Cameron Miranda
Common law is a body of unwritten laws based on legal precedents established by the courts. It is an important part of the UK's legal system, influencing the decision-making process in unusual cases where the outcome cannot be determined based on existing statutes or written rules of law. The common law system in England has directly influenced that of Wales, Ireland, and most Commonwealth nations, and partially influenced the distinct legal system in Scotland. It is also the foundation of the US common-law system, which spread to North America during the colonial period. Common law is made by sitting judges who apply statutory law and established principles derived from the reasoning from earlier decisions.
| Characteristics | Values |
|---|---|
| Common law is a body of unwritten laws | Common law is a body of unwritten laws based on legal precedents |
| Common law is based on precedent | Common law draws from institutionalized opinions and interpretations from judicial authorities and public juries |
| Common law is made by sitting judges | Sitting judges apply both statutory law and established principles derived from the reasoning from earlier decisions |
| Common law is the prime source of English law | Common law has historically been the foundation and prime source of English law |
| Common law is applied across the whole country | Common law was called "common" because it applied equally across the whole country |
| Common law is flexible | Common law judges can reform an out-of-date law, but only Parliament can change a law derived from a statute |
| Common law is influential | Common law has directly influenced the legal systems of many former British colonies in the Commonwealth |
| Common law is accessible | The UK is a more attractive forum for defamation cases because its law is more plaintiff-friendly than that of the US |
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What You'll Learn
Common law's influence on the UK's commercial system
Common law is a term with historical origins in the legal system of England. It 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. It is derived from its original appearance in medieval England and continues to be in effect in the US, the UK, and elsewhere. Common law is also practiced in Australia, Canada, Hong Kong, India, and New Zealand.
The common law system has had a significant influence on the UK's commercial system. The reliance on judicial opinion is a strength of common law systems, contributing to the robust commercial systems in the UK and the US. Common law systems offer greater flexibility in granting different types of security over assets, which is an important feature for commercial funding arrangements. They also have the concept of trusts, which enable security interests to be held by a trustee for lenders in syndicated loan situations without the need for formal transfers or re-registering of security interests in the names of new lenders. This can result in lower costs for businesses.
In common law jurisdictions, such as the UK and the US, the emphasis when a business faces financial difficulties is on seeking a reorganization rather than liquidation to keep the business as a going concern. This approach can help businesses weather financial storms and continue operating. Additionally, common law allows for some freedom of interpretation, enabling the law to adapt to new situations not contemplated by the legislature. This adaptability is increasingly important as technology advances and its presence in our lives grows.
However, the traditions of common law have also led to the unfair marginalization or disempowerment of certain groups. Past decisions, whether outdated or biased, continue to shape future rulings until societal changes prompt a judicial body to overturn the precedent. For example, in England, common law held that fathers were entitled to custody of the children in divorce cases as late as the 1970s, effectively keeping women trapped in marriages.
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Common law in the UK vs civil law
Common law and civil law are the two main legal systems used in the world today. The United Kingdom of Great Britain and Northern Ireland comprises three legal jurisdictions: England and Wales, Scotland, and Northern Ireland. England and Wales follow the common law legal system, while Scotland and Northern Ireland have separate legal systems.
Common law, also known as case 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 is made by sitting judges who apply both statutory law and established principles derived from the reasoning from earlier decisions. Common law includes both substantive rules, such as the offence of murder, and procedural ones, such as court procedure rules derived from the inherent jurisdiction of the court. Judicial decisions are binding – decisions of the highest court can generally only be overturned by that same court or through legislation. Common law is less prescriptive than civil law, and generally, everything is permitted that is not expressly prohibited by law.
Civil law, on the other hand, is a comprehensive, codified set of legal statutes created by legislators. It is founded on the ideas of Roman law and is prevalent in the rest of Europe. Civil law systems rely primarily on codes and statutes, with a comprehensive code of statutes that outlines everything from the procedures for handling claims to the punishment for offenses. Civil law clearly defines the cases that can be brought to court, the procedures for handling claims, and the punishment for an offense. Civil law is generally more prescriptive than common law, with many provisions implied into a contract by law and less freedom of contract.
While common law systems promote stability and consistency, they are also flexible and can respond to changes in society. Common law does not require lawmakers to pass changes in statutes and codes, which can take a long time or never happen. In contrast, civil law systems have clear rules for how judges need to rule for specific disputes, and court decisions are not binding in other cases, even if the facts are similar.
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Common law's historical origins in England
The common law system in England emerged in the early Middle Ages in the King's Court (Curia Regis), a single royal court established in Westminster, near London. It was during this time that the country transitioned from local, informal power arrangements typical of customary law to a formal government organised along bureaucratic lines.
