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COMMON LAW SYSTEMS VS. CIVIL

LAW SYSTEMS

THE SOURCES OF ENGLISH LAW

COMMON LAW SYSTEMS VS. CIVIL LAW Inglés Profesional y

SYSTEMS. SOURCES OF ENGLISH LAW Académico
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Law systems
(Source: Wikipedia. Author: Javitomad. http://en.wikipedia.org/wiki/Civil_law_%28legal_system%29)

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Common law systems
(Source: Wikimedia. http://commons.wikimedia.org/wiki/File:Common_law_world.png#file)

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Common law systems vs. civil law systems

List of country legal systems:

http://en.wikipedia.org/wiki/List_of_cou
ntry_legal_systems#Civil_law_and_co
mmon_law

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Common law systems
- Common law is law developed by judges through decisions of courts and/or
tribunals. It is very pragmatic: the law can be developed on a case-by-case
basis and it is not necessary to wait for Parliament to pass an Act.

- Court decisions are considered law (case law) and have the same force as any
law passed by Parliament (statutory law). Law passed by Parliament

- Leading cases set a precedent which is binding (=obligatory): the precedent

binds future decision on the principle of stare decisis (similar cases should be
decided in such a way they reach similar results  it would be unfair to treat
similar facts differently on different occasions.

- Decisions by appelate courts are binding on lower courts and on future

decisions of the same appellate court, but decisions of lower courts are
persuasive authority. Not binding

Adapted from http://en.wikipedia.org/wiki/Common_law

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Civil law systems
- Civil law systems are also called “code” systems or “codified”
systems. They “write” (=“codify”) law) and apply it.

- There is generally a written constitution as well as specific codes

(e.g., civil code, criminal code, commercial code, etc.).

- There is little scope for case law (in practice judges tend to follow
previous judicial decisions of the higher courts).

- Constitutional and administrative courts can annul laws and

regulations.
Adapted from http://en.wikipedia.org/wiki/Civil_law_%28legal_system%29

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The sources of English law
1. COMMON LAW (custom + case law).

2. EQUITY: formerly administered by the Lord Chancellor. Based on

basic principles of fairness and justice.

3. STATUTE LAW: law passed by Parliament (acts/statutes;

statutory instruments or SIs).

4. EU LEGISLATION + INTERNATIONAL AGREEMENTS (must

be formally incorporated into English law before courts are
obliged to apply them; e.g. European Convention on Human
Rights and Fundamental Freedoms –ECHR-, 1950  Human
Rights Act 1998).

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COMMON LAW

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Common law
• THERE IS NO STATUTE MAKING MURDER
ILLEGAL. It is a common law crime, so there is no
written Act of Parliament making murder illegal.

• Common law, however, can be amended by

Parliament.
 Example: murder carries a mandatory life sentence today, but
previously allowed the death penalty.

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STATUTE LAW

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Statute law
Also “enacted law”
• Written laws or legislation passed by Parliament.
• Types:
 (1) Acts of Parliament (statutes)
 (2) Delegated legislation (Statutory Instruments or
SIs: ministerial orders, regulations, rules, local bye-
laws, etc.). Approx.3,000 each year.

• On the increase the last few years.

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Statute law
• Legislation since devolution (“the moving
of power or responsibility from a central
government to a local government”) forms
several separate entities:

United Kingdom legislation: applies to the

whole UK.
Scottish legislation.
Welsh legislation.
Northern Irish legislation.
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Statute law

STAGES OF AN ACT:

draft (bill)  bill  act / statute

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CASE LAW

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Case law

Body of law created by judges’

decisions on individual cases.

Also called “judge-made law”

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Case law

• CONTINENTAL SYSTEM: judges apply the law.

• ENGLISH SYSTEM: judges apply the law BUT

also make the law.

- Judges apply their KNOWLEDGE OF LEGAL

PRECEDENT to the facts before them (+ statute
law, of course).

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