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Common Law in England

By: Lorna Elliott LLB (hons), Barrister - Updated: 22 Sep 2016 |
 
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the Court of Common Pleas and the Exchequer so as to ensure, as remains the case today, that there were laws that superceded the decisions of the lesser courts.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 was in court afew week ago as litigant in person and standing lawfully under artical 61 magna carta 1215 that I understand was correctly invoked into law in March of 2001 I believed I was entiteled to ask the court questions but I was told by the judge that he ask the questions not me and that I should sit down and shut up! All I asked the judge is if he stood under his oath of office which as I am litigant in person I should be entiteled to do his responce was to threaten me with contempt of court so would his refuseal to answer be costructive contempt off court? All so it is my understanding that as I said above (artical 61) comman law is the only law since 2001as magna carta 1215 can not be altered by modern parlimentwas the comment sir Winston Churchill made on the subject of magna cartand comman law must not be denied by the court's ! ? See halsbury's law vol 44 (2) constitutional act.
rebbal - 20-Sep-16 @ 11:29 AM
Recently found guilty of non removal of former caravannow mobile farm chicken house i claimedcommon law jurisdictionand required the recorder to be on his oath to queen. He constantly disregarded common law reverting to. Statutes and actsthat i advised i did not consent toas i never claimed to be a person he was trying to make me intoi did not understand him nor did i understand his language legalise
Foxy - 15-Aug-16 @ 2:42 PM
Why are you using a graphic that shows the whole of the British Isles as one legal unit ? There are separate legal systems in place on this isle and common law is different depending of which Jurisdiction you are in. If you wish to give information on English Common Law then your graphic should only show the Jurisdiction that that law applies to, it is misleading to people that might live in another jurisdiction and think that had a right that they perhaps dont.
charlie - 25-Jul-16 @ 12:00 PM
Is the common law more about justice than on truth.
wakili - 13-Jul-16 @ 2:46 PM
Do the police have to uphold the law with regards to highways acts. Anti social behaviour officers sent letters to houses saying playing, cricket, football, basket ball or any other ball game on a highway is a criminal offence, and that the houses commiting the offence must stop or get fined. Families complained to a police officer who overturned the offence letter so ball games have begun again. Now police refuse to reinstate the original offences letter as the families concerned are upset. Is this legal, as in, highway acts quoted by police under which offences have been committed can then be overturned by a policeman just coz he feels sorry for crying kids or must the police uphold it regardless if children burst into tears. Was under the impression if police say you have committed an offence under a highways act, then they must enforce / uphold the act because it is Law and has nothing to do with - we will enforce it in this road, but let all the kids off in another road coz they burst into tears?
Intimidated - 24-Jun-16 @ 3:20 PM
Do the police have to uphold the law with regards to highways acts. Anti social behaviour officers sent letters to houses saying playing, cricket, football, basket ball or any other ball game on a highway is a criminal offence, and that the houses commiting the offence must stop or get fined. Families complained to a police officer who overturned the offence letter so ball games have begun again. Now police refuse to reinstate the original offences letter as the families concerned are upset. Is this legal, as in, highway acts quoted by police under which offences have been committed can then be overturned by a policeman just coz he feels sorry for crying kids or must the police uphold it regardless if children burst into tears. Was under the impression if police say you have committed an offence under a highways act, then they must enforce / uphold the act because it is Law and has nothing to do with - we will enforce it in this road, but let all the kids off in another road coz they burst into tears?
Intimidated - 24-Jun-16 @ 3:16 PM
I had a hip replacement the implant was found to be defective, the manufacturer DePuy (owned by Johnson & Johnson) has admitted liability. My solicitor areclaiming under the Product Liability without prejudice and confidential claims review process that they agreed with DePuy. Does this prevent me from in the future pursuing to take my case to The Common Law Court to sue for additional damages and financial losses?
Bevels - 9-Apr-16 @ 2:00 AM
I find it so frustrating the way people try to rewrite history. Case in point: "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." The Great Common Law was established by Alfred the Great. It was established based on 3 principles: The law should express universal principles of fairness, truth and common sense. Just law depends on the inherent dignity and freedom of every individual and the principles of fairness, responsibility, reason and truth. People have to be confident that when a person breaks the law he will be punished. They have to trust that the law is impartial and constant.
