Keith Mack
England and Wales operate under a common law system, which 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. While England and Wales share a common law system, they are separate jurisdictions from Scotland and Northern Ireland, which have their own distinct legal systems.
| Characteristics | Values |
|---|---|
| Type of Law | Common law |
| Legal Jurisdiction | England and Wales |
| Legal System | Civil and Criminal law |
| Court System | Magistrates' Court, Crown Court, County Court, High Court, Court of Appeal, UK Supreme Court |
| Sources of Law | Primary and Secondary |
| Law Declaration | By judges, derived from custom and precedent |
| Legislation | Passed by Parliament, consisting of the 'Monarch', the House of Commons, and the House of Lords |
| Court Hierarchy | Senior and less senior courts |
| Judiciary | Independent |
| Legal Principles | Fairness, equality before the law, and the right to a fair trial |
| Basis of Common Law | Precedent, custom, and usage |
| Statutory Legislation | Acts of Parliament, regulations, and by-laws |
| Devolved Parliament in Wales | The Senedd |
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What You'll Learn
England and Wales operate a common law system
The common law system 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 House of Commons is directly elected by the people, and the Prime Minister is traditionally a member of this House. The judiciary, which is completely separate from Parliament, controls the court system and case law.
While England and Wales share a common law system, they are separate jurisdictions from Scotland and Northern Ireland, which have their own distinct legal systems. The UK's highest civil appeal court is the Supreme Court of the United Kingdom, whose decisions are binding on all three UK jurisdictions. However, for criminal law cases in Scotland, the High Court of Justiciary has the power to overrule and unify criminal law decisions, except on questions of law relating to reserved matters such as devolution and human rights.
The common law system in England and Wales has a long history, with roots dating back to before 1189 when Richard I ascended the English throne. Over time, the common law system has evolved and adapted to changing circumstances, with various acts and measures shaping the legal landscape.
The English law of salvage, collisions, ship arrest, and carriage of goods by sea are also subject to international conventions that incorporate principles derived from English common law and documentary procedures. London, in particular, is considered a pre-eminent centre for litigation of certain types of cases, such as admiralty and defamation, due to the predictability and simplicity afforded by its well-developed body of common law.
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Common law is deeply rooted in stare decisis
The United Kingdom is divided into 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. English law is the common law legal system of England and Wales, comprising mainly criminal law and civil law. Common law is deeply rooted in stare decisis, which is a Latin term that means "to stand by things decided". It is the doctrine that courts will adhere to precedent in making their decisions. In other words, stare decisis holds that courts and judges should honor "precedent", or the decisions, rulings, and opinions from prior cases. Respect for precedents gives the law consistency and makes interpretations of the law more predictable and less seemingly random.
The doctrine of stare decisis forbids judges from acting arbitrarily or with bias by requiring them to follow existing precedents, preventing such unwelcome factors from interfering with fair and reasonable adjudication. It also lessens the need for subsequent litigation and saves the time and energy of the judiciary by preventing them from having to continually decide the same legal question or issue if it has already been decided in another case. Stare decisis assures that the law won't just change randomly and allows society to assume that fundamental beliefs are based on the law rather than on people's preferences. It fosters predictable, unbiased, and consistent development of legal principles, so the notion of stare decisis is favored in judicial systems.
Stare decisis can be either horizontal or vertical. Horizontal stare decisis refers to a court adhering to its own precedent. For example, if a court of appeals adheres to the ruling of a previous court of appeals case, that would be horizontal stare decisis. Vertical stare decisis occurs when a court applies precedent from a higher court. For instance, if a court of appeals adheres to a previous ruling from a Supreme Court, that would be vertical stare decisis. Vertical stare decisis is deeply entrenched in the American legal system and is part of what makes the Supreme Court "supreme".
The English common law of the 18th century served as the foundation for the idea of stare decisis in American jurisprudence. The English jurist William Blackstone described the English common law precedent doctrine as establishing a strong presumption that judges would follow prior precedents where the same issues arise in litigation, to promote legal stability, unless such precedents were blatantly absurd or unjust.
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The UK is divided into three main jurisdictions
The United Kingdom is divided into 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.
