Q- Can you explain what the common law is?


Good question! If you ask me, not many people ask this question enough. It's actually got a pretty straight answer.

The common law is the law that is made by judges when they decide cases in court. So, politicians make laws in the parliaments and when judges decide cases in court, those decisions are called 'precedents' which mean that all future cases that the judges hear that are similar have to be judged the same way.  The collection of judges decisions in Australia for the last two hundred or so years, is collectively called the common law.

To understand the notion of the common law I think you should also know a little bit about history.

England was once upon a time ruled by a variety of kings, each one with a slightly different system of law, even when the were joined together there were a whole variety of ways of settling disputes based on Saxon law or on old Viking law. Meet William the Duke of Normandy, after Edward the Confessor left no heirs there was a big fight between four people who wanted to be king. One was too young (he died at an old age, still not king yet), one was a viking (he lost), one was Harold (he won, until William overthrew him) and the other was William.

William, as a Norman was a foreigner so he set about brandishing his power over his new kingdom. He was the one that began work on the Tower of London to show off his amazingness, he also set about unifying the laws of England from a mishmash collection to something he could work with.  After William took England he established a system of what we would probably call county courts today. They were tribunals where people in the different counties of England would go and have their disputes heard, either before a priest or some other official.  Now that England had one ruler, then the law started to resemble less of a mishmash and something uniform.

William, despite thinking of himself as being almighty, died during a hunting accident, nonetheless the foundation for the one law to rule them all had begun.  Henry II came to the throne after a fair bit of wrangling and it is during his reign that you first start to hear the term Common Law. Instead of having a variety of county courts, Henry would send judges to all the courts of his kingdom to hear cases, they would then return to his central court and discuss the cases they heard and then make their findings and record them file them. This had the effect that when a judge made a decision and another judge had a similar case before him, the second judge would then judge the case the same way as the first.  This is called stare decisis or, precedent.

All of this meant that cases across the whole country began to be decided the same way and England had a law that was common to the whole country, so- the Common Law. The English Common law kept on developing, and developing until Captain Cook landed in Botany Bay.  At that time the English Common Law was seen as having been transplanted into Australia.  Yep, all of it, the whole thing all the way back to the Norman conquest of England.

Once the newly established colonial courts, and then the courts of the various states and territories and later the Commonwealth started deciding their own cases their own way until we had in Australia a big history of precedents ourselves. In Australia when we talk about the Common Law we refer to the Common Law of Australia.

So, finally, the common law is the law that judges make through their decisions.

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