“What is Common Law ?” — Part 2
A fast recap of Part 1 :-
1. The world consists of 3 major law system which is Common Law, Sharia Law and Civil Law
2. Construction Law between the 3 major legal system are not interchangeable. Although similarities might exist, they are not the same in application.
3. Principles, Concepts, Doctrines and Maxims of each system cannot be applied to each other. The Sharia legal system have their own set of law principles and concepts.
4. It would be nonsensical to apply the Common Law set of Principles, Concepts, Doctrines and Maxims to a Construction Contract Dispute or Claim under a Sharia Legal law system.
So “What is the Common Law Legal System” and “How is it different from the other Legal systems in the world” will be addressed in this Part.
The foundation and key stone of the Common Law legal system would be the doctrine of “Stare Decisis” which is Latin for “Stand by what has been decided”.
From this simple doctrine, the common law legal system was developed for application in what is now known as the Commonwealth Countries or in laymen terms “The Common Law countries.”
“Stare Decisis” as the Latin meaning goes mean that Judges in Commonwealth (aka Common Law countries) are relied upon to make Laws to cover the lagunas that are not provided for under the statutes of the respective countries.
It provide the authority for the rules of equity as a source of Law in cases where justice need to be done but not provided for under the statutes enacted for the respective common law country.
In short the adoption of “Stare Decisis” provides the authority for the Judges to make laws through their judgement for use in future cases subject to certain rules.
This led to the development of a set of laws or new laws (as you may) that has the same legal force and effect as statutes. These set of laws created by judges through their judgement are now commonly referred to as “Case Laws”.
There are a few rules that governs the use of Case Laws that are created by the Judges for use in future cases and they are as follows :-
1. Case Laws can be only be created by Judges presiding over cases from the Superior Courts. In UK, these would mean the High Courts and above. In other countries this would depend on the courts hierarchy system in that particular common law country.
2. Case Laws are mandatory rulings that must be followed and taken into consideration by Judges in the Courts below, depending on the court hierarchy in practise in the particular Common Law country. There is no exception to this rule.
3. The case law is mandatory until such time it is overruled by a appeal judgement from a court above. Then the appeal judgement would take over as the case law for application in all future cases. This process can be repeated until judgement is made by the highest court in the hierarchy. It then will become trite law as there are no more appeal process.
4. Local case laws take precedence over foreign case laws and mandatory to be followed. Foreign case laws are not mandatory but serve as a useful guidance for judges to decide whether to convert into case law for local use if found to be appropriate.
5. For the local case law to be applicable to a case in question, the circumstances and facts must be “pari-passu” to the one surrounding the case law to be applied. Readers are advised to look at the two set of circumstances and facts to see if both pass the “pari-passu” test. If they are not, then the case law would not be applicable to the case in question.
Case Laws is what makes the Common Law legal system different and distinct from the two other Law system.
The Sharia Law system does not adopt case laws as part of their sources of law. It could be use in legal arguments (albeit very seldom done) by their lawyers as persuasive arguments but take note that this is different as case laws under Sharia is use only as guidance (subject to the judge absolute discretion) and not mandatory like under Common Law rules.
I hope that in a nutshell I have conveyed the answer to the commonly used but seldom understood “What is Common Law” in the simplest way possible.
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