We critically discuss in this paper the relationship between common law and statute throughout the development of the law of obligations (i.e. contract and tort) in England and Wales and consider whether there are any areas of contract and/or tort law where further statutory intervention would be desirable.
1) Statutes and common law
In the English legal system, common law and statutes are both sources of law, amongst other sources such as equity or EU Law. Common law is built up out of precedent. Statutes are made by the Parliament, which is the supreme lawgiver, and the judges must follow statutes1. Supremacy of the Parliament is one of the fundamental principles of the so-called “unwritten” Britain’s constitution, together with the separation of powers which defines a clear distinction in between the legislative power of the Members of Parliament who are elected by the citizens, and the judicial power of the judges, who are unelected. Judicial and legislative powers are then meant to operate independently, and this is seen as a necessity to ensure that society as a whole runs satisfactorily, with enough powers and counter-powers allocated.
It may be construed from the above that judges and common law operate very distinctly from the Parliament and its statutes. Judges deliver justice based on, inter alia, common law and statutes, but the latters may possibly ignore or even reject each other.
Sixteenth-century common law judges…looked upon statutes as a gloss upon the common law, even as an intrusion into their domain.2
Could this be considered a persistent situation up to our present time, i.e. with common law and statutes being viewed as “unmixed oil and water” to paraphrase the above statement, or as actually operating in an integrated manner, nurturing each other in defining what the law is ?
I shall analyse this question in the light of an example: the development in the UK of the law of obligations, i.e. contract law and tort law, across the last hundred and fifty years.
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(1) Smith & Keenan, English Law (17th edition, Pearson 2013) [38] (2) Elmer Driedger, The Construction of Statutes (Second Edition. Toronto: Butterworths, 1983), [74-75]