What Is Common Law?
English common law is not a set of rules written by parliament. It is a body of legal principles developed over centuries through judicial decisions, local custom, and the inherited rights of the English people. Its authority does not derive from statute — it predates statute. Common law is the law of the land, recognised rather than created by the courts.
This distinction is fundamental. Statute law is made by parliament and can be repealed by parliament. Common law, by contrast, is held to be the ancient and inherent right of the people. It was not granted by any government — it was acknowledged by government as already existing.
Magna Carta: The Great Charter
On 15 June 1215, at Runnymede, King John affixed his seal to Magna Carta — the Great Charter of the Liberties of England. The barons who compelled him to do so were not inventing new rights. They were demanding that the Crown acknowledge rights that already existed under the common law.
This is a critical point often missed in modern commentary. Magna Carta did not create English liberty. It documented and codified liberties that the English people already possessed. The Charter was a recognition, not a grant.
Among its most significant provisions:
- Chapter 29 (originally Chapter 39): “No free man shall be seized, or imprisoned, or dispossessed, or outlawed, or in any way destroyed… except by the lawful judgement of his peers or by the law of the land.”
- Chapter 1: The liberties of the English Church and the rights of all free men of the kingdom.
- Article 61: The security clause — the right of the barons to enforce the Charter against the Crown.
Common Law vs. Statute Law
The relationship between common law and statute law is one of the most misunderstood aspects of the English legal system. Modern legal education often presents statute as supreme, but this was not always the accepted position.
Sir Edward Coke, Chief Justice of the Common Pleas in the early 17th century, argued in Dr. Bonham’s Case (1610) that the common law would control Acts of Parliament and adjudge them void when they were “against common right and reason.” This principle — that there exists a law above parliamentary statute — was a cornerstone of English constitutional thought for centuries.
William Blackstone, writing in his Commentaries on the Laws of England (1765-1769), described common law as the “ancient unwritten law of the land” and acknowledged that it carried an authority independent of parliamentary enactment. Blackstone distinguished between lex scripta (written law, including statutes) and lex non scripta (unwritten law, including common law and custom).
The Constitutional Significance
The principles established in Magna Carta were not merely legal — they were constitutional. They established that:
The Crown is not above the law. The king is bound by the same law that governs his subjects. This principle was revolutionary in 1215 and remains foundational today.
Rights precede government. The liberties documented in the Charter were not gifts from the Crown. They were pre-existing rights that the Crown was compelled to acknowledge.
Due process is inviolable. No man may be punished except by the lawful judgement of his peers or the law of the land. This is the ancestor of all modern due process provisions.
The people have a right of enforcement. Article 61 established a mechanism — the committee of twenty-five barons — to compel the Crown to honour the Charter. This is the earliest formal recognition of the right to hold government accountable.
Why This Matters Now
In our present age, the tendency is to treat Acts of Parliament as the highest form of law. But the English constitutional tradition tells a different story. The common law — including the principles enshrined in Magna Carta — represents a legal inheritance that parliament itself is bound to respect.
When statute conflicts with fundamental common law rights, it is not the common law that should yield. Understanding this distinction is not mere academic exercise. It is essential knowledge for anyone who wishes to understand the true nature of English liberty and the constitutional order upon which it rests.
The study of Magna Carta is not antiquarianism. It is the study of living law.