Keith Mack
The common law system in the UK is a body of unwritten laws based on legal precedents established by the courts. It originated in England during the Middle Ages in the King's Court (Curia Regis), a single royal court set up for most of the country at Westminster, near London. The common law system is flexible and adaptable, allowing courts to address situations not originally predicted by lawmakers and respond to changes in society. It is one of the two main legal systems used throughout the world, alongside civil law. The UK operates under a dual system of both common and civil law. Within the UK, there are three main jurisdictions with their own laws and court systems: England and Wales, Scotland, and Northern Ireland.
| Characteristics | Values |
|---|---|
| Origin | The common law system originated in England during the Middle Ages. |
| History | The common law system was administered by the common-law courts of England and has been directly influenced by the legal system in Ireland. |
| Current Practice | Common law is practiced in the United Kingdom, the United States, Canada, Australia, India, Hong Kong, and New Zealand. |
| Basis | Common law is based on legal precedents, allowing for interpretation and adaptation to new situations. |
| Sources | Common law draws from judicial decisions, opinions, and interpretations from authorities and public juries. |
| Structure | Common law has a hierarchical structure, with higher courts' decisions binding lower courts. |
| Flexibility | Common law is flexible, responding to societal changes without requiring legislative amendments. |
| Unification | The UK's Supreme Court can overrule and unify criminal law decisions of lower courts in England and Wales, and Northern Ireland. |
| Exceptions | Scotland maintains a separate criminal law system with its own final court for criminal appeals. |
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What You'll Learn
Common law origins
The common law system in the UK has its origins in England during the Middle Ages, specifically in the early period following the Norman Conquest of 1066. The English common law system emerged in the King's Court (Curia Regis), a single royal court established near London in Westminster. Initially, this legal system did not consist of substantive rights but rather focused on procedural remedies, which gradually evolved into the modern system where rights take precedence.
The common law of this period was heavily influenced by the Anglo-Saxons, particularly after the reign of Alfred the Great in 871. Local customs and the church played significant roles in governance, and elements of the Anglo-Saxon system, such as juries, ordeals, outlawry, and writs, persisted even after the Norman Conquest. The legal reforms of King Henry II in the 12th century further shaped the common law, which was called "common" as it applied uniformly across the country.
Over time, the common law system spread beyond England, influencing the legal systems in Wales (adopted in 1536), Ireland, and the British colonies. While Ireland was significantly influenced by English common law, Scotland developed a distinct legal system that only partially adopted English common law. During the colonial era, English common law was introduced to colonies like New Netherland, and it eventually spread to North America, forming the basis of the US common-law system.
Today, the UK operates under a dual system of both common and civil law. Common law, or case law, is a body of unwritten laws based on legal precedents and judicial interpretations. It is flexible and adaptable, allowing courts to address unforeseen situations not covered by existing statutes. The principle of stare decisis, a Latin phrase meaning "to stand by things decided," guides judges to follow previous rulings in similar cases, contributing to consistency and stability in the legal system.
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Common law in modern times
Common law, the body of customary law, is based on judicial decisions and reports of decided cases. It has been administered by the courts of England since the Middle Ages. The English common law originated in the early Middle Ages in the King's Court (Curia Regis), a single royal court set up for most of the country at Westminster, near London. It did not originally consist of substantive rights but rather of procedural remedies. The working out of these remedies has, over time, produced the modern system in which rights are seen as primary over procedure.
Common law forms the basis of the legal systems of several countries, including the United States, Canada, India, Australia, and most of the member states of the Commonwealth. It is a flexible system that can respond to changes in society. In common law systems, courts can address situations not originally predicted by lawmakers, and higher courts can overrule prior decisions as "bad law" without waiting for lawmakers to do so. The reliance on judicial opinion is a strength of common law systems and contributes to robust commercial systems in the United Kingdom and the United States.
In modern times, the United Kingdom's legal system has experienced changes due to its integration with European Union (EU) law during its time as an EU member state from 1973 to 2020. The European Convention on Human Rights (ECHR) has also influenced the UK's legal system since the passage of the Human Rights Act 1998. The UK Supreme Court, established in 2009, is the final court of appeal for civil law cases in England, Wales, and Northern Ireland, but not for criminal law cases in Scotland, which has its own separate criminal law system.
London is a popular forum for defamation cases due to UK law being more plaintiff-friendly than the laws in the United States, which offer more protection for freedom of speech and the press. However, the enforcement of foreign defamation judgments in the UK has been limited by the SPEECH Act of 2010, making England and Wales a less attractive forum for such cases.
Common law rules can be superseded or replaced by legislation, and the most authoritative law in the English legal system is statutory legislation, comprising Acts of Parliament, regulations, and by-laws. Common law serves as the residual source of law in the absence of statutory law, and it includes substantive rules such as the offence of murder and procedural rules such as court procedure.
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Common law in the UK
The common law system in the UK has a long history, dating back to the Middle Ages in England. It is a body of unwritten laws based on legal precedents and customs established by the courts. Common law, also known as case law, relies on detailed records of previous rulings and statutes to guide decisions in similar future cases. This system allows for flexibility and adaptability, as it can address situations not originally contemplated by lawmakers. The UK's common law system has influenced the legal systems of many other countries, including those in the Commonwealth and former colonies.
