#6502 - Common Law Origin And Sources - Australian Legal Foundations

COMMON LAW SYSTEM: ORIGIN AND SOURCES Inductive reasoning Deductive reasoning Based upon an "educated (or sometimes uneducated!) guess" derived from observations and experiences The conclusion may not necessarily be true Moves from the specific to the general * * * Based on formal logic The propositions contain the argument and the conclusion naturally follows (can be deduced) Moves from the general to the specific * * * Common Law * Source of law o case law v legislation * System of law o common law v civil law system * Division of law o common law v equality * Law generally comes from a variety of sources o Parliaments make law a? LEGISLATION o Judges decide cases a? COMMON LAW o Customs a? CUSTOMARY LAW o Religious traditions and texts a? RELIGIOUS LAW Source of Law * Law that comes from judicial decisions where: o there is no pre--existing law SS? current law stretches to cover the situation o Judges own interpretation SS? give voice to new law * Judge made law * THE DOCTRINE OF PRECEDENT o Courts must uphold and are bound to follow a decision made by a previous court o High courts set the precedent o If a decision was made in a lower level court, it does not need to be followed PAGE 16