Kara Sears
Common law, which originated in medieval England, is a body of unwritten laws based on legal precedents established by the courts. It is a system of law that is less prescriptive than civil law, and it is still very much in effect in the US, the UK, and elsewhere today. Common law influences the decision-making process in unusual cases where existing statutes or written rules of law do not provide a clear outcome. In the UK, judges declare the law as derived from custom and precedent, and while their role is to interpret rather than make the rules, they can effectively create law in doing so. This has established important features of the UK constitution, such as individual rights and the idea that public authorities are subject to limitations and do not possess arbitrary power. The UK constitution, unlike that of the US, can be altered relatively easily by the government of the day, and it is often said that the UK Parliament is 'sovereign'. This parliamentary sovereignty means that Parliament can make or unmake any law, without being limited by a constitutional text.
| Characteristics | Values |
|---|---|
| Common law is a body of unwritten laws based on legal precedents established by the courts | Common law draws from institutionalized opinions and interpretations from judicial authorities and public juries |
| Common law is derived from medieval England | Common law is still very much in effect in the US and other countries |
| Common law is also known as case law | Common law relies on detailed records of similar situations and statutes because there is no official legal code that can be applied to a case at hand |
| Common law has practical applications in some areas of law, such as contract law and the law of torts | Common law influences the decision-making process in unusual cases where the outcome cannot be determined based on existing statutes or written rules of law |
| Common law can be amended or repealed by Parliament | Murder remains a common law crime rather than a statutory offence |
| Common law is less prescriptive than a civil law system | A government may wish to enshrine protections of its citizens in specific legislation related to an infrastructure program |
| Constitutions place limitations and obligations on governmental organisations in their relationship with the people | Constitutions provide opportunities for the public to influence the political process |
| The UK constitution can be altered relatively easily by the government of the day | The UK Parliament is sovereign and can make or unmake any law without being limited by a constitutional text |
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What You'll Learn
Common law's flexibility and interpretation
Common law is a body of unwritten laws based on legal precedents established by the courts. It draws from institutionalized opinions and interpretations from judicial authorities and public juries. Common law, also known as case law, relies on detailed records of similar situations and statutes because there is no official legal code that can apply to a particular case. The judge presiding over a case determines which precedents apply.
Common law is flexible and adaptable, allowing for interpretation and encouraging good judgement. It draws on past decisions but is not bound by them, allowing judges to consider contemporary contexts and economic consequences. Common law can adapt to situations not contemplated by the legislature, which becomes increasingly important as technology evolves.
The interpretation and application of common law can vary between jurisdictions, districts, and individual cases. Lower courts can deviate from precedents if they are outdated or substantially different. This flexibility allows for the establishment of consistent outcomes by applying the same standards of interpretation. However, it can also lead to unfair marginalization or disempowerment of certain groups, as past decisions shape future rulings until societal changes prompt their overturn.
In the United States, common law is limited to specific jurisdictions stated in the Constitution, such as admiralty and areas outside traditional state law. Federal courts can create federal common law rules without express statutory authority in certain situations, such as protecting federal interests in foreign affairs or financial instruments.
In the United Kingdom, judges interpret and declare the law derived from custom and precedent, effectively creating law through this process. This has established important constitutional features, such as individual rights and limitations on public authorities. The UK's unwritten constitution and common law system give courts flexibility in judicial decision-making, drawing on past cases and legal evolution.
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Limits on governmental organisations
The UK constitution places limitations and obligations on governmental organisations in their relationship with the people. The constitution also provides opportunities for the public to influence the political process.
The UK has a 'common law' system, which means that judges declare the law as derived from custom and precedent. The role of the courts is to interpret the rules, not to make them. However, by identifying what the law is, judges can create it. In doing so, they have established important features of the UK constitution, such as individual rights and the idea that public authorities are subject to limitations and do not possess arbitrary power.
Common law is a body of unwritten laws based on legal precedents established by the courts. It draws from institutionalized opinions and interpretations from judicial authorities and public juries. Common law sometimes proves the inspiration for new legislation to be enacted. A 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 applied to a case at hand. The judge presiding over a case determines which precedents apply to that particular case.
In a common law system, the government may wish to enshrine protections of its citizens in specific legislation related to an infrastructure program. For example, it may prohibit the service provider from cutting off the water or electricity supply of bad payers or require that documents related to the transaction be disclosed under a freedom of information act. There may also be legal requirements to imply into a contract equal bargaining provisions where one party has a much stronger bargaining position than the other.
In the UK, common law can be amended or repealed by Parliament. It has no comprehensive codification, but most of its criminal law has been codified from its common-law origins for certainty and ease of prosecution. Murder, for example, remains a common law crime rather than a statutory offence.
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Parliamentary sovereignty
The UK's Parliament is often described as 'sovereign', and this parliamentary sovereignty can be traced back to the 19th-century constitutional theorist A. V. Dicey, who summed up the notion as: "Parliament…has, under the English constitution, the right to make or unmake any law whatsoever; and, further,…no person or body is recognised by the law of England as having the right to override or set aside the legislation of Parliament."
The UK's Parliament can thus make or unmake any law, and no other body, including the Crown, can override its legislation. This was established in a review by Chief Justice Edward Coke in 1610, the 'Case of Proclamations', which determined that Parliament had the sole right to legislate, while the Crown could enforce it. This concept was central to the English Civil War, with Royalists arguing that power was held by the king and delegated to Parliament, a view that was challenged by the Parliamentarians.
