An introduction to common law.

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Why do we have law?

Humans are social beings. Over 7 billion of us share this planet. Not everyone is good all the time. We have to strive to regulate behaviour to avoid people harming others. Sometimes law exists not to prevent wrong being done but simply to allocate property. If a man dies intestate this means he has not made a will. If he has a sister and a niece alive which one of them should inherit the property? Should it be shared? If so in what proportions? This is why we have law.

A renowned 18th century lawyer and barrister Edmund Burke said that we cannot expect everyone to be good all the time.  We must frame laws mindful of the fact that some people are wicked. Were there no law then some good people would be tempted to turn bad.

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What is common law?

Common law is the legal system of most English speaking countries. Confusingly the expression  ‘common law’ also has another meaning but we shall come to that later.

Common law started out in England. During the time of the British Empire common law spread to many countries around the globe. Former British colonies have mostly retained common law largely intact. This is why roughly 60 countries in the world are common law countries. Therefore common law is the legal system of many nations around the world such as the United States, India, Kenya, Jamaica and Fiji. Some common law countries such as Pakistan have a blend of common law and Sharia law as their legal system.

Common law emerged in England in around the 9th century AD. Common law is not entirely original. It drew upon legal traditions from Germany and Denmark.

Most mainland European countries have a Roman law system. Roman law has some similarities to common law. Confusingly Roman law is sometimes called civil law. This is very tricky because the expression ‘civil law’ has another meaning in common law. Roman law and common law have always had a dialogue. Since the 1970s the two systems have been converging. However, they remain distinct.

This course will focus mainly on the law of England and Wales. Judges and lawyers in England and Wales learn from judges and lawyers in other common law countries. So too lawyers and judges in other common law countries learn from judges and lawyers in England and Wales.

One of the important principles in common law is precedent. That means that judges try to follow previous court rulings. A court can break with precedent but only if there is a very good reason to do so. Courts in the United States for example look at previous court judgments and try to be consistent. Common law did not exist in America until 1607. The United States sometimes looks to precedents prior to 1607 and for that the USA looks to the courts of England and Wales.

Until the 17th century law cases in England and Wales were conducted in the Latin language. Therefore much of legal terminology is made up of Latin phrases. You are expected to know these even if you never learnt Latin.

Judges in common law countries look at rulings in the courts of their own country. They will also consider rulings in other common law countries and sometimes be guided by these.

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STUDYING IN A CERTAIN ORDER.

 

Law is divided into many subjects. These should be studied in a certain sequence.

You should commence with Common Law Reasoning and Institutions and then Public Law. These are the foundations of law. Once you comprehend these you can add Contract Law and Criminal Law. From there you can move onto Property Law and Tort. European Law should be added after this. You also need to study Trusts and Equity.  All the foregoing are essential to any Law degree. Then you can branch out into some optional areas of law.  These could be International Law, Human Rights Law, Islamic Law, Criminology, Commercial Law, Intellectual Property etc…

 

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HOW IS LAW MADE?

There are a number of different ways to make law. One of these is by statute. Parliament debates issues facing the country. A proposal for a law is presented to Parliament. This is called a bill. The bill is then debated. The bill has three readings in the House of Commons and three in the House of Lords. If the bill is passed it becomes an act. The Queen signs it into law.

The Queen’s signature is the merest formality. In common law countries royal assent (the Queen’s agreement) is assumed to be automatic. The monarch is above politics and never declares an opinion on political matters. No monarch has refused to sign an act for over 300 years.

In Commonwealth realms where the Queen does not like the Governor-General signs the acts. These are countries such as Barbados, Canada and New Zealand. In these countries the Queen is the head of state but she rarely visits.

Parliaments can make law because that is their main function. Adults citizens of sound mind and not in prison are allowed to vote. They choose their representatives through the electoral process. Parliament is therefore said to be enacting public will.

