The above mentioned distinctions between the meanings

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The above mentioned distinctions between the meanings of the term ‘common law’ are well explained in the following extract from R. Chisholm & G. Nettheim, Understanding Law, Butterworths, 6th ed., 2002, pp. 24-30: The Common Law Australia, like many other countries such as England, the United States, New Zealand and Canada, has a system of law known throughout the world as the ‘common law’. This phrase, however, is used in a number of quite different ways. It can mean a system of law based on the English system or rules of law created by the Courts rather than by the legislature, or the rules of common law as distinct from the rules of ‘equity’ Confused? Let us explain. 1. The ‘common law’ as a type of legal system In this sense the phrase refers to the entire system, with its values, principles, institutions. procedures and rules, which was developed in England and passed on to many other countries throughout the former British Empire. While there are important differences between the legal systems of Canada, Australia, New Zealand and the United States, all these countries have based their systems on the English model, and they can be (and are) referred to as common law countries. There are other systems, of course. Perhaps the most important is the ‘civil law’. This was originally derived from Roman law, and is the system in force in many countries in Western Europe and Latin America. It has since been adopted in Japan, Thailand and elsewhere. Even in common law countries there are sometimes traces of the civil law, for example, in areas originally settled by the French, such as the Canadian Province of Quebec and the American state of Louisiana. Scottish law, too, is partly civil law. Other systems include Islamic law, Hindu law. Communist law and customary systems such as Aboriginal law. 46
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CO5119:03 Business Law SUBJECT MATERIALS >> SCHOOL OF LAW JAMES COOK UNIVERSITY 2. The ‘common law’ as law created by the courts This classification is based on the source of rules of law. Within the common law system of England, and of Australia, the phrase ‘common law’ is sometimes used to indicate those rules of law that have been developed by the courts, as distinct from those enacted by parliament. As we will see, in our legal tradition judges played a large part in the early development of the law, and have continued to do so. Because judicial development of law has been such a striking characteristic feature of English law, the system itself was called the common law system. Since medieval times, however, Parliament or its delegates have laid down more and more English law in the form of legislation. Sometimes legislation has enacted new rules or even new branches of law; sometimes it has simply modified or altered or added to rules developed by the judges. Parliaments, of course, have much more freedom and scope in laying down the law than the judges have: the 'judges must wait until a case raising a particular issue is brought before them, and, even then, their freedom of action to law down what they think is the best rule may be limited by precedents. Thus, the term ‘common law‘ is
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