COMMON LAW, CASE LAW AND PRECEDENT

COMMON LAW

Common law - is law developed by judges through their

decisions in court. In other words, “judge-made” law.

Common law is also known as CASE LAW or

PRECEDENT.

It is different from a statute, as statutes are passed and

adopted through the legislative process (by the legislative
branch).
 WHAT COURTS MAKE COMMON LAW?

The Superior Courts!

• The Supreme Court and the Court of Appeals

are known as Superior Courts because the
reasons for the decisions in the court cases that
come before them are recorded for future
reference.

• It is these courts which create common law.

Decisions, made by Higher Courts, will be binding on lower
courts in the same hierarchy.

In other words, lower courts, in the same hierarchy, must

apply the same reasons for decisions, when dealing with
similar cases, as those applied by higher courts , in earlier
decisions.

This principle is called ‘Stare Decisis’ . This means literally ‘to

stand by what has been decided’ and it is at the heart of the
doctrine of precedent.

In order for the doctrine of precedent to work there needs to

be a court hierarchy (an order of importance) from the most
superior to inferior courts.
COURT HIERARCHY
 ARE THERE RESTRICTION ON JUDGES
WITH REGARD TO COMMON LAW- MAKING?

YES! Judges and courts can only

make law if:
- a case is brought before them

- If there is no previous binding

decision already established by a
higher court in the same hierarchy
(novel case)
 Role of the Courts
in Law-making

• Doctrine of Precedent
 Doctrine of Precedent
The judges look at past decisions to guide
them; they look at the reasons behind the
decision in past cases for guidance when
deciding new cases.
When a new situation arises and is decided
on a precedent is created.

What is a precedent?
A precedent is the reasoning behind a court
decision that establishes a principle or rule of
law that must be followed by other courts
lower in the same court hierarchy when
deciding future cases that are similar.
The main reasons for applying
precedent is to create consistency and
predictability within the legal system, as
like cases are decided in a like manner.

This in turn gives us confidence in our

legal system and we feel justice is
being done.
• Precedent is the reason for the decision.
• Precedents can only be made when a judge
alone is hearing a case. The Judge makes the
decision and gives the reasons for that decision;
the reason for the decision is then binding on
lower courts in the same hierarchy.
• For this reason precedent is usually made by
courts which hear appeals (as there is no jury –
i.e. the Court of Appeal and the Supreme Court).

• A jury decision cannot create a precedent as

juries do not give reasons for their decisions.
Lesson 2 Quick Revision of last lesson:

1. What does ‘stare decisis’ mean?

2. What is precedent?
3. Why do we need a hierarchy for precedent to exist?
4. What are the advantages of precedent?
5. What are the two ways that judges make law?
6. Which Courts can make common law and why?
1. What does stare decisis mean?

Stare Decisis - literally means to stand

by what has been decided; the process
of lower courts following the decision of
higher courts
2. What is precedent?

Precedent is the reasoning behind a

judge’s decision that establishes a
principle or rule of law that must be
followed by other courts lower in the
same court hierarchy when deciding
future cases that are similar
3. Why do we need a hierarchy for
precedent to exist?

So decisions of the Higher (superior)

courts in the hierarchy, can be followed
by lower (inferior) courts.
4. What are the advantages of
precedent?

• Precedent creates consistency and

predictability within the legal system,
as like cases are decided in a like
manner.
• This in turn gives us confidence in our
legal system and we feel justice is
being done.
5. What are the two ways that judges make
law?
• When they are deciding on a new issue
(novel case) brought before them or when a
previous principle of law requires expansion
to apply to a new situation.

• Statutory interpretation- interpreting the

words in acts of parliament.
8. Which Courts can make common law
and why?
The Supreme Court and Court of Appeal
only can make law.
These courts record the judgments of
courts at the end of a case, and it is in
the judgment that the ratio decidendi is
stated.
Overruling a precedent

When a superior court decides not to follow an earlier

precedent established by a lower court in a different
case, but with similar material facts.
The superior court will overrule the previous
precedent.
It can do this because it is not bound by precedents
created in lower courts. When a precedent is
overruled, the latest case becomes the precedent to
follow in the future. New precedent is set. NO
Disapproving:
Two different cases.
When a court disapproves a precedent established by
another court at the same level, then a new precedent is
established. Both precedents remain in force until another
case on the issue is taken to a higher court can overrule the
previous decision and create a new precedent.
In the case of a lower court disapproving of a precedent
established by a higher court in the same hierarchy, then the
original precedent is followed, but reluctantly. All the judge
can do is apply the old precedent, but in their obiter
comments explain their disapproval of the precedent.