Common Law in England

Common law is in effect legal precedent that is made by judges sitting in court. Unlike statutory provisions, which are laws that are codified as Acts of Parliament, the common law is constantly changing.

This is because of the fluid way in which judges interpret the law using their knowledge of legal precedent and common sense and by applying the facts of the case they are hearing to those prior decisions. English law works on a common law system, as opposed to a civil law system, which relies on statute and certain texts.

Origins of the Common Law

Common law is an invention of the English courts: the Kings Bench, the Court of Common Pleas and the Exchequer so as to ensure, as remains the case today, that there were laws that superceded the decisions of the lesser courts.

Judges create the common law by delivering written judgments about the cases before them. If, for example, Magistrates’ Courts across England and Wales were able to make and follow their own precedent, this would create a huge variation in local and regional customs that could mean that local regimes are barely recognisable from one another.

The common law ensures that the law remains ‘common’ throughout the land. However, as it is the House of Lords and the Court of Appeal (Criminal Division) that create the legal precedent in relation to criminal matters in England and Wales, it is the decisions made by these higher courts that bind the lower courts.

There are some situations that are entirely new in relation to the common law, and the English courts do sometimes look abroad at the decisions of other commonwealth courts in order to seek direction or guidance from them. For example, an English court may be asked to consider a case decided in Canada or Australia in the absence of there being any precedent set in an English court. This can also assist in allowing the common law system to have a degree of flexibility but also, because courts look to each other for guidance, a certain level of stability too.

Common Law and Statute Law

Although the English legal system is founded on common law, that is not to say that statutes are any less binding. In fact, statute law codifies certain rules whereas the common law provides interpretations, and clarification when facts of instant cases are applied to the codified law. As a result, the common law and statute law complement each other well: common law keeps statute law up to date and in keeping with modern problems and solutions, as well as creating precedent where there is no statutory codification.

Using the Common Law

As a lawyer or legal student you will often be required to research a point of law to check the current legal position in respect of a particular statutory provision or factual scenario. What this means is that you will have to research whether there is are any relevant statutes that relate to the area you are considering, and then look at recent (and sometimes not so recent) case law decisions of the higher courts to see if there is any other guidance thereon. Once you have identified these, it is also very important that you ensure that any statutes you have found are still in force.

Further, check that any case law decisions have not been subsequently overturned either by more recent case law, or by a judgment of a higher court (e.g. House of Lords overturning a Court of Appeal decision) or because a subsequent Act of Parliament has codified the common law and by virtue of the new statute the law has been amended or changed.