Free guide
What is the Common Law?
10 – 16 minutes to read
In this guide
Share this
1. Introduction
The common law is something that is well understood by lawyers but can be difficult for non-lawyers.
Confusingly, the meaning of ‘common law’ really depends on the context in which it is used, and there are three different situations that can apply:
- Common law as opposed to statute law
- Common law as opposed to ‘the law of equity’ and
- The common law legal systems used in many countries as opposed to those with a civil code.
Let’s take a look at these, but first I want to start with a bit of history
2. In the beginning
The legal system in England and Wales goes back a very long time – way back before the Norman conquest in 1066. In those early years, justice was usually dispensed via local courts and decisions were largely based on local custom and practice.
The king (or Monarch) was the ultimate authority and in early medieval times, enactments and caselaw were not considered to be essentially different in the way that they are today. They both came from the royal councils that advised the King, and the King could both make a law and decide a legal case.
The common law as we know it probably started with the Kings Judges which were sent out around the country to dispense justice. The decisions were often written down and kept in a central record. They would then be referred to by Judges in later cases. From this developed the ‘common law’ which applied everywhere – as opposed to the local laws and customs which would only apply in the local courts.
Over time the local courts (for example the local Manor courts) fell into disuse and the King’s courts became the main courts.
3. The Common Law v. Statute
It is not often realised by non-lawyers that a major part of our law is not contained in acts of Parliament but in the thousands upon thousands of decided cases, which build up like leaves on the forest floor.
The theory of common law
The theory is that there is this great underlying body of common law which covers everything, and this is then, from time to time, changed (or perhaps clarified) by an Act of Parliament which lies on top of it. If for any reason the Act does not apply, then the underlying common law will.
So for example, there is a major act, the Housing Act 1988, which set up a statutory code governing rented properties created since 15 January 1989 (before that the Rent Act 1977 applied). But in some circumstances (eg if the tenant is a limited company, or the let is a genuine holiday let) that act does not apply.
In those circumstances, we have a common law tenancy. One which is governed by the common law rules rather than those set out in the Housing Act.
Finding the common law
How do you find out what these common-law rules are? The answer is often “with great difficulty”. The common law is Judge made and has been built up over the centuries by Judges deciding cases. You need to find a case which applies to your situation, and then you may have your answer. But not always.
Lawyers generally learn about the common law rules and practice as part of their training and the rules are set out in lawyers textbooks (which tend to be rather expensive).
Non-lawyers will find guidance in information sites such as this Renter’s Guide, and the Shelter website.
How Judges find the answer
So how do Judges decide a case if there is no Act of Parliament and no relevant case law?
The theory is that there is always an answer. They just have to find it, as Michaelangelo found the statue inside the block of marble. So:
- They look at case law covering similar situations
- They look at custom and practice (often going back many years)
- They look at what courts have decided in similar situations in other countries (particularly those with common law legal systems)
- They look at respected academic legal writings, government and industry reports, and perhaps reports in Hansard
- They consider what would be fair and just in all the circumstances
- Sometimes they also consider the impact of a certain decision and whether or not this is something they can do or whether it should be left to Parliament.
Many important areas of law are almost completely Judge made. For example, the law of negligence is based on a famous case called Donoghue v. Stevens in 1932.
4.Common law v. Equity
What then, is equity? Again we have to go back into the past.
We said earlier that the kings would send out the Judges to travel the country to dispense Justice. However, the common law that developed from this eventually became very formalistic and rigid and often resulted in injustice.
As the King is the fount of all justice, people would petition him for relief from the harshness of the common law.
Originally the King would deal with these cases himself.
However, pretty soon (about in the reign of Edward 1) they got passed over to one of his officials to deal with for him. This official was the Chancellor and his court became known as the Court of Chancery – which for many years would sit in Westminster Hall.
Clean hands and the Court of Chancery
From then on, and particularly from about 1400 onwards, the Chancellors court developed a system of law all of its own, which became known as ‘equity’. The reason for this is that the court was a ‘court of conscience’ which was concerned with fairness (equity) rather than the strict procedural law of the King’s Courts.
However, to take advantage of the equitable rules in the court of Chancery, you had to have behaved fairly yourself. This is set out in one of the ‘maxims’ of the court – “he who comes to equity must come with clean hands”.
Equity and Law
The rights people had under the King’s Courts were known as common law or legal rights (‘law’). The rights enforced by the Chancellor were ‘rights in equity’ or ‘equitable rights’ (‘equity’).
Generally, equitable rights were things to do with trusts and family law, and the Court of Chancery specialised in trusts and the administration of estates, guardianship and insanity, and charities.
The Kings Courts only normally awarded money to the winner, so the Court of Chancery developed other remedies such as injunctions, specific performance, and recession of contracts (i.e. putting people in the position they were before the contract was made).
A conflict of laws?
So then we had these two separate courts and legal systems running side by side. Both with their own remedies and rules. Over time the Court of Chancery became every bit as formulaic and hidebound as the common law of the King’s Courts.
It is the Court of Chancery which is so wonderfully portrayed in Dickens’ book ‘Bleak House‘ where the interminable case of Jarndyce and Jarndyce sucks life and joy out of all who come in contact with it.
A merger of the courts
Influenced no doubt by Dickens, the two courts were eventually merged in the 1873 and 1875 Supreme Court of Judicature Acts. This finally dissolved the Court of Chancery and created a new unified High Court of Justice.
However, they could not get rid of the Court of Chancery entirely, as the work done there is quite different from the work in the common law courts. There is to this very day a Chancery Division of the High Court which deals with chancery matters.
Equity today
The separate rights created by the Court of Chancery are still known as equitable rights and are treated differently from the common law or ‘legal’ rights. If there is ever a conflict between the two, the general rule is that equity will prevail over law. Unless of course, the claimant comes to court (figuratively speaking) with dirty hands.
If you want to learn more about equity and the Court of Chancery you will find an excellent (if rather dry) description and history on Wikipedia.
So there we have the second kind of ‘common law’ – ‘law’ as opposed to ‘equity’. Let’s now look, briefly, at the other use of the phrase.
5. Common Law Legal systems v. a Civil Code
The ‘common law’ legal system which developed in England subsequently spread to other countries, mainly those which were part of the British Empire.
Many of these countries still have a ‘common law’ legal system – as opposed to a legal system based on a civil code (as in France for example).
Generally, the common law systems trace their history to England, while civil law systems usually trace their history through the Napoleonic Code back to the Corpus Juris Civilis of Roman law.
6. And Finally
This is the end of our explanation of the phrase ‘common law’. Hopefully, you will forgive our brief incursion into the history of law!
This is the end of this article.
Didn’t find your answer? Search again:
Search Articles
Would you like to speak to a solicitor about this?
A simple and straightforward way for you to get up to 1/2 hours telephone advice from a specialist landlord and tenant solicitor.
