What is common law?

[MondeoST24]

I've seen this referred to many times, i.e. contrary to common law.

 

But what is it, what laws or acts does it include etc?

[richardc]

That part of the Law which is derived from precedent and judicial decisions as opposed to Statute Law which derives from Acts of Parliament.

[MondeoST24]

I see, so is it the same as case law?

[richardc]

Not quite. It is established by the outcome of previous cases.

 

Someone with greater knowledge than I will be able to give a fuller explanation.

[martinwhite]

Common law goes back to before organised legal procedure, i.e. no cases were recorded. It was just known that "you couldn't do that" whatever that was.

 

E.G. There is no act of Parliament that makes murder illegal. Anyone convicted of murder is charged that they committed the offence "contrary to common law". This is because it was obvious since day dot that you couldn't kill someone.

 

Bits of common law have been superceded over the years as it became obvious that there were shades of grey. Theft would once have been included under common law, but was eventually better defined in an Act all of its own, which includes various types of theft.

 

 

Basically there are three parts to the law: (i believe that this applies to both criminal and civil)

 

Common law - from before an organised legal system

Case law - precedents set in higher courts which refer to a particular case e.g. Dunlop and all the others you will see in the library. Sometimes statute, despite all the effort that went into it, doesn't clearly define all possible circumstances. Eventually there is a test case, where the judge makes a defining judgement. This is called a precedent and is usually used as an add-on to the statute in later cases of a similar nature.

Statute - A particular and specific Act of parliament, i.e. Theft Act 1968.

[BankFodder]

Not quite. The Common law is included in Case Law.

All Common law is to be found in the decisions of judges over the centuries. However the modern system of precedent only really started to take hold since the introduction of systematic case reporting in the 19th century.

 

Before that time it tended very much to depend on the notebooks and diaries of barristers and judges. The details of cases which were officially recorded bfore the 19th C tended to be very sparse.

[rameses_qc]

And, it's called Common Law because it's common to all. Common Law is made up of Judge's decisions in various cases. All Courts have to follow the precedent of previous decisions from higher Courts. The House of Lords is the highest Court in England

[Candice]

lol are you sure about that?

 

Seems as though we all voted to be bound by European law too :-\ Funny thing is that I, and everyone I talk to, doesn't ever remember that election lol.

[Movingon]

Seems as though we all voted to be bound by European law too :-\ Funny thing is that I, and everyone I talk to, doesn't ever remember that election lol.

 

If you voted Labour in, then that's exactly what you voted for; it was one of their keynote manifesto pledges.

[Candice]

it was one of their keynote manifesto pledges

 

Doesn't that mean something they promise to do but never deliver on?

[deemacperth]

My tuppence worth.

 

There are two tracks to law.

 

You have Common Law Systems and Civil Law Systems. The difference is how they are interpreted. Common law is mainly Precedent based whereas the Civil Law was primarily statute based. Compare our Courts with the French system for example.

 

This is why the European Constitution has such a major impact on us compared to other European countries. It imposes a civil law structure on our majority Common law system.

 

Interesting fact here, does anyone else know that Scotlnd has a civil law system. (Other Scots excluded)

[pcr1]

Seems as though we all voted to be bound by European law too :-\ Funny thing is that I, and everyone I talk to, doesn't ever remember that election lol.

 

European law doesn't technically bind our courts. We adopt it voluntarily (or just the bits we like). It's normally re-enforced with domestic statute (e.g. Human Rights Act 1998).

[rameses_qc]

Exactly. But the 2 "tracks" of Law are Common Law and Statute Law. Civil Law is things like Negligence, defamation etc

Civil Law can be precedented by common or statute law

Statutes are interpreted by Judges, and that makes the caselaw precedent which binds all lower Courts

[Mistermind]

Are there disputes arising from conflicting case law?

 

I think in particular about selective adherence to legal precedents in common law going back to different times and circumstances. For example precedents under the extraordinary conditions of WW2 which no longer apply today, but alas may become applicable again to combat perceived threats of terrorism. To go back even further, to the time of Cromwell and the protestant-catholic struggles, to the burning of witches.

