Quaid-E-Azam Law College Sargodha

Subject: Legal Systems

(LL.B Part I)Topic no: 5

Common Legal System

Introduction:

Common law is a legal system that originated in England and is based

on judicial decisions and precedents rather than legislative statutes or
codes. The term "common law" refers to the body of law developed over
time by judges in the course of resolving disputes in specific cases.

Under the common law system, judges are responsible for interpreting
and applying the law in individual cases. As they do so, they establish
legal principles and precedents that guide future decisions. These legal
principles and precedents become part of the body of common law,
which is continually evolving.

Common law is often contrasted with civil law, which is based on a

comprehensive set of statutes and codes. In civil law systems, judges are
primarily responsible for applying these statutes and codes to individual
cases.

Common law is the basis of the legal systems in many countries,

including the United States, Canada, and Australia. In these countries,
common law principles are applied in conjunction with statutory law to
resolve legal disputes.

Definition:

According to the Oxford Dictionary of Law, Common Law is defined

as "the body of law that has developed from custom and judicial
decisions in English and U.S. courts, rather than from statutes or
constitutions.
 The sources of common law can be divided into two main categories:
primary sources and secondary sources.

Origin and historical aspect of the common law legal system:

The common law legal system is a legal system developed in England

and still used in many English-speaking countries today, including the
United States, Canada, Australia, and New Zealand. The origin of the
common law system can be traced back to medieval England in the 11th
century.

At the time, the legal system in England was based on local customs
and traditions, which varied from region to region. As a result, the
legal system was fragmented and inconsistent. King William the
Conqueror, who invaded England in 1066, attempted to
unify the legal system by appointing judges who would travel the country
to hear cases and apply the law uniformly.

Over time, the judges began to develop a body of law based on the
decisions they made in individual cases. This body of law became
known as "common law" because it was based on the common
principles and practices that emerged from the judges' decisions. The
common law system was also characterized by the use of precedent,
which means that judges were expected to follow the decisions of
earlier judges in similar cases.

The common law system continued to develop over the centuries, with
judges and legal scholars refining and expanding the body of law. In the
18th and 19th centuries, the common law system became a model for
other countries, including the United States, which adopted the common
law system as its own.
Today, the common law system is used in many countries around the
world, although it has evolved and been adapted to meet the needs of
each country. Despite its long history, the common law system remains
an important part of the legal system in many countries, and its
principles and practices continue to be studied and debated by legal
scholars and practitioners.
Sources of Common Law:

There are the following sources of the common law legal system

Primary sources of common law :

1. Judicial decisions: The decisions made by judges in individual cases

form the foundation of the common law system. These decisions are
often recorded and published in legal reports, which can then be used
as precedents in future cases.
2. Custom and tradition: Customary practices and traditions, which
have developed over time within a particular community or society,
can also be a source of common law.
3. Maxims and principles: Maxims and legal principles, such as the
presumption of innocence and the duty to mitigate damages, are also
important sources of common law.

Secondary sources of common law:

1. Legal commentaries: Legal experts and scholars provide analysis and
guidance on the law through written commentaries and treatises. These
commentaries can help to shape the development of common law by
providing insight into the legal principles and concepts underlying the
decisions made by judges in individual cases.
2. Restatements of the law: Restatements are published by legal
scholars to provide a concise summary of the law on a particular topic.
They are intended to clarify and simplify the law, making it more
accessible to lawyers, judges, and the general public.
3. Academic writings: Law professors and other academics write
scholarly articles and books on legal topics, which can influence the
development of common law by shaping the way legal concepts are
understood and applied.

Characteristics of common law:

The common law legal system is characterized by several distinct

features:
1. Precedent: The principle of precedent is a fundamental aspect of the
common law system. Precedent refers to the practice of judges
following earlier decisions made in similar cases. The decisions made
by judges in one case become binding on later cases, creating a body of
case law that serves as a guide for future decisions.
2. Adversarial system: The common law system is based on an
adversarial system, in which two parties present their case to an
impartial judge or jury. The parties are responsible for gathering and
presenting evidence and arguments to support their case, and the judge
or jury is responsible for weighing the evidence and making a decision.
3. Emphasis on the written word: In the common law system, written
law is given greater emphasis than oral law. Statutes, case law, and
legal opinions are all recorded in written form, providing a record of
legal decisions and guiding future decisions.
4. Flexibility and adaptability: The common law system is characterized
by its flexibility and adaptability. Unlike civil law systems, which rely
on codified law, the common law system relies on the ongoing
development of case law, which allows the legal system to evolve and
adapt to changing social, political, and economic conditions.
5. Separation of powers: The common law system relies on a
separation of powers, with the judiciary acting as an independent
branch of government. Judges are responsible for interpreting the law
and making decisions based on their interpretation, and their decisions
are not subject to review or revision by the legislative or executive
branches of government.

