The Common Law System
The term "common law" can be understood in a straightforward sense as the body of law developed through judicial decisions, but when comparing the various legal systems of different countries, it is widely used as a general term referring to the English legal system or the Anglo-American legal tradition as a whole. Countries such as the United Kingdom, Ireland, the United States, Canada, Australia, New Zealand, and Singapore operate legal systems based on the common law tradition, whilst countries such as South Korea, Japan, Germany, and France operate legal systems based on the civil law tradition.
The principles of the common law system are frequently employed in international business and commercial law, and common law jurisdictions are often preferred in many global contracts. For instance, when a global company A from South Korea enters into a contract with a global company B from Germany, despite both countries belonging to the civil law tradition, it is common for the contract to specify English law as the governing law in the event of a dispute, with disputes to be resolved before the courts in London, England. In certain fields such as maritime law, English common law is even applied as the applicable international governing law.
Case Law
Common law is a legal system formed by the accumulation of judicial precedents. Legal principles are established through the judgements handed down by the courts and are repeatedly applied and developed in subsequent cases of a similar nature. Accordingly, a court's judgement does not merely resolve a single dispute; it is regarded as part of the law and aims to ensure consistent outcomes in future cases of a similar kind. For this reason, the common law system is sometimes described as a precedent-centred system. Depending on the context, "common law" may also refer to case law as distinct from statutes, rather than signifying the Anglo-American legal tradition as a whole.
There are several principles within common law case law, which have been applied to countless cases both past and present. In particular, the many cases produced within the English common law system commonly contain two important elements.
The first is that every judgement contains a ratio decidendi (ratio). Translated into English, this means "reason for the decision" and may be understood as the legal ground for the ruling. The precise definition of ratio is "the legal rule which the judge considered necessary in order to reach the conclusion of the case." That legal rule may take a documented form, or it may be implied without being formally recorded. For example, the judge may have relied upon a particular provision of a statute considered most appropriate to the case, cited the ratio from a judgement delivered twenty-five years earlier in a precedent similar to the case at hand, or applied a legal determination within the judge's own discretion as inferred from the facts of the case. The ratio therefore represents the essential legal reasoning of a judgement and constitutes the basis upon which that judgement carries binding force in other cases.
The second is that almost all judgements also contain content that falls within obiter dicta (obiter). Translated into English, this means "other things said," and may be understood as incidental opinions or observations discussed in the course of reaching a judgement. The precise definition is "a legal opinion that was not directly necessary for the judge to reach the decision." For example, where another precedent or a related statutory provision is considered too broad or too narrow in its scope to apply to the case, or where the degree of factual disparity with the core subject matter of the case is considered too great, the relevant remarks are recorded as obiter. The content of obiter carries no binding force in other cases, but may carry persuasive weight.
Stare Decisis (Doctrine of Precedent)
The Latin phrase stare decisis translates into English as the "doctrine of precedent." This doctrine operates as the overarching principle at the apex of the English common law's precedent-centred system. Put simply, it is the concept that a legal principle established in one case may have binding force in subsequent cases. However, a past judgement does not automatically influence subsequent rulings merely by virtue of having been decided earlier; several conditions must be satisfied for this doctrine to operate.
The first condition is that the content to be drawn from the past precedent must be an established principle in the form of a proposition of law. For example, if a previous case held that the defendant must compensate the claimant with twice the deposit amount, it is not the figure of double compensation that carries binding force, but rather the legal reasoning that led to that figure, and how and in what manner the relevant arguments were applied to reach that conclusion.
The second condition is that only the ratio stated in the past precedent — that is, the essential ground for the decision — may be extracted and applied. Only the ratio carries binding force; obiter may serve as a point of reference only and cannot carry binding force.
The third condition is that the court which produced the past precedent must be a superior court to the court currently hearing the case. For example, a judgement of the Supreme Court binds a Magistrates' Court, but the converse does not hold. Even where all other conditions are satisfied, a lower court's judgement does not, as a matter of principle, affect the judgements of a superior court.
