Last edited 13 Oct 2020

Common law

English (and Commonwealth) law consists of common law and statute. Common law is made by judges, whereas statutory law is made by legislation passed by governments.

Common law is ‘applied in common’, there are no written principles, but instead it has been developed through a system of evolving precedents since it was created in the 12th and 13th centuries. This defining characteristic provides the common law with its unique flexibility which allows it to be adapted to changing times and circumstances with relative ease. By contrast, statutory law can be too rigid, requiring amendments to be made to accommodate specific situations that arise.

Under the common law system, judges develop a body of ‘case law’ on particular topics which together provide instruction and guidance for subsequent cases. In this sense, judges have more influence and significance in a constitutional sense than do judges under the civil law (non-criminal) of other countries.

The principle of common law spread through the Commonwealth from the 16th century onwards with the growth of the British Empire. This still applies in many countries today.

In practice, common law is found in case reports. Some topics will have only one or two relevant cases which comprise the common law, while others might have many more cases which date back over centuries. This can mean it is difficult to interpret and it is often unclear whether a decision in one case is relevant to another.

There have been attempts to ‘codify’ or write down the common law to make it more accessible. This is the responsibility of the Law Commission, a statutory body which makes proposals for amending legislation to clarify common law, which is then a matter for Parliament to accept or otherwise. Examples include the joint and several liability for a breach of contract – Civil Liability (Contribution) Act, and the Contracts (Rights of Third Parties) Act.