The UK's parliamentary sovereignty differs from other countries, where a written constitution binds the parliament to act in a certain way. The UK's constitution is spread over multiple documents and sources, making it hard to decipher, and it can be altered relatively easily by the government of the day.
The UK's parliamentary sovereignty has been reconsidered in light of the European Communities Act 1972, the Human Rights Act 1998, and the country's membership of the European Union. The European Parliament was seen as directly challenging the sovereignty of the Westminster Parliament, as European laws can override local laws within the UK.
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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. It is derived from its original appearance in medieval England and is still very much in effect in the US and elsewhere today, including Australia, Canada, Hong Kong, India, New Zealand, and the United Kingdom. Common law draws from institutionalized opinions and interpretations from judicial authorities and public juries. The judge presiding over a case determines which precedents apply to that particular case. Common law is less prescriptive than civil law, and it influences the decision-making process in unusual cases where the outcome cannot be determined based on existing statutes or written rules of law.
Civil law, on the other hand, is a comprehensive, codified set of legal statutes created by legislators. It is rooted in the Roman Empire and was comprehensively codified and disseminated starting in the 19th century, with notable examples being France's Napoleonic Code (1804) and Germany's Bürgerliches Gesetzbuch (1900). Civil law is the world's most common legal system, practiced in about 150 countries. It is generally more prescriptive than common law, with a greater emphasis on setting out all the terms governing the relationship between the parties to a contract. Civil law systems are characterized by their reliance on legal codes that function as the primary source of law, rather than judicial precedent. While civil law is regularly updated, the goal of standardized codes is to create order and reduce biased systems in which laws are applied differently from case to case.
The UK, which has a common law system, has a unique constitution in that it is not 'written' or 'codified'. This means that, unlike countries with entrenched constitutions such as the US, the UK constitution can be altered relatively easily by the government of the day, and it changes more frequently than many other constitutions. The UK Parliament is considered 'sovereign', meaning it can make or unmake any law without being limited by a constitutional text. This has resulted in important features of the UK constitution, such as individual rights and the idea that public authorities are subject to limitations and do not possess arbitrary power.
In summary, the key differences between common law and civil law lie in their reliance on judicial precedent versus legal codes, their prescriptiveness, and the role of written decisions and precedent as a source of law. Common law is more flexible and open to interpretation, while civil law provides a more standardized and comprehensive set of legal statutes.
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UK's unwritten constitution
The UK is often described as having an "unwritten" constitution, but this is not entirely accurate. While the UK does have a constitution, it is not codified into a single document. Instead, it is spread across various sources, including specific Acts of Parliament, constitutional conventions, and judicial decisions. This dispersal can make the UK's constitution more challenging to identify and understand.
The UK's constitution is comprised of written and unwritten arrangements that establish the United Kingdom of Great Britain and Northern Ireland as a political body. The leading institutions in the UK's constitution are Parliament, the judiciary, the executive, and regional and local governments. The constitution can be found in leading statutes, conventions, judicial decisions, and treaties. Examples of constitutional statutes include the Bill of Rights 1689, the Acts of Union 1707 and 1800, the Act of Settlement 1701, the Parliament Acts 1911 and 1949, the Human Rights Act 1998, and the Scotland Act, Northern Ireland Act, and Government of Wales Act 1998.
Constitutional conventions, which are harder to pinpoint as they are unwritten agreements without legal force, include understandings such as the monarch acting on ministerial advice, the Prime Minister sitting in the House of Commons, and the Queen appointing as Prime Minister the person most likely to command the confidence of the House of Commons. These conventions play a crucial role in maintaining the stability of the political system.
The UK's constitution differs from those of most other countries in that it lacks a single, codified document. This absence of formal entrenchment means that the constitution can be altered more easily, and it changes more frequently than many other constitutions. The UK Parliament is considered sovereign, with the power to create or abolish any law without being constrained by a constitutional text. This parliamentary sovereignty is a defining principle of the British Constitution.
The main disadvantage of an uncodified constitution is its complexity and the resulting difficulty in understanding it. However, this flexibility has enabled significant reforms, such as the removal of hereditary peers from the House of Lords, the introduction of the Human Rights Act, devolution to Scotland, Wales, and Northern Ireland, and the creation of the Supreme Court. The UK's constitution has multiple guardians, including the Supreme Court, the House of Lords Constitution Committee, the Commons Public Administration and Constitutional Affairs Committee, and specific constitutional watchdogs.
In summary, while the UK's constitution is indeed uncodified, it is not entirely unwritten. It is dispersed across various documents and sources, making it challenging to decipher but allowing for greater flexibility and adaptability. This unique constitutional arrangement has shaped the UK's political system and set the framework for the relationship between the state and its citizens.
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Frequently asked questions
Common law is a body of unwritten laws based on legal precedents established by the courts. It draws from institutionalized opinions and interpretations from judicial authorities and public juries.
Civil law is a comprehensive, codified set of legal statutes created by legislators. It is more prescriptive than common law, which has few provisions implied into a contract.
Common law establishes that public authorities are subject to limitations and do not possess arbitrary power. It also provides opportunities for the public to influence the political process.
Yes, common law can be amended or repealed by Parliament. However, in some countries, such as the United States, the constitution is 'entrenched', meaning it needs to satisfy additional requirements to be amended.
Common law still has practical applications in areas such as contract law and the law of torts. It can also be found in the interpretation and determination of the boundaries and distinctions in law, such as in the US Constitution and legislative statutes.
