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Student’s Name

Department Affiliation, University Affiliation

Course Number. Course Name

Instructor’s Name

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Description of the common law system.

The common law system is a “…body of customary law, based upon judicial

decisions and embodied in reports of decided cases, that has been administered by the common-

law courts of England since the Middle Ages” (Boyle, 2015). Today, the system is applied in

Australia and within the British colonies across the world. Characteristically, the common law

does not have a comprehensive compilation of statutes and rules. Instead, it is primarily based on

precedent. It relies on previous decisions made by the courts of law on similar cases. According

to (Dainow, 1966), “the precedents are maintained over time through the records of the courts”

in the form of books or reports, and when a case arises, the presiding judge determines which is

best fit for use in the case. Apart from courts, common laws can be created through decisions

made by the local government bodies, the national parliament, or parliaments at various

government levels such as the state, province, or territory parliaments.

The legal procedure for common law court sessions employs the adversarial procedure,

which involves a judge as an adjudicator. Before criminals are tried, they are given time to

prepare and secure lawyers. Witnesses are cross-examined as a source of evidence because the

trials are based on “Rules of evidence” (Elliott, & Hughes, 2020). Since 1823, when Australia

became the British’s full colony, common laws have been used to make decisions in courts of

law. Nonetheless, as an independent state, Australia has developed other common laws. For

instance, in a case involving “Lipohar v The Queen,” High Court judges; Gaudron, Gummow,

and Hayne, directed that, “The common law has its source in the reasons for the decision of the

courts which are reasons arrived at according to well organized and long-established judicial

methods…” (Gleeson, 2000. P. 6). Further, in the case involving “Breen v Williams” the same

judges explain a scenario whereby a case does not have an analogical or logical relation to the
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existing common law by stating that, “in a democratic society, changes in the law that cannot

logically or analogically be related to existing common law rules and principles are the province

of the legislature” (Gleeson, 2001). The judge’s statement in this case gives a further description

of what may happen in the event a case is brought to court and there is no previous case of the

similar nature. They indicate that due to the likelihood of a change of social conditions, it is

necessary that the courts in Australia re-formulate the common laws and reject some of the

existing ones. However, they insist that the formulation should done in a logical and analogical

manner, especially when extracting reason from other legal principles.

Therefore, apart from the existing collection of precedents in Australia, the courts can

create new common laws by making decisions and providing reasons for that decision.

Differences between the common law system and the civil law system.

Essentially, the difference between civil law and common law is that civil law is codified

while common law is uncodified (Song, 2018). Unlike common law, civil law has a

comprehensive compilation of codified legal rules and statutes that are continuously updated to

address any matter that is brought to court. A civil law system is designed to provide the court

with applicable case procedures and appropriate punishment for every possible offense. It is

categorized into substantive law, procedural law, and penal law. The substantive law outline acts

that are criminal and should be prosecuted, the procedural law provides a mechanism of

establishing whether an act is a criminal offense, and the penal law spells out the appropriate

punishment that is administered in each criminal act (Zines, 2004). While common law systems

use adversarial trial procedure, the civil law system used the inquisitorial model. The difference

between the two models is that the judges act as adjudicators in adversarial trial procedure while

in the inquisitorial model, judges take an active part in the investigation (Song, 2018). In
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Australia, civil laws are invoked during divorce cases, resolving family disputes, contractual

disputes, child custody arrangements, and child maintenance. Unlike common laws which judges

make, civil laws are drafted and interpreted by scholars and legislators.

Describe the meaning of the precedent in the common law system.

The common law system depends on precedent to determine the appropriate penalty for a

given case. Precedent refers to legislative decisions made by the court and preserved in the form

of books or reports. Whenever a case that requires the common law system to be followed is

presented to a court, judges refer to cases of similar nature – similar facts or questions of law.

Australia’s common law system bounds courts to follow decisions made by higher courts

(Omara, 2007). For instance, a Magistrates Court is bound to follow decisions made by

Queensland District Court. Nonetheless, courts are not bound to follow decisions or reasoning

that they have made before.

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References.

Boyle, L. (2015). An Australian August Corpus: why there is only one common law in

Australia. Bond Law Review, 27(1), 27-56.

Dainow, J. (1966). The civil law and the common law: some points of comparison. Am. J. Comp.

L., 15, 419.

Elliott, M., & Hughes, K. (Eds.). (2020). Common Law Constitutional Rights. Bloomsbury

Publishing.

Gleeson, A. M. (2001). The rule of law and the constitution. Australian Broadcasting

Corporation.

Omara, A. (2007). How The Practice of Precedent Accommodate Social Change? Lessons

Learned from The Common Law System in Australia. Mimbar Hukum, 19(2007).

Song, D. (2018). Judicial Pragmatism: Strengths and Weaknesses in Common Law Adjudication,

Legislative Interpretation, and Constitutional Interpretation. UIC J. Marshall L. Rev., 52,

369.

Zines, L. (2004). The Common Law in Australia: Its Nature and Constitutional

Significance. Federal Law Review, 32(3), 337–355.