special topics, but the major law was local customary law (also called
custom). Being local, customary law varied from place to place. It was
administered by the local feudal lord, who held court when necessary. One of
Henry II’s changes to the administration of justice was to send his royal judges
on circuit. They started to hear cases that might otherwise have been heard by
the feudal lord. In the process, these judges started to compare the various
customary laws that they encountered and talk about these rules among
themselves. What then happened was that when the judges heard a case in a
particular place, there would be times when they would not apply the
customary rule from that place but the rule from some other place. They did
this because this other rule provided a better legal solution to the problem than
did the local rule. Bit by bit over time this process supplanted the various local
laws with one uniform set of rules on the basis that the judges collectively
regarded these as the best solution to the particular problem. In some ways it
amounted to a judicial codification of customary law. This law came to be
called common law because the law was common throughout the realm
(although pockets of customary law still survived).
25
As this account shows, common law consists of rules or principles of law
formulated by judges in cases when deciding disputes in areas where there
were no applicable statutes. In the absence of a relevant statute, courts
themselves formulated rules of law.
Illustration
A good illustration of the making of common law comes from the case of
Donoghue v Stevenson
in 1932 where the House of Lords created the tort of
negligence for English common law.
26
The facts of this case are as follows:
Mrs Donogue went to a café in Paisley run by Mr Minchella. Mrs Donoghue
was accompanied by a friend. Mrs Donoghue sat down at one of the tables.
Her friend purchased a bottle of ginger beer from Mr Minchella. It has been
manufactured by Stevenson. The bottle was made of dark opaque glass.
Minchella poured some of the ginger beer out into a tumbler. Her friend then
brought the tumbler of ginger beer and the bottle with the remaining ginger
beer to the table where Mrs Donoghue was sitting. Mrs Donoghue drank
25
There is an interesting illustration of the operation of custom as a way of
developing rules in the sport of surfboard riding. There has now developed a
customary rule that the surfer closest to the breaking part of the wave (the inside
or the peak) or the first surfer to their feet has the right of
way or priority. A
person who violates this rule is considered to be stealing the wave by “dropping
in”. What is of special interest about this is also that it involves some notion of
property in a wave.
26
Donoghue v Stevenson [1932] AC 562
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