The Norman Conquest of 1066, which introduced continental ideas, marked a significant shift in the development of common law. William the Conqueror, in an effort to unify the Anglo-Saxon population, promised to restore the laws of their last king, Edward the Confessor, thus establishing the foundation of common law.
During the 12th and 13th centuries, England witnessed significant strides towards the advancement of common law. The reign of Henry II (1154-1189) played a pivotal role in this transformation. Henry's reorganisation of royal justice included the establishment of permanent institutions, such as the royal treasury (the Exchequer) and permanent royal courts (the Courts of the King's Bench and of Common Pleas). This expansion of royal justice extended geographically throughout the country and socially across different classes. Henry II also introduced legal procedures such as juries and writs, which were orders compelling legal actions in property and criminal cases.
The granting of the Magna Carta in the 13th century further solidified the development of common law. It established a system of constitutional government, with the Magna Carta serving as its symbol and pledge. The emergence of common law was also influenced by Roman law, which was studied and taught by English lawmakers in the 12th century. While Roman law had little direct adoption in England, it nevertheless exerted an influence on the development of the legal system.
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Common law in the UK vs other legal systems
Common law is a term with historical origins in the legal system of England. It is the common law legal system of England and Wales, comprising mainly criminal law and civil law, each branch having its own courts and procedures. The judiciary is independent, and legal principles like fairness, equality before the law, and the right to a fair trial are foundational to the system.
The common law is the law declared by judges, derived from custom and precedent. It originated with the legal reforms of King Henry II in the 12th century and was called "common" because it applied equally across the whole country. The doctrine of binding precedent, whereby courts follow and apply the principles declared in previous cases decided by more senior courts, is also known by the Latin expression "stare decisis". Common law is made by sitting judges who apply both statutory law and established principles derived from the reasoning from earlier decisions.
In the UK, the most authoritative law is statutory legislation, which comprises Acts of Parliament, regulations, and by-laws. In the absence of any statutory law, the common law forms the residual source of law, based on judicial decisions, custom, and usage. Common law is important in the UK because it has historically been the foundation and prime source of English law.
Other legal systems, such as the civil law system, differ from common law in that they are based on a code of laws rather than the doctrine of precedent. For example, the Code Napoleon developed in France is a civil law system that operates separately from the common law system.
The UK's common law system has influenced the legal systems of many countries, including its former colonies. Many of these countries continue to use the Privy Council, as it offers a high-grade legal service. Additionally, the UK's common law system has contributed to the development of international law in areas such as shipping and maritime trade.
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Common law and the UK's relationship with international law
Common law is a term with historical origins in the legal system of England, which comprises mainly criminal law and civil law. The judiciary is independent, and legal principles like fairness, equality before the law, and the right to a fair trial are foundational to the system. Common law is made by sitting judges who apply both statutory law and established principles derived from the reasoning from earlier decisions.
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).
In the jurisdictions of England and Wales and Northern Ireland, the Supreme Court of the United Kingdom has the authority to overrule and unify criminal law decisions of lower courts. It is the final court of appeal for civil law cases in all three UK jurisdictions.
Britain is a dualist in its relationship with international law. This means that international treaties must be formally ratified by Parliament and incorporated into statute before they become binding in the UK. For example, international conventions on shipping and maritime trade, which Britain played a leading role in drafting, incorporate principles derived from English common law.
English international lawyers have been influential in shaping British legal interpretations of the legal framework for the use of force. During the early to mid-twentieth century, the mainstream method of these lawyers was forged from a combination of supreme confidence in the superiority of English legal methods and anxiety to overcome jurisprudential claims that international law was 'not really law'.
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Frequently asked questions
Common law is a body of unwritten laws based on legal precedents established by the courts. It is also known as case law.
Common law draws from institutionalized opinions and interpretations from judicial authorities and public juries. It is the foundation and prime source of English law, but statutory legislation is the most authoritative law.
Common law has directly influenced the legal systems in Ireland and partially influenced the distinct legal system in Scotland. It has also influenced the law of shipping and maritime trade, with many former British colonies continuing to use the Privy Council.
Civil law is a comprehensive, codified set of legal statutes created by legislators. It clearly defines the cases that can be brought to court, the procedures for handling claims, and the punishment for an offence. Common law, on the other hand, is based on precedent and judicial decisions.
Common law includes both substantive rules, such as the offence of murder, and procedural ones, such as court procedure rules. It also covers criminal law, with elements like actus reus and mens rea.
