Common law

Common Law meaning

Common Law Sytem

What is Common Law? The law that is proclaimed by courts and that is derived from tradition and precedent is known as the common law. It was first implemented during the legal changes carried out by King Henry II in the 12th century and was given the name "common law" due to the fact that it was applicable in the same manner throughout the entire nation. Examples of common law include all disputes in which the court decides the case based on the principle of stare decisis. This principle requires judges to base their judgements on previous instances of similar legal disputes. It is often contrasted with equity.

Separation of Powers

According to Barendt, “Separation of Powers and Constitutional Government” [1995] Public Law 599 the union of the three branches of the government (such as judicial, legislative and executive power) in one body would be tyrannical. Without separation of powers, the courts might ignore or arbitrarily apply the law against minorities or class of individuals. For instance, in the case of Mandla v Dowell-Lee [1983] UKHL 7 a Sikh student was not admitted at school due to the turban he was wearing. According to Lord Denning the membership to the Sikh group did not amount to an ethic one. Therefore, the student was not allowed to wear the turban. Protests and demonstrations followed the case. Thousands of Sikhs turned out to Hyde Park to protest. Due to the clamour stemmed from the case, ministers demanded the House of Lords to change the judgment given by the Court of Appeal, otherwise they would have legislated to sort the issue out.

Common Law And Equity

Suppose someone agrees with you to buy your land, a written contract and then he changes his mind. The common law would compensate you for the breach, it would give you money damages, and it would not enforce the promise by making him buy the land. Equity sees that as unfair and Equity as a matter of course will always enforce a contract for the purpose of land, it calls it an estate contract. Instead of getting damages at common law, you get the land. Moreover, once you know Equity will do that you change your conception of who the landowner is. As far as equity is concerned the loan of that promise and the contract that is signed, for equitable purposes the buyer is in equity, is already treated as the owner of that land (this has implication for some people in insurance).

Overlap

There was considerable conflict between the two systems, which came to a head in the Earl of Oxford’s Case (1615). In 1616, James I decided that, in cases of conflict, Equity should prevail over the common law. This was enshrined in the Judicature Acts 1873-75, which set up the modern court structure and enabled all courts to apply the rules of common law and equity. There were no longer two separate courts. The principle that the rules of equity prevail is now referred to in s49(1) Senior Courts Act 1981. Indeed, the conflict between equity and the common law is perfectly illustrated by Charles Dickens in Bleak House: “Equity sends questions to Law, Law sends questions back to Equity; Law finds it can’t do this, Equity finds it can’t do that; neither can so much as say it can’t do anything, without this solicitor instructing and this counsel appearing…”. The distinction between common law (or legal) rights and equitable (or beneficial) rights remains crucial to trusts and land law.

Conclusion

Therefore the Common law can be siad to consist of two componenets: (i) Law established by judgments. Distinguished from a civil system. (ii) Law derived from the jurisidiction of the common law courts as opposed to the Court of Chancery.

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