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Is There a Paradox of the Common Law?

Introduction

The origin of the common law in UK can be said to be from the 11th century when William I established Royal Courts to apply a common or uniform system of law in UK. Earlier, there was a deviation or variance in law or there had been a different interpretation of same law from one community or town as that of other. First of all, we should understand that the Northern Ireland and the United Kingdom of Great Britain are of a political union and not a legal entity. It is to be observed that common law is applicable only in England and Wales and Northern Ireland and Scotland are using the civil law concepts. Hence, whenever a reference of “UK common law” is made in this research paper, it always refers to the ‘common law ‘as applied in England and Wales.

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Thus, common law though has different connotations in different contexts, it always refers to the following;

  • English case law or precedents made by the royal courts and does not include statutory laws.
  • The entirety of the Anglo-American Legal family.
  • The concept of law as opposed to the doctrine of law.

In this research essay, I am going to demonstrate whether the common law is unchanging or continually evolving in detail.

Analysis

Common laws refer to judgments pronounced by judges in the court. Though, U.K doesn’t have a written constitution, the sources for its unwritten constitution lie in case laws, which are commonly known as ‘precedents’, common law, Acts of Parliament, historical documents like Magna Carta and European legislation. Thus, U.K’s constitution is not set out in one single document. It is a mixture of judicial decisions and Acts of Parliament. Thus, in U.K, governance depends upon democratic and political principles rather than a steadfast system that relies on legal safeguards and rules. According to Straw, “the U.K’s constitution presents in minds and hearts and habits as much it presents in law.”

The judges in the House of Lords are known as Law Lords and are occasionally requested upon to make verdicts on point of law, which is then considered to be obligatory on lower courts. Such verdicts form the foundation of the common law.

Further, in U.K, there is no specific definition of a common law. It is inferred from the legal precedents or custom and inferred and interpreted by judges in court cases. Further, there are conventions, which are practices and rules, which are regarded as inevitable to the functioning of government, but they are not legally enforceable. Majority of conventions in U.K is drawn from the historical occurrences through which the British style of government has come into existence. For instance, one convention is that Ministers are liable and held responsible for what occurs in their departments. It is to be noted that many conventions had been shown the exit door from the British constitution over the passage of time and some of the illustrations are given below:

  • The convention is that the British Prime Minister should be a member of the House of Commons, and he should command the political party that veils control over that House.
  • The convention that the Parliament member should desist from criticising the judiciary.

The majority portion of UK administrative law has traditionally been the judge-made common law. On any particular point of law, the courts are bound by earlier judgments pronounced by it, which is known as “precedent.” Lower courts must adhere to the judgments of higher courts. Hence, judgments pronounced by the Law Lords of the House of Lords form the foundation for the majority of the common law presently in use.

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These common laws are interpreted as per homogeneous scheme of rules, principles, assumptions, and canons developed over centuries by common law judges. On an analytical aspect, interpretation of common law statutes has been observed arduous.

As per Waluchow, the constitution is like a ‘living tree’ which adapts and grows to present scenario by adopting beliefs and trends. However, critics like Midenberger and Jeremy Waldron argue that encroaching of constitutional provisions symbolises “the dead hand of the earlier period “and is extremely unfair. The supporters of common law constitutionalism argue that a judicial plea to larger values will occasionally be required, especially in scenarios like emergency as detailed in Thomas v Mowbray, an Australian case law. Lynch and Reilly argue that counter-terrorism act under the purview in Thomas v Mowbray held that there is no requirement for resort to the rule of law ‘as a source of common law constitutionalism.’

According to Waluchow and Dyzenhaus, constitutional provisions will not be adequate in themselves to safeguard certain fundamental freedoms and in such situations, common law will be acting as a light house for the judges.

