This issue of who controls the proceedings is

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This issue of who controls the proceedings is possibly the most striking and all pervasive difference between going to court in an adversary system and going to court in an inquisitorial system (especially in civil litigation). 38
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CO5119:03 Business Law SUBJECT MATERIALS >> SCHOOL OF LAW JAMES COOK UNIVERSITY 39
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CO5119:03 Business Law SUBJECT MATERIALS >> SCHOOL OF LAW JAMES COOK UNIVERSITY Module 2 The Common Law System and Method Objectives: On completion of this Module you should be able to: • identify the three meanings of the term ‘Common Law’ • know how Common Law (as a system of law) developed • understand the role judges play in making law • know how Equity developed as a system of law • describe the main features of Equity. Structure: 3.1 INTRODUCTION Extract from R. Chisholm & G. Nettheim, Understanding Law, Butterworths, 6th ed., 2002, pp. 24-30 The Common Law 1 The ‘Common Law' as a type of legal system 2 The ‘Common Law’ as law created by the courts, 3 The ‘Common Law’ as a body of law distinct from ‘Equity’ 4 Equity 3.2 COMMON LAW AS A SOURCE OF LAW Extract from P. Gillies, Business Law, Federation Press, 10th ed., 2001, pp. 14-20, and 24-27. 2 JUDGE-MADE LAW AND STATUTE LAW 2.1 Common Law 2. 1.1 Overview 2.1.2 The doctrine of precedent 2.1.3 Concepts of ratio decidendi and obiter dictum 2.1.4 Evading an unwelcome precedent 2.3 Statute Law 2.3.1 Overview 2.3.2 Subordinate or delegated legislation 2.3.3 Statutory interpretation 2.3.3.1 Overview 45
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CO5119:03 Business Law SUBJECT MATERIALS >> SCHOOL OF LAW JAMES COOK UNIVERSITY 3.1 Introduction The term ‘Common Law’ is used to describe three essentially different concepts. We will examine each of those three ‘senses’ in this Unit. The three senses of the term are: (1) Common Law as a type of legal system ; (2) Common Law as a source of law ; and (3) Common Law as a branch of law . What this means is that the term ‘Common Law’ not only describes the general system of law which developed in England, it also describes the major feature of that general system of law – the fact that under the Common Law, judges' decisions comprise an important source of the law (to be contrasted with ‘Legislation’, which is law made by the legislature). Those aspects of law which were developed by the earliest courts in this system - and which are still being developed, both by judges and the legislature – also form one branch of the present Common Law system (to be contrasted with another branch of judge-made law, which is called ‘Equity’).
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