Gavin Howe
The United Kingdom is a common law country. Common law, also known as case law, is a legal system in which the main body of law is formed by court opinions, which play a defining role in determining how laws are interpreted and applied. Common law originated in England following the Norman Conquest of 1066, and today, it is used almost exclusively by countries that were once British colonies. Common law is usually contrasted with civil law, which is used in Continental Europe, Mexico, most of Central and South America, and some African countries. While common law systems place great weight on precedent, civil law judges tend to give less weight to judicial precedent.
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What You'll Learn
Common law is the foundation of the UK's legal system
Common law is a legal system in which the main body of law is formed by court opinions, which play a defining role in determining how laws are interpreted and applied. In a common law system, previous court decisions are usually respected as precedent and applied to current decisions. Common law is often contrasted with civil law, in which the legal codes and statutes are more meticulous and less open to interpretation, and previous court decisions do not necessarily influence the outcome of current cases.
Common law, also known as case law, originated in England following the Norman Conquest of 1066. At this time, there was no single unified system of law across the country, and each region applied its own form of justice based on that region's traditions. After the Norman invasion, interpretations of the law became more consistent across the country as each court was influenced by decisions made by other courts.
Common law forms the foundation of the judicial systems of English-speaking countries, including the UK. In fact, English law is the common law legal system of England and Wales, comprising mainly criminal law and civil law. Common law has historically been the foundation and prime source of English law, although the most authoritative law is now statutory legislation, which comprises Acts of Parliament, regulations, and by-laws. In the absence of any statutory law, the common law with its principle of stare decisis forms the residual source of law, based on judicial decisions, custom, and usage.
English criminal law derives its main principles from common law. The main elements of a crime are the actus reus (doing something which is criminally prohibited) and a mens rea (having the requisite criminal state of mind, usually intention or recklessness). A prosecutor must show that a person has caused the offensive conduct, or that the culprit had some pre-existing duty to take steps to avoid a criminal consequence. Murder, for example, remains a common law crime rather than a statutory offence.
Common law is also used in many former British colonies, including several Caribbean Island nations. Many of the conventions that incorporate principles derived from English common law and documentary procedures are subject to international conventions that Britain played a leading role in drafting.
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The UK's civil law differs from common law
The UK is a common law country, but it also has a civil law system. The UK's civil law differs from common law in several ways.
Common law, also known as case law, is a legal system where the main body of law is formed by court opinions, which play a defining role in determining how laws are interpreted and applied. In a common law system, previous court decisions are usually respected as precedent and applied to current decisions. Common law originated in England following the Norman Conquest of 1066 and spread throughout the British Empire. Today, common law is used almost exclusively by countries that were once British colonies.
In contrast, civil law, which originated in France, is a comprehensive, codified set of legal statutes created by legislators. Civil law systems trace their history through the Napoleonic Code back to the Corpus Juris Civilis of Roman law. In civil law, judicial authorities use the civil code to evaluate cases and reach decisions. Civil law is regularly updated, and its standardised codes aim to create order and reduce bias in the legal system.
While the UK operates under a dual system of both common and civil law, there are differences between the two systems. Common law is primarily used in criminal cases, while civil law is used in civil cases. The UK's civil law system is influenced by its jurisdiction. For example, Scotland, which has its own distinct legal system, Scots Law, has a different approach to precedent in civil cases, seeking to discover the principle that justifies a law rather than looking for a specific example as a precedent. Natural justice and fairness have always played a role in Scots Law.
In conclusion, while the UK is a common law country, its civil law differs from common law in several ways, including their historical origins, the role of precedent, and the methods of evaluation and decision-making. The UK's civil law system is influenced by its jurisdiction, particularly in Scotland, where a unique approach to precedent is used.
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Common law and the UK's criminal law
The UK is a common law country. Common law, also known as case law, is a legal system in which the main body of law is formed by court opinions, which play a defining role in determining how laws are interpreted and applied. Common law is often contrasted with civil law, which is more meticulous and less open to interpretation, and in which previous court decisions do not necessarily influence the outcome of current cases. Common law systems trace their history to English common law, while civil law systems trace their history to Roman law.
English law is the common law legal system of England and Wales, comprising mainly criminal law and civil law, each with its own courts and procedures. The common law has historically been the foundation and prime source of English law, though the most authoritative law is statutory legislation, which comprises Acts of Parliament, regulations, and by-laws. In the absence of statutory law, the common law forms the residual source of law, based on judicial decisions, custom, and usage. Common law is made by sitting judges who apply both statutory law and established principles derived from the reasoning from earlier decisions.
