Home > The English Legal System > Common Law in England

Common Law in England

By: Lorna Elliott LLB (hons), Barrister - Updated: 3 Dec 2020 |
 
Common Law English Legal System Statute

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the Court of Common Pleas and the Exchequer so as to ensure, as remains the case today, that there were laws that superceded the decisions of the lesser courts.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.

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I would like to know that my friend did the academic misconduct and he thinks it's not a crime, I would like to know that according to the UK law is it a crime to purchase content for academic submissions and if its a crime then which section of UK law is to explain the terms and conditions? Can I have a link or document to check?
Dany - 3-Dec-20 @ 7:51 PM
I’m a 40ish single male with a failed marriage and a pointless job. I’ve read loads on Facebook and believe I could make things up, just like most folks. when I go to court because of CSA and a repo order can I tell him. I’m under common law and walk out
Balls kings - 22-Nov-20 @ 7:33 PM
I’m being told I can’t use the NHS COVID-19 test I have to use the Private one this will cost me £140 there saying I need to take a test before I can go on holiday in January next year can I make a case Again them with the common law as I think it’s wrong doing charging me and my wife £140 each it’s not right at all. Chris
Toppo - 15-Nov-20 @ 11:15 PM
Interesting, would like to learn more about common law within the law today - is common law not based upon common sense and is the law today not based upon common law??
Jj - 14-Nov-20 @ 12:08 PM
@ Dee 29 Aug 20. Did you ever find out if you can get proper responses here?
Ads - 11-Nov-20 @ 6:51 PM
Hi I recently registered myself under the common law can I register my children as well.and if so how and what would this mean for them thank you
April - 11-Nov-20 @ 3:27 PM
hi if someone did not follow a child arrangements order, despite the threat of contempt , is there anythings from common law that could be said as reason for not following the order
h - 8-Nov-20 @ 11:17 PM
The comments above gave me such a laugh. Paranoid clowns
commonlaw - 7-Nov-20 @ 11:40 AM
I would be interested to know, if I travelled out of my area on my own,up to the Lake District and I got stopped by the Police, could I say anything from Common Law that would stop the Police giving me a fine. Thanks
Andy - 1-Nov-20 @ 6:43 PM
Our human rights are supposed to be protected by the common law, parliament have broke every rule in the book and mis used their powers and instead of leadership turned it into dictatorship which under the common law is ilegal, they have committed mass fraud with this virus and mass genocide as well as tyranny against the UK citizens and tyranny against the Monarchy, parliament has ilegally taken our freedom as it states in the common law we should be free and not to be ilegally held against our will and put in internment camps for a common cold and a survival rate of 99.99 ,so please explain to all of humanity why these crimes are being committed against humanity fines for not wearing a face mask when not needed,track and trace which is ilegal and is a criminal offence and against data protection, corona marshalls in our streets enforcing measures for a common cold and also able to get access into our data by track and trace which again is ilegal, mandatory vaccines for a common cold and force removal of our children and forcing vaccines into them which is assault and ABH GBH forcing drugs into them,they have brought these new laws in without going through the courts so these are not legallly passed laws but yet they are enforcing them even giving the police more power over a common cold,there is alot more which you know what is going on and what are you doing to protect us this common law is supposed to be used as we have human rights which is still protected by the common law. Common law should be protecting our mental health and well being under the common law we should be given the proper health care which parliament has stripped from us and cancer patients treatment been stopped for a common cold, patients being killed off in hospitals as they are a burden on society under common law terminal patients have the rights to treatment but yet given pneumonia and covered up and lies put on their death certificate,patients dying alone and our rights to attend family funerals mix with our own family and friends while Boris goes on holiday to Scotland during the lockdown his girlfriend going to italy and mixing with her friends and Boris hunting in large groups and hes telling us there is a deadly virus and we are locked up like animals in our own homes,the elderly dying of lonlyness as not able to see their families, children are getting sick from the vaccines autism adhd seizures but they do not care as long as they get richer and the pharmaceuticals sell millions of bill gates vaccines to de populate society, get rid of the people who put them there in the first place and pay their wages through taxes, this country is run by the people and if we all stopped and went on strike who pay their wages then, kill us all off who is going to help them line their pockets ,letting in immigrants giving them houses cars phones money and all the while its own citizens are being unfairly treated, the list goes oncommon law needs to stand up for its own people
