The reference to the ‘common law’ in the English legal tradition is one of the most fundamental aspects of the law, albeit capable of being used in different contexts. Set out below are the various different types of contexts where the term ‘common law’ is relevant:
- English legal tradition;
- Common law vs Civil law
- Common law vs Equity
English legal tradition
The primary reference to the common law is as the system of law that was developed by the English courts and derived from the principles of precedent. Precedent dictates that a lower court in same juristic system is bound by the decisions of the courts that higher up in the hierarchical structure (stare decisis). This is the fundamental nature of the English legal tradition. Australia adopted the English common law system when it was settled (and subsequently federated) and section 73 of the Australian Constitution provides that the “apex” of the judicial hierarchy is the High Court of Australia, which has the authority to give decisions upon the common law which are binding on all courts, federal, State and territorial.
Common law vs Civil law
The common law legal tradition is based on “judge-made” law and follows the legal doctrine of precedent. However there is an alternative system of law that is utilised by many European countries and is known as “civil law”. The main feature of a civil law system (having been derived from the Romans) is that the core principles of law are “codified” (i.e. statute or constitution) and serve as the primary source of law. Only the legislative documents in a civil law system are considered legally binding, as opposed to the decisions of judges in a common law system.
Common law vs Equity
Equity is the term used to describe the body of law that was administered in England by the Court of Chancery prior to the Judicature Act of 1873 (which abolished the Court of Chancery). Equity provides remedies in circumstances where the common law does not. For example a notable common law remedy for the breach of contract is damages, however a potential equitable remedy for breach of contract may include an injunction or specific performance.