Kara Sears
The English common law system, which originated in England, is one of the most prevalent legal systems in the world. It is used almost exclusively by countries that were once British colonies, including Australia, Canada, Ghana, India, Ireland, New Zealand, Pakistan, Singapore, and many other Commonwealth countries. The United States also follows the English common law system at the national level, except for Louisiana, which has a civil law system due to its French roots and history.
| Characteristics | Values |
|---|---|
| Countries that use English common law | Australia, Antigua and Barbuda, Bahamas, Barbados, Belize, Bangladesh, Bhutan, British Virgin Islands, Canada, Cayman Islands, Cyprus, Dominica, Fiji, Gibraltar, Grenada, Hong Kong, India, Ireland, Israel, Jamaica, Kiribati, Myanmar, Nauru, New Zealand, Northern Ireland, Pakistan, Saint Kitts and Nevis, Saint Vincent and the Grenadines, Singapore, Tonga, Trinidad and Tobago, Tuvalu, Uganda, United States (except Louisiana and Puerto Rico), Wales, Ghana, Sri Lanka, South Africa, and more |
| Basis of common law | Decisions in cases by judges, new laws and statutes passed by the legislature |
| Comparison with civil law | Civil law is used in Continental Europe, Mexico, most of Central and South America, and some African countries. Civil law focuses more on written codes and statutes and less on legal precedent. |
| Comparison with religious law | Religious law is based on religious texts or traditions, such as Sharia law in Islam, halakha in Judaism, and canon law in some Christian groups. |
| Comparison with customary law | Customary law is based on patterns of behavior or cultural customs that are accepted as legal requirements or rules of conduct. |
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What You'll Learn
English common law in the Caribbean
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 trace their history to English common law, while civil law systems trace their history to Roman law. The primary contrast between the two systems is the role of written decisions and precedent as a source of law. Common law places great weight on precedent, while civil law judges tend to give less weight to judicial precedent.
English common law is the basis of the legal systems of several Caribbean jurisdictions, including Antigua and Barbuda, Barbados, the Bahamas, Dominica, Grenada, Jamaica, St Vincent and the Grenadines, Saint Kitts and Nevis, Trinidad and Tobago, and other generally English-speaking countries or Commonwealth countries. These countries have published their own legislation after independence, and most are also signatories to international treaties such as those of the United Nations, the Organization of American States (OAS), and the Commonwealth of Nations.
The legal literature and reporting in the English-speaking Caribbean have been described as short-lived and punctuated by long gaps. For example, no law reports have ever been published for Belize, the Cayman Islands, the Leeward and the Turks and Caicos Islands. The Bahamas Law Reports cover only the period from 1900 to 1906, and the Barbados Reports include cases from 1694, 1831, and 1853-1893, as well as from 1860, 1863, 1878, and 1894-1903. The main reasons for these gaps are attributed to a lack of interest from the local legal profession, a shortage of personnel with sufficient time for editorial responsibilities, and inadequate financing.
The Caribbean has seen significant legal development in the last two decades, and the University of the West Indies, Cave Hill, Barbados, publishes an index of statutes for each country, providing updates on changes in statutes in all English-speaking Caribbean countries.
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English common law in North America
Common law is usually contrasted with civil law systems, which are used in Continental Europe, Mexico, most of Central and South America, and some African countries. Common law systems trace their history back to English common law, while civil law systems are rooted in the Napoleonic Code and the Corpus Juris Civilis of Roman law. The key difference between the two systems is the role of written decisions and precedent as a source of law—common law systems place a great deal of importance on precedent.
English common law forms the basis of the legal systems of several countries in North America. The United States, for example, has a federal system based on English common law, as do all individual states and territories except Louisiana and Puerto Rico. The adoption of the common law in the newly independent United States was controversial, given the widespread distrust and hostility towards anything British in the aftermath of the American Revolution. However, the need for a knowable, written law ultimately led to the retention of English common law in the US.
Canada also has a common-law system, with some provinces adopting reception statutes. In Canada, homestead laws protect the family house or a certain minimum sum of money from the claims of creditors. Tort law is largely common law in Canada, as opposed to statute-based law.
Nicaragua's legal system is a mixture of English common law and civil law. This came about due to British administration of the Mosquito Coast from the mid-17th century until around 1894, the William Walker period from about 1855 to 1857, US interventions during 1909-1933, the influence of US institutions during the Somoza family administrations, and the importation of US culture and institutions from 1979 onwards.
Ghana, a country in West Africa, also follows the English common law tradition inherited from British colonisation. The modern-day Constitution of Ghana, like those before it, has embraced English common law by entrenching it in its provisions.