Paul Smyth - 14-Mar-16 @ 1:28 PM
Charmed - Your Question:
Can you confirm or correct Eloibara posted on 13/Feb/16 @12.16 who stated statue supersedes common law! Your definition above stated -"English law works on a common law system, as opposed to a civil law system which relies on statue and certain text". Referring to Blacks law dictionary - the word statue is not defined as a law, as such nor would be bills, acts, or legislations! As these are government policies to reduce the people's freedom and generate income! And as such are civil, which is why we have civil enforcement officers.Can you also explain why the courts of this land are a profit making corporation, registered as such For all to see. And why common law is addressed as a secondary concern within uk courts, especially in statue cases, As by doing so the judges/magistrates are failing in their oath! Personally I feel the uk court system is a corrupted, fraudulent, money making corporation, that doesn't respect the people of the land and has no honour!

Our Response:
Unfortunately, we cannot comment on this. If you have an issue, you can air your views via the Justice system complaints procedure, link here.
CourtroomAdvice - 14-Mar-16 @ 12:29 PM
Can you confirm or correct Eloibara posted on 13/Feb/16 @12.16 who stated statue supersedes common law! Your definition above stated -"English law works on a common law system, as opposed to a civil law system which relies on statue and certain text". Referring to Blacks law dictionary - the word statue is not defined as a law, as such nor would be bills, acts, or legislations! As these are government policies to reduce the people's freedom and generate income! And as such are civil, which is why we have civil enforcement officers. Can you also explain why the courts of this land are a profit making corporation, registered as such For all to see. And why common law is addressed as a secondary concern within uk courts, especially in statue cases, As by doing so the judges/magistrates are failing in their oath! Personally I feel the uk court system is a corrupted, fraudulent, money making corporation, that doesn't respect the people of the land and has no honour!
Charmed - 13-Mar-16 @ 4:19 PM
I was found guilty and sentenced to 18 months during a 3 day A.B.H trial at crown court. On the 3rd day during the trial on the stand, the Judge called me a liar and sent the jury out. Then an hour later I was found guilty! Is this legal as it was my first offence and cannot rest? Also the victim had 3 different statements and the last one said I kicked him, is this also acceptable? Would really appreciate your thoughts please.
George - 14-Feb-16 @ 3:21 PM
@Jackamus I don't know if you'll see this but one of the core principles of our constitution is Parliamentary sovereignty, this means that a statute passed by parliament supersedes common/trial law. Therefore, a statute can contradict a common law and become 'the law' but a common law always sits under and must follow statute law
Eloibara - 13-Feb-16 @ 12:16 PM
A man acting as an agent for a debt collection agency took my property. I wish to file a claim in a public forum to have this man restore my property but want to know where the best place would be to present it? (Although your comment box has asked for a title I wish to present this claim as a man under the common law not as a person governed by legislation)
Innit - 23-Jan-16 @ 2:31 PM
I am currently in dispute over a £7000 family credit overpayment, we have audio evidence (from 3 phone calls) that we upheld our responsibility and they duly failed in they're responsibility to us. My question is can I stand under common law if this matter gets to court, and where can I find a layman to help me? Regards, feeling fleeced
Feelfleeced - 20-Jan-16 @ 2:04 PM
@Disgruntled - I don't think there is anything you can do about whether the police charge you or not - but I'd certainly get the hell out of the relationship that's for sure!
DDee - 4-Jan-16 @ 12:41 PM
Hi this holiday week had female friend stay at my home. We was ready to leave to take her home. When we began arguing. She rang the police (999) to say I thumped her on her chest... I never did!I took her home after that. But police called at her home the next day. She says she didnt press charges but they said they would have arrested me down there. But they were not sure of procedure up here 250 miles North. Like I said I never thumped her just shouted at her. She had been drinking heavily usually she can. Know she got previous boyfriend put under restraining order too. She suffers paranoia and mental health issues. Most times you can have a normal conversation. Just want to know as the police seem to believe her at this point; Hopefully they will see through the lies. But what I can do? Can I refuse consent to Acts and statutes of 'domestic violence' charge in my own home(rented) as some say Acts and stautes only apply if we the governed consent to them? Especially, as she lied. I do not want to just sit back and take no action while the police charge me on a 'claim' by an intoxicated woman, when its not true.
