Gavin Howe
Common law is a system that originated in the English king's courts and is based on court decisions and judgments. It is distinct from civil law, which is created by a legislature and is clearer when addressing a precise set of facts. Common law is based on precedent, with courts following previous decisions to determine the law in a given situation. While common law courts have the power to protect human rights, legislation created by a parliament can override common law. This dynamic between common law and legislation raises questions about the protection of fundamental rights and the role of parliament in shaping the law.
| Characteristics | Values |
|---|---|
| What is common law? | It is a process of determining "what the law is" in a given situation. |
| What is legislation? | Laws made by parliaments, also known as statute law, statutes, or Acts of Parliament. |
| Who makes legislation? | Commonwealth parliament, State parliaments, and legislatures of the Northern Territory, Australian Capital Territory, and Norfolk Island. |
| Who else has the power to make legislation? | Local governments and other bodies given certain powers by parliaments. |
| What is the relationship between common law and legislation? | Legislation prevails over common law in case of a conflict. |
| How is legislation created? | A Bill (draft Act) is debated in parliament, and if passed by a majority, it is sent for formal approval to become an Act. |
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What You'll Learn
Common law vs civil law
The world's legal systems are generally divided into two traditions: the Anglo-Saxon tradition of common law and the Latin/Roman tradition of civil law. There are about 80 common law countries and 150 countries with civil law systems. Common law was originally developed through custom in England during the Middle Ages, before laws were written down, and was applied within British colonies across continents. Civil law, on the other hand, developed in continental Europe and was applied in the colonies of European imperial powers such as Spain and Portugal.
In a common law jurisdiction, several stages of research and analysis are required to determine "what the law is" in a given situation. First, one must ascertain the facts. Then, one must locate any relevant statutes and cases. Then, one must extract the principles, analogies, and statements by various courts to determine how the next court is likely to rule on the facts of the present case. Finally, one integrates all the lines drawn and reasons given, determining "what the law is", and applies that law to the facts. Common law systems are considerably more complicated in practice, and the decisions of a court are binding only in a particular jurisdiction.
In contrast, civil law systems are more prescriptive, and judges have a more limited role of applying the law to the case at hand. In a civil law system, the judge's role is to establish the facts of the case and apply the provisions of the relevant code. Civil law can be clearer than case law when the legislature has addressed the precise set of facts applicable to a particular situation. For this reason, civil law statutes tend to be more detailed than those written by common law legislatures, but this can also make the statute more difficult to read.
Countries following a common law system are typically former British colonies or protectorates, including the United States. Common law systems make extensive use of statutes, but judicial cases are regarded as the most important source of law, which gives judges an active role in developing rules. Common law is based on the principle of 'stare decisis', which refers to the binding aspect of precedent. Precedents are maintained over time through the records of the courts and historical documentation in collections of case law known as yearbooks and reports.
In a civil law jurisdiction, unless the contract specifies that the parties have agreed to arbitration, the contract will be enforced by the administrative courts. Some key administrative rules that apply to delegated management arrangements include legal requirements to imply equal bargaining provisions into a contract where one party has a much stronger bargaining position.
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Common law rights
The common law—so named because it was common to all the king's courts across England—originated in the practices of the English courts. Common law is simply the law that stems from decisions made by judges. They set precedents that help to guide the courts in the future. It is not a bill of rights. Common law recognition of rights generally lacks the provisions contained in human rights treaties for obligations on governments to actively promote and protect human rights.
Common law courts have the power to provide significant protection of human rights principles, including the rule of law, except where legislation specifically overrides this power. A well-established principle of statutory interpretation in Australian courts is that Parliament is not presumed to have intended to limit fundamental rights unless it indicates this intention in clear terms. The courts should not assume that the legislature intends to interfere with fundamental rights. Such an intention must be clearly manifested by unmistakable and unambiguous language.
In jurisdictions like England, Wales, and Northern Ireland, the Supreme Court of the United Kingdom has the authority to overrule and unify criminal law decisions of lower courts. The reliance on judicial opinion is a strength of common law systems and contributes to robust commercial systems in the United Kingdom and the United States. Commercial contracts almost always include a "choice of law clause" to reduce uncertainty.
It is important to note that there is no such thing as a "common-law marriage." Cohabiting partners who separate do not have common law rights. Living together with someone in a relationship does not entitle you to the same rights as if you were married.
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Common law and human rights
The Human Rights Act 1998 sets out the fundamental rights and freedoms that everyone in the UK is entitled to. It incorporates the rights set out in the European Convention on Human Rights (ECHR) into domestic British law. The Act sets out human rights in a series of 'Articles', each dealing with a different right. Articles 1 and 13 of the ECHR do not feature in the Act because the UK has fulfilled these rights by creating the Human Rights Act. Article 1 states that states must secure the rights of the Convention within their own jurisdiction, and Article 13 ensures that people can access an effective remedy if their rights are violated.
The Human Rights Act allows individuals to defend their rights in UK courts and ensures that public organisations respect and protect their human rights. All courts in the UK must interpret and apply the law in a way that is as close to the Human Rights Act as possible, even in cases against a public authority or between individuals. However, sometimes it is impossible to interpret the law compatibly with the Human Rights Act, and courts may still have to apply it even if it breaches human rights.
