Cecily Zamora
The United Kingdom is a common law country. Common law is a term with historical origins in the legal system of England. It is a system of law that gives precedence to judicial decisions and custom over codified statutes and rules. Common law systems rely on case law and legal precedent to guide their decisions, while civil law systems rely primarily on codes and statutes. Common law is flexible and can respond to changes in society. It is also stable and consistent because it is based on previous case law rather than subjective viewpoints. The UK comprises three legal jurisdictions: England and Wales, Scotland, and Northern Ireland. Each has its own distinct legal system, but they all fall under the common law system.
| Characteristics | Values |
|---|---|
| Type of Law | Common law |
| Basis | Case law, precedent |
| Flexibility | High |
| Basis of Decisions | Previous case law, not subjective viewpoints |
| Stability | High |
| Consistency | High |
| Basis of Codification | Common law origins |
| Criminal Law Codification | Partial |
| Civil Law Codification | No |
| Criminal Law Prosecution | Crown |
| Civil Law | Tort, contract, families, companies |
| Civil Law Courts | Provide remedies such as damages |
| Civil Law System | Secular |
| Common Law Jurisdiction | England and Wales, Northern Ireland |
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What You'll Learn
The UK's legal system
The United Kingdom of Great Britain and Northern Ireland comprises three legal jurisdictions: England and Wales, Scotland, and Northern Ireland. While Scotland and Northern Ireland are part of the UK and share the Parliament at Westminster as their primary legislature, they have separate legal systems from English law.
English law is the common law legal system of England and Wales, consisting mainly of criminal law and civil law, with each branch having its own courts and procedures. The common law has historically been the foundation and primary source of English law, with the most authoritative law being statutory legislation, comprising Acts of Parliament, regulations, and by-laws. 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. Common law is based on judicial decisions and embodied in reports of decided cases, administered by the common-law courts of England since the Middle Ages. It is derived from tradition, custom, and precedent, with the form of reasoning used in common law known as casuistry or case-based reasoning.
The UK's highest civil appeal court is the Supreme Court of the United Kingdom, whose decisions are binding on all three UK jurisdictions. The Supreme Court has the authority to overrule and unify criminal law decisions of lower courts and is the final court of appeal for civil law cases in England and Wales, Northern Ireland, and Scotland.
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Common law's origins
The common law system in the UK has its origins in the practices of the courts of the English kings in the centuries following the Norman Conquest in 1066. It is called "common" because it was common to all the king's courts across England, applying equally across the whole country.
Prior to the Norman Conquest, much of England's legal business took place in local folk courts, with a variety of other individual courts also existing across the land. The degree to which common law drew from earlier Anglo-Saxon traditions, such as the jury, ordeals, the penalty of outlawry, and writs, is still a subject of discussion.
The common law was historically administered in the king's courts, with equity developing as a separate system of discretionary remedies administered by the Lord Chancellor. Over time, a rule known as stare decisis (commonly known as precedent) developed, whereby a judge would be bound to follow the decision of an earlier judge, and the pre-Norman system of local customs and law varying in each locality was replaced by a unified legal system.
The expanded system of royal justice that emerged in the 12th century, during the reign of King Henry II, came to be called the 'Common Law'. This established permanent royal courts, such as the Courts of the King's Bench and of Common Pleas, and expanded geographically and socially, across all classes.
Common law, therefore, has its origins in the legal reforms of King Henry II in the 12th century, gradually supplanting local folk courts and manorial courts to create a unified legal system across England.
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Civil law's codes and statutes
The United Kingdom is a common law country, with England and Wales sharing a common law legal system. Common law is a term with historical origins in the English legal system. It is built upon case law, recognising prior court decisions as legally binding precedent. Common law is made by sitting judges who apply both statutory law and established principles derived from the reasoning from earlier decisions.
Civil law, on the other hand, is a legal system based on a code of laws. It is founded on the ideas of Roman law and is derived from the Corpus Juris Civilis, overlain by Napoleonic, Germanic, canonical, feudal, and local practices. Civil law codes are a systematic collection of interrelated articles, arranged by subject matter in a pre-specified order. They explain the principles of law, rights, and entitlements, and how basic legal mechanisms work. Civil law codes are enacted by a legislature and are longer than other laws. They set out general principles as rules of law, rather than a compendium of statutes or catalog of case law.
