Common Law Method in English Law

Introduction

The common law method is the process by which judges develop the law through deciding individual cases. Unlike civil law systems, which are based on comprehensive codes, the common law develops incrementally through judicial decisions, with each decision building on or distinguishing earlier authorities.

Judicial Law-Making

Judges make law in three principal ways: by developing the common law (the law developed by the courts); by interpreting statutes (giving meaning to legislation); and by determining the compatibility of legislation with constitutional principles and human rights.

Distinguishing and Overruling

Distinguishing is the process by which a court determines that a previous decision is not binding because the material facts of the current case are different. Overruling is the process by which a higher court sets aside a previous decision of a lower court, or a court sets aside its own previous decision.

Prospective Overruling

Prospective overruling is a technique by which a court overrules a previous decision but limits the effect of the overruling to future cases, preserving the rights of the parties in the current case.