Common Law

[flump1]

AS above please, what is it ? As opposed to civil/ criminal law ?

[Buenchico]

A common law offence is one where Parliament has never created a specific statute against the relevant action but such action is deemed illegal because of judicial precedents created by courts of law. (The Norman conquest resulted in general legal concepts being adopted in England but judges were expected to develop the law through examining precedents and using common sense).

For example, Parliament has never created a statute prohibiting murder. However it's still an offence (under common law) because judges (rather than Members of Parliament) have declared it to be so. Similarly, kidnapping and perverting the course of public justice are also common law offences, not statutory ones.

In most cases the lack of a statute doesn't present any problems or prosecutors or for the courts; the definition of murder doesn't really change much. However 'outraging public decency' is also a common law offence, where courts can struggle to interpret the law because moral codes and public attitudes are constantly changing.

[FredPuli43]

Civil and criminal law may be common law Both the civil law and the criminal law are partially based on no law passed by Parliament but by previous decisions of judges or simply traditional practice; there is no statute, no Act of Parliament, to say what the law on the particular subject is but only common law.

[FredPuli43]

Incidentally, murder is still a common law offence but it has been changed by Act of Parliament. The definition which generations of students learn comes from that given in a textbook of 1797, Coke's [pronounced Cook's] Institutes, which itself summarised the law as the author understood to be from past judicial practice. But that included the words "the death occurring within a year and a day", because it was thought that a victim dying beyond that period after the assault could not be fairly thought to have died in consequence of it. That rule still applies to such fatal assaults occurring before June 16 , 1996, but after that the Law Reform (Year and a Day Rule) Act applies

[flump1]

Thank you both for the replies, I asked this question on behalf of Mr flump who in his wisdom decided this would make good bedtime banter. He has a bee up his butt about some laws not act being lawful. Your replies are more comprehensive than the one I offered.
He may well have further points solving when he rises...once again, thanks.

[tonywiltshire]

I think the simple answer is that Common law are the rules of law developed by the courts as opposed to those created by statute, or a body of customs that has been built up over centuries.
Much of what was originally common law has now been incorporated into legislation or case law.

[FredPuli43]

Rape is a good example and sale of goods another. Those of you who think that rape is conventional sexual intercourse (with esoteric arguments about what constituted "penetration") are behind the times. Statute has redefined what was a common law offence to include penetration of any orifice.

Sale of goods was governed by common law until late in the C19. The problem there was that it differed from place to place and from trade to trade.It took one man to review all this and draft what became the Sale of Goods Act to attempt to standardise it. The result was still so complex that it burdened students and practitioners for decades!