The fourth condition is that there must be no clear factual distinction between the two cases. For instance, if a previous precedent held that a particular contractual term was invalid on the ground that the agreement was verbally agreed, and a similar dispute arises in the present case from a contract in writing, there would likely be a strong case for treating this as a factual distinction.
Sources of English Law
Case Law
As already explained, case law is a central source of English law and is formed through judicial decisions under the doctrine of stare decisis (doctrine of precedent). It is not known precisely when court judgements began to be recorded and referenced in the form of case law, but records of cases generally survive from around the eleventh to thirteenth centuries, and it is therefore considered that the accumulation of case law began from that period.
For example, Ealdred v High Sheriff of Yorkshire (c. 1068), recorded during the Norman Conquest of England, and Furrer v Snelling (1220), recorded after the English legal system began to be consolidated following the accession of Henry II, are among a number of historically significant early precedents.
Statutory Law
Statutes (statutory law), that is, enacted or written law, also constitute an important source of English law. When discussing English law and the English legal system, it is sometimes mistakenly assumed that, because England follows a precedent-centred system, statutes are entirely absent and the legal system operates exclusively on the basis of case law. This is not correct. Whilst case law is undoubtedly a central source of English law, a vast number of statutes — so numerous as to be difficult to count precisely — also form an important part of the sources of English law.
The history of statutory law in England is also very long, and the total number of statutes, including those still in force as well as those that have been abolished, is difficult to ascertain precisely. One example of an early statute of which records survive to this day is the The Statute of Marlborough 1267, enacted in 1267.
English statutes may broadly be divided into two categories according to the body that enacts them and the scope of their application. The first category comprises legislation enacted as primary legislation, which is enacted directly by Parliament and is therefore referred to as Acts of Parliament; in most cases such legislation is enacted to have effect throughout the United Kingdom. The second category comprises legislation enacted as secondary legislation, which is enacted by government departments or public bodies acting under authority delegated by Parliament and is therefore also referred to as delegated legislation. Secondary legislation is often enacted in order to set out the specific details required for the practical implementation of legislation enacted as primary legislation, and it frequently takes effect differently across England, Wales, Scotland, and Northern Ireland, or is enacted separately for each jurisdiction from the outset.
Equity Law
Equity law constitutes another important source of English law. Equity law is the body of law applied in the Court of Chancery, which was established separately around the fourteenth century to supplement the limitations of a common law that had become rigid and inflexible. Its origins lie in the growing practice of parties to disputes arising within the royal court and household petitioning the monarch directly for resolution, rather than seeking recourse through the ordinary courts; the Court of Chancery was eventually established as an independent judicial institution to address this need.
The monarch and the Lord Chancellor, appointed by the monarch, would, unlike judges in the ordinary courts, not follow solely the standards of common law case law, but would instead deliver judgements providing fairer and more practical remedies. For example, the shortcomings of common law — which repeatedly delivered judgements in favour of defendants on the basis that the claimant's damages in cases such as breach of contract were uncertain — were addressed by granting equitable remedies such as decrees of specific performance and injunctions, thereby pursuing a more flexible and equitable judicial resolution.
The Court of Chancery and equity law carried judicial status and effect equivalent to those of the common law courts, and accordingly claimants in England at that time could choose between commencing proceedings in the ordinary courts to obtain a judgement grounded in common law, or commencing proceedings in the Court of Chancery to obtain a judgement grounded in equity law. By the nineteenth century, judicial reforms led to the abolition of the Court of Chancery, and all courts in England thereafter became competent to deal with and deliver judgements in both common law and equity matters.
EU Law and International Law
EU law and other sources of international law also constitute important sources of English law. Statutes that directly implemented EU law during the period of the United Kingdom's membership of the European Union, as well as legislation indirectly influenced by EU law, continue in many cases to retain legal effect following Brexit.
International law is incorporated into English law in the form of treaties between states. When Parliament ratifies a treaty, it acquires the same effect as domestic law, or alternatively the specific provisions of the treaty may be enacted as domestic legislation in the United Kingdom in order to give them effect.