Walter Bagehot (pronounced ‘BAJ ut’) was a celebrated 19th century scholar. He wrote The English Constitution. It ought to have been entitled the British Constitution but in those days people often said English when referring to the whole of the United Kingdom. Bagehot famously wrote, ”Parliament is omnipotent in all things except the power to destroy its own omnipotence.” That is to say that Parliament can make or unmake any law but it cannot abolish its ability to make or unmake laws.

It is important to note that one of Parliament’s functions is repealing laws. That means getting rid of existing laws.

Laws passed by Parliament are called statute laws. The book that contains such statutes are called statute books. The adjective is statutory. This is why you may have read about statutory rights which is to say rights that come from statute law.

Parliament can delegated the right to make law to other bodies or other persons. This is called delegated legislation. Parliament can pass and act which authorises another legislature such as the Scottish Parliament, the Northern Assembly or a county council to make and unmake laws  in a certain geographic area. Likewise Parliament can pass an act giving a government minister the right to make or unmake laws pertaining to the minister’s area of responsibility.

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COMMON LAW. 

Common law can also mean laws that have arisen through past practice. Judges will look at the way things have always been done. This can give rise to common law. This is very confusing because common law is an area within common law!

The broader sense of common law is sometimes called English law. However, this means laws that are along the lines of the English system even in countries outside of England.

In the Middle Ages English law was rigid and stuck precisely to what was in the statute books. Sometimes there was no statute to cover a particular situation. Judges felt their hands were tied. They could not make rulings. Therefore judges a way of dealing with novel predicaments. The judges would look at situations that were analagous to the one they were dealing with. Judges would then try to apply the law in a like manner.

Common law is about saying – this is the way things have always been done. Common law makes precedent binding whereas Roman law does not. This is one of the crucial dissimilarities between the two systems.

There is the expression ‘common law wife’. If a man and woman live together in a romantic relationship they are said to be common law husband and wife. This is even if they do not have a civil partnership. Certain rights and duties may arise in law but these are not as potent and clear as if they have a civil partnership or indeed are married. This is another expression of common law – the informal establishment of rights and laws.

If Belinda steals and apple and gets an hour’s detention at school this might create a precedent. If Chuck steals an apple at schools and is expelled this seems very unfair. It is a breach of precedent.

Precedent applies in other situations too. People can be found to committing contempt of court if they act offensively in a courtroom. The crime called contempt of court arose informally by judges ordering people to be detained in the cells beneath the court until those who had insulted the court purged their contempt by apologising. Because of what has gone before a law exists.

Some things are legal or illegal because they have been so since time immemorial. That means they have been like that for so long that no one can point to a time where records show that such a thing was not legal as it is now or not illegal as it is now.

The idea of sticking to principle is called stare decisis which means ”stand by the decision”. Court follow the previous decisions of courts.

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CIVIL AND CRIMINAL LAW. 

 

Within common law there are two major divisions. These are criminal law and civil law.

Criminal law pertains to anything that is a criminal offence. Cases involving kidnapping, robbery, arson, fraud etc…. are criminal cases. Lawyers specialising in these matters are called criminal lawyers. That does not mean the lawyers themselves are criminals! Judges who hear these cases are sitting in criminal courts.

Many courtroom dramas focus on exciting criminal cases. However, this is misleading since criminal law is a relatively small area of law. Most lawyers do not handle such cases.

The great majority of common law is civil law. That mean this is law relating to non -criminal matters. Civil law is divided into many different areas. These include family law, admiralty law, consular law, international law, human rights law, tort, contract law, equity, trusts law and many more. Some of these areas overlap and are interconnected.

Civil courts deal with civil matters.

Civil matters can become criminal. In a civil case someone may be ordered to pay damages to another. If he or she fails to do so then this can become a criminal matter. There are more examples of where a civil matter can turn into a criminal one.

 

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Judges making law.

Judges belong to a branch of the state called the judiciary. Judges are qualified as lawyers. Most of them are a type of lawyer called a barrister. Some of them are a type of lawyer called a solicitor. A barrister or solicitor is then appointed to ‘the bench’ i.e. made a judge.