England and Wales operate a common law system, which combines the passing of legislation with the creation of precedents through case law. Common law is primarily developed through judicial decisions, derived from custom, and is deeply rooted in stare decisis, which means "to stand by things decided". In other words, courts follow precedents established by previous decisions. Common law is made by sitting judges who apply both statutory law and established principles derived from the reasoning in earlier decisions.
Historically, the common law was administered in the king's courts, and it has been the foundation and primary source of English law. However, the most authoritative law today is statutory legislation, which includes Acts of Parliament, regulations, and by-laws. In the absence of statutory law, common law forms the residual source of law.
Scotland and Northern Ireland, while part of the United Kingdom and sharing the Parliament at Westminster, have separate legal systems. Scottish common law, for example, has traditionally differed in its approach to precedent, emphasizing the discovery of the principle behind a law rather than simply following previous examples. Despite these differences, Scottish and English common law have many similarities, particularly in matters of UK-wide interest.
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The judiciary is independent
The common law system in England and Wales combines the passing of legislation with the creation of precedents through case law. The court system and case law are controlled by the judiciary, which is completely separate from Parliament. The judiciary's independence is foundational to the system, along with legal principles such as fairness, equality before the law, and the right to a fair trial.
Historically, common law was administered in the king's courts, and it has been the law of England since 1189. The common law is deeply rooted in stare decisis, which means "to stand by things decided", where courts follow precedents established by previous decisions. When resolving a similar case, judges typically align their reasoning with the precedent set in that previous decision. However, in a "case of first impression" without precedent or clear legislative guidance, judges can establish new precedent.
The United Kingdom is divided into three main jurisdictions, each with its own laws, court system, lawyers, and judges: England and Wales, Scotland, and Northern Ireland. While Scotland and Northern Ireland are part of the United Kingdom and share the Parliament at Westminster, they have distinct legal systems.
The English law of salvage, collisions, ship arrest, and carriage of goods by sea are subject to international conventions that incorporate principles derived from English common law. Many commercial parties choose the law of England and Wales, particularly in former British colonies and Commonwealth members, as it offers predictability and simplicity in contractual relations.
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Civil law may be defined in opposition to criminal law
The United Kingdom is divided into three main jurisdictions or self-contained legal systems: England and Wales, Scotland, and Northern Ireland. English law is the common law legal system of England and Wales, comprising mainly criminal law and civil law, each branch having its own courts and procedures.
Secondly, in criminal cases, the burden of proof lies with the government to prove that the defendant is guilty, whereas in civil cases, the burden of proof first lies with the plaintiff and then moves to the defendant to refute the evidence provided by the plaintiff. In criminal law, the defendant is not declared guilty unless there is approximately more than 99% of proof against them, whereas in civil cases, a lower threshold of around 50% of proof is required for the plaintiff to win.
Thirdly, in terms of who can initiate a case, criminal law cases can only be initiated by the government or the state, usually in the form of a prosecutor. In civil law, cases are initiated by a private party, the plaintiff, and any party can initiate a case.
Fourthly, the types of punishment differ between the two branches of law. In criminal cases, punishment often consists of imprisonment or fines paid to the government, whereas in civil cases, punishment almost always consists of a monetary award and never consists of imprisonment.
Lastly, there are differences in the standards of proof required in criminal and civil cases. In criminal cases, the prosecution must establish the guilt of the defendant "beyond a reasonable doubt". In civil cases, the plaintiff must establish the defendant's liability, and the standard of proof is lower, with the plaintiff needing to show that there is a preponderance of evidence in their favor.
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Frequently asked questions
England and Wales operate under common law.
Common law is a legal system where laws are primarily developed through judicial decisions and precedent rather than statutes.
Civil law is a legal system based on a code of laws, such as the Code Napoleon developed in France, as opposed to the common law system, which is based on the doctrine of precedent.
Sources of common law include statutes, case law, and custom and usage.
In a common law system, judges apply both statutory law and established principles derived from previous judicial decisions. When a similar case has been resolved, judges typically follow the precedent set in that decision. However, in cases without precedent, judges can establish new precedent.
