Gavin Howe
The common law system in the UK has a long history, dating back to the Middle Ages. It originated in England, with the legal reforms of King Henry II in the 12th century, and was called “common” because it applied across the whole country. The common law is a body of law based on court decisions, customs, and precedent, rather than codes or statutes. It has directly influenced the legal systems in Wales, Ireland, and the United States and is contrasted with the civil law system, which is widespread in continental Europe. The UK's Supreme Court is the final court of appeal for civil law cases in England, Wales, and Northern Ireland, while criminal law cases in Scotland are handled by the High Court of Justiciary. The common law system is known for its flexibility, allowing higher courts to overrule prior decisions and address situations not originally predicted by lawmakers.
| Characteristics | Values |
|---|---|
| Origin | The common law of England was largely created after the Norman Conquest of 1066, building on the Anglo-Saxon body of rules resembling those used by Germanic peoples in northern Europe. |
| Administration | Administered by the common-law courts of England since the Middle Ages |
| Basis | Based on court decisions, custom, and precedent, rather than codes or statutes. |
| Influence | Influenced the legal systems of the United States and most Commonwealth member states. |
| Integration | Integrated into European Union (EU) law in 1973, but the UK exited the EU in 2020. |
| Jurisdiction | The UK has three main jurisdictions: England and Wales, Scotland, and Northern Ireland, each with its own laws, court systems, lawyers, and judges. |
| Appeal Process | The Supreme Court of the United Kingdom is the final court of appeal for civil law cases in England, Wales, and Northern Ireland, but not Scotland, where the High Court of Justiciary has this power. |
| Strengths | Stability, consistency, efficiency, and adaptability due to reliance on judicial opinion and precedent. |
| Limitations | Judges cannot reform outdated laws derived from statutes; only Parliament can make such changes. |
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What You'll Learn
The Curia Regis
By the fourteenth century, the term Curia Regis was no longer in use. However, its legacy is significant, as it laid the foundation for the development of the higher courts of law and early government departments in England.
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The King's Courts
The English legal system has three main 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 common law of England was largely created in the period after the Norman Conquest of 1066. The Anglo-Saxons, especially after the accession of Alfred the Great in 871, had a body of rules resembling those used by Germanic peoples in northern Europe. Local customs governed most matters, while the church played a large part in government. Crimes were treated as wrongs for which compensation was made to the victim.
The Norman Conquest did not bring an immediate end to Anglo-Saxon law, but a period of colonial rule by the mainly Norman conquerors produced change. Land was allocated to feudal vassals of the king, and serious wrongs were regarded mainly as public crimes rather than as personal matters. The perpetrators were punished by death and forfeiture of property. The common law was historically administered in the king's courts, and equity developed as a separate system of mainly discretionary remedies administered by the Lord Chancellor.
The main sources for the history of common law in the Middle Ages are the plea rolls and the Year Books. The plea rolls, which were the official court records for the Courts of Common Pleas and King's Bench, were written in Latin. The rolls were made up in bundles by law term: Hilary, Easter, Trinity, and Michaelmas, or winter, spring, summer, and autumn. They are currently deposited in the UK National Archives, where images of the rolls for the Courts of Common Pleas, King's Bench, and Exchequer of Pleas, from the 13th century to the 17th, can be viewed online at the Anglo-American Legal Tradition site.
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. Common law stands in contrast to the legal system derived from civil law, now widespread in continental Europe and elsewhere. Common law is based on court decisions rather than codes or statutes, and at its centre is the legal principle of stare decisis, which means "to stand by things decided". In other words, courts and judges need to follow previous decisions and rulings when dealing with similar cases later. This promotes stability and consistency because everyone involved knows that the ultimate outcome will be based on previous caselaw and not on subjective, personal viewpoints.
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The influence of canon law
Canon law, or ecclesiastical law, is a set of ordinances and regulations made by ecclesiastical authorities (church leadership) for the governance of a Christian organisation or church and its members. Canon law includes the internal ecclesiastical law, or operational policy, governing the Catholic Church, the Eastern Orthodox and Oriental Orthodox churches, and individual national churches within the Anglican Communion.
