Published on February 16, 2014
Sources of Contemporary Australian Law Common Law
British Origins of Common Law The common-law system first developed in England, and is there fore often referred to as „English common law‟ Other countries using this system include: Great Britain, Canada, New Zealand and the USA
Common law is a collection of legal principles and rules derived from the decisions of judges in higher courts Basically – it is law developed by judges, not law imposed by parliament
Judges are required to obey statute law (law made in parliament. If no statute law exists, judges use common law principles to resolve the dispute. A judge can use common law to interpret statute law. If both common law and statute law exist, the statute law must be followed.
Development of Common Law From the 6th to the 11th century, law was enforced locally Crimes were treated as wrongs for which the offender had to compensate the victim Both parties would have to “swear an oath” If there were witnesses, the accused may be required to undertake a trial by ordeal.
Common law developed after the Norman invasion of England in the 11th century. William the Conqueror sent judges around the country to consolidate his position: Administer a uniform set of laws Report any threats to the throne to the King Assess the wealth of the country to determine what taxes can be afforded By the end of the 12th century, it was common to send judges “on circuits” around the country to ensure decisions were similar – which led to the notion of precedent. In 1258 the Provisions of Oxford were written – this required cases to fit into precedent before they would be heard.
Equity By the 15th century, people were going to the King, claiming that Common Law Courts had made the wrong decision – he asked his Chancellor to deal with these petitions. The Chancellor was a priest as well as a judge, so his decisions were often influenced by Christianity. This branch of law, which aimed to deal with injustices, was called Equity.
Court of Chancery looked at the features of each case to decide what was just or fair It used moral principles – the rules of equity
Main principles of equity To modify a remedy in common law that is deficient, or to create a new remedy To develop remedies for wrongs that the common law doesn‟t recognise
Equity and common law co-existed for several hundred years, though not always peacefully. In 1873, the two legal systems were combined, creating the Supreme Court of Judicature. Courts were instructed to consider equity when considering common law.
Common Law Equity A complete legal system A series of isolated principals Common law rights are extended to all people Rights of equity are valid only to those people specified by court Common law remedies are enforceable at any time (within limitation) Equitable remedies must be applied for promptly Common law is nondiscretionary and must follow precedent Equity is discretionary
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