Sources of law – common law

Unit 6 of W101 continues with the sources of law, in this case, the common law. In this unit, the learning outcomes are as follows:

Learning outcomes

After studying this unit you should be able to:

• explain what is meant by the common law system in England and Wales
• discuss the hierarchy of the court system and the operation of judicial precedent
• explain what is meant by reversing, overruling and distinguishing
• read a case and consider the reason for the decision
• explain what is meant by ratio decidendi and obiter dictum.

© The Open University

The unit begins by asking what would happen in a society without law. I have to confess, my thoughts immediately ran to Syria, as I view it as a society without law. ‘Sharia law’ (in my opinion) doesn’t count as law since it depends on (a) a male oriented view detrimental to women, (b) personal interpretation and thus the strong can impose their will on the weakest, and (c) it is exceptionally cruel, (d) it does not progress, but rather regresses.

My point is that a society without law will soon descend into anarchy and chaos, and no one will be safe. No one can express their thoughts, or enjoy the freedoms we have in the UK society.

I will not write too much about the history of the common law as many websites, such as that of the Encyclopaedia Britannica (click for links) has more than adequately explained it. I will however, recommend reading the history as it is quite fascinating to see how the law as we know it, developed from tribal customs.

With regards to the common law, let’s examine some ways the criminal law was developed.

Murder was a crime created by the judiciary, which also created the conditions (legal rules) to identify both the mental intention (mens rea) and the act (actus reus) of this offence. Some of the conditions are:

• The offence must be proven beyond a reasonable doubt.

• The death of a human being must be caused. This has been narrowed down by the judiciary to refer to a person who has existed independently of a mother after birth. This means the child has been born and has breathed independently from its mother. You can start to see how the common law offence of murder is not as straightforward as you may have first thought. For example, if a pregnant woman was stabbed and the foetus (unborn child) died, this would be unlawful and a criminal offence but not under a charge of murder. This would be covered by a different law, such as child destruction.

• The definition of death has been considered by the judiciary who have provided guidance. For the lay person death may be defined as a person no longer breathing and no longer having a heartbeat. However, the legal definition of death is different. There appears to be a consensus in the judiciary that death occurs when the brain dies, but this is a question of fact which needs to be considered by the court in every case.

• Causation must also be established. This means that it must be shown that the death of the victim was caused by the defendant: that is, the person who allegedly committed the crime. That there were no other intervening acts which may have caused the victim’s death is a fact which must also be established.

© The Open University

There will be more on murder in W102 but at this point, we can see how rules around murder were developed through decisions of the judiciary.

Similarly, the civil or private law was also developed by judges.

Civil law deals with private disputes, and while the State provides courts where the disputes are heard, the heart of private dispute lie with the interested private parties. Private law covers such things as negligence, contracts, tort (wrongs), unpaid debts etc.

There are several examples where judges have developed the common law in private disputes. For example, in Donoghue v Stephenson [1932]  Lord Atkins identified ‘duty of care’ and to whom it was owed, known familiarly as ‘the neighbour principle’. Another principle is the ‘doctrine of frustration’ established in 1863 in the case of Taylor v Caldwell.

Of course, we will later learn much more about these and other developments and more about the common law.