ASSIGNMENT 1

User16119604
PHILOSOPHICAL PERSPECTIVES OF THE COMMON LAW
UU-LAW-1090-ZM

19/11/2023

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Q1. Common law is the unwritten body of law that is derived from judicial
precedents and therefore also referred to as judge-made law. Precedents are judicial
decisions from previous cases and are binding. The legal doctrine that directs courts
to follow previous rulings on cases of similar facts is known as stare decisis.
Common law came about in the year 1066 after the Norman conquest led by the
Duke of Normandy, William the Conqueror (Black’s Law Dictionary, 2014). All
states that are former colonies of the British, use common law.

Q2. Common law system is not codified, that is, the laws applied are unwritten. The
law is created by the judges on a case-to-case basis rather than by the legislators.
Previous judicial decisions, known as precedents are applied to cases with similar
facts and they are binding. This system allows judges judicial freedom during the
resolution of legal matters. Common law courts use the adversarial system, that is
two sides present their cases to a neutral judge.
Whereas the Civil law system is codified, the laws that are applied are written. It is
based upon provisions of codes and statutes, from which solutions to particular cases
are derived. The inquisitorial system is used, where an examining magistrate serves
two major roles by developing the evidence and arguments during the investigation
phase while simultaneously representing the interests of the state in a trial( Garner,
2001).

Q3. Common law is based on judicial precedents and the judges are obligated to
apply them to cases of similar facts. It is rigid as the judges are bound by the rulings
and cannot freely deviate from them. Common law courts normally award monetary
damages in most cases.
Whereas Equity is the body of law, developed in the English Court of Chancery with
the purpose of providing a remedy to the rigidity and inflexibility of the common
law. It allows courts to apply justice based on natural law and on their discretion,
therefore the judges are not obligated to follow previous rulings. The main of Equity
is to provide fairness and justice. Whenever there is a conflict as to the application of
common law, that is, if a repugnant result comes about from the application of

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common law, equity is applied. Courts of equity, unlike common law courts, can
also provide injunctive relief- to decree an individual to act or not act on something.

Q4. Common law is created by judges based on the facts of a particular case and
those judicial rulings. Sheppard (2009) states that these judicial rulings become
precedents and are binding to future judges on cases of similar facts. These laws are
unwritten and can only be overturned by higher courts or courts of the same level
with good reason.
Whereas, Statutes are laws created and enacted by a law-making body which is the
Legislature. Statutes are also known as Acts of Parliament as they are mainly created
by Parliament. The laws are codified, that is they are written and are prescriptive in
nature. Breach of a statute usually results in a sanction enforced by the state. A
separate statute is usually created to provide for the amendment of a certain statute.

Q5. Normally, legislature is the one making the laws and the application of these laws
being the duty of the judiciary but there are times where that does not occur as so. In
common law systems and courts, judges have the power and a bit of flexibility to
create laws. These laws are created when judges make rulings on cases of a certain
matter and the ruling becomes binding to future judges who are hearing cases of the
same facts. Boyle (2015) elaborates that the doctrine of a binding precedent or stare
decisis, refers to the fact that within the hierarchical structure of the English courts, a
decision of a higher court will be binding on a court lower than it in that orderly
hierarchy. If the precedent was set by a court of equal or higher status to the court
deciding the new case, then the judge in the present case should follow the rule of law
established in the earlier case. Where the precedent is from a lower court, the judge in
the new case may not follow but will consider it.

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 REFERENCES

Black's Law Dictionary – Common law (10th ed.). 2014. p. 334

Garner, Bryan A. (2001) [1995]. A Dictionary of Modern Legal Usage (2nd, revised ed.).
New York: Oxford University Press. P177

Liam Boyle, An Australian August Corpus: Why There is Only One Common Law in
Australia, (2015) Bond Law Review, Volume 27.

Sheppard S. 2009. Western Philosophies of Law: The Common Law. LAW, Encyclopedia of
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