As of today, British legislation cannot be called as “common law statutes.” Today, British legislation consists of the following;

  • Legislations enacted by the Westminster Parliament, subordinate legislations enacted under those Acts, and other subordinate legislation of United Kingdom such as “prerogative orders “ combined called as “United Kingdom legislation”,
  • Legislation enacted by the parliament of Scotland, the Northern Ireland Assembly or the Welsh Assembly which is known as ‘ British devolved legislation’
  • Directives, treaties, etc. of the EU (European Union) which is known as “Community Legislation” or have a direct impact in the UK.
  • ECHR ( the European Convention on Human Rights so far which made many transformations in the Human Rights Act 1998 which impacts the legal connotation of British devolved or UK legislation.

Three English courts namely Exchequer, King’s Bench and the Court of Common pleas are responsible for the early development of the common law. The common law can be explained as law of courts as stated in judicial verdicts. The past court verdicts act as a precedent as opposed by the civil law system which is footed on prescribed texts. Other than judicial precedents, other traits of the common law are the principles of the supremacy of the law and trial by jury. Earlier, the supremacy of law connotes that even the king was not above the law and in today’s parlance, it connotes that acts of governmental agencies, which are subject to scrutiny in the normal legal proceedings.

Judicial precedents obtain their authority from the canon of stare decisis, which means that the previous verdicts of the highest court in the jurisdiction are binding upon all other subordinate courts in the jurisdiction. However, changing scenarios, most past verdicts as irrelevant except a basis for similarity, and a court must hence often look to the judicial verdict of the rest of the English-speaking nations. Due to incapacity of courts to apply precedents in mounting litigations in the modern world, statutes have surpassed much of the common law, especially in the field of administrative, commercial torts and criminal law. However, in statutory interpretation, courts still use the doctrine of the common law. Thus, the introduction of a large number of statutes has restricted the usage of the common law but has not ended judicial supremacy of the common law.

In case of medical litigations, the common law has long been considered as an individual privilege to self-freedom over his or her own body, which is free from intrusion from others. Thus, bodily integrity is the common law principle of consent. In the eye of law, every unlawful touching of an individual can be regarded as a battery or an assault and if only, the other person accords his consent which makes it lawful. Thus, in the medical parlance, if a doctor while giving medical treatment touches the body of the patient without consent of the patient, then it can be construed prima facie as illegal and may end in both criminal proceedings for assault and may give rise to civil liabilities for damages. However, there are some exemptions to this rule, especially in cases of medical emergency, where a patient is to be treated urgently to save his life when such patient is unable to give his consent as held in F v. West Berkshire Health Authority[1990] 2 AC 1.

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The common law principle of ‘informed consent’ has evolved from these basic principles and offers a solid basis for legal appreciation of the right of a patient with a decision–making concise to refuse treatment. If a treatment is given by a doctor without the approval or in opposition to the express wishes of the patient, then, such patient’s rights are infringed. This analysis has derived wide reception and is now ascertained beyond doubt that patients who have the decision–making concise have a common law right to turn down treatment.

Common law constitutionalism has been said to differentiate the recent verdict of the House of Lords in Jackson v Attorney General, a litigation arising from UK law barring fox-hunting, which aroused constitutional queries pertaining to the status of the House of Lords.

The pro alliance for hunting argued that the legislation employed to introduce the ban through the 1949 Parliament Act was illegitimate. House of Lords held that Parliament Acts 1911 and 1949 are legitimate. The House of Lords quoting the precedent Picken v. British Rail cited in this case, Picken was an enquiry into the functioning of parliament where it was argued that Parliament was misguided and hence, had been conducted on a false canon. In the present case, the question posed was that if Acts that established the Hunting Act were “enacted law” or not. Further, a question of law had been raised, which had to be resolved by either the Parliament or courts and since Parliament could not decide so, it was up to courts to decide. After analysing all the facts, House of Lords upheld the hunting ban.

