What is case law – origins and key points.
The common law system of England and Wales:
The United Kingdom (UK) is a single state in international law, but it consists of three
separate countries with their partly independent legal traditions and legal systems.
England and Wales, Northern Ireland, Scotland
Civil law jurisdiction, yet UK supreme court is the ultimate appeal court
for Scotland.
History of common law:
Common law was originally a single body of law ‘common’ to all parts of the new
Norman kingdom.
Superseding but not abolishing the law developed by the ancient Briton and Anglo-
Saxon law makers – Henry II was the Norman King who promoted common law.
It was common, but not inferior.
A new body of judges from the Royal Court were the key to delivering this common
system of law which prioritised Norman values and Norman power.
This was the biggest change in the legal system – it took power from the king
to the courts.
Henry II realised that by having a unified system of law it was going to create a more
stable basis in developing the country – he used common law to create Norman
values and rules as new king.
The royal judges go out ‘on circuit’ to dispense the new common law in the towns
and cities of the Norman Kingdom – this allowed access of law to all.
The circuits remain an important part of how judges in our system work.
Common law systems:
Common law came from the Norman conquest and a desire for control.
Common law systems are shared by:
UK (England and Wales, Scotland, Northern Ireland), Ireland, USA, Canada,
Malaysia, Australia, India, Pakistan, etc.
Judges returning to the Royal Court would share notes on the cases they had decided
and the legal principles which they had established on behalf of their king.
For this system of judge-made law to work, the judges had to accept (accepted
judicial practice) a system of precedent that would prioritise come decisions over
others and impose consistency within the judiciary – this is the basis of binding
precedent.
Three meanings of ‘common law’.
- Whole legal system in countries like US, Canada, England and Wales (not like
a civil law system).
- Judge-made law, not statute law – judge made law gives way to statute law.
- Judge made law coming from the common law courts, not the parallel courts
of Chancery which used to ‘compete’ with those courts.
“Where statute law and common law come into competition, it is the former that
prevails” – William Geldart [Introduction to English Law 1995].
Two core (conflicting) principles.
1. Judges can create and develop the law because of the simple law-making
power and function of the judge.
2. Judges’ power to create and develop the law must be controlled with a system
of binding precedent.
These two principles are complementary but opposing concepts – one limits
the other but are equally co-dependant.
, The doctrine and retrospective effect.
Two core (conflicting) principles:
Judges can create and develop the law because of the simple law-making power and
function of the judge, however, judges’ power to create and develop the law must be
controlled with a system of binding precedent.
This is controlled via retrospective effect.
Retrospective effect:
In common law cases, judges are merely finding or clarifying what the common law
has always been.
They are not creating law (extends to precedents on legislation).
Llewellyn, The Bramble Bush (New York 1996) – ‘judges only declare and do
not make the law’.
What if a judge changed an earlier rule?
The judge is still just declaring what the common law has always been.
The earlier judge was wrong.
The law had always been what the judge today says it is.
That means that today’s interpretation of the law applies to events which took place
yesterday, the year before, or decades before.
The changes that they do make not only changes the future, but also changes
the past, due to retrospective effect.
R v R (1992) 1 AC 599:
A rule of law which meant a man could not be convicted of raping his wife (origins in
a book of authority called Hale’s History of the Pleas of the Crown (1736)).
Defendant accused of rape; case come before the HL who abolish the ‘marital rape’
exception.
The new rule affects all events before and after the date of the appeal.
The common law system of England and Wales:
The United Kingdom (UK) is a single state in international law, but it consists of three
separate countries with their partly independent legal traditions and legal systems.
England and Wales, Northern Ireland, Scotland
Civil law jurisdiction, yet UK supreme court is the ultimate appeal court
for Scotland.
History of common law:
Common law was originally a single body of law ‘common’ to all parts of the new
Norman kingdom.
Superseding but not abolishing the law developed by the ancient Briton and Anglo-
Saxon law makers – Henry II was the Norman King who promoted common law.
It was common, but not inferior.
A new body of judges from the Royal Court were the key to delivering this common
system of law which prioritised Norman values and Norman power.
This was the biggest change in the legal system – it took power from the king
to the courts.
Henry II realised that by having a unified system of law it was going to create a more
stable basis in developing the country – he used common law to create Norman
values and rules as new king.
The royal judges go out ‘on circuit’ to dispense the new common law in the towns
and cities of the Norman Kingdom – this allowed access of law to all.
The circuits remain an important part of how judges in our system work.
Common law systems:
Common law came from the Norman conquest and a desire for control.
Common law systems are shared by:
UK (England and Wales, Scotland, Northern Ireland), Ireland, USA, Canada,
Malaysia, Australia, India, Pakistan, etc.
Judges returning to the Royal Court would share notes on the cases they had decided
and the legal principles which they had established on behalf of their king.
For this system of judge-made law to work, the judges had to accept (accepted
judicial practice) a system of precedent that would prioritise come decisions over
others and impose consistency within the judiciary – this is the basis of binding
precedent.
Three meanings of ‘common law’.
- Whole legal system in countries like US, Canada, England and Wales (not like
a civil law system).
- Judge-made law, not statute law – judge made law gives way to statute law.
- Judge made law coming from the common law courts, not the parallel courts
of Chancery which used to ‘compete’ with those courts.
“Where statute law and common law come into competition, it is the former that
prevails” – William Geldart [Introduction to English Law 1995].
Two core (conflicting) principles.
1. Judges can create and develop the law because of the simple law-making
power and function of the judge.
2. Judges’ power to create and develop the law must be controlled with a system
of binding precedent.
These two principles are complementary but opposing concepts – one limits
the other but are equally co-dependant.
, The doctrine and retrospective effect.
Two core (conflicting) principles:
Judges can create and develop the law because of the simple law-making power and
function of the judge, however, judges’ power to create and develop the law must be
controlled with a system of binding precedent.
This is controlled via retrospective effect.
Retrospective effect:
In common law cases, judges are merely finding or clarifying what the common law
has always been.
They are not creating law (extends to precedents on legislation).
Llewellyn, The Bramble Bush (New York 1996) – ‘judges only declare and do
not make the law’.
What if a judge changed an earlier rule?
The judge is still just declaring what the common law has always been.
The earlier judge was wrong.
The law had always been what the judge today says it is.
That means that today’s interpretation of the law applies to events which took place
yesterday, the year before, or decades before.
The changes that they do make not only changes the future, but also changes
the past, due to retrospective effect.
R v R (1992) 1 AC 599:
A rule of law which meant a man could not be convicted of raping his wife (origins in
a book of authority called Hale’s History of the Pleas of the Crown (1736)).
Defendant accused of rape; case come before the HL who abolish the ‘marital rape’
exception.
The new rule affects all events before and after the date of the appeal.
