21 common law 211 overview the common law is that

  • No School
  • AA 1
  • 59

This preview shows page 51 - 53 out of 59 pages.

2.1 Common Law 2.1.1 Overview The common law is that body of legal principle developed by the common law courts of England. For centuries these courts were the Court of Common Pleas, the Court of Exchequer and the Court of King's/Queen's Bench. These courts were replaced by the High Court of Justice in England in the 1870s. In the very early years of the common law's evolution, some 10 centuries ago, the law in England varied from region to region. It was based in custom, and was declared by the courts from case to case. In time the King appointed circuit judges to travel the country, convening courts from one region to the next and hearing cases. The judges tended to decide cases according to the law previously declared (thus following ‘precedent’), and to apply this same law from one region to the next. This process of following precedent was aided by the practice of writing down the facts of and legal reasons for each decision in the court rolls. The effect of this activity was to crystallise a uniformly applied set of legal principles or law. This law, being common across England, came to be called the ‘common’ law. A rival system of justice developed in the middle ages, one which came to be developed by the Chancery Court presided over by the Lord Chancellor. This body of law is termed li
Image of page 51

Subscribe to view the full document.

CO5119:03 Business Law SUBJECT MATERIALS >> SCHOOL OF LAW JAMES COOK UNIVERSITY ‘equity’... As a general proposition, to the extent that common law and equitable principles are in conflict, equity prevails. The main hallmark of the common law, then, is that the judges make it. In theory (according to some commentaries) the judges do not create this law; rather, they merely ‘declare’ it or ‘discover’ it from case to case. It is as though the common law has existed all along, since time immemorial. In reality the judges do invent law, although there is an element of discovery of existing law to the extent that judges rarely invent entirely new rules but, rather, cast them from existing principles, in an unending development and refinement of pre-existing law. The common law may properly be described as unwritten in that it is nowhere fully and conclusively written down. By way of contrast, statute law exists only to the extent that it is written. Although the common law is technically unwritten, however, propositions of common law are found in an infinite number of reported and unreported cases, as well as the secondary literature (such as books and journal articles) that draw these cases together and undertake a statement of the incidents of the various branches of the common law. Were it not for the practice of judges writing down their judgments and the publication of these judgments, the common law would never have been able to develop. The secondary literature is obviously a major aid to the development and application of the common law.
Image of page 52
Image of page 53
  • Fall '19

What students are saying

  • Left Quote Icon

    As a current student on this bumpy collegiate pathway, I stumbled upon Course Hero, where I can find study resources for nearly all my courses, get online help from tutors 24/7, and even share my old projects, papers, and lecture notes with other students.

    Student Picture

    Kiran Temple University Fox School of Business ‘17, Course Hero Intern

  • Left Quote Icon

    I cannot even describe how much Course Hero helped me this summer. It’s truly become something I can always rely on and help me. In the end, I was not only able to survive summer classes, but I was able to thrive thanks to Course Hero.

    Student Picture

    Dana University of Pennsylvania ‘17, Course Hero Intern

  • Left Quote Icon

    The ability to access any university’s resources through Course Hero proved invaluable in my case. I was behind on Tulane coursework and actually used UCLA’s materials to help me move forward and get everything together on time.

    Student Picture

    Jill Tulane University ‘16, Course Hero Intern

Ask Expert Tutors You can ask 0 bonus questions You can ask 0 questions (0 expire soon) You can ask 0 questions (will expire )
Answers in as fast as 15 minutes