Common Law

In the context used on this site, common law is the law which has built up over centuries and is based on custom and practice and ‘case law’ which is the law as set out in Judge’s decisions in cases. Many of the origins of ‘common law’ rules are lost in the mists of time, and it is often hard for non-lawyers to find out what they are.  Lawyers learn about them mostly through their training and from legal case and textbooks. Most common law nowadays comes from Judges decisions in cases.  However to be ‘binding’ on other Judges, the decision needs to have been in a ‘court of record’ – which generally means the High Court, the Court of Appeal or the Supreme Court (formerly the House of Lords). 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, the Housing Act 1988 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)  the act does not apply.  We then have a common law tenancy.  One which is governed by the common law rules rather than those set out in the Housing Act. 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 an answer.  They just have to find it, as Michaelangelo found the statue inside the block of marble.

  • 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. The phrase ‘common law’ is also used in two other contexts:
  • Common law (or the old ‘Kings law’) as opposed to the law of Equity, and
  • Common law legal systems (found mostly in countries that were formerly UK colonies) as opposed to Civil Law systems such as that used in France.