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English common law in Africa
The English common law system was introduced to Southern Africa through the expansion of British colonies. The Dutch colonies in the Cape of Good Hope, seized by the British during the Napoleonic wars, adopted a Roman-Dutch common law system influenced by Roman law sources and the writings of Dutch jurists. This system spread to other colonies, including Sri Lanka, and formed the basis of the legal systems in Southern African countries such as South Africa, Botswana, Lesotho, Namibia, and Zimbabwe.
Ghana is another example of an African country that follows the English common law tradition. After gaining independence, Ghana retained the common law system inherited from the British, and it is now enshrined in the country's 1992 Constitution. Ghana's laws are largely a modified version of imported English common law, continuously adapting to the country's changing socio-economic and political landscape.
In addition to these countries, English common law principles have influenced the legal systems of other African nations in varying degrees. For example, South Africa has a 'hybrid' legal system that intertwines English common law, Roman-Dutch law, and indigenous African customary law. While English law is prominent in criminal and civil procedure, company law, and constitutional law, Roman-Dutch common law is followed in contract law, tort law, family law, and other areas.
The adoption of English common law in Africa has had a lasting impact on the legal landscape of many nations. However, there is also a growing movement towards the recognition and integration of customary laws and the preservation of traditional customs in formal legal systems. Customary law, such as the Xeer legal system in the Horn of Africa, offers a unique approach to justice that aligns with the values and social experiences of African citizens.
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English common law in Asia
English common law is a system of law that traces its history to England. It is based on judicial decisions or case law rather than statutes. The Magna Carta, which placed limits on the power of English kings, is one of the most fundamental documents to shape English common law. English common law was later inherited by the Commonwealth of Nations and the many colonies of the British Empire.
English common law is prevalent in several Asian countries, including Hong Kong, Malaysia, and Singapore, which were all once British colonies. In these jurisdictions, older English cases are still considered precedential due to the historical role of the Privy Council as their court of final appeal. English is the language of the majority of common-law judgments in these Asian jurisdictions, and it remains the official language of Hong Kong's highest court.
Another Asian country that follows the English common law tradition is Ghana. Ghana was a British colony and has retained the common law system even after independence. Chapter four of Ghana's 1992 Constitution, entitled "The Laws of Ghana", includes common law as one of the applicable laws in the state. The doctrine of judicial precedence, based on the principle of stare decisis applied in England and other common law countries, also applies in Ghana.
In addition to these countries, India, Pakistan, and Bangladesh, which were also formerly part of the British Empire, have adopted the English common law system.
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English common law in Europe
English common law, which developed in England in the Middle Ages, is the most widespread legal system in the world, with about a third of the world's population living under it. It is based on judicial decisions and consists of unwritten laws formed by previous court decisions that govern local customs, accepted behaviour, and traditions.
Common law is usually contrasted with the civil law system, which is used in Continental Europe, Mexico, most of Central and South America, and some African countries. Civil law systems are based on a comprehensive written set of laws, covering various areas of law and explicit rules of procedure for use in courts. Civil law, which originated in France, shares the goal of establishing consistent outcomes by applying the same standards of interpretation to each case as common law, but it focuses more on written codes and statutes and has less emphasis on legal precedent.
English common law is used in many countries in Europe, including the United Kingdom and its overseas territories, Ireland, Malta, and some parts of the European Court of Justice. Many countries in Europe have mixed legal systems that combine common law with other forms of law, typically civil, religious, or customary law. For example, in the European Union, the Court of Justice takes an approach that mixes civil law with an attachment to the importance of case law.
English common law was spread around the world through the British Empire, and today it is used almost exclusively by countries that were once British colonies, such as India, Ghana, and many other Commonwealth countries.
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Frequently asked questions
English common law is a system of law that traces its history back to England, where it was originally developed. It is contrasted with civil law, which is more prevalent by landmass and population. Common law places a great weight on precedent and is considered one of the most prevalent legal systems in the world.
Approximately 40 countries and territories use English common law as their primary legal system. A further 60 countries and territories use it as part of a mixed legal system, combined with other forms of law.
English common law is used almost exclusively by countries that were once British colonies. This includes Australia, the United States (except Louisiana), Canada (except Quebec), New Zealand, India, Pakistan, Bangladesh, and many Caribbean nations, such as Jamaica and Barbados. Ghana also follows the English common law tradition, having inherited it during colonisation and kept it after independence.
English common law is based on judicial decisions and precedent rather than statutes. The decisions made by judges in common law systems are considered binding on lower-ranking courts.
