A closer look at the Common Law

LAST WEEK we looked briefly at the development of the Common law and Equity in England. This week we take a closer look at some aspects of the Common Law. We noted that from its inception, the Common Law was dependent on principles established in case law, that is judge made laws or precedents, while equity, which was dispensed at the Court of Chancery, was dependent on the conscience of the king and those who administered it.{{more}}

What is a precedent?

A precedent is a legal principle or rule created by the highest court which is followed in subsequent cases with similar facts.

Precedents are grounded in a doctrine of stare decisis, which is the Latin for “let what has been decided stand”. They are dependent on a hierarchy of courts with the lower courts following the decisions made by the highest Court. In England some decisions are handed down by the European Court of Justice, while the majority of cases are followed by the national court, the House of Lords.

In Saint Vincent and the Grenadines, the highest court is the Privy Council. Decisions made by the Judicial Council/ Her Majesty in Council are binding for the lower courts in this jurisdiction. That case becomes persuasive for the other jurisdictions under the Privy Council. So where a case of similar facts is decided later by the Privy Council it will be decided accordingly.

The principle followed is contained in what is known as the ratio decidendi (Latin for the reason for deciding), that is the reasoning of the judges given in the judgment upon which the decision is founded. It is the ratio decidendi which makes the judgment binding. A statement that does not support the ratio decidendi is referred to as the obiter dictum. The obiter dictum (something said in passing) is persuasive not binding. A later case of similar facts must follow the ratio decidendi.

Precedents make the work of students of law/Lawyers difficult as they must know not only the legislation of their country but thousands of decided cases. They must also be on the look out for new cases that may reverse the decision of old cases.

Legislation

These are the laws made by Parliament – the House of Commons and the House of Lords. Laws passed by the House of Commons are not usually opposed by the House of Lords which has essentially delaying powers. There are Statute Acts (act) and Subsidiary or Delegated Legislations.

An act is started in Parliament in the form of a bill. After the second reading a vote is taken on it. If there is a majority in favour of the bill it goes into the Committee stage where it is examined thoroughly and amended. A report is then taken back to Parliament and after the final reading it is debated and voted on. After it receives the Royal Assent it becomes law.

Parliament will normally provide for Subsidiary Legislations by an Enabling Act. It is through this device that regulations/rules and orders are made. The details are worked out by those given the authority to do so and are reported back to Parliament for consideration.

Ada Johnson is a solicitor and barrister-at-law.
E-mail address is: exploringthelaw@yahoo.com