Lisa - 19-Oct-20 @ 3:16 AM
why is this Government allowed to take our God given freedom and freedom of speach away from us all because of a virus that is no more dangerous than the common season flue that has been proved by Doctors all over the world ,why are our grandchildren and children have to be put through all this scare mongering that will probably effect them for life ,why are the common law barristers and judges not looking into all of thisand fighting for the common people of this country men and women fought two world wars for and gave there all for our freedom this government has no right to take it from us all ,
Tuppton - 13-Oct-20 @ 8:34 PM
My son as to attend court for criminal damage to a wing mirror on his partners car,although he paid for it and was paying road tax,he paid for repair straight away, he was put on bail for a month,he didn't break conditions when he went to police station at the endthey said it was going to court ,and was further bailed until his court case ,he won't get legal aid ,he can't afford,to pay for it,I've tried to get help pronobono but no luck,he doesn't want to get a criminal record, it was a one off spurt of anger as his partner had cheated on him and ,she invited him back to their home to talk then shouted out the window he should not be there,so he was really angry ,
Bev - 17-Sep-20 @ 6:52 AM
Can I use common law to fight a notice of enforcement for driving PCN.
Ellis - 10-Sep-20 @ 11:57 AM
I have seen all questions on this page but never answered. Is there anyone who I can direct my question to and get a response.
Dee - 29-Aug-20 @ 5:36 PM
Having looked over a few of the questions from enquirers its easy to ascertain that your Court Room advice is a lot of hogwash! You are choosing only to answer questions you might have knowledge of instead of going all out to find an answer or indeed a friendly response instead of just ignoring people.. A joke for sure
Venuss - 29-Jul-20 @ 9:40 PM
I want to keep mine and my familys rights. I object for chemicals from vaccines to be injected into my body my wife's or my daughters who is 4. Where will we stand if its made mandatory? I want to be able to keep food on the table and a roof over our heads if this new world order comes in and we don't partipate in vaccines.
Zo - 27-Jul-20 @ 9:00 PM
Can I use common law to make me exempt form paying a fine for not wearing a face mask & make me exempt from wearing one
Tony - 23-Jul-20 @ 8:44 PM
Can common law help with non masks wearing, vaccination and getting out of debt? Also can I oppose 5g masts near my property
Mistie76 - 14-Jul-20 @ 7:54 PM
We want our government looked into for unlawfull lockdown and crimes against humanity where do we even start
Emzemz - 6-Jul-20 @ 3:17 PM
Hello I have recently learnt that The Trace Act HR6666 in the US allows a government official to take a person from their family home if they test positive for Covid 19. If this is adopted in the UK what are my common Law rights? I wish to be able to peacefully exercise my rights for myself and my child to stay at home. Also what are my rights to refuse the erection of a 5G mast in a location near my property which will project unwanted EMFs across my boundary into my space. I await your reply. Thank you for your time. Best wishes
Zanna - 9-May-20 @ 2:41 AM
Ive lost my children my ex wife set me up
Mickyd - 8-Apr-20 @ 10:45 PM
Hi I have a private’s parking ticket They was no cameras in the car park But the man who lives next door thanking photos on his phone andsending them to the company I have applied for a common law card can I use this not to pay it as they want £100’ Thank you
Lindy - 18-Nov-19 @ 7:24 PM
Can i use common law to recover my loan vehicle from a customer the loan vehicle belongs to my garage fleet ?
Ajay Patil - 21-Sep-19 @ 5:08 PM
Im facing eviction from council property.lossesion order.as rent and bedroom tax im struggling.any help in stopping this pls
Azza - 6-Aug-19 @ 4:21 PM
I am looking for a citation to a recent court opinion that reaffirms that the Common L aw is still in effect today. Can you provide one?
William Pert - 20-Jul-19 @ 3:50 PM
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Craig - 12-Dec-18 @ 10:43 AM
Is the EU constituation treasonious under common law. I believe the fooled the British people into voting for EEC common market.When it turned out to sinister being the EU state were the want to abolish the nation state.
Clarkie - 29-Oct-18 @ 1:15 PM
Where is the closest common law court to Liverpool and how do i apply to bring a case there for my forcibly fosterd children please any information would be very much appreciated thanks in advance !!
Kenny - 14-Oct-18 @ 6:36 PM
Clarkie- Your Question:
My mother is disabled and she has mobility issues. The pavement were live are very narrow and some of the premises have large sign outside and it makes it rely difficult to pass easily. Can you advice on the law and the best course of action.

Our Response:
The shops or premises have to apply to the council for permission to put a sign outside their buildings. Your mother may wish to write or contact her local council directly, as one of the pre-requisites of being allowed to display a sign or A-Board is that it shouldn't affect vulnerable groups of people i.e who are disabled, visually impaired or have mobility issues.
CourtroomAdvice - 16-Aug-18 @ 10:28 AM
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