While Parliament is responsible for making laws in the UK, it does not have to follow the Human Rights Act when creating new laws. This means that Acts of Parliament may go against or breach human rights. In practice, Parliament ensures that new laws are compatible with the rights set out in the ECHR, although it has the power to pass laws that are incompatible. The courts will also interpret laws, where possible, in a way that is compatible with the Convention rights. The government does not have to change the law to make it compatible with the Human Rights Act, but it usually does.
In common law jurisdictions, several stages of research and analysis are required to determine "what the law is" in a given situation. This includes ascertaining the facts, locating relevant statutes and cases, extracting principles and statements by courts, and determining how the next court is likely to rule. Common law courts have the power to provide significant protection of human rights principles, including the rule of law, except where legislation specifically overrides this power. For example, the right to privacy under the ICCPR includes the right to a private life, as confirmed by the UN Human Rights Committee in Toonen v Australia. Freedom of association and freedom from slavery also appear to be included in common law.
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Common law in commercial disputes
Commercial disputes are conflicts or disagreements arising between parties in the process of entering into, performing, or terminating commercial activities. These disputes may involve contracts for the sale of goods, services, distribution, agency, franchising, leasing, financial leasing, construction, or investment, finance, banking, and insurance activities, among others. Commercial disputes are typically more complex than civil disputes, requiring a specialised understanding of commercial law and often entailing intricate legal and business principles. They may involve substantial financial stakes and can significantly impact the businesses involved.
Common law is a system of law that originated in England and is now well-developed in several jurisdictions, including England and Wales, California, and New York. It is characterised by the use of stare decisis, or precedent, where judges are bound to follow the decisions of earlier judges in similar cases. Common law is created by the interpretation and application of legal principles by judges in specific cases, rather than through legislation enacted by a legislature.
In the context of commercial disputes, common law can play a significant role, particularly in jurisdictions with a well-developed body of common law. Commercial parties often seek predictability and simplicity in their contractual relations, and common law jurisdictions with a substantial body of decided cases can provide this predictability. For example, London is considered the pre-eminent centre for litigation of admiralty cases due to the depth of decided cases.
When resolving commercial disputes, businesses may choose from several methods, including negotiation, mediation, arbitration, and litigation. Negotiation is the simplest and most cost-effective method, allowing parties to maintain their business relationship. Mediation involves a neutral third party who facilitates the resolution process, while arbitration is carried out through an arbitration institution or arbitrator, resulting in an award that is final and enforceable. Litigation, on the other hand, is a more formal and lengthy process, involving a detailed examination of facts and legal principles and often resulting in a win-lose scenario.
In summary, common law plays a crucial role in providing a framework for resolving commercial disputes, particularly in jurisdictions with a well-developed body of common law. Commercial disputes require specialised knowledge of commercial law and can have significant financial implications for the businesses involved. Businesses have several options for resolving disputes, each with its own advantages and disadvantages, and the chosen method depends on the nature of the dispute and the relationship between the parties.
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Common law and the role of interpretation
Common law is a system of law that originated in the English king's courts across England. It is distinct from civil law in that it relies on the decisions of judges and the principles they set, rather than statutes written by legislatures. In a common law jurisdiction, determining "what the law is" in a given situation involves several stages of research and analysis. This includes ascertaining the facts, locating relevant statutes and cases, and extracting principles, analogies, and statements by various courts. The decisions of higher courts and more recent decisions carry more weight in this process.
The role of interpretation in common law is crucial. Interpretation aims to discover the rule that the lawmaker intended to establish and the intention behind it. This process is legislative and necessary for the evolution of the law. While common law courts have the power to protect human rights principles, the legislature can override this power. In Australia, for example, there is a presumption that the legislature does not intend to limit fundamental rights unless clearly indicated. This presumption can be overridden by clear language in the legislation.
The relationship between common law and legislation is complex. Legislation, or statute law, is made by parliaments and is considered sovereign in countries like Australia. This means that in the event of a conflict between legislation and common law, the legislation prevails, provided the conflict is clear. However, there is also a presumption that rights under common law continue unless explicitly removed by legislation. This dynamic between common law and legislation allows for the evolution of the law while maintaining the stability provided by established common law principles.
In conclusion, common law and the role of interpretation are intertwined in a process that involves researching and analysing past decisions and principles to determine the applicable law in a given situation. Interpretation seeks to understand the intention behind the law while also allowing for its evolution. The interplay between common law and legislation, as seen in the Australian context, further shapes the legal landscape and ensures the protection of fundamental rights.
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Frequently asked questions
Common law is a system of law that originated in the practices of the courts of the English king. It is based on the idea that the law should be applied consistently and predictably, with past decisions and principles guiding future ones.
Legislation, or statute law, is law made by parliaments. In the event of a conflict between legislation and common law, legislation takes precedence and overrides common law. However, this conflict must be clear, and rights under common law are presumed to continue unless explicitly removed by legislation.
Common law courts can provide significant protection of human rights principles, including the rule of law and freedom from slavery. However, the legislature can override this power with clear and unambiguous language.
