Common Law
What is Common Law?
The legal system employed in the United Kingdom and the United States is known as common law. Common law, often known as case law, is the body of law that has developed as a result of decisions issued by high courts and judicial precedent. The common law system prioritizes the common law because it believes it is biased to treat the same facts differently in various contexts.
According to common law, judges turn to previous cases in order to reach a conclusion, which is referred to as precedent and is accepted and enforced in future court decisions. As a result, if a similar situation arises in the future, the court will have to apply the same decision as in the earlier case.
The court system in many countries includes aspects of civil law (private matters) handed down from Roman law with common law, which developed in England. Private cases are heard in civil courts in a combined system. However, cases involving offences against society (criminal law) are heard in criminal courts, where judgements are made based on precedents.
Common Law Definition
Common law (also known as case law or precedent) is law created by judges through decisions of courts and other committees (as opposed to statutes passed through the legislative process or executive branch regulations).
What Is Common Law Australia?
In common law countries, Australia is unique in that it lacks a Constitutional Charter or Bill of Rights. Except where legislation explicitly dominates this jurisdiction, common law courts have the authority to offer major protection of human rights principles, including the rule of law.
Common law is a body of case law developed over hundreds of years by Australian superior courts, English courts, and courts in other countries with legal systems similar to Australia’s and England’s. Of course, superior Australian court decisions will be more important to our law than decisions from other countries, but other countries’ judgements can be granted when they are appropriate.
When courts have to analyze situations concerning the interpretation of laws passed by parliaments or cases where no laws exist, the consequence is that the courts are creating new laws by making a judgement (and offering grounds for that decision). This contributes to the body of common law.
What Is the Difference Between Common Law and Statutory Law?
The term “common law” refers to the practical law and procedural directions established by judges as a result of their judgments in cases they have heard. On the other hand, Statute law refers to laws that have been passed by Parliament in the form of law.
Chart of Comparisons between Common Law and Statutory Law:
| COMPARISON FOUNDATION | COMMON LAW | STATUTORY LAW |
|---|---|---|
| Meaning | Common law is the body of law that emerges from court decisions. | The set of principles and rules of law established by statute is known as statutory law. |
| Another name | Case Law | Legislation |
| Nature | Instructive | Prescriptive |
| Based On | Judicial precedent that has been recorded. | The legislature is in charge of enforcing the laws. |
| The Level of operation | Procedural | Substantive |
| Amendment by | Statutory legislation | Separate statute |
Common Law Examples
Common law has occasionally served as the foundation for new laws. In the United Kingdom, for example, there has long been a common-law violation known as “outraging public decency.” Authorities have used this ancient common law to prosecute a new intrusive activity known as up skirting in the last decade: the practice of sticking a camera between a person’s legs without their consent or knowledge to take a photo or video of their private parts for sexual gratification or to humiliate or distress them. The UK Parliament approved the Voyeurism (Offences) Act in February 2019, making skirting a crime punishable by up to two years in prison and the risk of being placed on the sex offender’s registry if condemn.
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