THE ENGLISH COMMON LAW

(A) WHY IS IT CALLED ‘THE COMMON LAW’? There was a time when legal matters in England were governed by local customs rather than by a national, unified system of law. This ‘community-centric’ law meant, for example, that what was considered to be lawful conduct in London may not have been lawful in the city of Canterbury approximately 60 miles away. This began to change after 1066, when William the Conqueror set up his own royal court which sent its judges all around the country to hear disputes. Eventually the country was divided into several large areas known as ‘circuits’ and upon returning to London, the royal circuit judges would share and duplicate their regional decisions, leading to the development of a more uniform or ‘common’ law that was applied in the same way in each circuit. The name ‘common law’ has continued to be used to refer to law that has been created by judicial decisions.

(B) HOW DOES THE COMMON LAW WORK? The common law is based on the doctrine of precedent, which means that judges are obliged to follow the previous decisions of high-level courts. The common law therefore works by today’s judges obeying certain rules based on the previous decisions of appellate courts such as the Court of Appeal, the High Court or the Supreme Court. There are thousands of existing precedents in which judges in these higher courts have set out not just their decision in a particular case, but more vitally, the legal reasoning behind that decision. When a case comes to court which is the same or very similar to a previous case, the judge in the later case must follow the earlier precedent, even if he or she does not necessarily agree with the legal reasoning of the original court. This is called an authoritative, binding or declaratory precedent and its aim is to provide certainty of what the law is in a particular set of circumstances. However, some previous decisions are only persuasive precedents. They originate from somewhere such as a County Court, another Court of First Instance or even from a dissenting judgment in a higher court. As the name suggests, advocates representing clients in court may refer the judge to persuasive precedents as part of the usual adversarial method of arguing a case, but these precedents are not binding.

(C) HOW IS A NEW PRECEDENT CREATED? In very rare circumstances judges must create an entirely new precedent if the court is faced with a legal question which is ‘without precedent’. This new case law is called an original precedent. The development of new technology, for example, led to the need for several original precedents to be created as no binding or persuasive case law existed when the first disputes in this area came before the courts. However, judges will always use analogical reasoning to discover the relevance of past precedents to any current case. For example, if a judge has to consider for the first time the issue of what constitutes acceptance in contract law, where an email of acceptance has been sent but not received, he or she may refer back to a 200-year-old binding precedent in which a letter of acceptance was sent via a servant on horseback but never reached the intended recipient. The principle of law is seen to be generally the same.

(D) CAN A PRECEDENT BE CHANGED? This question was given consideration in the case of London Street Tramways Co Ltd v London County Council (1898), in which adherence to a binding precedent would have resulted in undeserved, “individual hardship.” The House of Lords held that certainty of the law was more important than the problem of causing individual hardship because of having to follow a past decision. The ruling described the use of precedent as “an indispensable foundation upon which to decide what is the law and its application to individual cases”, and that “It provides at least some degree of certainty upon which individuals can rely in the conduct of their affairs.” However, in 1966 changes were proposed from within the legal profession which would allow the House of Lords to depart from its previous decisions. This reflected the concern that “too rigid adherence to precedent may lead to injustice in a particular case and also unduly restrict the proper development of the law.”

So, since 1966, the highest court has been allowed enough flexibility to change the law when it “appeared right to do so”. Modern-day judges in the Supreme Court therefore have the right to distinguish, reverse or overrule a precedent.