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Published: Fri, 02 Feb 2018
The Meaning Of Common Law
The common law as it is known developed from the Norman conquest of 1066. The conquest included the adoption of the local customs of the people in the adjudication of disputes. A working definition would refer the common law as laws and customs which have from early times been declared to be law by judges in deciding cases brought before them  . It basically concerned the adjudication of local disputes according to local laws.
The doctrine of precedent on the other hand, could be said to have developed from the basic principle of stare decisis. This principle is usually applied by judges when faced with cases with similar facts. For the purpose of coherence and logicality, this work shall be structured thus:
The meaning of the common law
Strengths and weaknesses
2.1The meaning of the modern doctrine of precedent
2.2 Strengths and weaknesses
1.1THE MEANING OF THE COMMON LAW.
The common law also known as the “unwritten law of England”; “case law” or “judge-made law” is the local laws which was derived from the distilled local customs, rules and practices of the people. In the common law is found the authoritative exposition of the law relating to the prerogative of the Crown, as expressed in the judgment passes down by the curia regis in the adjudication of disputes. Such disputes as those between individuals, and individuals and public officials and authorities. A classical example would be Entick v Carrington  where it was held that the issuance of general warrants for the search and arrest of those publishing seditious papers were not within the powers of the secretary of states.
More ‘modernly’, the common law meant the law that is not the result of legislation, but that which is derived from cases decided by judges and the value of the judicial precedents set by these cases  .
STRENGTHS OF THE COMMON LAW.
It was one of the earliest means for the adjudication of disputes and administration of justice.
The common law as it were provided justice for the people before the development of equity. As a result, it was regarded as a tool in the hands of the judges, which was exercised under the prerogative of the monarch.
It evolved several writs for the adjudication of disputes. This was the direct effect of the unending complaints from the people. As such, it provided the action for the recovery of land known as ‘real actions’. This enabled claimants to recover their lands at common law.
1.3 WEAKNESSES OF THE COMMON LAW.
One of the most obvious weaknesses of the common law was that it offered remedy to only one problem (monetary) damages; and this was always readily not available. Again, an action could only be started in the Royal courts by a writ purchased from the office of the chancellor.
Since the existence of a common law right depended on there being a procedure for enforcing that right, an action could only be brought if an appropriate writ already existed which covered the facts of the case. Similarly, the procedure for successfully bringing an action was very formal, rigid and therefore leading to delays. It was also too expensive to bring an action.
It did not recognise certain rights, such as the borrower’s right under a mortgage or trusts. For example, if the date for the repayment of a mortgage had passes, the lender regained ownership; even when the borrower was able to pay back the loan.
Litigants had to fit their circumstances to one of the available types of writ. If the case did not fall within one of the available types, there was no way of bringing the case to the common law court. As a result, many people were unable to seek redress from the common law courts.
2.1THE MEANING OF THE MODERN DOCTRINE OF PRECEDENT.
Decisions in courts are subject to a system of judicial precedent. This is also known as the doctrine of stare decisis which in Latin means ‘to stand by decided matters’. This means that if a court holds (decides) that a particular set of facts should give rise to a particular legal outcome, the principle of fairness means that cases with similar facts should be similarly decided. A precedent can therefore be defined as ‘a decided case that furnishes (or forms) the basis for deciding later cases involving similar facts or issues’  . The idea behind this doctrine is that once a decision has been made on how the law applies to a particular set of facts, similar facts in later cases should be similarly treated.
The modern doctrine of precedent requires that a judge, when deciding cases has a number of questions to deal with. Firstly, what the facts of the case are; secondly, how the law applies to those facts; thirdly, what parts of an earlier decision can be characterised as the ratio decidendi and what is obiter dicta, and finally, where did the earlier court stand in the hierarchy of the courts? A consideration of these questions gives rise to the decision – judgment. The judgment contains an explanation of legal principles on which the decision is made. This is called the ratio decidendi and it is this part of the judgment that forms a binding precedent. These legal principles are explained below.
A judgment will always include an account of the reasons for each judge’s decision. This is called the ratio decidendi or simply ratio; literally, meaning “the reason for deciding”. It is the principle or rule of law upon which a courts decision is found  . More fully, it is defined as the proposition of law which decides the case in the light or context of the material facts.
If a judgment includes a proposition of law that is not necessary to the decision in a case, it is an obiter dictum, which in Latin means “means things said by the way”  . They are often discussions of hypothetical situations, and therefore do not form binding precedents, but are persuasive. Obiter from the Supreme Court and the Court of Appeal are strongly persuasive.
In order to have a clear understanding of the doctrine of precedent, the hierarchy of the courts is central. The decisions of the European Court of Justice, however on matters in respect to community law are binding on all English courts. In theory, it is only the Supreme Court that can overrule its decisions, as well as the decisions of other courts. All other courts must follow the precedent that applies in a particular case.
2.2 STRENGTHS OF THE DOCTRINE OF PRECEDENT.
It made the law more predictable in that earlier decisions formed a rule to be followed in similar cases. Again, litigants can assume that like cases will be treated alike.
Precedents are becoming more flexible in order to meet the needs of society. An instance is seen in the Supreme Court announcing in 1966 its judges would no longer be bound by their decisions.
DETAILED PRACTICAL RULES.
The utilisation of the doctrine of precedent shows the application of the law to various circumstances.
2.3WEAKNESSES OF THE DOCTRINE OF PRECEDENT.
The fact that binding precedents must be followed unless the facts of the case are different can lead to judges making minute distinctions between the facts of a previous case and the case before them, so that they can differentiate a precedent they consider inappropriate.
The rules of judicial precedent means that judges will follow a binding precedent even where they think it is a bad law, or inappropriate.
It involves the application of events which happened before the present case. This may be considered unfair, since if a case changes the law, the parties concerned in that case could not have known what the law was before they acted.
In deciding a case, a judge could follow a precedent, distinguish or overrule it. A judge distinguishes a precedent where the facts of the case before the judge are significantly different from an earlier case. As such, the merits of predictability can be lost if too many distinctions are made this may make it impossible to work out which precedent to follow.
Finally, precedents do not always spell out what should be done in a case. For instance, when a judge is faced with a new situation that has no previous decision. Again, precedents are usually confusing in situations where judges are faced with two binding precedents.
Through this coursework, it has been possible to demonstrate what is meant by the common law and the doctrine of precedent, taking note of their strengths and weaknesses. It should however be understood that no principle of law offers the best approach to be adopted, and as such, both the strengths and weaknesses that have been perceived from the common law and precedent should treated lightly.
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