Sources of Law in England and Wales: Common Law

This article will discuss what common law is and its place in the English legal system. This article is part of the ‘Introduction to English Law Series’. The series can be found here.

What is Common Law?

The common law is simply the body of legal decisions made by the courts. Why are these decisions important? Firstly, the courts have to apply legislation and in doing so they must interpret what it exactly means; so court decisions supply the authoritative meaning of legislation that might otherwise be ambiguous. Secondly, court decisions are important because not all areas of law are set out in legislation. Many areas of law have been left to develop over the centuries by decisions of the courts. For example, much of contract law is to be found in the common law, not in legislation, and the modern law of negligence is found exclusively in the common law. So court decisions also can tell us what the law is.

It would not be desirable if each court could make a decision about a particular matter without having regard to what another court has decided about the same matter (or a very similar matter) in a previous case for two reasons. Firstly, there would be no consistency in legal decisions, which would not be a just state of affairs. Secondly, it would make the determination of what the law actually is nearly impossible as there would be no consistency in the various decisions. Again, this would be unjust since society would not readily know what the law is so that they could comply with it. It is therefore important that the courts follow their previous decisions. This is the principle of stare decisis (‘following previous decisions’).

So how does a court deciding a case know which previous decision to follow?

Judicial Precedent

Put simply, when a court is deciding a case that engages the same legal issue that a previous case has decided, the court must follow the decision (precedent) of the other court. It must follow the legally binding part of that previous decision, known as the ratio decidendi (‘the reason’). A court may also make reference to other things said in a previous decision which are not part of the actual legal decision, these other things being obiter dicta (‘other things said’). Obiter dicta are not binding, but they can be persuasive enough for another court to follow.

Must all courts follow the decisions of all other courts? If different courts have decided the same issue differently which decision should be followed? The general rule is that a lower court must follow a decision of a higher court. And, generally, a court must follow the previous decisions of a court of the same level. This requires an explanation of the hierarchy of courts in England and Wales, beginning with the highest court.

• Supreme Court (House of Lords until October 2009) – will normally follow its own previous decisions, but may depart from them when it is right to do so.

• Court of Appeal – must follow the decisions of the Supreme Court, and must normally follow its own previous decisions, subject to certain exceptions.

• Divisional Court – must follow the decisions of the Supreme Court and Court of Appeal, and must normally follow its own previous decisions, subject to certain exceptions

• High Court – must follow the decisions of courts above it. Not bound to follow its own decisions but usually does so.

• Crown Court, county courts and magistrates’ courts – must follow the decisions of higher courts. Not bound to follow their previous decisions. Do not set binding precedents.

It is finally worth nothing that decisions of the European Court of Justice are binding on all UK courts since the UK has agreed to be bound by such decisions under section 3 of the European Communities Act 1972. UK courts must only take decisions of the European Court of Human Rights into account, by reason of section 2 of the Human Rights Act 1998. International law will be discussed further in the next part of this series.