Introduction
The question "On what common law" appears to echo the historical tension between the Crown and the judiciary concerning the ultimate source of legal authority in England and Wales. This tension was famously captured in the confrontation between King James I and his Chief Justice, Sir Edward Coke, in the early 17th century. The King believed his own reason was sufficient to decide legal disputes, but Coke insisted that cases must be decided by the "artificial reason and judgment of law" (Coke, 1607). This essay will argue that the "common law" is the body of judge-made law, developed through precedent, that forms a fundamental part of the UK's constitution. It establishes and upholds the principle of the rule of law, which dictates that all are subject to the law, including the government itself.
The Nature and Origins of the Common Law
The common law is one of the primary sources of law in England and Wales, existing alongside legislation passed by Parliament and the principles of equity. Unlike statute, which is created by a legislative body, common law is developed incrementally by judges through the decisions they make in the cases brought before them. This system is based on the doctrine of stare decisis, a Latin phrase meaning "to stand by things decided" (Slapper and Kelly, 2017). This principle requires that courts follow the decisions of higher courts, and usually their own previous decisions, in cases with similar facts. This process creates a binding body of judicial precedent that provides consistency, certainty, and predictability in the legal system.
The historical roots of the common law lie in the period following the Norman Conquest of 1066. Royal judges were dispatched from Westminster to travel the country, and over time their decisions began to replace the diverse local customs that had previously governed different regions. This led to the development of a unified legal system that was 'common' to the entire kingdom, administered by a centralised court system (Baker, 2019). This historical foundation explains its character as a system built upon custom, tradition, and judicial reasoning, rather than a codified set of rules.
The Common Law and the Rule of Law
The common law is not merely a collection of rules; it embodies a core constitutional principle: the rule of law. This principle, in its most basic sense, means that a nation should be governed by law, not by the arbitrary will of individuals. The confrontation between Coke and James I in the Case of Prohibitions del Roy (1607) is a crucial landmark in the establishment of this principle. When the King claimed the right to decide cases personally, Coke CJ argued that the King was not above the law but was instead "under God and the law". This meant that the monarch's power was limited by the existing common law of the land, which could only be applied by judges with the required legal expertise.
This concept was later articulated by the constitutional theorist A.V. Dicey, who identified three main elements of the rule of law. His first postulate was that no person is punishable except for a distinct breach of law established in the ordinary legal manner before the ordinary courts of the land (Dicey, 1885). This directly reflects the role of the common law and the judiciary in preventing the arbitrary exercise of power by the executive. A classic illustration of this principle is the case of Entick v Carrington (1765), where the court held that government officials could not enter a person's property and seize their papers without specific legal authority. Lord Camden CJ famously declared, "If it is law, it will be found in our books. If it is not to be found there, it is not law". This demonstrates how the common law acts as a safeguard, requiring the state to justify its actions according to established legal principles.
Conclusion
In conclusion, the question "On what common law" points to the very foundation of legal and governmental authority in England and Wales. The common law is the system of judge-made precedent which emerged historically to create a unified legal order. More importantly, it established the constitutional principle that sovereign power is not absolute but is instead limited by the law. As articulated by Sir Edward Coke and demonstrated in landmark cases like Entick v Carrington, the common law provides the legal framework within which the state must operate. While Parliament is now the supreme law-making body, the common law continues to be a vital source of law, used to interpret statutes and protect the rights of individuals against the state. It is, therefore, the bedrock upon which the rule of law is built.
References
Baker, J.H. (2019) An Introduction to English Legal History. 5th edn. Oxford: Oxford University Press.
Coke, E. (1607) Case of Prohibitions del Roy 12 Co Rep 63.
Dicey, A.V. (1885) Introduction to the Study of the Law of the Constitution. London: Macmillan.
Entick v Carrington (1765) 19 St Tr 1030.
Slapper, G. and Kelly, D. (2017) The English Legal System. 18th edn. Abingdon: Routledge.
