Countries throughout the world have very different systems in place for making and updating laws. The two main systems are common law, which is based on cases, and civil law, which is based on government legislation. A third system is called sharia law.
In the UK we use a common law system. This means that we have traditionally based our laws on the idea of judicial precedent. A precedent is when a court makes a decision about a case and the decision becomes a part of the law. In ILSPA’s Legal Secretaries Diploma course, you come across several cases which formed legal precedents. For example, in the law of tort you have one of the most famous legal precedents in the world, the case of Donohue v. Stevenson. This case created the legal precedent behind the law of negligence. Since this landmark case, the law of negligence has developed primarily through other cases rather than Parliament creating an Act.
Another example of a major area created by the common law is the law of murder. The UK law of murder is based on case law dating back to the 17th century. There is no murder Act in the UK, unlike in other countries such as the United States, where they have homicide laws created by the government, not the courts. With the UK law of murder, various governments have added to or modified the common law; for example, a recent Act of Parliament provided special defences to the charge of murder, such as diminished responsibility and loss of control.
The common law system is used in many other parts of the world. As a general rule, any country that used to be part of the British Empire, such as India, Australia, New Zealand, some parts of Africa and the United States, will have a common law system at least in part.
Civil (Roman) Law
Civil law is based on legislation – laws made by the government. In this legal system, the decisions of judges do not create the laws of a country. Civil law is the most common legal system in the world: it is used in most countries in Europe, Asia, South America and Africa.
The civil law system is often referred to as Roman law because it was developed from the legal system used in the Roman Empire.
Some countries do not use either of these two systems. For example, Iran, Nigeria and Saudi Arabia have legal systems based on Islamic (sharia) law. Sharia law incorporates religious law into the legal system. For a number of years there have been discussions in legal circles about whether some principles of sharia law should be incorporated into English law. In particular, the issue of sharia-compliant wills was discussed in 2014, but following representations from various legal commentators, the Law Society withdrew guidelines on this issue.
To function properly, any modern society needs a fair and just legal system. Every system has strengths and weaknesses, so it is not a case of one system being better than another. With the influence of European law on the UK legal system, and our influence on legal developments in Europe, the distinction between the two main systems is becoming blurred. The fact that we as a country are prepared to consider principles of Islamic law highlights the willingness of our law makers to adopt the best aspects of any system in the interest of promoting justice.