Justices Of The Superior Courts Understand That The Common Law Is Superior
By the Act of 1873 (ss. 3, 4), the Court of Chancery, the Court of Queen’s Bench (known as the King’s Bench when there is a male Sovereign), the Court of Common Pleas, the Court of Exchequer, the High Court of Admiralty, the Court of Probate, and the Court of Divorce and Matrimonial Causes were consolidated into the Supreme Court of Judicature, subdivided into two courts: the “High Court of Justice” (“High Court”), with (broadly speaking) original jurisdiction, and the “Court of Appeal”.
Source: Judicature Acts: United Kingdom.
For the most part, only appellate court judges have any knowledge of the Common Law. Most certainly the judges of the states’ and supreme courts know about the Common Law – which is why they are called “justices”; NOT “judges”. These justices of the superior courts understand that the Common Law is superior to and supersedes statutory law – even the U.S. Supreme Court had so stated. Indeed, while the Common Law is compulsory upon all men, all statutory law (legislated acts or civil law) is simply an OFFER TO CONTRACT requiring each man’s individual consent in order to gain the “force of law” upon that man. If that individual man refuses to consent to a statute (that is, he refuses to contract), then that statute has NO “force of law” over him – so the police and courts have NO jurisdiction over him for failing to obey it.
For many law students, one of their first law lectures involves the drawing up a diagram of the courts in England and Wales. The reason for this is simple: an understanding of the hierarchy of English courts is essential in order to understand the concept of precedent. This is the fundamental building-block of the Common Law which provides that if a higher court has determined an issue (such as how a law is to be interpreted) then that decision is binding on lower courts who must interpret it in the same way. The Latin maxim “stare decisis et non quieta movere”, to “stand by decided matters and not disturb the undisturbed”, is sometimes given as a motto for this.
However, it soon becomes apparent to many students that such diagrams are greatly simplified. Many such diagrams miss out some of the more specialist courts which are regularly in use, such as the Court of Protection or the Coroners’ Courts. There also exist parallel jurisdictions for the military, through the Courts Martial, and for the Church of England, through the Ecclesiastical Courts. Finally, the full court system includes a few ancient courts with rarely-exercised but extant powers (giffordhead.co.uk).