principles of law, rights, and entitlements and outline how basic legal mechanisms work. They are typically concise, broadly applicable, and avoid factually specific scenarios, allowing for adaptability and interpretation by the judiciary.
While civil law jurisdictions generate a significant number of reported legal opinions, they place less emphasis on court decisions as precedent. Instead, civil law is primarily a legislative system, with statutory law taking precedence over case law. Civil law systems are found worldwide, including in Continental Europe, Central and South America, Asia, and parts of North America, such as Louisiana and Quebec.
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Differences between common and civil law
There are two main types of legal systems in the world: Common Law and Civil Law. Countries that follow a common law system are typically those that were former British colonies or protectorates, including the United States, while civil law countries are usually those that were former French, Dutch, German, Spanish or Portuguese colonies or protectorates.
Common Law
Common law, also known as case law, is a body of unwritten laws based on legal precedents established by the courts. It relies on detailed records of similar situations and statutes because there is no official legal code that can be directly applied to a case at hand. The presiding judge determines which precedents apply to a particular case. Judicial decisions are binding, and decisions of the highest court can only be generally overturned by that same court or through legislation. Common law grants extensive freedom of contract, with few provisions implied into the contract by law. Generally, everything that is not expressly prohibited by law is permitted.
Civil Law
Civil law is a codified system of law based on legal codes. It originates from Roman law. In civil law systems, a legislator drafts a law and writes it into the code, which the court is required to follow. However, the court is not bound by its interpretation of the code and may interpret it differently in the future. Many civil law codes are "comprehensive", meaning that anything not in the code is not law. There are more provisions implied into a contract under the civil law system, so contracts are often shorter than in common law countries.
Differences in the Appointment of Judges
Under common law, judges are usually appointed after successful legal careers, while civil law jurisdictions tend to appoint graduates straight out of university.
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Common law in other countries
Common law is a term with historical origins in the legal system of England. It is the foundation and prime source of English law, comprising mainly criminal law and civil law. Common law is made by sitting judges who apply both statutory law and established principles derived from the reasoning from earlier decisions.
English common law has been adopted by many other countries, especially those that were formerly colonized by England, Great Britain, or the United Kingdom. These include Australia, the Caribbean jurisdictions of Antigua and Barbuda, Barbados, the Bahamas, Dominica, Grenada, Jamaica, St Vincent and the Grenadines, Saint Kitts and Nevis, Trinidad and Tobago, and many other generally English-speaking countries or Commonwealth countries. Notably, every country that was previously colonized by England or the United Kingdom uses common law, except those that were formerly colonized by other nations, such as Quebec, South Africa, and Sri Lanka, which retained their prior civil law systems.
Ghana, after gaining independence, also retained the common law system inherited from the British and enshrined it in its 1992 Constitution. Similarly, the United States, both at the federal level and in each state and territory, follows common law, with the partial exception of Louisiana and Puerto Rico.
Common law and civil law systems are the two most widespread legal traditions in the world. Civil law is the most widespread by landmass and overall population, while common law is employed by the greatest number of people compared to any single civil law system. Civil law is prevalent in continental Europe and Asia, while common law is more prominent in English-speaking countries, with scattered shareholding, deep and transparent financial markets, and relatively autonomous boards and managers.
In conclusion, common law has been adopted by numerous countries, especially former British colonies, and serves as the basis of their legal systems. It is characterized by its flexibility, judicial precedent, and ability to adapt to changing circumstances, making it a dynamic and influential legal tradition worldwide.
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Frequently asked questions
Civil law is a legal system based on a code of laws, whereas common law is based on the doctrine of precedent. Common law is derived from judicial decisions, custom, and usage, while civil law has a written constitution based on specific codes.
The UK practices both common law and civil law. England and Wales operate a common law system, while Scotland and Northern Ireland have separate legal systems.
Common law includes substantive rules such as the offence of murder and procedural ones such as court procedure rules. It also includes torts, which are civil wrongs such as negligence, nuisance, defamation, and misuse of private information.
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