The major building block of the common law is the notion that judges should apply the lawpreviously applied by their predecessors (and for that matter, the law previously applied bythe judge him or herself). This idea is now embodied in what is called the doctrine ofprecedent, which is discussed in 2.1.2 below. The practice, as mentioned, makes possible the crystallisation of legal principles. If judgeswere to keep changing their minds as to what the law is from case to case (or decide casesaccording to their own ideas of justice), a system of law, universally recognised and applied,could never have developed. The notion of following precedent then is vital to thedevelopment of a system of judge-made law. It is also the foundation stone of fair treatmentof litigants by the legal system because, in operating to settle standard, consistently appliedprinciples, it ensures relatively uniform and consistent treatment of litigants, from case tocase. The alternative would be the undue exposure of litigants to the vagaries of the differingpersonalities of judges.The common law is a sprawling phenomenon. It is put into issue in a considerablepercentage of cases (although not those falling to be decided entirely by reference to statutelaw). If all the cases coming before the courts fell into a limited number of standardcategories, in so far as their ‘fact situations’ (individual facts) are concerned, there wouldhave been no need to develop an elaborate common law. But this has not proven to be thecase - the millions of cases which have come to court to be decided in the common lawcountries have varied greatly, not only in respect of legally insignificant facts (such as thenames of the parties, the place and time where the conduct in question took place), but inrespect oflegally material facts. In consequence, the courts have had to go on inventing newlaw to provide a basis for deciding a relatively novel case. Rarely do the courts invent anentirely new doctrine out ofnowhere; rather, their chosen approach has been to refineexisting principles - perhaps extending, perhaps qualifying an existing principle to fit it forapplication in the particular (the ‘instant’) case or to ‘reason from first principles’ (that is, goback to basic principles to try and find a solution).This process of developing the common law may be likened to the growth ofa large tree -there is a slow branching out from the trunk, then a sub-branching and so on; but the wholestructure is welded together by common basic ideas and structural principles. This process oflii
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CO5119:03 Business Law SUBJECT MATERIALS >>SCHOOL OF LAWJAMES COOK UNIVERSITYfission is still going on and as it does so the common law becomes larger and more complex.
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