LAWS1006 LECTURE 4: Case Law and Precedent I

 What is the common law?

o Time scale
o Spatial dimension

 7 distinctive features of “time scale”:

o the idea that the orders that the writs issued by the king ran
throughout the whole country; not just a matter of customary law,
but throughout the whole realm, therefore “common”
o The king appointed judges to royal courts, the King’s benchSat
mainly in London, but went out on circuit  similarly now, NSW
judges go out to towns to cast judgements
o Questions of fact in both criminal and civil trials are decided by
juries, but judges direct the jury as to the law; the law is then
applied to the facts that are found by the jury.
o Disputed points of law argued by barristers in open court; not
privately available for people to listen.
The decisions made were then developed into law reports in an
interaction between the bench and the bar;
o The reasons for deciding the points of law themselves were given
an open court—precedent is authority provided by the court (seen
through law reports.)
 Law reports have a long history from the times of Queen
Elizabeth
o It was common in the sense that it operated throughout the whole
of the country, the whole of the system.
o Cases from the sixteenth century onwards are still referred to as
basic law

 The essential features of the common law system

o The source: the public published reasons that the judges couple
with the precedent that is supplied by earlier cases to indicate an
outcome in later cases; as time goes on that body of principles will
adjust to circumstances
 E.g. It was only until the 1800’s that the accused in a felony
case had a right to council
o This allows a certain dynamism for the common law system

 Spatial dimension:
o Common law content didn’t just live in England
 The common law method was introduced into colonies
beginning in the 1600’s, e.g. the United states, Australia,
NSW(1828)then other Australian colonies
 This adaptation was never made absolute; allowance had to
be made for different social and physical conditions.
  E.g. in England from the time of Elizabeth I, the
established church was the church of England; if you
wanted to be a member of parliament you had to be
a member of the church, the church had property
advantages:NONE of them were introduced into
the Australian colony.
 Physical example: bushfires (they don’t really exist
in England)
 The indigenous inhabitants: on one hand, for example in NZ,
the rights of the indigenous inhabitants under their land
law were recognised by the common law when it was
introduced. On the other hand, in Australia this was not the
case.
 The common law in itself did not claim to be exhaustive and
self-sufficient to solve all cases. In many contracts the
common law takes the sophisticated view to not be self-
sufficient.|

o This “dispersion” of the common law is in a sense remarkable

 The “common law world”

o Used to describe countries that share this legal inheritance of the
common law system
o There is a certain attitude and approach shared by lawyers,
scholars and practitioners, when they convene they can speak
together and expect that they speak the same language; there is an
immediate connection
 E.g. the judges of Australia every three years meet the
judges of Hong Kong, etc.

 There is now a “common law” of Australia (this is part of the “common

law world”)
o The ultimate authority is the High court of Australia
o This common law may differ from the common law elsewhere
 E.g. if you sue a defamation, you can cover
punitive/exemplary damages from the defendant, but not
really in the court of England
o Two landmark cases:
 Parker v Queen.
 As a matter of precedent--- no Australian authority binds any Australian
court

 Writings of Scholars here and of the common law world may be of

assistance in the common law of Australia
o In England the rule used to be that the scholar had to be there
o The high court of Australia since its conception, the judges have
quoted from both living and dead scholars
 A significant number of high court judges and judges in other courts
whilst in legal practice lecture in law schools. Notes can become a great
source of authority.
 Common law and statute:
o The constitution by putting the high court at the apex of this
system assumes the principle of precedent.
o Don’t be too romantic about the common law; much of what w
o There is always going to be room for debate about how you
interpret certain laws
o Commonwealth law prevails over
o There was a uniform law that extended across all the Supreme
courts of the States. If one state ruled a law, the second court
would b obliged to follow—howevere they could appeal to the
High court of Australia to change that decision. i.e. if they thought
the first state’s law was “plainly wrong”