Sources of
Contemporary
Australian Law
Common Law
British Origins of Common Law




The common-law
system first
developed in
England, and is there
fore often referred to
...




Common law is a
collection of legal
principles and rules
derived from the
decisions of judges in
higher courts
Basic...
 Judges

are required to obey statute law
(law made in parliament.
 If no statute law exists, judges use
common law prin...
Development of Common
Law







From the 6th to the 11th
century, law was
enforced locally
Crimes were treated as
wro...
Common law developed after the Norman invasion of England in
the 11th century.
William the Conqueror sent judges around th...
Equity






By the 15th century, people were going to the
King, claiming that Common Law Courts had
made the wrong dec...
 Court

of Chancery
looked at the
features of each
case to decide
what was just or fair
 It used moral
principles – the
...
Main principles of equity
To modify a remedy in common
law that is deficient, or to create a
new remedy
To develop remedie...
 Equity

and common law co-existed for
several hundred years, though not always
peacefully.
 In 1873, the two legal syst...
Common Law

Equity

A complete legal system

A series of isolated principals

Common law rights are
extended to all people...
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2.1 british common law

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2.1 british common law

  1. 1. Sources of Contemporary Australian Law Common Law
  2. 2. British Origins of Common Law   The common-law system first developed in England, and is there fore often referred to as „English common law‟ Other countries using this system include: Great Britain, Canada, New Zealand and the USA
  3. 3.   Common law is a collection of legal principles and rules derived from the decisions of judges in higher courts Basically – it is law developed by judges, not law imposed by parliament
  4. 4.  Judges are required to obey statute law (law made in parliament.  If no statute law exists, judges use common law principles to resolve the dispute.  A judge can use common law to interpret statute law.  If both common law and statute law exist, the statute law must be followed.
  5. 5. Development of Common Law     From the 6th to the 11th century, law was enforced locally Crimes were treated as wrongs for which the offender had to compensate the victim Both parties would have to “swear an oath” If there were witnesses, the accused may be required to undertake a trial by ordeal.
  6. 6. Common law developed after the Norman invasion of England in the 11th century. William the Conqueror sent judges around the country to consolidate his position: Administer a uniform set of laws Report any threats to the throne to the King Assess the wealth of the country to determine what taxes can be afforded By the end of the 12th century, it was common to send judges “on circuits” around the country to ensure decisions were similar – which led to the notion of precedent. In 1258 the Provisions of Oxford were written – this required cases to fit into precedent before they would be heard.
  7. 7. Equity    By the 15th century, people were going to the King, claiming that Common Law Courts had made the wrong decision – he asked his Chancellor to deal with these petitions. The Chancellor was a priest as well as a judge, so his decisions were often influenced by Christianity. This branch of law, which aimed to deal with injustices, was called Equity.
  8. 8.  Court of Chancery looked at the features of each case to decide what was just or fair  It used moral principles – the rules of equity
  9. 9. Main principles of equity To modify a remedy in common law that is deficient, or to create a new remedy To develop remedies for wrongs that the common law doesn‟t recognise
  10. 10.  Equity and common law co-existed for several hundred years, though not always peacefully.  In 1873, the two legal systems were combined, creating the Supreme Court of Judicature.  Courts were instructed to consider equity when considering common law.
  11. 11. Common Law Equity A complete legal system A series of isolated principals Common law rights are extended to all people Rights of equity are valid only to those people specified by court Common law remedies are enforceable at any time (within limitation) Equitable remedies must be applied for promptly Common law is nondiscretionary and must follow precedent Equity is discretionary

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