Cecily Zamora
The English legal system is 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 and is deeply rooted in stare decisis, meaning to stand by things decided. Common law is usually contrasted with civil law, which is prevalent in Continental Europe, Mexico, most of Central and South America, and some African countries. Civil law is founded on the ideas of Roman law, while common law traces its history to the English common law that superseded Anglo-Saxon law in England following the Battle of Hastings in 1066.
| Characteristics | Values |
|---|---|
| Type of Legal System | Common Law |
| Basis of Legal System | Case Law, Precedents, Judicial Decisions |
| Sources of Law | Statutory Legislation, Acts of Parliament, Regulations, By-Laws |
| Flexibility | Less Prescriptive than Civil Law |
| Judicial Precedent | Binding, Especially from Higher Courts |
| Freedom of Contract | High, Few Provisions are Implied |
| Infrastructure Projects | May Require Specific Legislation for Protections |
| Administrative Law | Separate in Civil Law Jurisdictions |
| Arbitration | Required in Civil Law if Not Specified in Contract |
| Criminal Law | Codified from Common Law Origins |
| Secular Law | Opposed to Ecclesiastical or Religious Law |
| Geographic Influence | Historical Influence on Former Colonies |
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What You'll Learn
Common law is deeply rooted in stare decisis
The English legal system is a common law system, built upon case law. Common law is derived from custom and precedent and is deeply rooted in the doctrine of stare decisis, which means "to stand by things decided" in Latin. Stare decisis holds that courts and judges should honour precedent, or the decisions, rulings, and opinions from prior cases. This gives the law consistency and makes interpretations of the law more predictable.
The doctrine of stare decisis operates both horizontally and vertically. Horizontal stare decisis refers to a court adhering to its own precedent or that of a court at the same level, while vertical stare decisis refers to a court applying precedent from a higher court. For example, if the Seventh Circuit Court of Appeals adhered to a previous ruling from the U.S. Supreme Court, that would be vertical stare decisis.
The concept of stare decisis lessens the need for subsequent litigation and saves time and energy for the judiciary by preventing the same legal issue from being litigated multiple times. It fosters predictable, unbiased, and consistent development of legal principles and increases reliance on judicial decisions, adding to the integrity of the judicial process. Stare decisis assures that the law won't change randomly and allows society to assume that fundamental beliefs are based on the law rather than people's preferences.
However, there are limitations to stare decisis. While courts generally adhere to precedent, they are not absolutely bound by it. In certain circumstances, judges may depart from precedent, particularly if following it would lead to unjust outcomes. Ultimately, the doctrine of stare decisis is an important aspect of the common law system, promoting stability and consistency in the law.
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Civil law is founded on the ideas of Roman law
English law is a common law jurisdiction, built upon case law. Common law is derived from custom and precedent, and it has been the foundation and primary source of English law. However, English civil law is distinct from common law. Civil law is defined in opposition to criminal law, secular law, and religious law.
The Twelve Tables were the first legal text of Roman law, documenting centuries-old customary laws that had been handed down orally through generations. The tables were created during a period of social unrest, when some Romans felt that legal decisions were being arbitrarily made. The tables touched on many areas of law, including civil law, public law, and religious law.
Over time, Roman civil law was supplemented and corrected by praetoric law, which was introduced by praetors for public benefit. Eventually, civil law and praetoric law were fused in the Corpus Juris Civilis. This body of legislation became the basis for the law codes of most countries in continental Europe, influencing their civil law systems.
In conclusion, English law is primarily a common law system, but it has been influenced by Roman law principles that form the foundation of civil law in continental Europe. The Roman law influence on English civil law is evident through the adoption of certain legal concepts and the use of Latinate legal terminology.
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Common law includes substantive and procedural rules
The English legal system is a common law system, which means that it is primarily based on case law or precedent. Common law is made by sitting judges who apply both statutory law and established principles derived from the reasoning from earlier decisions. Common law includes substantive and procedural rules.
Procedural law, also known as adjective law, remedial law, or rules of court, comprises the rules by which a court hears and determines what happens in civil, criminal, lawsuit, or administrative proceedings. Procedural law is concerned with due process and fundamental justice, ensuring that legal proceedings are conducted in a fair and just manner. It includes the rules for initiating a lawsuit, pre-trial procedures, the conduct of trials, and the rules for appeals and post-trial procedures. Examples of procedural law include abstention, forum non conveniens, remittitur, stare decisis, and preclusion.
