common law

Question 1

common law

Answer 1

law that has been established at developed over the years through decisions made by judges in state and federal courts

Question 2

precedent

Answer 2

a principle established in a legal case that is followed by courts in later cases where the material facts are similar. precedents can be binding or persuasive

Question 3

codification

Answer 3

parliament passes legislation that reinforces and endorses the legal principles established by a court

Question 4

strenghths of common law

Answer 4

• the courts and judges are independent of parliament and can establish precedent free from political pressures
• courts and judges are able to make decisions to establish rights in areas where the parliament has not
• the courts are able to infer rights without the need to consider how those rights may need to be limited
• courts are able to highlight to parliament gaps in the law that protect rights, which may encourage parliament to change the law to further protect rights
• historically, courts have been able to protect rights and parliament has not inferred with those common law rights by abrogating them

Question 5

weaknesses of common law

Answer 5

• common law rights are not always easy to define or identify, as opposed to statutory rights
• courts must wait for a case to come before them to be able to declare the existence of rights
• parliament , as the supreme law-making body, can abrogate common law rights
• often judges are reluctant to recognise certain rights leaving it up to parliament to protect those rights
• judges are limited in applying the law to the case that is before them. they cannot simply ‘create rights’ in any dispute