Keith Mack
The common law of England and Wales is one of the major global legal traditions. To understand it, one must delve into its history, the development of its institutions, and the relationship between democracy, human rights, and the law. The University of London offers a free online course that provides an introduction to this influential legal system, covering its history, constitutional background, sources, and institutions. The course explores the English court system and the interplay between English common law and European Union law. The University of London also offers a Certificate of Higher Education in Common Law, which provides a route into an LLB for those who don't meet the requirements.
| Characteristics | Values |
|---|---|
| History | The history of common law and the development of its institutions like the jury, judge-made law, parliamentary sovereignty and due process. |
| Constitutional background | The British Constitution and its sources, as well as the fundamental constitutional principles which underpin the English Legal System. |
| Court system | The English court system, including the different courts in the system and other methods of resolving legal disputes. |
| Sources of law | How laws are made and interpreted. |
| Human rights law | The impact of the Human Rights Act 1998 on the English Legal System, and the relationship to the doctrine of parliamentary sovereignty. |
| EU law | The influence of EU law on English common law, especially in light of the UK's departure from the European Union. |
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What You'll Learn
History of common law
Common law, also known as judicial precedent, judge-made law, or case law, is a body of customary law based on judicial decisions and written documentation. It has its roots in the early Middle Ages in England, specifically in the King's Court (Curia Regis) during the reign of Henry II (1154-89). This court was established in Westminster, London, marking a shift from local, informal power arrangements to a more centralised system of royal justice. The term "common law" refers to the law that was shared or "common" throughout the country, in contrast to the diversity of regional or local laws that existed previously.
The development of common law was influenced by earlier Anglo-Saxon traditions, such as the jury, ordeals, the penalty of outlawry, and writs, which were incorporated into the Norman common law. The Catholic Church's court system, which adjudicated issues of canon law, also played a role in shaping the early common law. During the Middle Ages, the common law system expanded and evolved, with the creation of permanent royal courts and the emphasis on written documentation, peaceful dispute resolution, and a clear hierarchy of courts.
Henry II's establishment of the Grand Jury was a significant innovation, creating a coherent system for prosecuting crimes that integrated local communities with royal judges. The expanded system of royal justice that emerged during this period became known as the "Common Law", which was conservative in terms of substantive law but innovative in terms of procedure. It incorporated customary norms related to crime, family, property, and inheritance without making radical changes.
Over time, the English common law system spread beyond England, influencing the legal systems of its colonies and former colonies, including the United States and most Commonwealth countries. After the American Revolution, the newly formed states adopted the common law system, and it continues to serve as the foundation of legal traditions in English-speaking countries. In contrast to the civil law traditions of continental Europe, common law places greater weight on judicial precedent and written decisions, with judges empowered to resolve issues and establish new precedents in cases of first impression.
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Common law system
The common law of England and Wales is one of the major global legal traditions. It is a body of law based on court decisions and judicial precedent rather than statutes or codes. Common law is more malleable than statutory law, as common law courts can reinterpret and revise the law without legislative intervention. This allows the law to adapt to new trends in political, legal, and social philosophy.
The common law system originated in England during the Middle Ages, specifically in the practices of the courts of the English kings following the Norman Conquest in 1066. It established a unified legal system across the British Isles, which was later spread by the British Empire. Many former colonies, including the United States, Canada, India, and Australia, still retain the common law system today.
In a common law system, precedents are maintained through court records and historical documentation in collections of case law, known as yearbooks and law reports. While court decisions are binding within a particular jurisdiction, there is a degree of complexity in the interactions between common law, constitutional law, statutory law, and regulatory law. For example, in most jurisdictions, decisions by appellate courts are binding on lower courts, but decisions of lower courts are only non-binding persuasive authority.
