Home > The English Legal System > Common Law in England

Common Law in England

By: Lorna Elliott LLB (hons), Barrister - Updated: 7 Dec 2021 |
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the Court of Common Pleas and the Exchequer so as to ensure, as remains the case today, that there were laws that superceded the decisions of the lesser courts.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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Hi, are there any Common Law courts in the uk if so where? How can i take someone to a common law court?
merc85 - 1-Sep-21 @ 2:09 PM
I am wondering whether you could kindly advise. My partner who I have been with for the last 4 years has been subject to some unfortunate events in regards to his children and marriage prior to my relationship with him. His ex wife and children were taken away from them without his consent and taken into government care as his wife was involved in substance abuse. My partner was removed from the family home prior to this as his ex wife and himself had fallen out regarding a family matter. On my partners return he returned to the home discovering that his children had been taken away without his consent, but by the consent of the mother. During this time my partners ex wife was in the process of being evicted from their council family home due to her substance abuse. It was then that he had to survive (as he could not return to the home) by living in a shed he had bought until he figures out what he could do. Might I mention that my partner is not a uk citizen but a Trinidadian who was in the process of paying for his 3 set of 2years stay within the country. After taking some out with a friend on his farm in Kent my partner returned to find that his shed has been burned down with all his documentation, passports, and evidence that he had to support him as a temporary citizen. He was then subject to living on the streets in which time his temporary stay had expired. My partner has no family in this country other than his children. I developed a relationship with him and have sought to help in all that I can including trying to reapply for citizenship which costs £3,500. In accordance with common law I would like to know whether you could advice me in the matter if possible. His children (6 in total) have been taken into care by his ex wife’s step mother. Who are being paid by the government to house them. Surely this is not right given that he is the birth father and had not given consent to this happening. Should not the government support the birth father to look after his children if he is the father? The birth certificate is proof that he is the father and their are witnesses that he has been a constant figure in their life. He has attended court hearings and contact centre providing for the children still, but their is not support for him. Please kindly advise
T - 31-Aug-21 @ 12:51 PM
I lived with my Dad, he passed away in 2018, & the estate went to probate. I have managed to sell the house, but the solicitors rules are makeing it so difficult to coordinate moving out & she won't complete untill I have... She has spent approximately 20K on eviction fees rather than letting me have it to move. The buyer wanted to complete on the 2nd & my eviction hearing is on this coming Monday Monday the 12th. I need some urgent advice on where I stand? She is still holding over 20K of my dad's life insurance at the moment... Now the cooperation of London is bankrupt are the courts even operating legally, if so how, as any other cooperation would be deemed fraudulent? Many thanks Emma of the Searle family
Emmagr8 - 6-Jul-21 @ 5:58 PM
Branded is what they call me at tesco plc. I was involved in a harassment in 2019 involving a one stop shop. My right to be informed was restricted by police of whether they had cctv from a period of September. I was told it was evidential value to know and so of or providing evidence when I attend the station. The controller however had other ideas and sent me emails before police told me they did not have such footage that police did in fact have this cctv footage. So police told me they did not have the footage. Two days after that I was told by the shop again police did in fact have the footage. This continued for until now . Of the shop informing me police had cctv footage and police informing me they did not have the cctv footage. Ultimately I had a right to be informed and it is noted in law enforcement directive and dpa guidance of how police have the power in their operational need to restrict a right to be informed of processing activities to not prejudice an investigation and prosecution of criminal offences. Yet , when police sent me a dsar response over a year later because they were backlogged providing what I was told when I attended the station that they did not seize or retain cctv footage . It solves nothing , because the controller tesco group nevertheless ascertained police in fact had this footage . I’d describe as non compliance in my right to be informed which when told otherwise before this attendance at the station by tesco group that police had the footage prejudiced the investigation and prosecution of the criminal offence which was lowest level adult simple caution but still. So tesco got smart and decided to respond in meticulous manner sabotaging a context in the content of what I received from tesco before they began to deface my data subject access requests for information. They did this by using the original footage as a means to confuse my requests without responding to the copy of footage in question and simply told me their period of retention and they can not provide the data so to speak . I so then enraged sent inappropriate emails to tesco plc legal knowing the domain I knew every legal on law society and addressed emails to legal and ceo coo also Devon and Cornwall constabulary. I am now in a pickle and find myself with question. I will be prosecuted for my reign of fury. But. I’m thinking about Clause 39 and 40 Magna Carta which brought me here . And that is because of how it all relates back to a right to be informed when I had a harassment charge against me in 2018 and deserved disclosure of that I would of otherwise received if it wasn’t for tesco group supposedly. The supposed part is this. Under section 173 is an offence similar to that of the foia. They are actually identical . On one hand I say tesco had the intention to conceal footage was deleted than the deleted of footage . I mean that by creating a casual link and playing tesco at their own game because obvio
Branded - 22-Jun-21 @ 7:21 PM
I was arrested for something I was only saying there’s a dodgey package on the station I volunteered to go to the police if I had to have made a bomb threat I wouldn’t have contacted merge police my phone was undetectable but I still called in and went to see them it was just before 9/11 but when that happened I was prosecuted as a bomb hoaxer they gave me 13 months in prison and they kept referring to another case before mine they gave me an undergraduate as a defence lawyer I just admitted what they asked me too but it was there words not mine I still have the recordings so I want my case overturned I’ve lived with this shame with my family for nearly 20 years so please look into my case
Scotty - 31-May-21 @ 4:38 PM
I'm at a loss I am an engineer that took up a professional career in entertainment for the past 38 years I have designed brain. Patterning devices and have patents in my name ..so I'm quite professional .but I find myself in a position .where I was stopped earning a living entertaining .making an adequitwage and given 50 fifty pounds per week universal credit . By this government ..waking up one Wednesday morning to find only seven pounds in.my bank I decided to cancel all my outgoings from my bank to stave off a letter costing me more than I had in the bank .so I procured a job cleaning loos and a small plummbing job using my car to get to the job location I was stopped by police and my car impounded .because I had canceled the insurance ..I see this as self defence I'm due in cort on 2junewith no chance of a lawyer I'm stuffed any advice please or should I just kill myselfjust kidding ..there .many thsnx I'm needing help
Mike Coxon - 19-Apr-21 @ 4:25 PM
I am currently self employed and have tax bills going back 2 years, due to helping out ex partner I missed the payment date, I then had my account cleaned out through a friend, I do not want to pay the tax now even though I can afford to on a point of principal, I have been contact recently by tel saying if I do not phone back a warrant will be issued. What would be the best way to go forward on this, I am waiting for my birth certificate to sign up to Common Law Regards Steve Sculpher
Steve - 15-Apr-21 @ 3:44 PM
Anthony Constantinou CEO CWM FX likes your blog
Anthony Constantinou - 17-Feb-21 @ 12:41 PM
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
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