Common law
British origins
- "Judge-made law"
- The legal system adopted by Australia, which in corporates a collection of legal principle and rules derived from decision made by judges in higher courts.
- Remember: Statute law is law made by parliament.
Common law is court-made law. It is used in the United Kingdom and many of its former colonies such as Australia, New Zealand, Canada and the United States.
The development of common law dates back to the Norman invasion of England. Travelling judges enforced rulings of previous cases (precedent).
People began bringing disputes to the King when they were unhappy with the rigidly enforced common law. The Court of Chancery was established to apply equity and fairness to cases. Equity law developed from this.
Activity: Create a timeline outlining a brief historical overview of the origins of common law and equity
Precedent is a judgement made by a court that establishes a point of law. The doctrine of precedent is also known as stare decisis - Latin for “the decision stands”.
Why is precedent so important for achieving justice?
Ratio decendi refers to the essential legal reason that a particular decision has been made.
Obiter dicta refers to other remarks the judge has made regarding the case. These might relate to the credibility of a witness and are not part of the ruling that forms precedent.
If the case is significantly different from a previous one, ratio decendi does not need to be followed.
Binding precedent: Lower courts are bound to follow decisions of superior courts. e.g. the NSW Local Courts must follow decisions of the NSW Supreme Court.
Persuasive precedent: Superior courts do not need to follow decisions of a lower court, but may choose to take them into account when making a decision.
Why is precedent so important for achieving justice?
Ratio decendi refers to the essential legal reason that a particular decision has been made.
Obiter dicta refers to other remarks the judge has made regarding the case. These might relate to the credibility of a witness and are not part of the ruling that forms precedent.
If the case is significantly different from a previous one, ratio decendi does not need to be followed.
Binding precedent: Lower courts are bound to follow decisions of superior courts. e.g. the NSW Local Courts must follow decisions of the NSW Supreme Court.
Persuasive precedent: Superior courts do not need to follow decisions of a lower court, but may choose to take them into account when making a decision.
Adversarial system of trial
- Two opposing sides argue their case before the court and try to prove their version of the facts.
- Each side can present evidence
- Evidence can be cross-examined by the opposing side. Opposing evidence can also be introduced.
- The defendant is assumed innocent until proven guilty, and does not have to prove anything. They should however try to show that the prosecution’s case is flawed.
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