Home > The English Legal System > Common Law in England

Common Law in England

By: Lorna Elliott LLB (hons), Barrister - Updated: 9 May 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the Court of Common Pleas and the Exchequer so as to ensure, as remains the case today, that there were laws that superceded the decisions of the lesser courts.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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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
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.
Clarkie - 15-Aug-18 @ 1:46 PM
which book is best to buy on common law rights.
daz - 23-Apr-18 @ 2:07 PM
Please be lawful smart, helpful and diligent.
Sai Wah CHU - 19-Mar-18 @ 12:20 AM
Who Is willing to represent me using common law jurisdiction
Kano - 13-Oct-17 @ 8:27 AM
This section is a weak and misleading interpretation of 'Common Law'. 'Common Law' is the law in common sense as it applies to man (including woman) in cases of injury, harm or loss to property; wrongs of trespass. Man invokes his/her own court at queens/kings bench. A Man is not subject to act and statutes; codification a of the public law, 'persons' or other legal fictions such as 'defendants' or 'suspects', etc are.
K'Ro - 17-Sep-17 @ 8:13 AM
Statute Law is a law written down and made through the legislative process whereas Common Law is simply created by judges referring back to old cases and what was done in them. Most of the civil rights began as common laws, such as the right to liberty.
Rev'dLightingMcQuee - 3-Apr-17 @ 12:05 PM
Common law is a good system, I think. It's about your own truth I think. Law for the pheasants.
Dover - 19-Mar-17 @ 10:33 PM
How do I go about invoking common law in a court
Mark - 21-Feb-17 @ 11:36 PM
God given rights are the common law . they are not given by man and as such cannot be taken away by man . does any man have a higher authority than God,why do you swear on a Bible,why do judges swear a oath ,why do presidents swear an oath ,the queen takes an oath and swears to uphold gods law .
truth - 11-Feb-17 @ 3:42 PM
Common law is one that most of the countries across the globe have been into operation. By learning, common law , one person can do works without getting any obstacles that is against by law. According to law, which duties and responsibilities are obliged to us?
Aung Naing - 30-Jan-17 @ 4:05 AM
Common law is when someone 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?
njgfuiod - 12-Dec-16 @ 9:53 AM
I am being harassed by bailiffs attempting to collect unpaid illegal council tax, theese monies get put into the bankers hands who fund global warfare--i cannot be a part of that so am considering using a get out of debt letter template asking for 1. My liability to the council 2. The name of the person making the claim 3. Their signature As a corporation theesecannot be provided,i am also going to stipulate a £500.000.000 charge for any further attempts to collect by mail or if any agents turn up at my door to harrass intimidate and extort from me. I believe im on the right legal side and it is my right. What advice do you have for me about this and what steps should i take if they attempt collection after i have sent it,obviously I'll be wanting them to pay up or I'll have to start removing council property,not sure where that process starts though..
Sun - 18-Nov-16 @ 11:56 AM
Skitsey - Your Question:
Is it against the law 2 take a child from her mam? because of her partners past and faulse alligations made against him she should of just been advised about parnters past criminal history not forced intimidated and removed from her own home.

Our Response:
This is always a tricky question to answer. If both parents have Parental Responsibility then the police cannot intervene to take the child off one parent and give them to the other (if one parent intervenes and decides to keep the child without the other parent's consent). It means, the police cannot choose between parents, that is the remit of the courts. However, it is never a good idea to keep a child without the consent of the other parent (unless absolutely necessary), as it can backfire. Therefore, in this situation, if you are concerned about being able to see the child, or, if you think that the child should live with you, you should really seek legal advice and apply for a Child Arrangement Order.
CourtroomAdvice - 11-Nov-16 @ 11:50 AM
Is it against the law 2 take a child from her mam? because of her partners past and faulse alligations made against him she should of just been advised about parnters past criminal history not forced intimidated and removed from her own home.
Skitsey - 10-Nov-16 @ 12:43 PM
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
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