Sources of English law

1. Common law

The concept of common law goes back to medieval times. Early common-law judges dealt with both criminal cases and civil disputes between individuals. When making their decisions, they relied strongly on the body of established precedents based on previous similar cases and applied judgements.

The common law originally developed through the courts’ decisions in cases involving property, personal injuries, contracts and some of the earliest torts such as trespass or interference with goods. Previous judgments are considered authoritative and binding in later similar cases. Thus, precedent was born, and the influence of the judges was so great that it is sometimes called ‘judge-made law’.

The common law consists of the substantive law and procedural rules that are created by the judicial decisions made in the courts. Although legislation may override such decisions, the legislation itself is a subject to interpretation and refinement in the courts.

2. Equity

In modern legal texts, this word is unlikely to be used in the original etymological sense. Equity is not a court of conscience. As a term of English law, it is applied to certain concepts, principles and remedies that were formerly excluded by the common law. Lord Chancellor used the equity as a keeper of the king's conscience.

How did it work? Sometimes people were dissatisfied with common law courts, which often produced unfair judgments. People appealed directly to the King. The King dealt with these petitions through his Lord Chancellor, and the Chancery Court was set up. When the Lord Chancellor considered a case, he first looked to the common law, but if he found the laws inadequate he made his own decision based on common sense and understanding of justice.

3. Legislation or statute law

Statute law is the highest source of law, and is binding on everyone, including judges. Judges must apply the law; they cannot change it. But their opinions are authoritative and it is not uncommon for Parliament to heed their indirect advice and introduce new legislation to clear up difficulties. Moreover, there are a number of statutes that codify areas of the common law. If such statutes were not passed from time to time, the judges would not always be saying the same as the legislators, there would be confusion and uncertainty about the law.

4. Custom

This source of law has now lost its significance. The laws and customs of England were welded into one system of law, e.g. monogamy, parental rights, the right to use the seashore for navigation and fishing. However, very rarely custom can be a separate source of law. In this case it must be a local custom, sometimes even limited to a class of persons within that locality. But it cannot be applied to everybody in the UK as it is not a part of national law. There are customs of a right of way (право прохода или проезда через чужую землю), a right to indulge in sports and pastimes on a village green, etc. But they only exist in law when formally recognized by judicial decision.

5. Canon law

Сanon law is the law of the Roman Catholic Church. Many concepts of common law originated from the canon law: the nature of Christian marriage and family rights, the nature of criminal law and its close association with moral fault, imprisonment as a punishment for crime. Clerical and lay courts were separated from the beginning. The Clerical courts played an important role in areas of probate and matrimony. In 1857 the jurisdiction of ecclesiastical courts was confined to matters affecting church members only.