Civil law codes are typically concise and broadly applicable, avoiding factually specific scenarios. They deal in generalities, in contrast with ordinary statutes, which are often very long and detailed. Civil law is sometimes referred to as neo-Roman law, Romano-Germanic law, or Continental law. It is the most widespread system of law in the world, in force in various forms in about 150 countries.
While the UK is primarily a common law jurisdiction, it has adopted some elements of civil law. For example, most of its criminal law has been codified from its common law origins for certainty and ease of prosecution. However, murder remains a common-law crime rather than a statutory offence.
In conclusion, while the UK's legal system is predominantly based on common law, it has incorporated some aspects of civil law codes and statutes, particularly in criminal law.
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Differences between common and civil law
The terms "common law" and "civil law" refer to legal systems. Common law, also known as case law, is a body of unwritten laws based on legal precedents established by the courts. It originated in medieval England and is used in countries that were formerly under English rule, including the United States. Common law systems have extensive freedom of contract, and generally, everything is permitted unless expressly prohibited by law. Judicial decisions are binding, and lower courts may modify or deviate from precedents if they are outdated or if the current case differs significantly from the precedent case.
Civil law, on the other hand, is based on legal codes. It is a codified system of law that originates from Roman law. Countries that follow a civil law system include those that were former French, Dutch, German, Spanish, or Portuguese colonies or protectorates, as well as much of Central and South America, Central and Eastern European countries, and East Asian countries. Civil law systems have fewer provisions implied into contracts, and contracts are often shorter as inadequacies or ambiguities can be resolved by operation of law.
Another difference lies in the appointment of judges. In common law systems, judges are typically appointed after successful legal careers, while in civil law jurisdictions, recent university graduates are appointed. This can impact a judge's worldview and approach to legal disputes.
It is worth noting that the actual differences between common and civil law may be more nuanced than commonly believed. Both legal systems share similarities and influences, and the United States, for example, exhibits characteristics of both systems.
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Common law in former colonies
The UK is a common law country, and its common law system has been inherited by many of its former colonies. Common law, which originated in England in the 12th century, is a legal system based on custom and precedent. It was historically administered in the king's courts and established a unified legal system across the British Isles, gradually supplanting local folk and manorial courts.
English common law was spread to British colonies in America, Asia, Africa, and the Pacific. In these colonies, common law was adapted to local circumstances, and indigenous cases were often handled by local judges according to local customary law, resulting in a practice of legal pluralism. However, in settlement colonies with a sparse indigenous population and continuous European immigration, English common law was established as the single legal system.
Many former colonies, including those that are now independent countries, continue to retain the common law system today. These include Barbados, Jamaica, Botswana, Nigeria, Kenya, India, Burma, and Singapore. In these countries, the common law system has been adapted and integrated with local indigenous legal traditions, resulting in a localized common law jurisprudence.
When former colonies gained independence, they often adopted reception statutes, which incorporated pre-independence English common law and precedent as the default law. This provided a stable and predictable legal framework for the newly independent nations. However, the retention of common law in former colonies has also been criticized for failing to respect the civil rights of local colonists, as seen in the cases of South Africa and Sri Lanka, which have retained Roman-Dutch law.
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Frequently asked questions
Common law is a legal system based on doctrine and precedent. It is derived from judicial decisions and customs and has been administered by the courts of England since the Middle Ages.
Civil law is a legal system based on a code of laws. It relies primarily on codes and statutes and centres around a comprehensive code of statutes that outlines everything from procedures for handling claims to the punishment for offences.
Yes, the UK is a common law country. English law is the common law legal system of England and Wales, comprising mainly criminal law and civil law. However, Scotland and Northern Ireland, which are part of the UK, have separate legal systems.
Common law systems rely on case law and legal precedent to guide their decisions, whereas civil law systems rely primarily on codes and statutes. Common law is also more flexible than civil law as it can respond to changes in society and does not require lawmakers to pass changes in statutes and codes.
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