COMMON LAW AND STATUTE LAW*
| Author | P. S. Atiyah |
| DOI | http://doi.org/10.1111/j.1468-2230.1985.tb00823.x |
| Published date | 01 January 1985 |
| Date | 01 January 1985 |
THE
MODERN LAW REVIEW
~~
Volume
48
January
1985
No.
1
COMMON
LAW
AND
STATUTE LAW*
I
PROPOSE
in this lecture to address a question which has attracted
very little attention in our legal literature' although it is,
I
believe,
of considerable theoretical, and potentially also some practical
importance. The question concerns the relationship between the
common law and statute law. Does our law constitute, in some
sense, a single coherent, integral body of law, or does it consist of
two separate entities, two streams running on parallel lines one
of
which occasionally feeds into the other, but which are destined for
ever to retain their separate identities? In posing this question,
I
must make it clear that
I
am not concerned with the question how
well
common law and statute law fit together, but with the logically
prior question, of
how
they fit together. All lawyers, of course,
know that large areas of both the common law and the statute law
are a shambles, but
is
it
one shambles
or
are there two? This may
seem a very theoretical, or even metaphysical question, but there
are a number of important practical issues involved here, particularly
when it has once become accepted that the common law is a
dynamic, developing body of law just as much as statute law. It
may well be that the reason these issues have attracted
so
little
attention hitherto
is
that until very recently the prevailing orthodoxy
of English law was that the judges had no power to change the
law. But now that this fairy tale has been abandoned, the
relationship between common law and statute law must be seen as
the relationship between two developing and moving bodies of law;
and the way in which they interact on each other becomes a matter
of
no little importance.
I
Now there is one respect in which, when a statute is passed, it
becomes part of a large ongoing enterprise, just as a new piece
of
case law does. Obviously, it may reverse or modify existing law;
but less obviously it takes a great deal of existing law for granted.
*
The Chorley Lecture, 1984.
'
Virtually the only discussion
of
which
I
am aware is in Cross,
Precedent
in
English
Law,
3rd ed., Oxford, 1977.
1
2
THE MODERN LAW REVIEW
[Vol.
48
Very
few
statutes are self-contained instruments even when they
deal with a remote or esoteric branch of the law. At the
very
least
they are subject to the rules of interpretation, and hence to the
provisions of the Interpretation Act. But in addition, most statutes
attract huge bodies of existing law-both statute and common
law-in
a
wide variety of ways. For example, there is the
relationship of the statute to the courts:
a
statute is law, and prima
facie matters of law fall within the jurisdiction of the courts. If it is
a matter of public law, judicial review may be available, and the
whole body of law governing judicial review may thus be attracted
by the Act. Alternatively, if the Act creates private rights, huge
bodies of civil law may be attracted. Rules of general application
drawn from the substantive law of contract or tort or restitution or
trusts may become relevant. Other statutes, where appropriate,
such as, for instance, the Contributory Negligence Act or the
Frustrated Contracts Act, may become applicable, via the common
law rules which they amend, and which may themselves be drawn
within the orbit of an Act creating civil liabilities. Or again, the
Act may create offences. At once, the whole body of general
principles of criminal law becomes relevant: rules concerning the
criminal capacity of minors, rules concerning the criminal
responsibility of secondary parties, rules concerning sentencing, all
these will become part of the machinery for the enforcement of the
new Act without one word being said about them. Beyond and
behind all these rules of substantive law, there lie still further
bodies of rules abut enforcement of the law: apart from rules of
jurisdiction, procedure and evidence, there are the powers of the
police, the powers of prison governors and sheriffs, and in the case
of civil liabilities a whole battery of enforcement mechanisms such
as garnishee orders, attachment of earnings orders and bankruptcy
laws-which of course bring in their train yet further rules about
the powers and procedure of the courts with bankruptcy jurisdiction.
So
in all these ways, a new statute becomes part of a very large
body of law even though not one word is said about these things in
the Act itself. Furthermore, the Act itself may now become part of
this ongoing, all pervasive body of laws which will attach itself to
later Acts as and when they come to be passed. What is more, it is
not just the
ipsissirna
verba of the Act which thus becomes part of
this mass of laws, apparently floating in the sky and ready to fasten
on any new passing statute. It is the Act as interpreted by the
proper organs entrusted with the job. As we all know, many
statutes, as living pieces of law, are in substance an amalgam of the
legislative wording and judicial exegesis, and it is this amalgam
which attaches itself to new statutes in the manner I have just
sketched. Furthermore, judicial exegesis is itself the subject of yet
further rules which necessarily get-: attached to the Act, and
therefore to other statutes to which this one may become attracted:
rules about the authority
of
the expounder, about the status of the
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