In the latter days, in UK, the supremacy of Parliament at the expenses of the common law was established by the introduction of a constitution intended to control the authority of legislative machinery. During the nineteenth century, through Reform Bills, the House of Commons steadily increased its authority at the expenses of the House of Lords. Bitter and long confronts symbolised this change and still characterise it but the 1911 legislation ultimately brought the power of Lords to a halt.

Thus, of late, the concept which has been comprehended as “common law constitutionalism “has achieved support both among the judges and academic writers.

For instance, on October 2, 2000, The Human Rights Act of 1998 came into effect, which contains the major provisions of European Convention on Human Rights or European Convention.. If any British citizens are of the view that his rights under European Union Convention have been violated, he can complain with the European Court of Human Rights (ECHR). Any decision in favour of such an individual by ECHR is restricted to that individual only and Esher’s decision is not considered as an obligatory precedent in U.K courts. Further, U.K is not under a legal duty either to repeal or amend any of its law, which considered being contradictory with E.U Convention.

The acceptance of Human Rights convention has sparked off a controversy that if it was democratic to have un-elected lords to interpret a wide drawn statute like the Convention, and, whether is it possible to expect that judges would maintain neutral in their verdicts.

Further, now the term common law is more ambiguous. Previously, it referred to the customary law which judges enunciated and discovered but did not make. However, today, it can be explained as judge-made law. The old common laws are pertaining to a custom that the courts have acknowledged but did not make and hence cannot unilaterally transform.

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In the following two litigations in UK, powers of search and seizure are regarded in relation to the convention rights and the common law principle.

In, R v Central Criminal Court ex p Bright [2002] 2 AII ER 244, DC, a judicial review was demanded for the production of orders under s 9 of Police and Criminal Evidence Act, 1984 (PACE). This order pertained to documents relating to Shayler for designing a plan to assassinate Colonel Gadafy. The English Court had to take into account the principles to be covered including the question, whether the order violated the rights against self-discrimination. Finally, the orders were annulled. Judges observed that they fully acknowledged that the canon to be found in Articles 6 and 10 of ECHR, which are also engendered in the bone of a common law which was long standing and well comprehended canons of the common law.

In R ( Rottman) v Commissioner of Police of the Metropolis, it was held that wider common law authority can prolong to appendage the statutory ones and that domestic judges can regard such a position to be wholly compatible with Article 8 of ECHR.

Conclusion

According to me, the statement that the common law is said to be timeless’ and ‘unchanging’ is false. It is to be noted that many conventions had been shown the exit door from the British constitution over the passage of time. Further, the concept of the common law is ‘continually evolving’. However, in statutory interpretation, courts still use the doctrine of the common law. Thus, the introduction of a large number of statutes has restricted the usage of the common law but has not ended judicial supremacy of the common law. Further, adoption of ECHR by UK is in no way affecting the usage of the common law by English judges as wider common law authority can prolong to appendage the statutory ones and that domestic judges can regard such a position to be wholly compatible with Article 8 of ECHR.

Bibliography

Bennion Francis Alan Roscoe. Understanding Common Law Legislation: Drafting and Interpretation, Oxford University Press, Oxford, 2001.

‘Common law.’ Columbia Electronic Encyclopedia, 6th Edition, 2009, Academic Search Premier, EBSCOhost.

Hughes Phil & Ferret Ed.Introduction to Health and Safety at Works, Butterworth-Heinemann, London, 2009.

Innis, Harold Adams. Changing Concepts of Time, Rowman & Littlefield, London, 2004.

Morss, John R. “FACTS, THREATS AND REDS: COMMON LAW CONSTITUTIONALISM AND THE RULE OF LAW.” Deakin Law Review 14, 2009, pp 79-98, Academic Search Premier, EBSCOhost.

Otlowski Margaret. Voluntary Euthanasia and the Common Law, Oxford University Press, Oxford, 2000.

Phillipson Gavin, Text, Cases & Materials on Public Law & Human Rights, Routledge Cavendish, London,2003.

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