Historically, the common law system began in England in the 11th century with the establishment of Kings Courts by William the Conqueror. The courts presided over local disputes where local customs were applied to make decisions. Over time, these customs became rules and were the basis for later courts to make decisions on similar disputes. As the range and type of dispute broadened, so did the range of decisions. The accumulation of judges’ decisions over time is what is called ‘common law’ (James, Muston & Rice, 2014). As such common law is often referred to as ‘judge-made’ law (Public Interest Advocacy Centre, 2011 )
Judges are required to give reasons for their decision. These decisions have been recorded over many years and published as law reports (Barravecchio, 2016). These form the body of prior knowledge, which common law judges read as the primary source of common law.
When Australia became federated in 1901, the role of government increased in the area of law making. This developed into our current system where there are three main ways that laws of Australia are made. These are: 1) Parliaments pass Acts known as ‘statute law’; 2) the executive develops ‘delegated legislation’, which is, regulations, rules, ordinances etc, under the authority of parliament and statute law; and 3) courts interpret the law, and decide cases on the basis of how similar cases have been decided in the past and apply those decisions to th...
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Also, the English doctrine of stare decisis compels lower courts to follow decisions rendered in higher courts. This establishes an order of priority by “reason of authority“. Stare decisis is unknown to civil law, where judgments rendered by judge are the “authority of reason“(Tetley, 1999).
While both legal systems, civil and common, are tasked with the same purpose, it is clear that the process used by each is different. The civil law with its top down approach, legislature written laws, rigid application to rules and processes and an inquisitorial style is in stark contrast to the common law system in which Australia operates. Here there is an adversarial style, a bottom-up case driven system, where judges determine the laws under the doctrine of precedent and principles of stare decisis to create a system that is fair and consistent.
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