Overall, the common law system is characterized by its emphasis on

precedent, the adversarial system, the importance of the written word,
flexibility and adaptability, and the separation of powers. These features
have helped to make the common law system a vital and enduring legal
system used in many countries around the world.
The Judiciary and Magistrates in Common Law Legal System

Appointment of Judges:

Though England does not have a career-structured judiciary, certain

lawyers choose to be a judge at the beginning of their careers. All English
judges from Lords of Appeal to stipendiary magistrates are usually
chosen from the rank of practicing lawyers, most of them are barristers
but there is an increasing number of solicitors.
A circuit judge, namely Sachs J, a former practicing solicitor was
appointed on 18 June 1993 the judge of the High Court.

b) Removal of Judges

Judges of the High Court with the exception of the Lord Chancellor hold
office during his good behavior subject to the power of removal by the
Her Majesty on an address presented by the Houses of Parliament. This
provision is contained in the Supreme Court Act 1981 and derived from
the Act of Settlement 1701. The Lord Chancellor may remove the judges
below the High Court level on the ground of misbehavior and incapacity.

c) Immunity and Independence

Immunity is an extension of the principle of an independent judiciary. A

judge may not be sued in a civil action for anything done or said while
acting in his judicial capacity. No action lies against the Judge of the
superior court and inferior court for anything he says or does in the
exercise of his judicial office;
The independence of the judiciary means that the judges are not
controlled by the executive or the legislature. They do not take part in
politics or cannot become Members of Parliament at the same time.

d) Retirement of Judges

The ages for retirement are as follows:

Lord of Appeal in Ordinary
75 years
Lord Justice of Appeal High Court Judge
75 years
High Court Judge
75 years
Circuit Judge
72 years (possible extensions to 75 years)
Recorder
72 years

e) Role of the Judge

 Supervisory conducts of the trial.

 Sole arbiter of any legal issue.
 In civil cases the quantum of damages is decided by the judges
unless a decision made fails to be made by a jury, eg, in defamation
cases
 To interpret, clarify, or give effect to the law.
 In criminal cases, the role of summing up to a jury and passing of
sentence.
 In civil cases, judges only decide the law and facts, but certain
actions may be tried by the jury.
 In exceptional cases to reform the law.

f)Judicial Offices

LORD HIGH CHANCELLOR:-He holds the highest judicial office. He

is the speaker of the House of Lords, the Government's principal
spokesman on any matter of law, a Minister of Crown and a Cabinet
Minister. He also recommends most of the judicial appointments. Ex
officio head of the Chancery Division and president of the Court of
Appeal, he presides over the judicial sittings in the Privy Council and
House of Lords.

LORD CHIEF JUSTICE: -After consultation with the Lord Chancellor

and on the recommendation of the Prime Minister the appointment of
Lord CJ is made.
Lord chief justice is the President of the High Court in the absence of the
Lord Chancellor and he is also President of the Queen's Bench Division,
which is presided over the Criminal Division of the Court of Appeal.

MASTER OF THE ROLLS: -He presided in the Civil Division of the

Court of Appeal, although the House of Lords is the final appellate court,
the number of civil appeals heard by the House is 50 in an average year
while in the civil division of the Court of Appeal is 1500. Master of the
Rolls has a great deal of influence over the development of civil law.

PRESIDENT OF THE FAMILY DIVISION: -President of the Family

Division is responsible for the management and organization of his
division; he is an ex officio member of the Court of Appeal and an ex
officio member.

VICE CHANCELLOR: -The position of Vice Chancellor is recreated

by the Administration of Justice Act 1970 which organized the business
of the Chancery Division.

LORD JUSTICES OF APPEAL: -They must have the qualification of

10 years of High Court within the meaning of section 71 of the Courts
and Legal Services Act. 1990 or be a judge of the High Court. The
maximum number is 32 and they sit in the Court of Appeal. Any woman
judge in the Court of Appeal is known for informational purposes as the
Lady Justice and may be addressed as My Lady.

HIGH COURT JUDGES: -Justices of the High Court must have the
qualification of 10 years and the maximum number is 98.

CIRCUIT JUDGES: -This position was introduced in 1971, all the

county court judges concerned with civil work became circuit judges and
assigned to the Crown Court, they have a mixture of civil and criminal
work to their High Court counterparts.