Canon law has had a significant influence on the development of common law in the United Kingdom. The Catholic Church has the oldest continuously functioning internal legal system in Western Europe, which predates the evolution of modern European civil law traditions. The institutions and practices of Catholic canon law paralleled the legal development of much of Europe, and consequently, both modern civil law and common law bear the influence of canon law. Canon law was also closely interrelated with secular systems of formal law, and many university-trained lawyers who studied canon law became experts in secular law as well.
In the United Kingdom, the influence of canon law on common law can be traced back to the Middle Ages, when the Catholic Church operated its own court system that adjudicated issues of canon law, including what would today be regarded as family law. The plea rolls and the Year Books are the main sources for the history of common law during this period. The plea rolls, written in Latin, were the official court records for the Courts of Common Pleas and King's Bench and are now deposited in the UK National Archives.
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The role of judges
The UK's legal system is divided into three jurisdictions: England and Wales, Scotland, and Northern Ireland. Each jurisdiction has its own laws, court system, and judges. While Scotland's legal system combines elements of civil law and its own common law traditions, England and Wales have a more direct influence on each other's legal systems.
However, there are limitations to the power of judges in reforming outdated laws, especially those derived from statutes. In such cases, only Parliament has the authority to implement changes. Nonetheless, judges play a pivotal role in interpreting and applying the law within the framework set by legislative bodies, contributing to the dynamic and evolving nature of common law in the UK.
In conclusion, the role of judges in the UK's common law system is essential for maintaining stability, consistency, and efficiency. Through the use of precedents and their ability to address unforeseen situations, judges contribute to a robust and adaptable legal framework that has influenced legal systems worldwide. While their power to reform laws is limited, judges remain key players in the ongoing evolution and interpretation of common law in the UK.
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The impact of devolution
The common law of England was largely created in the period after the Norman Conquest of 1066. The Anglo-Saxons, especially after the accession of Alfred the Great in 871, had a body of rules resembling those used by Germanic peoples in northern Europe.
Devolution has had a significant impact on the UK's legal landscape, prompting legal issues and transforming British law. It has introduced legal and policy diversity, with legislative divergence across the UK's regions. Devolved powers have resulted in regionalised legal landscapes, with legislative competencies distributed to the devolved nations. This has fostered innovation and amplified regional perspectives within the legal framework, balancing unity with diversity.
Devolution has also had constitutional implications, triggering an ongoing process of constitutional change. It has resulted in the Scottish Parliament gaining powers over areas such as education, which were previously under the remit of the UK Parliament. However, devolved powers are subject to restrictions, such as the need to observe the European Convention on Human Rights and the inability to legislate in areas reserved for the UK Parliament, including defence and taxation.
The UK's devolution process has also raised questions about the lack of a devolved Parliament in England, known as the "West Lothian question". This question concerns the fact that Scottish MPs can make laws for England on devolved matters, while English MPs cannot do the same for Scotland. There have been debates about adopting a federal system, with each of the four Home Nations having equal devolved legislatures and law-making powers.
In conclusion, devolution has had a transformative impact on the UK's legal and constitutional landscape, introducing diversity, innovation, and regional perspectives while also raising complex questions about the balance of power and governance.
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Frequently asked questions
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, a Latin phrase that means "to stand by things decided".
Common law is created by judges who need only follow precedent when making decisions. It is based on custom and precedent and is derived from procedural remedies.
Common law relies on caselaw and legal precedent to guide decisions, whereas civil law relies primarily on codes and statutes. Civil law centres around a comprehensive code of statutes that outlines procedures and punishments.
Common law in the UK is based on the country's historical legal system, which originated in the King's Court (Curia Regis) in the early Middle Ages. It has been administered by the common-law courts of England since the Middle Ages and continues to be a major legal system in the UK alongside those of England and Wales, Scotland, and Northern Ireland.
Common law systems, such as those in the UK and the US, rely on judicial opinion, which contributes to robust commercial systems.
