Cecily Zamora
The UK legal system is built on a dual foundation of common law and statutory law, with each contributing distinct characteristics to the framework. Common law, also known as case law, is based on precedent and judges' interpretations of previous rulings. It allows for a nuanced approach to legal issues, considering the unique circumstances of each case. Statutory law, on the other hand, provides a more standardised and codified set of rules, written and passed by the legislature, government, and authorised agencies. While statutory law takes precedence over common law, understanding their interplay is crucial for comprehending the intricacies of the UK legal landscape.
| Characteristics | Common Law |
|---|---|
| Definition | Law that has been developed based on preceding rulings by judges |
| Basis | Precedent, tradition, and judicial interpretation |
| Applicability | Judges consider the unique circumstances of each case and make decisions that are tailored to the specific facts at hand |
| Flexibility | Allows for a nuanced approach to legal issues |
| Judicial Interpretation | May lead to variations in how the law is applied across different cases and jurisdictions |
| Characteristics | Statute Law |
| --- | --- |
| Definition | Written laws passed by the legislature and government of a country and accepted by society |
| Basis | Statutes |
| Applicability | Already written and need to be applied to a specific case |
| Flexibility | Provides a more standardized and codified set of rules |
| Judicial Interpretation | Less room for interpretation |
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What You'll Learn
Common law and statutory law in the UK: Historical context
The English legal system is a combination of common law, statutory law, and regulatory law. Common law, also known as case law, is a law declared by judges, derived from custom and precedent. It is developed based on preceding rulings by judges and past judgments. Statutory laws, on the other hand, are written laws passed by the legislature and government of a country and accepted by society. They are developed by the government and organised into law codes.
The common law system in England has a long history, dating back to the Middle Ages. The main sources for the history of common law during this period are the plea rolls and the Year Books. The plea rolls were the official court records for the Courts of Common Pleas and King's Bench, written in Latin and bundled by law term. The Year Books, which began in 1268, are considered the law reports of medieval England and provide valuable insights into the developing legal doctrines, concepts, and methods of the time. The doctrine of precedent, an essential aspect of common law, evolved during the 12th and 13th centuries, shaped by tradition, custom, and precedent.
The early development of case law in the 13th century is attributed to Bracton's "On the Laws and Customs of England," which laid the foundation for the yearly compilations of court cases known as the Year Books. During this time, common law was administered in the king's courts, and royal writs played a significant role in initiating lawsuits and shaping property law. The rise of the state and the concept of 'freedom' in the later Middle Ages further contributed to the development of common law.
In England, judge-made common law served as the primary source of law for several hundred years before Parliament gained legislative powers to create statutory law. This evolution marked a shift towards more comprehensive legislation and narrower limits of statutory interpretation. The establishment of Parliament under Edward I (1272-1307) marked the emergence of England's first distinct legislative institution, introducing statutory law in the modern sense.
The common law system in England has directly influenced the legal systems in Wales (since 1536), Ireland, and other Commonwealth nations. However, Scotland has a unique legal system that combines elements of civil law and its own common law traditions.
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Common law: Ancient customs and traditions
Common law, also known as case law, is a type of law that is primarily developed through judicial decisions and precedents rather than statutes. It is deeply rooted in the doctrine of stare decisis, which means "to stand by things decided". This means that common law is based on the principle that courts should follow precedents established by previous judicial decisions.
The common law system originated with the legal reforms of King Henry II in the 12th century and was historically administered in the king's courts. It was called "common" because it applied equally across the whole country. The early development of case law in the 13th century can be traced to Bracton's On the Laws and Customs of England, which detailed the laws and customs of England. The yearly compilations of court cases from this period, known as the Year Books, are a principal source for understanding the development of legal doctrines, concepts, and methods during the period when the common law developed into a recognisable form.
Until the early 20th century, common law was widely considered to derive its authority from ancient Anglo-Saxon customs. Legal dictionaries from the 19th century defined common law as "unwritten law" (lex non scripta). According to William Blackstone's declaratory theory, common law reaffirmed pre-existing customs but did not create new laws. Jeremy Bentham, a critic of this concept, introduced the term "judge-made law" to describe this aspect of the legal profession.
In the present day, common law is made by sitting judges who apply both statutory law and established principles derived from the reasoning of earlier decisions. Common law can be amended or repealed by Parliament, and it can be superseded or replaced by legislation. For example, offences of theft are based on the old common law offence of larceny, but these are now governed by modern Theft Acts.