RECORDERS: -They must have 10 years of Crown Court or county

court qualification within section 71 of the Courts and Legal Service Act
1990.
 A recorder who has the judicial ability may be appointed as a circuit
judge or High Court Judge.

PRESIDING JUDGES: -There shall be at least two Presiding Judges

appointed from the puisne judges of the High Court and there shall be a
Senior Presiding Judge for England and Wales appointed from among the
Lord Justices of Appeal.

DISTRICT JUDGES The offices of the Registrar, assistant district

registrar, and deputy district registrar for each district registry of the High
Court became the office of the district judge, assistant district judge, and
deputy district judge.

Courts System in Common Law

a) Divisions of Courts

The two fundamental kinds of courts are superior courts and inferior
courts. Superior courts have unlimited jurisdiction and include the House
of Lords, Privy Council, Supreme Court, and Crown Court. The inferior
courts, on the other hand, have jurisdiction limited either by value or
geographically.!

b) Civil and Criminal Law

English law and procedure are divided into two categories namely civil
law and criminal law. Some courts have jurisdiction over both civil and
criminal cases as the Court of Appeal.

c) Courts of Common Law and Equity

The rules of equity were administered by the Court of Chancery and those
of Common Law by the Courts of Common Law until the Judicature Act
1873 came. The Judicature Act 1973 had different procedures, principles,
and remedies. The jurisdiction of both the superior common law courts
and the Court of Chancery was transferred to the High Court and judges
were required to apply both sets of rules where relevant.
d) European Court of Justice

The EC Treaty gives the jurisdiction for the hearing of various matters
concerning European Law to the European Court of Justice at
Luxembourg. It also includes the power to review the legality of
Community legislation.

e)European Court of Human Rights

The European Convention for the Protection of Human Rights and

Fundamental Freedoms was brought into being by the Council of Europe
and any infringement may be referred ultimately to ECHR. Originally
Parliament was a court that exercised certain judicial functions but by
Tudor times this jurisdiction came to be exercised exclusively by the
House of Lords.
The jurisdiction of the House is generally appellate, hearing appeals from
mainly the following:

1. The Court of Appeal

2. The High Court
3. A Divisional Court of the Queen's Bench Division in a criminal
cause or matter.
4. The inner House of the Court of Session
5. The Court of Appeal

The Court of Appeal

The Court of Appeal is the highest of the three courts, which constitutes
the Supreme Court of Wales and England, the others being the Crown
Court and High Court. Lord Chancellor is the president of the Supreme
Court. The Court of Appeal is composed of ex officio judges who are the
Lord Chancellor, the Lord Chief Justice, the Master of the Rolls, the
president of the Family Division, Lords of Appeal in Ordinary and former
Lord Chancellor, the Vice Chancellor, and Lord Justices of Appeal. In
practice, only the Master of Rolls and the Lord Chief Justice of ex officio
judges sit in the civil and criminal divisions.
The High Court

The High Court was established by the Judicature Act 1873 and 1875
which abolished the old courts of the Court of Kings Bench, Court of
Exchequer, Court of Common Pleas, Court of Chancery, Court of
Admiralty, Probate, Divorce and Matrimonial Causes and transferred
their jurisdiction to the High Court. The High Court has five divisions

 Queen's Bench Division

 Common Pleas Division
 Exchequer Division
 Chancery Division
 Probate, Divorce and Admiralty Division

Magistrates courts :
Magistrates' Courts have a vastly and varied jurisdiction. They are
involved in all criminal prosecutions; magistrates hear cases concerning
young persons when constituted as a Youth Court, family or 'domestic
proceedings, as well as enforcement of income tax or local tax.

The County Courts

In England and Wales, there are almost 250 County Courts. As a result,
the first instance in the civil justice process as most medium-sized and
large towns contain this court. The bulk of cases heard before they are
routine

attempts at debt collection. Their jurisdiction has always been subject to

both financial and geographical limits, but within those limits, jurisdiction
has generally been concurrent with that of the High Court.

The Crown Court

A court of the first instance for the trial of the more serious criminal
offences, the Crown Court also has significant appellate and civil
business.
One of the controversial aspect of the Crown Court's jurisdiction concerns
the extent to which an accused person should have the right to insist upon
trial by jury.

The Supreme Court

The Supreme Court came into being in October 2009, replacing the
Appellate Committee of the House of Lords, and assuming the devolution
jurisdiction of the Judicial Committee of the Privy Council.

The Supreme Court is now the highest court in the UK. The court is
comprised of 12 'independently appointed judges' called Justices of the
Supreme Court. The Court's jurisdiction extends over appeals on matters
of law raising issues of 'great public importance' in civil cases from the
UK.