[zootscoot]

Oooo a few misconceptions abound in this thread!

 

Firstly 'common law' and 'civil law' have more than one meaning:

 

Common law can mean case law or precedent

 

Common law system is used to describe the system English law adheres to as opposed to civilian law systems which are based on lengthy statutory codes.

 

Common law can also be used to distinguish one type of case law from the law of equity another type of case law. But thats opening a whole new can of worms!

 

In addition to civil law being used to describe civil law systems such as France, Scotland and US, civil law can mean the area of law which deals with disputes between individuals/companies as oppose to disputes involving the state. Thus we have civil law, which is distinct from criminal law and public law.

 

So both Deemacperth and Rameses are perfectly correct.

 

European law doesn't technically bind our courts. We adopt it voluntarily (or just the bits we like). It's normally re-enforced with domestic statute (e.g. Human Rights Act 199:cool:.

 

 

You are confusing the European Union with the European Convention on Human Rights. These are two entirely different institutions. The EU is generally concerned with economic and business issues and much consumer protection derives from the EU we joined the EU in 1972. The ECHR is concerned with Human Rights issues (unsurprisingly). Whilst we were a signatory to the Convention back in the 50s and could assert our rights under it in the European Court of Human Rights in Brussels we could not until the HRA 1998 (enforce Oct 2000) use the Convention rights directly in domestic courts.

 

Whilst law from EU is absolutely binding in the English courts as it overrides domestic statutes and precedents set by even the highest courts, the rights conferred by the ECHR are not strictly binding. The courts have no power to disapply a statute simply because it conflicts with rights conferred by the ECHR. The courts are limited to making a declaration of incompatibility but this does not confer a remedy on the person who is asserting their rights have been infringed.

 

Rather ironic that Parliament gave up its right to have the final say in fiscal matters yet retains the right to ride roughshod over our human rights!

 

Are there disputes arising from conflicting case law?

 

 

All the time! Majority of the cases dealt with by the appeal courts involve the interpretation of statutes, but a fair amount involve disputes regarding conflicting case law.

 

For example precedents under the extraordinary conditions of WW2 which no longer apply today, but alas may become applicable again to combat perceived threats of terrorism.

 

Precedents still exist even if not used (In fact they exist even if they have yet to be decided by a judge because of the declaratory theory of judicial precedent) although may have been overruled by later case law or statute.

 

I would have thought most if not all laws in relation to war time are likely to have come from statute because of the particular political content. Although I am no expert in this area of law.

 

Hope this helps clear up a few points

 

Zoot

[Mistermind]

Thanks Zoot, I am rapidly acquiring an appetite for jurisprudence.

 

Coming from an IT background I am interested how improved IT research and cross-reference tools (both faster and more precise searches by keyword) have affected the productivity of lawyers.

 

Starting from zero 30 years ago, a chess computer a few months ago beat that superb British champion Michael Adams 5.5 to 0.5 over 6 games. This after the IBM program beat Kasparov about 5 years ago. The future prospects of human chess players would look bleak. Presumably one day an attempt would be made to build automated "filters" to take over the drudgery of lesser preliminary legal groundwork.

[zootscoot]

I am interested how improved IT research and cross-reference tools (both faster and more precise searches by keyword) have affected the productivity of lawyers.

 

 

Very interesting! I am sure it has helped immensely although I can not comment as I am not a practising lawyer but lecture in law. Have found the internet improves research no end for both the student and lecturer. When I started my law degree in 1997 I had never used the internet before. I didn't use it for my studies either. Spent all my time in the library reading the cases from the Law Reports which took forever to locate. Many students did use the internet but it was still relatively new and I was a slightly mature student and from an era where it wasn't the norm to have computers at school. The internet is not without it problems, however, in that most valuable information is on subscription only sites. Also students can rely on dubious sources if they are unaware as to the authenticity of the info provided by a particular website. Also has made plagiarism more widespread with students simply copying and pasting huge chunks for internet sources. Not to mention the sale of assignments.

