“Rightful liberty is unobstructed action according to our will within limits drawn around us by the equal rights of others. I do not add within the limits of the law’ because law is often but the tyrant’s will, and always so when it violates the rights of the individual.” [Thomas Jefferson]
“The common law can first of all be understood as the law imposed on the institutions of Anglo Saxon England by the Norman invaders in 1066. So ‘the common law’ begins to take sense in that it is the law that relates to everyone. Not just the people in Mercy or Wessex, or wherever these distinctions between these Anglo-Saxon jurisdictions lay. Over time “the common law” becomes used to denote the law replied by the courts the kings court as developed through the system of precedent.”
“Common law is used to describe all those rules of law that have evolved through court cases (as opposed to those which have emerged from Parliament) over the past 800 years. Despite the growth of statute, English law is still generally understood in common law terms.” (Holland and Webb 2016, p. 14)
“Roman law had an important influence on the common law. This is another massive historical question and, of course, Roman law has a major influence on most civilian legal systems that one finds throughout the world today.
There are important commentaries written on the common law in the medieval period. Henry Debracton for instance, writing in 1235. However, Sir William Blackstone (1723 to 1780) is another major point of reference.
Blackstone was a Justice of the Court of the King’s Bench, one of the common law courts at the time, and a commentator on the common law. He wrote one of the most influential and systematic studies of the common law, Blackstone’s Commentaries on the Laws of England, between 1765 and 1769. This text describes the common law as an unwritten law, in contrast with the written law of statutes or codes. Blackstone presented the common law as a form of oral tradition, derived from general customs, principles and rules handed down from generation to generation by the court lawyers and judges, who participated in the common life or in the common life of lawyers in the ends of courts to which they all belonged. Eventually, this old tradition was reflecting the reports of decision or at least the reports of the more important courts, and this knowledge was stored in written form, nanamely the Law or Case Reports. Now it is important to bear in mind that there was no organised system of court report until the late 19th century. And prior to that, all reports were really reported by private initiatives. The key point to bear in mind here is that common law is linked to archives, to case reports. To be a common lawyer, is to know your cases, is to know how the law develops through cases. Historically, the common law tradition has always placed the judiciary, the judge, at the center of things. Judicial decisions are seen as constituting the written law, a body of maxims, precedents, ported decisions that constantly need to be rationalised and developed into a coherent system.
“English law was regarded as bastard law – technically speaking – law without a father. It evolved through hundreds and thousands of decisions in the resolution of practical cases, and out of these hundreds of thousands of decisions, some were written down. And when they were written down, they were reconciled by judges sitting in the ins of courts, discussing for a long time. The decision making was very much an oral tradition. And then as a law reporting came along, being written in the lower portraits with very variable quality indeed. With those records judges of appeal were being able to look through the principles that were held out as a reasoning for the decision – trying to work out whether these principles were rational, consistent, and whether they actually justify the practical outcome.”
The next point relates to Acts of Parliament, also known as statutes or legislation. There are two sources of law for a common lawyer, the common law itself and Acts of Parliament. Although the common law is judge made and case law remains a source of law, influential legal reformers active in the early 1800s were critical of what they saw as the incoherent nature of case law. They drew on traditions of British political thinking that focused on the importance of sovereign power rather than the law-making power of the judge. In particular, Thomas Hobbes’ book Leviathan (1660), provided an important reference point.
Hobbes argued that there should be one single source of sovereign power in a nation. Political events allowed this source of power to be associated with parliament. In the influence of other radical thinkers like Jeremy Bentham (1748 to 1832) and John Austin (1790 to 1859) what was known as ‘the positivists approach to law’ further developed. The positivists stressed the importance of a coherent logical analysis of the law. Bentham pushed forward various reform projects that were designed to give the law a single informic philosophy. Bentham disliked the old-fashioned nature of the common law, like you can get to a crumbling gothic mansion. Law had to become modern and be linked to the rational government of a country. By the late 19th century, Statutes, or Acts of Parliament, had become a major source of law in England and Wales. The state took on increasing responsibility for economic management and social regulation. The volume of statute law continued to grow. While Bentham might not have agreed with the growth of state power and certainly did not anticipate the welfare state of the late 20th Century, it would certainly be fair to say that the social and economic policy required a great deal of legislation.
According to Heart (1961) two rules of recognition allow us to specify the sources of UK law: cases and statutes. Statutes are the supreme source of law, a fact that recognises the sovereignty of parliament. This element of law reflects the legitimacy of parliament. Judges have a law making power to develop the rules of the common law. However, although this power is subordinate to parliament it should properly be seen as a law making power. The development of the common law is guided by the doctrine of precedent. This means that cases that are judged to be similar are decided in the same way. In order to understand what judges are doing, we need to see judicial reasoning as a process, a structure, as a way of thinking that allows the common law to develop coherently. It also limits judicial lawmaking because one has to remember that although judges have a lawmaking power, it is subordinate to that of parliament.”
London Tramways v London City Council is a case from 1898 that shows how the judges understood the role of the court at the end of the nineteenth century. Lord Halsbury had a very particular vision of how the House of Lords had to approach cases. He argued that:
“ I do not deny that cases of individual hardship may arise, and there may be a current of opinion in the profession that such and such a judgment was erroneous; but what is that occasional interference with what is perhaps abstract justice, as compared with the inconvenience…of having each question subject to being re-argued and the dealings of mankind rendered doubtful by reason of different decisions, so that in truth there is no final court of appeal. My Lords, “interest rei publicae” is that there should be “finis litium” sometime and there can be no finis litium if it were possible to suggest in each case that it might be re-argued because it is “not an ordinary case” whatever that may mean.”
“Unlike most nations, Britain does not have a single document that forms its constitution, though it is often referred to the fact that Britain has an unwritten constitution. One of its central ideas is that parliament is sovereign. This means that parliament can make or repeal any law that it likes. It can over rule parts of the common law. It can overrule earlier statutes. This is true then of the Human Rights Act and the European Communities Act. The European Communities Act that makes effectively the United Kingdom part of the European Union, and the Human Rights Act that makes the law of European Human Rights part of the common law of the United Kingdom.”
[Professor Adam Gearey in an introduction to common law – unless otherwise indicated by quotes]
“It is one of the great merits and advantages of the common law, that instead of a series of detailed practical rules, established by positive provisions, and adapted to the precise circumstances of particular cases, which would become obsolete and fail, when the practice and course of business to which they apply, should cease or change, the common law consists of a few broad and comprehensive principles, founded on reason, natural justice, and enlightened public policy.” [Norway Plains Co v Boston & Maine Railroad (1845, 1 Gray, at 263)]
It is therefore its greatest advantage that the common law consists of broad principles drawn from reason, natural justice and public policy that can be flexibly applied. In a case called Bulmer v Bollinger, Lord Denning comes up with a very striking metaphor: That the law of the EU is like a tide flowing up the estuaries, flowing into Britain and mingling with the rivers of the common law to produce a single body of law. There has always been an interchange between the United Kingdom and the Continent, and that is true in the 1100s, the 1200s, and in 2016. And if we go way back, then we find that the common route is Roman law.