Judges are required to be politically independent. They are allowed to belong to political parties but rarely do. They are expected not to actively engage in politics. Judges should be people with excellent legal credentials and a reputation for probity.

Judges sit in courts and they hear cases before them.  They usually make rulings consistent with precedent. Sometimes in a new legal situation they may find themselves required to break with precedent.

When judgments make a judgment they state their ratio decidendi (reason for deciding). They may make some obiter dicta which are other remarks in this statement but do not form part of the ratio decidendi.

There are various tiers (ranks) of judges. In the civil division a junior judge is appointed to the county court. There is more than one county court for each county! In each courthouse there may be several courtrooms and several judges operating on any given day. If the judge is judged to be successful he or she can be promoted to the high court. If he or she is a good judge he or she can be moved up to the Court of Appeal. Therefrom he or she can be moved to the Supreme Court. The Supreme Court is for the whole of the United Kingdom and not just England and Wales. The Supreme Court usually has a judge from Northern Ireland and one or two from Scotland.

Prior to 2007 there was no Supreme Court as such. The highest court in the UK was the House of Lords. To be more precise it was the law lords (judges) in the House of Lords who heard cases. In law reports before 2007 you will see very frequent mentions of the House of Lords dealing with legal cases. This does not mean that the retired politicians or hereditary peers in the House of Lords were handling legal cases.

Judges can make law but this is controversial. People sometimes complain about judicial activism. That is to say they bemoan judges inventing law to give vent to their own political preferences.

There are various schools of thought on how much law judges can make. The different attitudes are called the golden rule, the mischief rule and the literal rule.

There is an ongoing discussion of the extent to which judges can create law. Some judges take the literalist view – that means they will stick exactly to what legislation says. Other judges take the mischief view. They read statute law. They see what mischief to the nation the law was supposed to obviate. They interpret the statue in the light of that.

Judges are reluctant to be too creative. They do not want to overstep the mark. Their role is judicial and not legislative. They are legal and not political. This is why they refrain from making public comments on matters of a political nature.

Judges are supposed to be neutral. If a case comes before a judge in which he or she might be thought to have an axe to grind the judge must recuse himself or herself. Recuse means to withdraw from the case. This is in line with the legal maxim ‘‘nemo iudex in causa sua”. No one may be a judge in his own cause.  This applies not just to a judge but to the family and close friends of a judge. A judge cannot judge her own brother or her best friend. If he or she has a financial interest in the outcome of a case it would be wrong to be involved in it.

Lord Hewart, a judge, said in 1928 ‘‘Justice must not only be done it must manifestly and incontrovertibly be seen to be done.” This is because it is POSSIBLE for a judge to act fairly in a case involving her brother. However, if the case goes the way of the brother people will say that this is because the judge favoured her sibling. If the case goes against her brother people will say that the judge was so eager to avoid being accused of prejudice towards her brother that she ruled against him for that reason. The only way to avoid such accusations is to avoid not just bias but the appearance of bias.

Lord Hoffman was due to hear the Pinochet case in 1998. His wife was a member of Amnesty International an organisation which had long called General Pinochet a murderer. Because of this Lord Hoffman could be suspected of bias in the case. He therefore recused himself.

Judges are not allowed to have any financial relationship with people involved in a case.

Political neutrality does not go to preposterous lengths. If a judge is a member of the Liberal Democrats and he is hearing a case of car theft and the defendant is a member of the Conservative Party the judge is still allowed to handle the case. Does this still undermine the neutrality of the judiciary? What do you think?

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About Calers

Born Belfast 1971. I read history at Edinburgh. I did a Master's at UCL. I have semi-libertarian right wing opinions. I am married with a daughter and a son. I am allergic to cats. I am the falling hope of the not so stern and somewhat bending Tories. I am a legal beagle rather than and eagle. Big up the Commonwealth of Nations.

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