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Study Notes

Common Law

AS, A-Level
AQA, Edexcel, OCR, IB

Last updated 22 Mar 2021

Common law, which is also known as case law or precedent is law that has been developed by judges, courts and similar tribunals. It is one of the many sources of the UK’s unwritten constitution. It will have been stated in decisions that decide individual cases but in addition can have precedential effect on future cases.

Common law is a third branch of law. It contrasts with and is on an equal footing with statutes, adopted through the legislative process, and regulations, created by the executive branch of government.

The aim of a common law system is to give ‘precedential weight’ to common law, in order for consistent principles to be applied so that similar facts yield similar outcomes. Therefore, judges are bound to make future decisions that ensure consistent treatment, particularly where the two parties in a case disagree on what the law is, following the reasoning used in the prior decision (stare decisis).

Should it be found that the current dispute is fundamentally distinct from all previous cases (a “matter of first impression”) judges have the authority and duty to make law by creating precedent, which will then bind future courts.

Common law should be distinguished from statutes, which are created by Parliament, because common law applies to the whole population equally, but statutes can be made to favour one section of society over another (for instance granting the disabled rights to preferential parking spaces).

There is a compulsion to obey laws, but obeying statutes is voluntary (in that you can withdraw your consent to be governed, although you would have to weigh up the benefits and costs of doing so.)

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