1a) Common Law, also widely known as Case Law, derived from the old English common law, is largely based on precedents, where judicial decisions were already previously made in similar cases where it is used as reference bases or sources of law. Also, common law is not codified, which generally means there is no comprehensive compilation of legal rules and not written in statues [The common law and civil law traditions, 2010:1]. It is during the Middle Ages, after the Norman Conquest in 1066, where Common Law is believed to be formed from the changing and centralizing powers of the king, where “the medieval kings began to consolidate power and established new constitutions of royal authorities and justice” and in the seventeenth century when the common law triumph over the other laws, when Parliament established check on the power of the English king and claimed the right to define the common law an declare other laws subsidiary to it. [The common Law and Civil Law Traditions, 2010: 3-4] . Two obvious examples would be the Marriage Law, a traditional marriage where couples need not to obtain a marriage license, or perform a formal wedding [Cathy Meyer, 2013:1] or when a child lost both parents, is adopted by another couple, with no legal papers. Common law involves two opposing parties, which are juries, ordinary people with no background legal training, whom decides on the facts of the case, and the judge who determines the appropriate punishment, or sentence, based on the jury’s verdict [R.C. Van Caenegem, 1988:3-4]. Incase whereby according to [Marbury v. Madison, 1803] if “the court finds that the current dispute is fundamentally distinct from all previous cases, judges have the rights, authority and duty to make law by cr... ... middle of paper ... ...emieux/precedent-stare-decisis [4 DEC 2013] Chononu (2012) Explain Judicial Precedent and the types of Precedent [Online] Available: http://www.studymode.com/essays/Explain-Judicial-Precedent-And-The-Types-1225193.html [4 DEC 2013] Legislation vs Common Law [Online] Available: http://www.hobartlegal.org.au/tasmanian-law-handbook/courts-lawyers-and-law/law/legislation/legislation-vs-common-law [1 DEC 2013] R.C. Van Caenegem, (1988) The Birth of the English Common Law (Cambridge) [Online] Available: http://www.law.berkeley.edu/library/robbins/pdf/CommonLawCivilLawTraditions.pdf [1 DEC 2013] Gale Group (1995) Common Law and Legislation [Online] Available: http://www.thefreelibrary.com/Common+law+and+legislation.-a017987070 [30 NOV 2013] Kunz, Christina L., (et al. 2000). The Process of Legal Research. 5th ed. Gaithersberg, Md.: Aspen Law & Business. [30 NOV 2013]
Abadinsky, Howard. Law and Justice: An Introduction to the American Legal System. 6th ed. Upper Saddle River: Prentice Hall, 2008. Print.
Hobson, Charles F. The Great Chief Justice, John Marshall And the Rule Of Law. University Press Of Kansas: Wison Garey McWilliams & Lance Banning, 1996.
In America we have common law just like Canada. Article III of the constitution is what established the judicial system. The bottom is just the local courts and then state courts. There is also the federal court system where judges are nominated by the president then confirmed by the Senate. These courts include: the 94 district courts, Tax court, Court of Appeals, the Court of Appeals for the Federal Circuit, Court of Claims, and Court of Military Appeals. With most courts of the United States, juries are the ones who decide whether one is guilty or not. The constitution calls for the creation of the Supreme Court and leaves the responsibility of creating the inferior courts to Congress.
Robert Alt, What is the Proper Role of the Courts, ¶ 2, nn. 1, 2 (Report No. 14, 2012).
