TOPIC 4

COMMON LAW
and its advantage over
written law
Group 2:
Hà Linh Chi
Nguyễn ThịThùy Linh
Hà Phương Anh
Lê Hồng Anh

Start
Contents
A B
Definition of common law
and an overview of the legal
system in common law Common law’s advantage over
countries. The primary written law
differences between common
law and statutory law
Definition
COMMON LAW
• Consists of the substantive law and
procedural rules that are created by the
judicial decisions made in the courts
• Are favored by a number of
jurisdictions such as the United
Kingdom, the United States, Australia,
Canada, Hong Kong, India, New
Zealand… Wikimedia
Commons
Overview
THE LEGAL SYSTEM IN COMMON LAW COUNTRIES
• Sources of law: Legislation, Case law/Precedent, and Customary law.
• • Adversarial system:
- The prosecution and defense compete against each other; the judge serves as a referee.
- Previous decision made by a higher court forms a precedent that will bind the lower
courts.
Differences
THE PRIMARY DIFFERENCES BETWEEN COMMON LAW
AND STATUTORY LAW
Common Law system Civil Law system

Precedent is the essence Written law issued by the legislature prevails

Advantages
COMMON LAW’S ADVANTAGE OVER WRITTEN LAW

Written Law
Common Law
 ADVANTAGE 1

Common law is constantly adjusted and fine-tuned as new

situations arise in real life while statutory law is too rigid to deal
with all perspective cases and takes a long time to change and
adapt.

Specificity Consistency Efficiency

Advantage 1 SPECIFICITY
Common Law
• Clarifies expands on, and implements
legislation, making it easier to apply and adapt
to reality
• The role of judges is to examine specific facts
for each case, interpret relevant legislation and
administer the law in line with these findings
Written Law
• Complicates interpretation and gives rise
to several interpretations
• This requires some secondary legislation
for detailed instructions and
implementation for each code
Advantage 1
CONSISTENCY
• Consistent and predictable.
• The guiding principle of the common law is that
similar cases should receive similar treatment.
Common Law

• Is a product of numerous stages of consultation and

compromise between the views of different stakeholders.
• Parliament would never be able to anticipate all of the specific
situations that arise in the future. Written Law
Advantage 1
EFFICIENCY
Common Law
• Reacts and responds rapidly to community expectations.
• The judge will look at the most similar cases decided in the
past to figure out how the relevant legal principles should be
applied to the present circumstance.

Written Law
• Takes a long time to change and adapt to the conditions
and requirements of real life.
• The legislature must go through the entire legislative process
again in order to pass the new law and repeal the old one.
 ADVANTAGE 2

Case law is great to research in order to understand the

interpretation and application of laws. There are almost a
thousand years of case law that can be read, analyzed, and
referenced when making a determination of what the right
outcome of a case should be.
Advantage 2
PRECEDENT

• Precedents are earlier cases where

judges have made legal rules.
• Consists of judge-made law that
evolved over centuries, and
interpretation of statutory law
explaining how it applies to certain
situations and what it means.
• Enables the judges to re-shape law
according to an effective
requirement.
Advantage 2
HISTORICAL DEVELOPMENT OF COMMON LAW

14 Oct 1066 The official canon date of

Common Law

The starting year of the Common

1166
Law judicial model
Advantage 2
The formalization date of Common
6 July 1189
Law as the legal system of England

22 April 1275 The formal operational starting date

of Common Law
Advantage 2
TYPICAL
CASE Donoghue v. Stevenson, 1932
In a case originating in Scotland, Mrs. Donoghue was given a bottle
of ginger beer which allegedly contained the decomposed remains of
a snail. She claimed to have suffered shock and gastroenteritis as a
result. But as she had not bought the drink herself, she had no
contract on which to sue. Nevertheless, the court extended the law of
negligence to require reasonable care towards those likely to be
affected by a person’s or company’s actions.
 ADVANTAGE 3

Judge-made law is often the product of thoughtfulness and

learning rather than pure political will. The judges are actually
better than legislatures at making well-thought-out, workable
laws that can be applied in cases and controversies.
Advantage 3
THE PREPONDERANCE OF PRACTICALITY IN THE
JUDGMENTS MADE BY JUDGES

The judge’s political impartiality

A less pragmatic and more
theoretical approach
Extensive experience in the practice
of law
Advantage 3
JUDICIAL REVIEW

Interpret law, declare those laws

unconstitutional

A quashing order
Advantage 3
SEPARATION BETWEEN FACTS AND LAW

The jury decides on the facts of the The court has investigative power, it
case; the judge determines the law may not be fair for an individual
Conclusion
 THANK YOU ALL FOR ATTENTION
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