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Constitutional background
The common law of England and Wales is one of the major global legal traditions. It is derived from judicial decisions and precedent, rather than from statutes or constitutions. This means that the decisions of a court are binding only in a particular jurisdiction, and even within a given jurisdiction, some courts have more power than others. For example, in most jurisdictions, decisions by appellate courts are binding on lower courts in the same jurisdiction, and on future decisions of the same appellate court, but decisions of lower courts are only non-binding persuasive authority.
The English Court of Common Pleas was established after the Magna Carta in 1215 to try lawsuits between commoners in which the monarch had no interest. This was part of Henry II's creation of a powerful and unified court system, which curbed the power of canonical (church) courts.
The constitutional background of common law also involves the interaction of common law with statutory law, regulatory law, and constitutional law. Court decisions that interpret and determine the boundaries of law promulgated by other bodies are sometimes called "interstitial common law", which includes the judicial interpretation of fundamental laws, such as the US Constitution, of legislative statutes, and of agency regulations.
The influence of the European Union and human rights law on the English common law system is also an important aspect of its constitutional background. The Human Rights Act of 1998 has had an impact on the English Legal System, and although the UK is no longer a member of the EU, EU law will likely continue to exert an influence.
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Court system
Common law is a body of unwritten laws based on legal precedents established by the courts. It is a system of law that gives great weight to judicial precedent and the style of reasoning inherited from the English legal system. Common law originated in England during the Middle Ages, following the Norman Conquest in 1066, and was spread to Wales, Ireland, and overseas colonies, including the original colony of New Netherland (now New York).
The common law system is one of the two main legal systems used today, the other being civil law. Civil law, which originated in mainland Europe, is a codified system of law that centres around a comprehensive code of statutes that outline procedures for handling claims and punishments for offences. In contrast, common law is based on stare decisis, a Latin term meaning "to stand by things decided", which refers to the principle that courts and judges need to follow earlier decisions and rulings, or caselaw, when dealing with similar cases. This means that common law systems rely on caselaw and legal precedent to guide their decisions, while civil law systems rely primarily on codes and statutes.
The flexibility of common law allows it to respond to changes in society and address situations not originally predicted by lawmakers. It also promotes efficiency, as judges need only follow precedent when making decisions, resulting in shorter court proceedings and reduced costs. The decisions of a court in a common law system are binding only in a particular jurisdiction, and even within a given jurisdiction, some courts have more power than others. For example, in the federal court system of the United States, a three-tiered structure exists, with the United States District Courts as the trial-level courts, the United States Court of Appeals as the first level of appeal, and the United States Supreme Court as the final arbiter of the law.
To learn common law, one must understand the process of determining "what the law is" in a given situation. This involves ascertaining the facts, locating relevant statutes and cases, extracting principles and statements by various courts, and integrating this information to determine how the next court is likely to rule. This process can be complex and time-consuming, as it requires searching for relevant caselaw and considering the power dynamics between different courts and jurisdictions.
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Human rights law
The Universal Declaration of Human Rights (UDHR), adopted by the UN General Assembly in 1948, was the first legal document to outline the fundamental human rights to be universally protected. The UDHR, along with two covenants—the International Covenant for Civil and Political Rights and the International Covenant for Economic, Social and Cultural Rights—form the foundation of international human rights law.
To become a human rights lawyer, one must first obtain the necessary academic qualifications, typically a bachelor's degree and a Juris Doctor. During their undergraduate studies, aspiring human rights lawyers can gain relevant experience by getting involved with NGOs, learning official UN languages, and participating in pro-bono work.
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Frequently asked questions
The University of London offers a free online course on the Introduction to English Common Law. The course covers the history of common law, the English legal system, and the British Constitution.
The CertHE Common Law can be studied in a minimum of one year and a maximum of five years.
A common law course will cover the history of common law, its constitutional background, the court system, and sources of law.
Common law is one of the major global legal traditions, alongside civil law and religious law. It is based on precedent, where decisions in previous cases are used to determine the outcome of future cases.
Learning common law can lead to a variety of careers in the legal field, including lawyers, solicitors, barristers, and judges.
