Introduction
The legal system of England and Wales is a common law system, a classification it shares with many other jurisdictions, including the United States, Canada, and Australia, often as a result of its historical connection to the British Empire. This stands in contrast to the civil law systems that are prevalent in continental Europe and other parts of the world. The term "common law" itself refers to law that has been developed by judges through decisions in courts and similar tribunals, as opposed to law created through legislative statutes or executive action (Slapper and Kelly, 2017). This essay will explore the defining characteristics of the common law system. It will argue that the core features of the common law are the doctrine of judicial precedent, a reliance on an adversarial system of justice, and the significant role of the judiciary as a source of law. Together, these characteristics create a legal system that is dynamic and built upon centuries of judicial reasoning.
The Doctrine of Judicial Precedent
Arguably the most fundamental characteristic of the common law is the doctrine of judicial precedent, often referred to by the Latin maxim stare decisis, meaning 'to stand by things decided'. This principle requires that courts are bound by the past decisions of courts of the same or a higher level within the court hierarchy (Holland and Webb, 2019). The primary justification for this doctrine is to ensure that the law is certain, consistent, and predictable. It promotes the idea that like cases should be treated alike, which is a key element of the rule of law.
The operation of precedent is dependent on the hierarchy of the courts in England and Wales. The decisions of the Supreme Court are binding on all lower courts, including the Court of Appeal, the High Court, and so on. The Court of Appeal is bound by decisions of the Supreme Court and, generally, by its own previous decisions, although there are limited exceptions as set out in Young v Bristol Aeroplane Co Ltd [1944] KB 718. The ability of the highest court to change the law is crucial for the evolution of the common law. Until 1966, the House of Lords (the predecessor to the Supreme Court) was also bound by its own past decisions. This changed with the issuance of the Practice Statement (Judicial Precedent) [1966] 1 WLR 1234, which declared that the House of Lords could depart from a previous decision when it appeared 'right to do so'. This power is used sparingly to avoid legal uncertainty but is vital for correcting past errors or adapting the law to new social conditions. For example, in R v G [2003] UKHL 50, the House of Lords overturned its previous decision in Metropolitan Police Commissioner v Caldwell [1982] AC 341 regarding the meaning of recklessness in criminal damage, holding that the earlier test was capable of causing injustice. The Supreme Court has since confirmed that it has inherited this power from the House of Lords (Austin v Southwark London Borough Council [2010] UKSC 28).
For the doctrine of precedent to function, it is necessary to identify the part of a judgment that is legally binding. This is known as the ratio decidendi, which is the legal rule or principle upon which the court's decision was based. Any other statements made by the judge, known as obiter dicta ('things said by the way'), are not binding on future courts. However, obiter dicta from senior judges, particularly in the Supreme Court, can be highly persuasive and may influence the future development of the law. Judges have several tools to navigate precedent. They can apply the precedent, or they can 'distinguish' a case, which involves finding a significant difference in the material facts between the present case and the previous one, meaning the precedent does not have to be followed. This flexibility allows the common law to adapt while maintaining a core of established principles.
The Adversarial System of Justice
A second key characteristic of the common law tradition is its use of an adversarial system of justice. This is particularly evident in court procedure, where two opposing sides (the prosecution or claimant and the defence) present their arguments and evidence before a neutral and passive judge, or in some cases, a jury. The judge's role is to act as an impartial 'umpire', ensuring that the trial is conducted according to the rules of procedure and evidence, and ultimately to decide the outcome based on the arguments presented (Partington, 2018).
This system contrasts sharply with the inquisitorial system used in many civil law jurisdictions, where the judge takes a more active role in investigating the facts of the case. In the adversarial model, the responsibility for gathering and presenting evidence rests almost entirely with the parties. The theory is that the truth will emerge from the 'battle' between the two competing versions of events, as each side tests the other's evidence through techniques such as cross-examination.
