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Common Law Origin And Sources Notes

Law Notes > Australian Legal Foundations Notes

This is an extract of our Common Law Origin And Sources document, which we sell as part of our Australian Legal Foundations Notes collection written by the top tier of Griffith University students.

The following is a more accessble plain text extract of the PDF sample above, taken from our Australian Legal Foundations Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:

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

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