Explain how common laws and precedents come into being.
Common laws and precedents are fundamental aspects of the legal system in many countries. They shape legal rulings and provide guidance for future cases. To understand how common laws and precedents are established, it is important to explore the following:
1. Common Law: At its core, common law refers to legal principles derived from court decisions rather than statutes or legislation. Common law is based on the principle of following earlier judicial decisions when deciding similar cases. It is primarily developed through the doctrine of stare decisis, meaning "to stand by things decided."
2. Precedents: Precedents are the specific judicial decisions that establish a legal rule or principle. When a court makes a decision on a particular case, the rationale and legal principles applied become a precedent that subsequent courts may use as guidance in similar cases. Precedents can be established at various levels of the judicial system, such as lower courts, appellate courts, and supreme courts.
3. Case-by-case Basis: Common laws and precedents are formed incrementally, one case at a time. Each legal dispute presents an opportunity for the court to refine and expand legal principles. When judges consider the specific facts, legal arguments, and existing precedents in a case, they deliver a judgment that contributes to the body of common law.
4. Reasoning and Interpretation: Judges play a crucial role in the development of common laws and precedents. They analyze the facts of a case, interpret relevant statutes and constitution, and reason based on existing legal principles. Their reasoning helps establish new interpretations, clarify existing laws, or adapt them to changing circumstances.
5. Appellate Review: Appellate courts have the power to review lower court decisions. This process ensures consistency and accuracy in applying legal principles. Through the appeals process, higher courts may affirm, modify, or overturn legal rulings, creating new precedents or confirming the existing ones.
6. Consensus and Authority: Over time, as similar cases are decided in a similar manner, a consensus emerges, reinforcing a particular legal principle. These consensus-based precedents gain weight as they are cited and relied upon by subsequent courts, creating a sense of authority and predictability in the legal system.
It is essential to note that common laws and precedents can vary between different jurisdictions and legal systems. The process of establishing common laws and precedents involves the continuous interpretation, reasoning, and refinement of legal principles by judges as they navigate and respond to evolving legal issues and societal changes.