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Statutory law: Standardised and codified rules
The UK legal system is built upon a dual foundation of UK Common Law and Statutory Law, with each system contributing distinct characteristics to the overall framework. Understanding the interplay and differences between the two is essential to grasp the intricacies of the UK legal landscape.
Statutory Law provides a more standardised and codified set of rules. It is a written law passed by the legislature and government of a country and those that have been accepted by society. Statutes are made by Parliament, which is the supreme lawgiver, and judges must follow them. The supremacy of Parliament is one of the fundamental principles of Britain's unwritten constitution, which also defines a clear distinction between the legislative power of the Members of Parliament, who are elected by the citizens, and the judicial power of the judges, who are unelected.
Statutory laws are developed by the government of a state or nation and are organised and codified into law codes. They cover all areas regulated by statutory laws exclusively, as well as those areas where common law is not applicable. They are already written and simply need to be applied to specific cases.
Statutory laws can be passed by various government agencies of a country. For example, there are laws passed by federal and state governments, and ordinances passed by towns and cities, all having the power of law. New laws are issued to meet the needs of the citizens, to resolve outstanding issues, and to formalise an existing law.
Acts of Parliament can take effect similarly in different jurisdictions, and the final appeal for all of them goes to the UK Supreme Court.
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Common law: Judicial interpretation
Common law, also known as case law, is a body of unwritten laws based on legal precedents. It is derived from custom and precedent and may guide court rulings when the outcome is undetermined based on written rules of law. Common law is being developed on an everyday basis without causing fractionalization of society or creating any expense to the state.
Common law is of two types. In the first type, the judgments passed become new laws where there are no statutes. In the second type, judges interpret the existing law and determine new boundaries and distinctions. This is known as interstitial common law. It includes the judicial interpretation of fundamental laws, such as the US Constitution, of legislative statutes, and of agency regulations, and the application of law to specific facts.
The object of genuine interpretation is to discover the rule that the lawmaker intended to establish. The interpretation of common law is done by judges, who are bound to follow the decision of an earlier judge. This is known as stare decisis or precedent. The judge presiding over a case determines which precedents apply to that particular case. The example set by higher courts is binding on cases tried in lower courts. However, lower courts can choose to modify or deviate from precedents if they are outdated or if the current case is substantially different from the precedent case.
In the UK, 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.
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Common law vs statutory law: Amending statutes
The UK legal system is based on a dual foundation of common law and statutory law, each contributing distinct characteristics to the framework. Common law is also known as case law, and it is developed by judges who rely on previous decisions to guide their judgments. This reliance on precedent, known as the doctrine of stare decisis, is a defining characteristic of common law. Statutory law, on the other hand, is a more standardised and codified set of rules developed by the government of a state or nation and organised into law codes. It provides a clear framework that is easily accessible and applicable to specific cases.
Amending statutes in statutory law often involves a formal legislative process, which can be time-consuming and cumbersome. In contrast, common law is more flexible and dynamic, allowing judges to interpret and apply the law based on the unique circumstances of each case. While this provides a nuanced approach to legal issues, it can also introduce uncertainty and inconsistency in legal outcomes across different cases and jurisdictions.
The interplay between common law and statutory law is crucial in the UK legal system. Common law provides the foundation for statutory law, as statutes are often created to address gaps or ambiguities in common law. However, statutory law always takes precedence over common law. In cases where there is a conflict between the two, the statute will override the common law precedent. This ensures that the law remains adaptable and responsive to societal changes, while also maintaining a consistent and standardised framework.
The process of amending statutes in the UK involves several steps. Firstly, there is often a period of research and consultation by the Law Commission, an independent body established to review and propose reforms to outdated or inadequate laws. This is followed by the formal legislative process, where the proposed statute is drafted, debated, and voted on by Parliament. Once a statute is passed by Parliament, it becomes the supreme law, and judges must follow and apply it accordingly.
In summary, while common law provides a dynamic and flexible approach to legal issues, statutory law offers a standardised and codified framework. The process of amending statutes involves a formal legislative procedure that can be time-consuming but ensures a consistent and accessible legal system. The interplay between common law and statutory law is essential for maintaining a balanced and effective legal framework in the UK.
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Frequently asked questions
Common law is law declared by judges, derived from custom and precedent. It is also known as case law.
Statutory laws are written laws passed by the legislature and government of a country and those that have been accepted by society.
Statutory law provides a standardised set of rules, whereas common law allows for a more nuanced approach, giving judges the ability to consider the unique circumstances of each case. Common law is based on judgments made in previous cases, and statutory laws are based on statutes.
Yes, statutory law takes precedence over common law.