Substantive law, on the other hand, refers to the actual claim and defence whose validity is tested through the procedures of procedural law. It defines the rights, duties, and obligations of individuals and entities. For example, the substantive law governing a breach of contract case would be different from that of a personal injury claim.
The scope of procedural and substantive law also differs. Procedural law applies to all legal proceedings, regardless of the substantive law involved, while substantive law only applies to the specific area of law being litigated. The consequences of violating procedural and substantive law are also distinct. Violations of procedural law can lead to the dismissal of a case or the exclusion of evidence, while violations of substantive law can result in civil or criminal liability.
In the context of common law, substantive rules refer to the offence itself, such as the offence of murder, while procedural rules refer to court procedure rules derived from the inherent jurisdiction of the court.
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Civil law is more prescriptive than common law
English law is a common law legal system, comprising mainly criminal law and civil law. Common law, also known as case law, is derived from custom and precedent. It is a body of unwritten laws based on legal precedents established by the courts. There is no official legal code that can be applied to a case at hand. Instead, the judge presiding over a case determines which precedents apply to that particular case. Common law is more flexible and amenable to change than civil law.
Civil law, on the other hand, is a comprehensive, codified set of legal statutes created by legislators. It is founded on the ideas of Roman law and is prevalent in continental Europe, as well as in former colonies of several European countries. Civil law is more prescriptive than common law. This means that there are more provisions implied into a contract under a civil law system, and less importance is placed on setting out all the terms governing the relationship between the parties to a contract in the contract itself. In a common law system, all the terms must be explicitly stated in the contract.
The common law system allows for more flexibility and interpretation by judges, who can apply precedents and established principles to new situations. However, this can also lead to biases and injustices, as seen in the example of divorce custody laws in England in the 1970s, where common law held that fathers were entitled to custody of children, effectively trapping women in marriages. Civil law, with its emphasis on codified statutes, provides more certainty and clarity in the law, but may be less adaptable to unique or unusual circumstances.
While English law is primarily a common law system, it has also adopted elements of civil law. Most of its criminal law has been codified from its common law origins, and international treaties can be incorporated into English law through Acts of Parliament. Additionally, the UK operates under a dual system of both common and civil law, allowing for the benefits of both systems to be utilised.
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Common law is amendable or repealable by Parliament
English law is a common law legal system, comprising mainly criminal law and civil law. Common law is a term with historical origins in the English legal system, denoting the Anglo-Norman legal system that superseded Anglo-Saxon law following the Norman Conquest of 1066.
Common law is made by sitting judges who apply both statutory law and established principles derived from the reasoning of earlier decisions. It is a system based on precedent, where judicial decisions, customs, and usage are foundational. Common law can be amended or repealed by Parliament, as it is not a civil law system with a comprehensive codification.
Parliament has the power to legislate and can make or unmake any law, including common law. An Act of Parliament creates or changes a law and becomes a law when passed by both the House of Commons and the House of Lords and given Royal Assent by the Monarch. This Act of Parliament then becomes the most authoritative law, superseding common law.
While common law is amendable or repealable by Parliament, it is important to note that it still serves as a significant source of law in the absence of statutory law. The principle of stare decisis ensures that common law forms the residual source of law, providing a foundation for the legal system in England and Wales.
In conclusion, common law in England and Wales is subject to amendment or repeal by Parliament due to the parliamentary sovereignty and the nature of the common law system. However, common law continues to play a crucial role in the legal landscape when no statutory law exists, demonstrating the dynamic and adaptable nature of the English legal system.
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Frequently asked questions
The English legal system is a common law system, which combines the passing of legislation with the creation of precedents through case law.
Common law is a legal system that is deeply rooted in stare decisis, which means that courts follow precedents established by previous judicial decisions. Common law is largely based on these precedents and judicial rulings made in previous similar cases.
Civil law is a legal system that is founded on the ideas of Roman law. It is generally more prescriptive than a common law system, with more provisions implied into a contract by law.
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