COMMON LAW, CASE LAW AND PRECEDENT

COMMON LAW Common law - is law developed by judges through their decisions in court. In other words, “judge-made” law. Common law is also known as CASE LAW or PRECEDENT. It is different from a statute, as statutes are passed and adopted through the legislative process (by the legislative branch).

WHAT COURTS MAKE COMMON LAW? The Superior Courts! The Supreme Court and the Court of Appeals are known as Superior Courts because the reasons for the decisions in the court cases that come before them are recorded for future reference. It is these courts which create common law.

Decisions, made by Higher Courts, will be binding on lower courts in the same hierarchy. In other words, lower courts, in the same hierarchy, must apply the same reasons for decisions, when dealing with similar cases, as those applied by higher courts , in earlier decisions. This principle is called ‘Stare Decisis’ . This means literally ‘to stand by what has been decided’ and it is at the heart of the doctrine of precedent. In order for the doctrine of precedent to work there needs to be a court hierarchy (an order of importance) from the most superior to inferior courts.

COURT HIERARCHY

ARE THERE RESTRICTION ON JUDGES WITH REGARD TO COMMON LAW- MAKING? YES! Judges and courts can only make law if: - a case is brought before them - If there is no previous binding decision already established by a higher court in the same hierarchy (novel case)

Role of the Courts in Law-making Doctrine of Precedent

Doctrine of Precedent The judges look at past decisions to guide them; they look at the reasons behind the decision in past cases for guidance when deciding new cases. When a new situation arises and is decided on a precedent is created. What is a precedent? A precedent is the reasoning behind a court decision that establishes a principle or rule of law that must be followed by other courts lower in the same court hierarchy when deciding future cases that are similar.

The main reasons for applying precedent is to create consistency and predictability within the legal system, as like cases are decided in a like manner. This in turn gives us confidence in our legal system and we feel justice is being done.

Precedent is the reason for the decision. Precedents can only be made when a judge alone is hearing a case. The Judge makes the decision and gives the reasons for that decision; the reason for the decision is then binding on lower courts in the same hierarchy. For this reason precedent is usually made by courts which hear appeals (as there is no jury – i.e. the Court of Appeal and the Supreme Court). A jury decision cannot create a precedent as juries do not give reasons for their decisions.

Lesson 2 Quick Revision of last lesson: What does ‘stare decisis’ mean? What is precedent? Why do we need a hierarchy for precedent to exist? What are the advantages of precedent? What are the two ways that judges make law? Which Courts can make common law and why?

1. What does stare decisis mean? Stare Decisis - literally means to stand by what has been decided; the process of lower courts following the decision of higher courts

2. What is precedent? Precedent is the reasoning behind a judge’s decision that establishes a principle or rule of law that must be followed by other courts lower in the same court hierarchy when deciding future cases that are similar

3. Why do we need a hierarchy for precedent to exist? So decisions of the Higher (superior) courts in the hierarchy, can be followed by lower (inferior) courts.

4. What are the advantages of precedent? Precedent creates consistency and predictability within the legal system, as like cases are decided in a like manner. This in turn gives us confidence in our legal system and we feel justice is being done.

5. What are the two ways that judges make law? When they are deciding on a new issue (novel case) brought before them or when a previous principle of law requires expansion to apply to a new situation. Statutory interpretation- interpreting the words in acts of parliament.

8. Which Courts can make common law and why? The Supreme Court and Court of Appeal only can make law. These courts record the judgments of courts at the end of a case, and it is in the judgment that the ratio decidendi is stated.

Overruling a precedent When a superior court decides not to follow an earlier precedent established by a lower court in a different case, but with similar material facts. The superior court will overrule the previous precedent. It can do this because it is not bound by precedents created in lower courts. When a precedent is overruled, the latest case becomes the precedent to follow in the future. New precedent is set. NO

Disapproving: Two different cases. When a court disapproves a precedent established by another court at the same level, then a new precedent is established. Both precedents remain in force until another case on the issue is taken to a higher court can overrule the previous decision and create a new precedent. In the case of a lower court disapproving of a precedent established by a higher court in the same hierarchy, then the original precedent is followed, but reluctantly. All the judge can do is apply the old precedent, but in their obiter comments explain their disapproval of the precedent.