Disgruntled - 3-Jan-16 @ 6:26 PM
What happens if a Statute Law violates a Common Law? An example isour rights under Magna Carta and the Bill of Rights. Magna Carta states that we cannot be fined without coming before a jury of our peers and The Bill of Rights states that if we have been threatened with a fine the original reason for the fine becomes void.
Jackamus - 2-Jan-16 @ 11:22 AM
Anyone wanting to know anything about Common Law go to Bookofthelaw.org Everything you want to know is right there so go use it to their advantage.
Valdan - 18-Dec-15 @ 12:44 AM
Terryldactyl30 - Your Question:
My neighbours cemented above my airbricks on my outside wall on their property. They built a carport on top with a verigated roof that ran straight down my wall. My wall is cracking and may be subsiding. Other neighbours moved in and despite my asking them to put up a guttering or to take it down before any more damage happens they ignored my requests and now I have another lot of neighbours who are not taking any action. Can I make them take steps to stop any further damage or can I claim off their insurance to repair my house.

Our Response:
If the neighbours attached this to the outside wall of your property and blocked up your airbricks, then this is illegal. I advise you give your insurance company a call and see whether they may be able to follow this claim up on your behalf.
CourtroomAdvice - 7-Dec-15 @ 12:54 PM
4th Dec I was pulled over for holding a phone in my hand I didn't have the phone to my ear or talking to anyone. The officer claimed I was on the phone. But it was plugged into my hands free kit. Do I have a good case to appeal this. I did not sign any notice although did tell him my name and address and was told I was been given this for in question using a mobile phone whilst driving. Can I act under common law and appeal in courts???
DG - 5-Dec-15 @ 10:54 PM
My neighbours cemented above my airbricks on my outside wall on their property.They built a carport on top with a verigated roof that ran straight down my wall.My wall is cracking and may be subsiding.Other neighbours moved in and despite my asking them to put up a guttering or to take it down before any more damage happens they ignored my requests and now I have another lot of neighbours who are not taking any action.Can I make them take steps to stop any further damage or can I claim off their insurance to repair my house.
Terryldactyl30 - 5-Dec-15 @ 2:34 PM
Hia guys i suffer from depression and have been suicidal and attempted suicide before, so this night i had stabbed myself in the chest with a knife and the ambulance and police came out,when i was in the hospital i went into the toilet where the police proceeded to follow me to insure my safety whilst in there i attempted to harm myself further,the police officer went to grab me and i turned round and as my hands swung about i caught the officer (accidentally) in the groin. I was arrested but later de arrested,i have now recieved a letter for me to attend court to answer the charges,i already have a caution so have you guys got any advice,do you know what is going to happen/what i should do.i live in cheshire and think i need a solicitor but i dont know any can someone also help with that. Thank you.
Charles Leach - 26-Nov-15 @ 8:37 PM
I stoped next store to a police speed van who was parked in a public foot path I approached him and asked if he should be parked there ,he shut the camera hole then thold me to go away I asked him for his rank and number as a public servant was he duty bould to give it to me and are police speed vans allowed to park any where they se fit
richard2611 - 26-Nov-15 @ 11:32 AM
Hi I was given a £50 fine for dropping a cigarette, which I know I was wrong for doing. I gave my correct details but was never asked to sign the notice which the statement above reads... I acknowledge receipt of this penalty notice. Because I have not signed the notice does it still apply and have to be paid?
jwax - 26-Nov-15 @ 9:12 AM
I am being charged with Affray but no one was actually harmed and no one was even abused verbally. It is being heard at a Magistrates court and I want to defend myself under common law jurisdiction can I claim this once entering a court? Also a Magistrate is a public servant can I evoke Trust law?
Sheppy - 23-Nov-15 @ 9:45 AM
charbar - Your Question:
I was given a fine of £80 for dropping a cigarette nub in a city I am not from ( to be honest I wasnt even aware this could happen ANYWHERE) I understand I should have found another place to put it but I was on a training course and didnt want to get lost looking for a bin! anyway, this person followed me watching me smoke waited for me to finish and drop it, I walked about 3 meters away before he stopped me, he did not explain to me that he was giving me a fine he took my personal details and gave it to me before he said I have 2 weeks to pay it. I did not agree to pay the fine and did not sign a contract with him to say I would pay it. I have however taken the fine with me. do I have any legs to stand on to not pay this fine? I was not given an option to go and pick it up either which I would have done and proves that this 'ACT' contradicts itself and is only out to get money out of people because it says that it is costly to clean the litter - let me go an pick it up and save you a job!?

