Introduction
The legal system of England and Wales is built upon two primary sources of law: common law and statute law. Common law, also known as judge-made law, is developed through judicial decisions in courts. Statute law, by contrast, is created by Parliament in the form of Acts of Parliament. While both are essential components of the constitution, a clear hierarchy exists between them. This essay will explain the nature of common law and statute law and will argue that while statute law is the supreme source of law due to the principle of parliamentary sovereignty, the common law retains a vital role in interpreting legislation and developing legal principles where no statute exists.
The Nature of Common Law
Common law has its origins in the customs and traditions of the English people, which were unified into a single "common" system by judges travelling the country after the Norman Conquest. Its modern form is created through the doctrine of judicial precedent, or stare decisis, which means "to stand by things decided". When a judge in a senior court, such as the Supreme Court, makes a decision on a point of law, that decision creates a binding precedent that lower courts must follow in future cases with similar facts.
A key example of the development of common law is the creation of the modern tort of negligence. In the landmark case of Donoghue v Stevenson [1932] AC 562, the House of Lords established the "neighbour principle," which provides that a person must take reasonable care to avoid acts or omissions that they can reasonably foresee would be likely to injure their neighbour. This principle, created entirely by judges, has since been developed and refined in countless subsequent cases and forms the basis of negligence law today. Common law is therefore flexible and can adapt to new situations, but it is also reactive, as a new legal principle can only be created when a relevant case is brought before the courts.
The Nature of Statute Law
Statute law is law made by Parliament and is the highest form of law in the UK. A proposal for a new law, known as a Bill, must be approved by both the House of Commons and the House of Lords before receiving Royal Assent from the monarch, at which point it becomes an Act of Parliament and part of the law of the land.
Unlike common law, which addresses legal issues retrospectively, statute law can be proactive. Parliament can create entirely new areas of law, reform existing laws, or put previous common law rules into a statutory form (a process known as codification). For example, the Occupiers' Liability Act 1957 was passed to clarify and replace the confusing common law rules relating to the duty of care an occupier of premises owes to visitors. Because it is written down, statute law is generally more certain and accessible than common law, though its meaning can still be open to interpretation.
Parliamentary Sovereignty and the Primacy of Statute
The relationship between common law and statute law is governed by the constitutional principle of parliamentary sovereignty. According to the traditional view, popularised by the academic A.V. Dicey, this principle means that Parliament has the power to make or unmake any law it chooses. Consequently, an Act of Parliament can override, change, or abolish any rule of common law. No court can challenge the validity of an Act of Parliament (Elliot and Thomas, 2020).
This means that if there is a conflict between a common law principle and the provisions of a statute, the statute will always prevail. For instance, the common law offence of murder has been significantly modified by statute. The Homicide Act 1957 introduced the partial defence of diminished responsibility, which did not exist at common law, thereby allowing Parliament to directly alter a fundamental, judge-made area of criminal law. This demonstrates a clear hierarchy where Parliament, and therefore statute law, is the ultimate source of legal authority.
The Interactive Relationship
Despite the supremacy of statute, common law remains fundamentally important. Its most crucial modern function is the interpretation of statutes. While Parliament creates the law, it is judges who must apply it to the facts of specific cases. When the wording of an Act is ambiguous or unclear, judges must interpret Parliament's intention using various rules and presumptions, such as the literal, golden, and mischief rules of interpretation. In cases like Royal College of Nursing v DHSS [1981] AC 800, judges had to decide whether nurses carrying out a particular part of an abortion procedure were acting lawfully under the Abortion Act 1967. The court’s interpretation effectively determined how the Act would operate in practice. Furthermore, many core areas of law, including the law of contract and tort, as well as the offence of murder, remain largely governed by common law principles, filling the gaps where Parliament has not legislated.
In conclusion, statute law is superior to common law within the UK's constitutional framework. The doctrine of parliamentary sovereignty ensures that any Act of Parliament will take precedence over any conflicting judicial decision. However, this does not render the common law obsolete. The two sources of law exist in an interactive and often symbiotic relationship. The common law provides the bedrock for many legal subjects and, through the essential work of statutory interpretation, gives practical effect to the will of Parliament.
References
- Elliot, M. and Thomas, R. (2020) Public Law. 4th edn. Oxford University Press.
- Donoghue v Stevenson [1932] AC 562.
- Homicide Act 1957.
- Occupiers' Liability Act 1957.
- Royal College of Nursing v DHSS [1981] AC 800.
