Common law is law developed through court decisions, legal reasoning and precedent. It is one of the main foundations of the legal systems of England and Wales and many other jurisdictions influenced by English law.
In the United Kingdom, common law exists alongside legislation made by Parliament. It is not superior to Acts of Parliament. UK Parliament describes parliamentary sovereignty as the principle that Parliament can create or end any law and that courts generally cannot overrule legislation.
Meaning
Common law is often contrasted with statute law. Statute law is written legislation passed by a legislature. Common law develops through decided cases, especially decisions of senior courts that lower courts must follow.
The Courts and Tribunals Judiciary explains that the UK constitution is found in statutes passed by Parliament and in common law developed over centuries in court decisions. Common law therefore remains part of the legal system even in areas now heavily governed by Acts and regulations.
Precedent
Precedent is the method by which earlier decisions guide later cases. The University of Oxford Faculty of Law describes case law as a source of law through the doctrine of precedent, where a court is bound by decisions of a court above it and, usually, by courts of equivalent standing.
The important part of a case is the legal reason for the decision, often called the ratio decidendi. Statements that are not necessary for the decision may still be persuasive, but they are not binding in the same way.
Relationship With Statute
Common law fills gaps, develops principles and helps interpret legislation. Where Parliament has enacted clear legislation, courts apply it. Where wording is uncertain, courts may interpret it using recognised legal methods and previous authorities.
The relationship matters in practice. A common law principle may be changed or replaced by statute. A statute may also preserve common law ideas or use terms that already have a common law meaning.
Areas of Influence
Common law is especially important in contract, tort, equity, criminal procedure, judicial review, evidence and constitutional principles. Some areas now have extensive statutory frameworks, but older common law ideas still influence interpretation and remedies.
In criminal law, many offences are statutory, but common law remains relevant to interpretation, defences, contempt of court and some residual offences. In civil law, negligence, nuisance, contract interpretation and equitable remedies still depend heavily on case law.
Common Law Jurisdictions
Common law systems developed from English legal history and were exported through the British Empire. Modern common law jurisdictions include England and Wales, Northern Ireland, the Republic of Ireland, the United States, Canada, Australia and New Zealand, though each has its own constitution, statutes, courts and local legal development.
Scotland is a mixed legal system with its own history. It has common law elements, especially in criminal law, but it is not simply the same system as England and Wales.
Practical Examples
Negligence
A negligence claim is built around duties, breach, causation and loss. Legislation may affect particular sectors, but the core principles have been developed through case law.
Interpreting an Act
A court applying a statute may rely on previous judgments about similar wording. The result is not judges replacing Parliament, but courts deciding how the enacted words apply to real disputes.
Binding and Persuasive Authority
A decision of the UK Supreme Court is normally binding on lower courts in England and Wales. A decision from another common law country may be persuasive, but it is not binding merely because that country also uses common law.
See Also
References
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