Adam Rushton                        Assignment 1 -Zita Draper 

The English Legal System is based upon common law principles. Explain what this means




Common law plays a fundamental role in helping derive the English legal system. These laws were originated with the legal reforms of King Henry II in the 12th century. During this time, it was established that the reasoning behind the name “common” was that the law was applied equally across the whole country. Common law was administered in the king’s courts and separate systems were introduced mainly the discretionary remedies that were administered by the Lord Chancellor.

During the 17th and 18th centuries, traditional British common law was influenced and was used by many different countries including the U.S common-law system and other countries such as New Zealand and India also created new legal systems all Influenced by the British common law.

Judicial authorities and public juries utilised through sharing institutionalized opinions which helped to create a high standard of interpretational law. Over a long time period common law has furnished the basis for new legislation to be written. Common law places an emphasis on precedent while allowing some freedom for interpretation in the modern era’s common-law system.  
Common law is still very much in effect in US and elsewhere today. Both the US and UK operate under a dual system of both common and civil law. An example of common law would be Common-law marriage. Common-law marriage is a marriage that is not formally registered as a civil or religious marriage yet grants partners the same rights as those who are married.

In other words, common law marriages allow cohabitating partners to seek the benefits of being married without being formally married. In addition to this, these marriages are not recorded by state registrates nor are they celebrated in religious institutions.

Whereas common-law plays a fundamental role in shaping the English Legal system, Civil law also assists common-law in structuring this legal system. This is a branch of law that regulates the non-criminal rights, duties of persons and equal relations between private individuals as opposed to criminal law and administrative law.

This legal system is based upon the codification of laws that originates from Roman Law. The civil law system helped rediscover Roman Law in the Middle Ages. Today, civil law continues to be the most common legal system in the world.

Civil law settles disputes between individuals and organisations, and it often involves compensation being awarded. A person is not incarcerated in a civil case, only liable for compensation to opposition if they are found guilty so by the judge. This law exists to protect individuals against one another, whereas other laws do not do this. There are roughly 150 countries that have been described as primarily civil law system-based countries.

There are some major differential rules and circumstances between Common-law and civil law. The main difference between these two systems is that common law which is based on judicial opinions is of primary importance, whereas in civil law it is about the codified statutes predominance.


Lawyers are still able to represent the interests of their clients in civil law matters but do not play a major role in these trials in comparison to judges. Lawyers almost always have a significant role to play in formal dispute resolution, no matter in which country they practise. But the specific tasks assigned to them tend to vary quite a bit. And outside the court, tasks typically performed by lawyers in one country may be performed by skilled laypeople in other countries.

In common law countries, judges play an active role in interpreting and applying the law to the facts of individual cases. They always rely on precedent and past decisions to help them evaluate their final decision making. In civil law countries, the judges play a more passive role and will strictly apply the law as it has been written in the law’s codes and statues.

The legal procedure is one of the main differences between both common and civil law as they both use different pieces of legislation and processes to seek the best outcomes during said trials. Common law countries rely on a adversarial legal system and this is completely the opposite to where judges play a more active role in questioning many witnesses and gather evidence when you are involved in a civil law matter and a case has been made for the courts.

Using precedents, common law systems represent a chain of thought regarding a particular issue. The precedents and reasoning that connect these thoughts parallel the thinking and the issue's role in society. One of the amin disadvantages of common low is that the systems provide little oversight for law-making authorities in the judicial branch, who are not appointed through the election and cannot be removed unless for misconduct.

When a common law judge presents a case to the jury, they determine what precedents apply to it and decide based on this. Biased and antiquated decisions shape future rulings until significant societal changes make the judicial body overturn the precedent. The system makes it harder for marginalized communities to get just or favourable court rulings until civil legislation or social sentiment changes the way common law and rights are interpreted.

Judges look for crucial elements that make the current case like previously processed common law cases. This decision by the judge must be disclosed and presented in writing.

 Common law has also been described as flexible, since it can respond to changes in society. Unlike civil law systems, common law doesn’t require lawmakers to pass changes in statutes and codes, which can take a long time or never happen at all. When it comes to common law, higher courts can and sometimes do overrule prior decisions as “bad law” and they don’t need to wait for lawmakers to do it for them.

Common law has developed significantly over the years and businesses and governments have seen advantages to this that include Equity.

Equity is to correct common law defects and mitigate its harshness. It can be used for all classes of people unlike the common law. The law was very technical in common law and if there was error in the formalities the person making the claim would lose the case. In this case, equity rewards the claimants better.

 The only remedy that common law could give was ‘damages’ – that is an order that the defendant pay a sum of money to the claimant by way of compensation. The chancellor also developed new remedies which were able to compensate the appellatives more fully than the common law remedy of damages. The main equitable remedies were injunctions, specific performance, rescission, rectification. Equity is not a complete system of law; it merely fills the gaps of common law and soften the strict rules of common law.

The English Legal System has been made up out of many principles of common and civil law and the government continues to use these principles on a day-to-day basis to keep the government intact and the fairest it can possibly be to this modern era’s society. Legislation has been made through time and this will be expected to be maintained as time goes by.