Thus the term common law is sometimes used to refer

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what they think is the best rule may be limited by precedents. Thus, the term ‘common law‘ is sometimes used to refer to case law as distinct from legislation. Legislation is clearly the primary source of law today. Many areas are based entirely on legislation, and even in areas still primarily based on judge-made law (‘common law’), important modifications have often been made by legislation. In some areas legislation in effect incorporates the common law. Thus, for example, in some States the criminal legislation in effect makes it an offence to commit murder, of to carry out an ‘illegal’ abortion. When this happens the courts often refer to cases decided before the legislation, when the matter was governed by case law, or to earlier statutes saying the same thing. The bulk of judicial rulings on the law today are probably rulings on the meaning of words in legislation. 3. The ‘Common Law’ as a body of law distinct from ‘Equity’ This classification is less readily understood and depends entirely on the historical development of the English legal system. In this sense, ‘common law’ means that part of English law that was created by certain courts, namely the older courts called common law courts as opposed to a later system of courts that administered and developed the laws of ‘equity’. This needs some explanation. In the late medieval period the Crown's common law courts were concerned only with certain types of topics, the main ones being - to use modern terminology - crimes, property, contracts and civil actions in ‘tort’ (private wrongs such as negligence, assault, nuisance, etc). In regard to the non-criminal matters, where an individual instituted proceedings, the courts offered only a limited range of remedies. The principal remedies available were an order to restore property to a person, or an order to pay ‘damages‘ as compensation for some wrongful act. Private (or ‘civil’ as distinct from criminal) actions of these types were normally commenced by a writ. This was a command issued in the name of the Crown, at the plaintiff’s request usually commanding the defendant to return property or to right some other alleged wrong, or give the court a good reason why not. The defendant, in order to defend the case, had to come to court and attempt to justify his or her conduct. The fact that the writ was issued in the name of the Crown - it was not just a letter from the plaintiff - indicates that the State (as we would now say) had the role of ensuring that the plaintiff’s grievance was adjudicated by the courts, rather than the plaintiff having either to abandon the grievance or take some friends around and belt up the defendant Although in one sense it can be said that 47
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CO5119:03 Business Law SUBJECT MATERIALS >> SCHOOL OF LAW JAMES COOK UNIVERSITY civil actions are ‘private’, they are public in the sense that the community has an interest in seeing that they are resolved according to law. The writ, in substance, survives today. In
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