Common Law and Case Law

The Common Law was originally the ‘word of the King’ which was applied to all the country by appointed judges. These were the King’s Council or CURIA REGIS. These judges would decide cases according to the legal principles laid down by the King and historically these sources of modern English law can be traced back to around 1066, after the Norman Conquest. During the reign of Henry II (1154 – 1189) a permanent Royal Court was established, sitting in London and consisting of learned judges: this was known as the ‘King’s Bench’. Judges were also commissioned by the King to travel around the country hearing cases. Each region would have its own circuit, and these judges became known as circuit judges. Thus the same legal principles were applied throughout the land. These were not enacted, i.e. not set down in any formal code. It can be seen that the development of the Common Law has depended upon the legal decisions of judges. The basic premise of the application of legal principles was that judges should not ‘make’ the law, but should apply existing principles. Similar cases should be treated alike in order to provide consistency and certainty to the law. The court should be impartial in order to ensure fairness. Hence the maxim that judges should ‘stand by what has been decided’ or ‘stare decisis’. This is the basis of judicial precedent whereby previous decisions are binding upon present cases. Each case will comprise a judgement which is the reasoning of each judge involved and showing the basis upon which he arrived at his judgement. This judgement may be long or short, depending upon the complexity of the case, and in appeal cases will consist of the reasoning of several judges. Even those who arrive at similar decisions may have varying reasons for so doing and thus it is necessary to know exactly what part of the judgement is actually binding upon subsequent cases. The actual precedent is the legal rule on which a court bases its decision –known as the ratio decidendi the legal reason for the decision. In contrast with the ratio decidendi is the ‘obiter dictum’. This is the judge’s expression of opinion when giving judgement but not essential to the decision and therefore without binding authority, although it may be considered as persuasive in nature, by reference, in subsequent cases. Of course, the facts of a case may not always fit exactly within the rule established by a binding precedent. In this situation the judge must consider the most similar past cases and will thus draw from a selection of case law to find or extend principles to deal with the new case. This consideration of past judgements will be the justification for his decision and the basis upon which a new ratio decidendi is formed. In this way the original legal principle is developed and it is this process through which the Common Law has developed; hence the somewhat misleading expression ‘judge made’ law. Judges are not free to ‘create’ the law, their role is to apply it, not to make it. An appeal system and finally Parliament ensures that judges do largely keep within the legal scope of their function.