Common Law Evolution: Can It Be Altered?

Common law is flexible and can be changed to respond to changes in society. It is made by judges in court, who use precedent – decisions made in previous similar cases – to decide how they will judge a case before them. If no past cases with similar circumstances exist, a new decision is made, which would then become a precedent for a future similar case. Common law rules may be superseded or replaced by legislation, which takes precedence over common law. Statute law always overrides common law.

Common law can be superseded or replaced by legislation

Common law rules may be superseded or replaced by legislation, which is said to “trump” or take precedence over the common law. For example, offences of theft, which were based on the old common law offence of larceny, are now governed by the Theft Acts 1968 and 1978. The original penalties for murder were also replaced by statutes such as the Homicide Act 1957.

There is a limit to the extent to which common law judges, however creative or “activist”, can reform an out-of-date law, particularly if it derives from a statute. In such circumstances, only Parliament can change the law. The need for such a change often follows a period of research and consultation by the Law Commission, which was set up to review and propose reform to old or inadequate laws.

Common law has also been described as flexible, since it can respond to changes in society. Unlike civil law systems, common law doesn’t require lawmakers to pass changes in statutes and codes, which can take a long time or never happen at all. When it comes to common law, higher courts can — and sometimes do — overrule prior decisions as “bad law” and they don’t need to wait for lawmakers to do it for them.

Common law is flexible and can respond to changes in society

Common law is also flexible because it doesn't require lawmakers to pass changes in statutes and codes, which can take a long time or never happen at all. Instead, if no statute law – law made by Parliament – applies to cover a particular situation, common law will apply. However, statute law always overrides common law, and there is a limit to the extent to which common law judges can reform an out-of-date law, particularly if it derives from a statute. In such circumstances, only Parliament can change the law.

Common law is made by judges in a court, using precedent

Common law is flexible and can respond to changes in society. Unlike civil law systems, common law doesn't require lawmakers to pass changes in statutes and codes, which can take a long time or never happen at all. When it comes to common law, higher courts can overrule prior decisions as 'bad law' and they don't need to wait for lawmakers to do it for them. In common law legal systems, earlier court rulings and decisions are often the first thing to be considered. This is because, to know what may be binding now, you must first know how similar situations have been handled in the past.

The common law was historically administered in the king's courts, and equity developed as a separate system of mainly discretionary remedies administered by the Lord Chancellor. The need for a change in the common law often follows a period of research and consultation by the Law Commission, which was set up to review and propose reform to old or inadequate laws.

There is a limit to the extent to which common law judges can reform an out-of-date law, particularly if it derives from a statute. In such circumstances, only Parliament can change the law.

Common law is also known as case law

Common law, also known as case law, is made by judges in a court, using precedent – decisions made in previous similar cases – to decide how they will judge a case before them. If no past cases with similar circumstances exist, a new decision is made, which would then become a precedent for a future similar case. Common law is flexible and can respond to changes in society. It doesn't require lawmakers to pass changes in statutes and codes, which can take a long time or never happen at all. When it comes to common law, higher courts can – and sometimes do – overrule prior decisions as 'bad law' and they don't need to wait for lawmakers to do it for them. However, there is a limit to the extent to which common law judges, however creative or 'activist', can reform an out-of-date law, particularly if it derives from a statute. In such circumstances, only Parliament can change the law. Statute law always overrides common law.

Common law was historically administered in the king's courts

Common law, also known as case law, is flexible and can be changed. It is made by judges in a court, using precedent – decisions made in previous similar cases – to decide how they will judge a case before them. If no past cases with similar circumstances exist, a new decision is made, which would then become a precedent for a future similar case. If no statute law applies to cover a particular situation, common law will apply; however, statute law always overrides common law.

Common law judges can be creative or “activist” in their interpretation of the law, but there is a limit to the extent to which they can reform an out-of-date law, particularly if it derives from a statute. In such circumstances, only Parliament can change the law.

Common law is flexible and can respond to changes in society. Unlike civil law systems, common law doesn’t require lawmakers to pass changes in statutes and codes, which can take a long time or never happen at all. When it comes to common law, higher courts can — and sometimes do — overrule prior decisions as “bad law” and they don’t need to wait for lawmakers to do it for them. Lower courts can also choose to modify or deviate from precedents if they are outdated or if the current case is substantially different from the precedent case.

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