While the adversarial system is believed to be an effective method for discovering the truth, it has limitations. The quality of the outcome can be heavily dependent on the resources and skill of the legal representatives on each side. If one party has significantly better legal representation, there is a risk that the case may be decided not on its legal merits, but on the strength of the advocacy. This raises concerns about equality of arms and access to justice, an issue highlighted in cases concerning the right to a fair trial, such as Steel and Morris v United Kingdom (2005) 41 EHRR 22. In that case, the European Court of Human Rights found that the lack of legal aid for two unrepresented activists in a complex libel case against a major corporation constituted a violation of their right to a fair trial. This shows a potential weakness in a system that relies heavily on the parties to present their own cases effectively.
The Judge as a Law-Maker
Flowing from the doctrine of precedent is the role of the judge as a law-maker. Unlike in civil law systems where the judge's primary role is to apply the law as set out in a comprehensive legal code, common law judges have historically created and developed entire areas of law. This is why common law is often described as 'judge-made law'.
The development of the modern law of negligence is a classic illustration of this judicial law-making function. In the landmark case of Donoghue v Stevenson [1932] AC 562, the House of Lords established the 'neighbour principle', which created a general duty of care owed to those who could be foreseeably harmed by one's actions. This principle was not found in any statute but was created by the judges to address a new problem arising in a modern industrial society. Ever since, the courts have continued to develop and refine the principles of negligence law through case-by-case decisions.
However, the power of judges to make law is not unlimited. In the UK's constitutional framework, the principle of parliamentary sovereignty means that Parliament is the supreme law-making body. An Act of Parliament can create new law, change existing law, or overrule the common law established by judges. If a statute and a common law principle are in conflict, the statute will always prevail. Nevertheless, judges retain a significant law-making function through the interpretation of statutes. When Parliament passes legislation, it often uses general language that must be applied to specific factual situations. It falls to the judiciary to interpret the meaning of the words in the statute, and in doing so, they can significantly affect its legal impact. This process of statutory interpretation gives judges a secondary law-making role, filling in the gaps and clarifying the ambiguities left by the legislature (Bennion, 2008). This judicial power has sometimes been controversial, with some commentators arguing it is undemocratic for unelected judges to have law-making powers (Griffith, 1997). However, it is an accepted and essential feature of the common law system, providing the flexibility needed to apply general statutes to real-world problems.
Conclusion
In summary, the legal system of England and Wales is defined by several interconnected characteristics that distinguish it from its civil law counterparts. The doctrine of stare decisis provides a framework of certainty and consistency by making past judicial decisions binding on future courts. The adversarial nature of its legal proceedings places the responsibility for presenting a case on the opposing parties, with the judge acting as a neutral arbiter. Finally, and perhaps most importantly, judges in the common law system have a recognised power to make and develop the law through precedent and statutory interpretation. While each of these features has associated weaknesses, such as the potential for rigidity in precedent or inequality in the adversarial process, they combine to create a coherent and adaptable legal system that has evolved over centuries and remains a cornerstone of the legal order.
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References
Bennion, F.A.R. (2008) Bennion on Statutory Interpretation: A Code. 5th edn. LexisNexis.
Griffith, J.A.G. (1997) The Politics of the Judiciary. 5th edn. Fontana Press.
Holland, J. and Webb, J. (2019) Learning Legal Rules: A Students' Guide to Legal Method and Reasoning. 10th edn. Oxford University Press.
Partington, M. (2018) Introduction to the English Legal System. 13th edn. Oxford University Press.
Slapper, G. and Kelly, D. (2017) The English Legal System. 18th edn. Routledge.
Case Law
Austin v Southwark London Borough Council [2010] UKSC 28
Donoghue v Stevenson [1932] AC 562
Metropolitan Police Commissioner v Caldwell [1982] AC 341
Practice Statement (Judicial Precedent) [1966] 1 WLR 1234
R v G [2003] UKHL 50
Steel and Morris v United Kingdom (2005) 41 EHRR 22
Young v Bristol Aeroplane Co Ltd [1944] KB 718
