Evolution of Common Law

Definition of Law (Shorter Oxford Dictionary)

“The body of rules, whether formally enacted or customary, which a state or community recognises as binding on its members or subjects.”

Main sources of law in England & Wales

Parliamentary legislation (primary & secondary), common law (court-made), EU law, Human Rights law, and constitutional conventions (custom/practice).

Territorial extent and jurisdiction

Laws apply within defined jurisdictions. This module covers England & Wales and Northern Ireland; Scotland has a separate legal system. Some Acts apply UK-wide unless stated otherwise.

Devolution - basic idea

The Scottish Parliament, Senedd Cymru (Wales), and Northern Ireland Assembly have legislative powers over devolved matters such as health, education, and policing; reserved/excepted matters remain with Westminster.

Hard law vs Soft law

Hard law (statutes and court decisions) is legally binding. Soft law (e.g., Highway Code, guidance) is not binding but may guide interpretation and application of hard law.

Criminal law vs Civil law

Criminal law addresses offences like murder and theft; civil law covers disputes between private parties such as contract, tort, property, and family matters. They use different procedures and courts.

Common law system vs Civil law system

Common law relies on judge-made precedent and statutes (judges can make law); civil law relies heavily on codified statutes and judges generally do not create binding precedent.

Historical spread of common law

English common law was exported across the British Empire to countries like the USA (except Louisiana), India, Canada, Australia, and New Zealand, forming the basis of their legal systems.

What is a statute?

A statute (Act of Parliament) is primary legislation enacted by Parliament and is the highest form of law in the UK; it can only be amended or repealed by Parliament.

How many statutes and examples

Thousands exist; Parliament passes around 30 Acts annually. Examples include the Marriage (Same Sex Couples) Act 2013 and the Modern Slavery Act 2015.

Parliamentary power to amend or repeal

Parliament is sovereign and may amend or repeal existing statutes (e.g., Coroners & Justice Act 2009 amended the Homicide Act 1957).

Consolidation Acts

Consolidation Acts combine multiple statutes on the same topic into a single Act for convenience (e.g., Equality Act 2010 consolidated several discrimination Acts).

Statutes changing common law - examples

Parliament can override or modify common law: e.g., Serious Crime Act 2007 abolished incitement; Coroners & Justice Act 2009 abolished provocation defence; various Acts have repealed older rules.

Role of case law in English law

Courts interpret statutes, fill gaps where no statute exists, and develop common law principles. Appellate decisions create precedent that lower courts must follow.

Examples of common law principles

Contract formation rules (e.g., Adams v Lindsell — postal rule; Felthouse v Bindley — silence not acceptance) and the common law definition of murder established by Sir Edward Coke.

Equity - origin and purpose

Equity developed to address rigid deficiencies of early common law by providing discretionary remedies based on fairness, relieving against fraud, mistake, and unconscionable conduct.

Lord Chancellor & equitable relief

Historically, the Lord Chancellor provided remedies when common law had none, giving rise to equitable doctrines focused on conscience and integrity.

Judicature Acts 1873–1875 - effect

Fused administration of law and equity procedurally into one court system and provided that where conflict arises between law and equity, equity prevails (section 25).

Why study evolution of common law?

Understanding where law comes from, the relationship between statute and case law, and the historical reasons for equitable doctrines helps in interpreting modern legal rules and remedies.