Criminal law is the law of crime and punishment, whereby the Crown prosecutes the accused. Common law offences are crimes under English criminal law, developed entirely by the law courts, with no specific basis in statute. Common law offences are punishable by unlimited fines and unlimited imprisonment unless a specific maximum sentence has been codified. Many common law offences have been abolished or redefined as statutory offences. However, murder remains a common law crime rather than a statutory offence, and the main elements of a crime are still considered to be the actus reus (doing something which is criminally prohibited) and mens rea (having the requisite criminal state of mind).
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Common law and the UK's relationship with international law
Common law is a legal system in which the main body of law is formed by court opinions, which play a defining role in determining how laws are interpreted and applied. In a common law system, previous court decisions are usually respected as precedent and applied to current decisions. Common law is often contrasted with civil law, in which the legal codes and statutes are more meticulous and less open to interpretation, and previous court decisions do not necessarily influence the outcome of current cases. Common law originated in England following the Norman Conquest of 1066 and spread around the world as England built its empire. Today, common law is used almost exclusively by countries that were once British colonies.
The UK, being the empire that spread common law across the world, has a complex relationship with common law. The UK is a dualist in its relationship with international law, so international treaties must be formally ratified by Parliament and incorporated into statute before they become binding in the UK. Common law forms the basis of the UK's judicial system, with English law being the common law legal system of England and Wales. However, the most authoritative law in the UK is statutory legislation, which comprises Acts of Parliament, regulations, and by-laws. In the absence of any statutory law, common law forms the residual source of law, based on judicial decisions, custom, and usage.
Common law is made by sitting judges who apply both statutory law and established principles derived from the reasoning from earlier decisions. The common law, as applied in civil cases, was devised as a means of compensating someone for wrongful acts known as torts, including both intentional torts and torts caused by negligence, and as a means of developing the body of law recognizing and regulating contracts. In criminal law, common law defines the main elements of a crime as the actus reus (doing something which is criminally prohibited) and the mens rea (having the requisite criminal state of mind, usually intention or recklessness).
The UK's relationship with international law is influenced by its adoption of common law. As a major trading nation, the UK has exerted a strong influence on the law of shipping and maritime trade. Many international conventions in these areas incorporate principles derived from English common law and documentary procedures. For example, the European Court of Justice has adopted a historically distinct common law principle, demonstrating the influence of common law on courts of a primarily civil law jurisdiction.
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Scotland and Northern Ireland's separate legal systems
The UK is a common law country. Common law, also known as case law, is a legal system where the main body of law is formed by court opinions, which are crucial in determining how laws are interpreted and applied. Common law is usually contrasted with civil law, which is used in Continental Europe, Mexico, most of Central and South America, and some African countries. Common law systems can be traced back to English common law, while civil law systems can be traced back to the Napoleonic Code and further back to Roman law.
Scotland and Northern Ireland have separate legal systems from each other and from England and Wales. Scotland has a mixed legal system with origins in Roman law and elements of common law with some feudal sources. The Scots law is influenced by English law, particularly after the Acts of Union in 1707, as well as by European laws under the Treaty of Rome and the establishment of the Scottish Parliament. Scotland shares the Supreme Court with England, Wales, and Northern Ireland for civil cases, but the court's decisions are only influential on similar cases arising in Scotland.
Northern Ireland's legal system is a mix of statute and common law, with roots in Irish common law before the partition of Ireland in 1921 and the Acts of Union in 1801. The law of Northern Ireland is administered by the courts of Northern Ireland, with a supreme appeal to the Supreme Court of the United Kingdom in both civil and criminal matters. Due to the history of political violence in Northern Ireland, there have been unique developments in criminal law and anti-terrorism procedures, such as the Civil Authorities (Special Powers) Act (Northern Ireland) 1922, commonly known as the Special Powers Act.
While Scotland and Northern Ireland have distinct legal systems, they are part of the three separate jurisdictions within the United Kingdom: England and Wales, Scotland, and Northern Ireland. Each jurisdiction has its own court system and legal profession, reflecting the decentralized nature of the UK's government.
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Frequently asked questions
Yes, the UK is a common-law country. Common law forms the foundation of the judicial systems of English-speaking countries.
Common law is a legal system in which the main body of law is formed by court opinions, which play a defining role in determining how laws are interpreted and applied. In a common-law system, previous court decisions are usually respected as precedent and applied to current decisions.
Common law is usually contrasted with civil law, which is used in Continental Europe, Mexico, most of Central and South America, and some African countries. While common law systems place great weight on precedent, civil law judges tend to give less weight to judicial precedent. Civil law is derived primarily from legal statutes and codes created by legislatures.
Common law originated in England and is now used almost exclusively by countries that were once British colonies. Approximately 40 countries and territories use common law, and roughly 60 more use it as part of a mixed legal system. Examples of common-law countries include Australia, the United States, Canada, and many Caribbean jurisdictions.