Legislation and the Common law are not separate and independent sources of law. They exist in a symbiotic relationship. Symbiotic relationship refers to the two different sources of legal norms that provide the sum of rules establish system as a whole. (Brodie v Singleton Shire Council (2001) 206 CLR 512, 532 [31])
Common law is the law made by judges when deciding a certain case before the court. The reasoning the judge applies becomes a precedent, to be followed by other lower courts in future matters of similarity. This is the basis for the doctrine of precedent. A precedent is either a binding precedent, the reason for a decision of a higher court that must be followed by a court of lower status in the same hierarchy; or a persuasive precedent, meaning a reason for a decision of another court that is not binding, and should only be considered for its persuasive value. It is the role of the judge in the common law system to develop and expand the common law where he or she sees fit. It is paramount for judges to base their decisions on cases on judicial precedents. The system of precedent can only operate effectively if the respective precedents are recorded. From as early as the beginning of the sixteenth century, judges produced significant cases in law reports. This process still occurs today, but is now systemised and is controlled by Councils of Legal Education in each jurisdiction (Williams 1998).
The formal and substantive theories of rule of law have been enormously influencing the UK’s Law system. Rule of Law is ‘a treaty or doctrine that describes the extent to which certain features as present within a country.’ Formal theory is that the concept will not be finding the details of law by using the previous judgements. It mainly focuses on how it is presented and the way on how to apply in daily life. The procedure is the major thing that formal theories is considering about. And the formal theories basically do not take the law’s content as consideration. Whereas substantive theory is to show to the general public how the law will be exercised, it is more concerning about the details inside the law and it is the procedures of the
Statutory law comes into existence by Congress and the various state legislative bodies that make up another source of law. Courts develop the common law rules from the principles behind the decisions in actual disputes. Common law is the law created by judges when interpreting statutory law. If statutory law conflicts with common law, statutory law will govern because the body of statutory law has expanded greatly since the founding of this nation. This expansion has resulted in a proportionate reduction in the scope and applicability of the common law. However, the common law remains a significant source of legal authority. Even when legislation had been substituted for common law principles, courts often rely on the common law as a guide to interpreting the legislation on the theory that people who drafted the statute intended to codify an existing common law rule.
-Common Law: the “law of the land”(Pool 127), which was built up over many centuries
Over the years, different jurisdictions had built their specific system of rules of conduct to govern behaviour. These legal systems, influenced by historical and cultural roots, can be distinguished in two families, the Civil law and the Common law legal systems. The distinctions lies in the process in which each decision is make by the judge and on the legal sources that shapes the law. Indeed, by contrast to the Common law system, which is largely based on Precedents, meaning the decisions that have already been made by judges in similar cases, the Civil law system is based on legislator’s decisions and legal codes with which judges have to justify their judgment . Consequently, instead of referencing to concepts and rules
Robert N. Clinton, ‘Judges Must Make Law: A Realistic Appraisal of the Judicial Function in a Democratic Society’ [1981-1982] 67 Iowa L. Rev. 711 http://heinonline.org/HOL/Page?handle=hein.journals/ilr67&div=38&g_sent=1&collection=journals accessed 12 February 2012
Since there is a premise on which the judgment will be made, a proper benchmark, the judicial procedure occurs much quicker. For this reason, it is much more efficient in its process in relation to the codified system which does not follow this process of a precedent based system. As the decisions made are premised on antecedents, they have a firmer basis. This is an obvious advantage over the common law as the codified system of law has to rely on the creation of rules and legislation rather using case laws to create future laws.
The meaning of English Legal System is stated out by Cownie and Bradley in the English Legal System book . There are many sources that build up the English Law as it is today. The main sources of English Law consist of Common Law, parliamentary legislation and delegated legislation. As stated in Gary Slapper & David Kelly’s English Legal System book , there are many different interpretations of the phrase ‘source of law’ where in this book the law is made up of three main sources; where in Martin Hunt’s “A” Level Law , though there are different sources that make up the English law, these sources are differentiated in two main categories with various minor sources.
The Common Law, also known as Anglo-American Law, surfaced in England during the Middle Ages in the 14th century and was spread all over the world with the British colonies. Although England had numerous connections to the rest of Europe in those times, one thing that was not similar was the use of judicial decisions as the foundation of common law.
In conclusion, the doctrine of judicial precedent has been accepted to form our legal system, through the use of binding precedents. It has helped the law maintain certainty yet through flexibility of the courts and exceptions to depart from precedents the law has continued to develop in a just manner.