 

I had two students this year who had clubbed together to buy an assignment from one of these sites. They then swapped a couple of paragraphs round and typed their names and passed it off as their own work. Unfortunately for them it was quite obvious that it wasn't their work as they are both English students and the essay was clearly written by an overseas person with a poor grasp of English. Had they even bothered to read it they would have found out!

 

Presumably one day an attempt would be made to build automated "filters" to take over the drudgery of lesser preliminary legal groundwork.

 

Not sure this would be entirely possible. You woud still need establish the authenticity of sources which requires a human mind. Although certainly any attempts to make it is as precise as possible would be appreciated, by lawyers academics and students!

[JonCris]

Correct take nothing for granted

Just to add to the debate. It's been a while but here goes & if I'm wrong someone will no doubt put me right.

The Kings Law as it was known came about as a result of the those with complaints petitioning the King in the Kings Court hence the use of the term Court as in The Court of St. James.

This was a very costly practice as you had to follow the Kings Court (which is why it's known as a Court) also known as the Sovereigns progress to await your hearing before the Sovereign or you employed again at considerable expense an advocate argue your case to the Court.

Like today the good ones/or the Sovereigns favourites where in great demand & costly to instruct

The Sovereign would, accompanied by their whole court, make their progress from one stately manor to another & the owner would be expected to feed & water all of the court in the grand manor & at no cost to the court for however long the court decided to stay.

Some worthies even rebuilt their stately homes in order to encourage the Sovereigns Court to visit

The poor could only obtain justice through either Canon Law (the Church) or the local magistrate/High Sheriff (usually the local Baron) If your complaint was with the Baron you where a bit stuffed. Also laws/judgements differed greatly through out the country. EG It parts of the country (Yorkshire I think) wives could not inherit & there was considerable inconsistency from place to place.

The King who I think was Edward introduced the travelling Court of Assizes which would sit locally at various times of the year & be presided over by a judge who also presided over a number of courts in his circuit.

These learned judges where all where based at the court of the Monarch hence the Queens/Kings Bench This meant the appointed judges communicated with one another & with the help of the judges circuit there developed over time a consistency in their judgements allowing precedents to be set.

What became lawfull/unlawfull in one place became the same in another

[Mistermind]

Fascinating history, the law of England evolving over long centuries under a largely unbroken line of monarchs, perhaps earning the trust and respect of the people. Judgements in the shires unified under one God, one king, one church.

 

By contrast the USA evolved from a loose federation of states, as did German principalities and lander, as well as Swiss cantons, where local laws contend against federal authority.

[JonCris]

It is a fascinating subect & in my opinion should form a part of every schoolchilds curriculum

[tom3131]

I'll give an example of conflicting Case Law for one of the previous posters:

 

It was a commonly held fact for years that for a child aged 14 or under (but 10 or over) had to have a larger burden of proof than standard adults being tried.

 

This meant that the prosecution had to prove to the jury, that not only did the child commit the crime, but that he also knew what he was doing wrong.

 

This stopped an 10 year old being convicted for Theft when he took a grape out of the trolley basically.

 

Director Of Public Prosecutions sought a Judicial Review in the High Court of this bit Common Law, but the High Court said that it wasnt for such a low court to set a precedent on such a highly important matter, so the High Court refused to change the law but instead granted Leave To Appeal for the prosecution to appeal to the Court Of Appeal.

 

The Court Of Appeal quashed the the Common Law using its power as such a high ranked court, it deemed that a child aged 10 and over could easily make out what is right, and what is wrong.

 

The House Of Lords (highest court in the UK) granted Leave to appeal to challenge the decision, The Law Lords then decided that it wasnt the job of the courts, but the job of parliament to make such a large change to the law and quashed the court of appeals decision to change the law.

 

The Houses Of Parliament did eventually bring in a Bill that included getting rid of that piece of common law. It was passed and is now in force.

Off the top of my head it might be The Crime And Disorder Act under which the relevent abolition is included.

 

Tom.

[JonCris]

And it can be added to the other 2,999 new laws introduced by this government since 1997

[MondeoST24]

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