Dear Sir,

Thank you for your email of September 15 regarding the status of the common law and statute law within the English legal system.

The term `common law' has a number of meanings. It can be used, for example, to distinguish a legal system from a continental civil law system or to refer to a system which is common to the whole of the country. Both of these illustrations are accurate in respect of the English legal system. In the context of your question however, the term `common law' is used to mean case law i.e. where the law has been developed by the decisions of the courts using a system of judicial precedent.

The development of the common law in the English legal system can be traced back to the twelfth century and the reign of Henry II who unified the court system and commenced the process of travelling judges which, following the commencement of recording and publishing of judgements, enabled the practice of judicial precedent or stare decisis to develop whereby past decisions would be cited in argument before the court and regarded as being of persuasive and even binding authority. This practice developed into the common law of England and Wales and is still a very significant source of law today.

Statute law, in contrast to common law, refers to law that has been created by Parliament in the form of legislation know as Acts of Parliament. Legislation has become the commonest source of new laws or of law reform since around the seventeenth century.

With regards to the relationship between legislation and the common law, statutes can change the established common law, but the common law cannot overrule or change statues. A statute can only be overruled or amended by another, later piece of legislation. This reflects the legal and political doctrine of Parliamentary Sovereignty - the recognition and acceptance that Parliament is the supreme law-making authority. However, that authority may not be absolute. It has been limited by, for example, the relationship with the European Union and the importance of principles such as the recognition of individual freedoms, democracy and government accountability. Subject to these potential limitations, judges must normally apply statutes, even if they are contrary to established common law.

Strictly speaking, therefore, statute law has not superseded the common law. Both sources of law remain significant within the English legal system and apply side by side. It is only when the enactment of an Act of Parliament deals with an area of law previously covered by case law that the common law is superseded.

I hope that you find this information helpful.

Tania Williams

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