The major building block of the common law is the

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The major building block of the common law is the notion that judges should apply the law previously applied by their predecessors (and for that matter, the law previously applied by the judge him or herself). This idea is now embodied in what is called the doctrine of precedent, which is discussed in 2.1.2 below. The practice, as mentioned, makes possible the crystallisation of legal principles. If judges were to keep changing their minds as to what the law is from case to case (or decide cases according 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 the development of a system of judge-made law. It is also the foundation stone of fair treatment of litigants by the legal system because, in operating to settle standard, consistently applied principles, it ensures relatively uniform and consistent treatment of litigants, from case to case. The alternative would be the undue exposure of litigants to the vagaries of the differing personalities of judges. The common law is a sprawling phenomenon. It is put into issue in a considerable percentage of cases (although not those falling to be decided entirely by reference to statute law). If all the cases coming before the courts fell into a limited number of standard categories, in so far as their ‘fact situations’ (individual facts) are concerned, there would have been no need to develop an elaborate common law. But this has not proven to be the case - the millions of cases which have come to court to be decided in the common law countries have varied greatly, not only in respect of legally insignificant facts (such as the names of the parties, the place and time where the conduct in question took place), but in respect of legally material facts. In consequence, the courts have had to go on inventing new law to provide a basis for deciding a relatively novel case. Rarely do the courts invent an entirely new doctrine out of nowhere; rather, their chosen approach has been to refine existing principles - perhaps extending, perhaps qualifying an existing principle to fit it for application in the particular (the ‘instant’) case or to ‘reason from first principles’ (that is, go back to basic principles to try and find a solution). This process of developing the common law may be likened to the growth of a large tree - there is a slow branching out from the trunk, then a sub-branching and so on; but the whole structure is welded together by common basic ideas and structural principles. This process of lii
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CO5119:03 Business Law SUBJECT MATERIALS >> SCHOOL OF LAW JAMES COOK UNIVERSITY fission is still going on and as it does so the common law becomes larger and more complex.
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