Our Response:
I'm afraid cigarette litter is the same as any other litter in the eys of the law, meaning you can be issued a Fixed Penalty Notice for not disposing of cigarette butts properly. Where bins are not available it is up to everyone to act responsibly and make arrangements to either take their litter home or carry it until a litter bin is available. For the people employed to issue the litter fines, people dropping cigarette stubs are an easy target. It's worth checking with your council to see whether they are obliged to issue a warning, however you may find that they are not. Easy money for the councils? Yes, absolutely.. But the councils will also argue that it is helping keep the environment clean. You decide.
CourtroomAdvice - 11-Nov-15 @ 12:55 PM
i was given a fine of £80 for dropping a cigarette nub in a city i am not from ( to be honest i wasnt even aware this could happen ANYWHERE) i understand i should have found another place to put it but i was on a training course and didnt want to get lost looking for a bin! anyway, this person followed me watching me smoke waited for me to finish and drop it, i walked about 3 meters away before he stopped me, he did not explain to me that he was giving me a fine he took my personal details and gave it to me before he said i have 2 weeks to pay it. i did not agree to pay the fine and did not sign a contract with him to say i would pay it. i have however taken the fine with me. do i have any legs to stand on to not pay this fine? i was not given an option to go and pick it up either which i would have done and proves that this 'ACT' contradicts itself and is only out to get money out of people because it says that it is costly to clean the litter - let me go an pick it up and save you a job!?
charbar - 10-Nov-15 @ 1:42 PM
A summons is nothing more than an invitation to attend. England is a Common Law Juristriction. There is a vast difference in what is Lawful and what is Legal. Legal was invented along with Acts and Satutes. They do not represent Common Law: I do you no harm, you do me no harm. So called 'illegal' acts are there to steal our money, no more no less. ie: Fines for a multitude of misdemeanours, millions made for our criminal government to wage war on innocent people in the Middle East etc., Urinating is a 'natural,' necessary function, it is not a criminal act. Obviously we'd do it with discretion, as this chap tried to do. The police are the criminals here for penalising someone carrying out a bodily function.It seems fine to have women's breasts all over the papers. Pornography splattered all over the Internet, but have a pee and you're ' busted!' Something very very wrong with the judiciary system. The police are turning into thugs and killersthe ones who took an oath to PROTECT. So back to the Summons......an invitation to appear in our ignorance. Ask the Judge if he's Acting on his 'oath and see him squirm. Or even stop thecase and send you away. Legalise= to fleece us of our money, period!!!!!
Peoplepower - 7-Nov-15 @ 9:17 PM
Hi you will never beat the police or gov as thay are so corrupt in every way and the people won't Stand as one get rid of politics and you will have a better country as all these do is civ us dry and brake the law in every way the police think thay can do anything and get away with it as thay do the courts are even more corrupt,it's time the people tuck there country back
Rev - 7-Nov-15 @ 9:46 AM
d - Your Question:
Hi I recently got fined for urinating on a wall out of site of the public and have been summoned to court but as no legal aid is available I refuse to attend because of the price put on justice. can someone explain how a natural bodily function only preformed outdoors because of lack of options which I believe is the councils responsibility to provide specially if they intend on fining people, can possibly be a crime? there was no loss damage or harm caused its ridiculous that they would even waste court time on this, we dont charge anyother being for havin natural functions. If id had anouther option I would have gladly used it, what do they expect ppl to do foul themselves? I never consented to being stealth taxed for a bodily function or to be treated like a criminal because I did something we all do. Everyone has been caught short in their life atleast once

Our Response:
Regardless of your own opinions over the injustice of your fine, if you have received a court summons, then you must attend as to failure to do so, could result in your arrest and subsequently the whole issue spiralling out of control. Please see link: What Will Happen if I Don't Turn Up at Court? here.
CourtroomAdvice - 4-Nov-15 @ 11:09 AM
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