The UK 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. While common law principles apply across these jurisdictions, there are some differences in their legal systems. For example, Scotland maintains a separate criminal law system, with its own final court for criminal appeals, the High Court of Justiciary.
In the jurisdictions of England and Wales, and Northern Ireland, the Supreme Court of the United Kingdom is the highest court of appeal for civil cases. However, for criminal cases in England and Wales, the Supreme Court does not have the authority to overrule lower courts, unlike in Northern Ireland. This highlights the complexity of the UK's legal system, which has evolved over centuries and been influenced by various historical and cultural factors.
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Common law in Scotland
Common law, a body of customary law based on judicial decisions, has been administered by the common-law courts of England since the Middle Ages. It is one of the two main legal systems used throughout the world, the other being civil law. Common law is flexible and adaptable, allowing higher courts to overrule prior decisions without waiting for lawmakers to do so.
Scotland has a separate criminal law system from the rest of the UK, with its own criminal code and civil law. The High Court of Justiciary is the final court for criminal appeals in Scotland, while the Supreme Court of the United Kingdom is the highest court of appeal for civil cases. The common law of Scotland has distinct historical roots from that of England, stemming from the customary laws of the different cultures that inhabited the region.
Scottish law, including its common law, has been influenced by various sources over time. Since the union of the parliaments of England and Scotland in 1707, Scottish law has been influenced by English law, particularly through the rulings of the Supreme Court of the United Kingdom and the House of Lords. However, Scotland has retained a fundamentally different legal system, with a strong infusion of civil law and a unique conception of equity.
The four sources of Scots law are legislation, legal precedent, specific academic writings, and custom. Legislation is passed by the Scottish Parliament on devolved matters and the United Kingdom Parliament on reserved matters. Early Scots law before the 12th century reflected the legal traditions of the Gaels, Britons, Anglo-Saxons, and Norse who inhabited the country. The introduction of feudalism in the 12th century and the expansion of the Kingdom of Scotland established the modern roots of Scots law, which was further influenced by Anglo-Norman and continental legal traditions.
Common law is an important legal source in Scotland, particularly in criminal law, where a large body of legal precedent has been developed. The decisions of Scottish courts and certain rulings of the Supreme Court of the United Kingdom are sources of common law in Scotland.
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Common law vs civil law
Common law, also known as case law, is a body of unwritten laws based on legal precedents established by the courts. Common law originated in medieval England and is practised today in about 150 countries, including those that were former British colonies or protectorates, such as the United States. In common law systems, judges make rulings based on the arguments presented by each party, acting as a neutral third party rather than a chief investigator. Lawyers take on a more adversarial role, questioning witnesses, producing evidence, and presenting the case based on the evidence they have gathered. Common law rules may be superseded or replaced by legislation, which takes precedence over common law.
Civil law, on the other hand, is a legal system rooted in the Roman Empire and was comprehensively codified and disseminated in the 19th century, with notable examples including France's Napoleonic Code and Germany's Bürgerliches Gesetzbuch. Today, civil law is practised in around 150 countries and is the world's most common legal system. In civil law systems, judges act as the main investigators, and court-ordered expert investigations can form a significant part of the trial. Lawyers take on a more inquisitorial role, presenting arguments based on the evidence the court finds and answering the judge's questions. Civil law is characterised by its reliance on legal codes that function as the primary source of law, rather than judicial precedent.
One key difference between common law and civil law is the role of precedent. In common law, precedent, known as stare decisis, is a history of judicial decisions that form the basis of evaluation for future cases. Common law relies on detailed records of similar situations and statutes because there is no official legal code that can be directly applied to a case. In civil law, however, the codification of the country's laws serves as the main reference point for judges, who base their rulings on what is written in the legal codes.
Another difference lies in the approach to contracts. In a common law system, there are few provisions implied into a contract, so it is crucial to set out all the terms governing the relationship between the parties within the contract itself. In contrast, civil law systems imply various provisions into contracts, and less importance is placed on explicitly stating all the terms within the contract since inadequacies or ambiguities can be resolved by operation of law. As a result, contracts in civil law systems tend to be shorter than those in common law countries.
The litigation process also varies between common law and civil law systems. In common law jurisdictions, juries are primarily used in criminal cases and some civil cases, such as libel and slander trials. In civil law systems, juries are rarely involved in civil actions and are typically only present in criminal cases. Additionally, in civil law, the admissibility of affidavits and the discovery process may differ from common law practices.
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Frequently asked questions
Common law is a body of unwritten laws based on legal precedents established by the courts. It originated in England during the Middle Ages and is derived from custom and precedent.
Common law in the UK dates back to the early Middle Ages in the King's Court (Curia Regis). It was called "common" because it applied equally across the whole country. The modern system, where rights are seen as primary, evolved over time from procedural remedies.
Common law continues to influence the decision-making process in the UK, particularly in unusual cases where existing statutes or written rules do not apply. The UK operates under a dual system of both common and civil law.
Common law is more flexible than civil law as it can respond to changes in society without lawmakers needing to pass changes in statutes. Common law also places an emphasis on precedent while allowing some freedom for interpretation.
In addition to the UK, common law is used in the US, Canada, India, Australia, Hong Kong, New Zealand, and most of the member states of the Commonwealth.
