The system of
common law is a legal system which provides great precedential weight to common
law, on the principle of prejudice to asses’ comparable facts contrarily in various
situations. This system of precedence is what is known as a common law and it
is binding on the future verdicts, or it’s used to signify laws applied by the
courts as established by the body of precedent without reference to legislation
passed by the parliament
legal system is the inventive system of common law, so it is essential to understand
the essence of common law. It is also an explanation of a cluster of connected
legal systems which was disseminated across the globe during the colonial
period. However, there are different unique characteristics in different
of the system of common law in the English legal system is that it is concerned
to govern legal disagreements in accordance with their individual situations
and the pertinent judge – made case law instead of applying universal statutes
of legal principle.
law also affords certainty. This was the initial aim for the commencement of
the common law. This meant that people would have a better understanding of what
the action of the courts were in treating their cases, hinging on past similar
cases. Certainty is one of the vital principle in common law and the rules and
it therefore, supports in providing certainty. Common law is not like civil law
and does not have a codified set of rules developed through intellect, the common
law was built to respond to real situations which are intricated and nuanced. Common
law has lesser reliance compared to the statutory law or codified law on the
basis of theory and logic. Thus, common law is more analogous to situations
that plaintiffs find themselves caught in.
Civil Law, however is a codified
set of laws. Countries following the civil law system have complete and frequently
changing legal codes that stipulate all the problems that are capable of being
presented before a court, the required procedures and the necessary consequences
for the offenses. In a system of civil law, the role of the judge is to understand
the facts regarding the case and to use the provisions of the relevant code.
The doctrine of precedent is a simple concept
of common law. It means that the judges must use the references of past cases
and its decisions to ensure certainty. It also states that the inferior courts
must adhere to the decisions of the superior courts. The purpose of precedent
is for steadiness and certainty of the law, the wish to provide justice to all
parties involved, to not need to assume the role of the parliament, to validate
decisions by a rational argument and to base any deduction on one of the issues
put forward by the parties. The power of binding earlier decisions varies from
merely persuasive and strictly binding precedents. The decisions of an earlier
case will only be a binding precedent in a later case if it: –
Comprise a statement of
It forms a part of the
It was finalised by the superior
court which verdict was binding.
The doctrine of binding precedent can be understood more efficiently
through the assessing of a few case laws which have adopted this law of binding
:- Rookes v Barnard 1964 UKHL 1
The claimant was an accomplished draughtsman
and an employee of the British Overseas Airways Corporation (BOAC), resigned
his membership of the Association of Engineering and Shipbuilding Draughtsmen
(AESD), a registered trade union. It was settled between BOAC and AESD (among
others) that no strike or lockout should take place and disputes should be
handled by negotiation. The claimant refused to re-join AESD and his union
member colleagues decided to withdraw their labour unless the claimant was
removed from their office. The claimant was thus suspended and later terminated
with a week’s pay in lieu of notice.
The Court of Appeal reversed the decision,
holding that notwithstanding the tort of intimidation, the threat to break a
contract was not covered by it. The claimant appealed to the court, the defendants
cross-appealed. (Huckle -v- Money 2 Wil’s KB 205, 1763) (Wilkes -v-
Wood CCP, 1763)
This case and its judgement was used as a
binding precedent for officiating in the case of Cassell v Broome 1972 HL.
Case Law: – Cassell v Broome 1972 HL
This was a case of being defamed. The
plaintiff appealed against the damages that had been considered. The case was
concerned on a book about a naval disaster.
The Court of Appeal alleged that the decision
the House of Lords have taken in the case of Rookes v Barnard 1964 was made
and it was disregarded.
Once the Parliament has finalised and passed
an Act, it is then in the power of the courts to apply these acts or statutes
in a case, this is what is known as statutory interpretation. This often leads
to complications where the facts about a case may not have been planned by the
Parliament or when errors in drafting or vagueness of the statute exists. In
addition, the courts have invented rules to help the judges to interpret the statutes.
The three rules developed to interpret the
statutes are: –
The literal rule
The literal rule states that the court has the duty of
providing literal meaning to the words of a statute regardless of whether they
are insensible or absurd. The literal rule is often applied by judges who have
a belief that their role is limited only to carrying out and applying laws that
have been enacted by the Parliament.
Case Law: – Whitley v Chappel 1868 LR 4 QB 147
provided that the “impersonation of a person to be entitled to vote” as an
offence. The defendant impersonated a deceased person to vote. The statute that
involved voting rights stated that a person had to be living in order to be
entitled the right to vote. The literal rule of interpreting statutes was implemented
in this case and the defendant was acquitted of his crime.
The golden rule
The golden rule
is implemented wherever the literal rule produces a result when the Parliament’s
intention would be avoided rather than applied. If the literal rule results in
absurdity, the ordinary and the grammatical interpretation of the words must be
changed, to not be absurd or inconsistent.
Case Law: – R v Allen 1988 Crim LR 698
In the case of R
v Allen 1988, Allen had been married to two women and was being accused of
bigamy. The law stated that ‘anyone who has been married once shall not marry
another person while the former husband/wife was still alive, or it shall
result in bigamy’. The courts applied the golden rule and Allen was found
guilty of bigamy. To go forward with the opposite decision and let Allen be not
found guilty would have resulted in absurdity.
The mischief rule
The rule of
mischief is the last rule to be followed while interpreting a statute according
to which a judge attempts to understand the intentions of the legislator. The
four points to be concerned when using the mischief rule are: –
What was the common law prior to
the making of the Act?
What was the mischief or defect not
provided by the common law?
What was the solution the Parliament
hath determined and implemented to cure the disease of commonwealth?
The true reason behind the solution.
an act was passed it was required to find a remedy for the defect in the law,
the interpretation that could correct this defect is the option to be followed.
Case Law: – Corkery v Carpenter 1951 1 KB 102
This case involved
the defendant being drunk while in charge of his bicycle. At that time it was
considered an offence to be drunk while in charge of a carriage. The court decided
and held that the bike was a “carriage”, the mischief in the case was of being
drunk on the highway while being in control of the transport.
Cited and Bibliography
19 McGill L. J. 121 (1973) . (n.d.).
(1763). Huckle -v- Money 2 Wil’s KB 205. Commonlii.
LR 4 QB 147. (n.d.)..
Uren -v- John Fairfax & Sons Pty
Ltd ((1966) 117 CLR 118, Austlii, 1966 HCA 40)
Uren -v- John Fairfax & Sons Pty Ltd. (1966). Austlii.
Ley -v- Hamilton HL ((1935) 153 LT
(1763). Wilkes -v- Wood CCP. Bailii.
(1944). Young -v- The Bristol Aeroplane Co Ltd CA .
-v- Variety Incorporated CA (1967 2 QB 841)
(Coates v Crown Prosecution Service Admn, 2011)
(Taylor v Goodwin QBD 4 QBD 228, 1879)