We will study the common law doctrine of precedent in

  • No School
  • AA 1
  • 59

This preview shows page 28 - 30 out of 59 pages.

still in force today. We will study the common law doctrine of precedent in detail in Module 2. Generally, people preferred taking their disputes to the King's justices rather than to their own local courts. The King's justice had the all-powerful backing of the King and could be enforced anywhere in England. Also, the King's justices, as outsiders, were much less likely to be biased than local decision-makers. Inevitably, a substantial body of rules grew up around the King's courts. These rules were law. They applied equally throughout the country, to all people, wherever they came from and regardless of their own local customs. Hence they became known as the Common Law. Thus, perhaps the single most important and best-known feature of the Common law system is the principle of precedent. According to this principle, the decisions of higher courts are binding on lower courts in the same court hierarchy . So, for example, in Australia, decisions of the High Court are binding on the state and territory Supreme Courts and on the District and Local Courts. (In Australia, this principle is complicated by the fact that, as a federation of states, the court hierarchy in each State and Territory is parallel. Hence, a decision of the Victorian Supreme Court will be binding on Victorian Local and District Courts, but not on those of New South Wales, or of other States. This will be more closely addressed in Module 2, which considers this aspect of the law in greater detail.) 2.3.3 The Law of the United States of America As already noted, the American Legal System is based on the English system. The Common Law of England applied in the English colonies in America until 1776 when, following the American War of Independence, the 13 colonies joined to become the United States of America. The Common Law applied because, under English law, the settlers in the new colonies were regarded as having carried with them the laws of England when they moved to the new colonies. The Declaration of Independence signalled the end of the application of 28
Image of page 28

Subscribe to view the full document.

CO5119:03 Business Law SUBJECT MATERIALS >> SCHOOL OF LAW JAMES COOK UNIVERSITY the laws of Great Britain within the United States. In an American judgment , Liverpool and Great Western Steam Co. v Phoenix Insurance Co 129 US 397 (1888), p.445, Gray J stated that: ‘The law of Great Britain since the Declaration of Independence is the law of a foreign country, and, [it] ... is a matter of fact, which the courts of this country cannot be presumed to be acquainted with, or to have judicial knowledge of, unless it is pleaded and proved.’ The legal system that developed in the United States after independence has become a branch of the Common Law Family, distinct from, although based on, the English legal system. The differences between the two legal systems, for the most part, are the result of differences in the social and political structures of the two countries. Whereas England has a unified political structure, the United States has a federal structure; it is made up of 50 States, each with its own jurisdiction.
Image of page 29
Image of page 30
  • 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