Common Law

Common Law

What Is "The Common Law"?

What is the common law? The word common law is used in many different contexts. The word common law is used in the present context to describe the body of legal principles and concepts which were evolved over many centuries by judges in the English courts of law. Common law became part of the law of Australia as a consequence of the settlement of Australia as a British colony.

The common law was influential in moulding both the area of and restrictions on freedom in England and those parts of the world which have the common law tradition as their legal foundation. A study of the history, development and modern undermining of the common law is crucial to an analysis of the democratic order, which it has helped to shape and underpin.

The common law is the product of long evolved social values which are judicially articulated and interpreted. "Its roots strike deep into the soil of national ideas and institutions" (C K Allen, Law in the Making Oxford (1964) p 71). These rights (it used to be argued) are ingrained in the national psyche and conduct and command respect.

The crucial importance of the common law has tended to be forgotten in recent times in the course of searching for ad hoc solutions to social problems. This tendency has been the result of the pursuit of particular goals by special interest groups in disregard of long term damage to the foundations of liberty. Even persons who recognise the importance of these rights in their general application sometimes urge departures in relation to matters of particular concern to them.

One of the greatest virtues of the common law system is to be found in its capacity to balance the individual interests in liberty with the common concerns and interests of the community.

In the modern era, there is a growing belief that the solutions to these problems can be sought by deliberate and calculated reform of the law through legislation. Reforms are formulated by law reform agencies and by political and bureaucratic authorities through processes of abstract rationalisation or imperfect empirical investigation, sometimes based on Marxist and neo-socialist ideological assumptions. The evolved law is thereby fractured and reshaped with unpredictable consequences. Another consequence of this method is that it tends to remove questions of public morality from the community itself. It results in the imposition of restrictions on liberty which are inadequately founded on public perceptions. Imperfect rationalism and empiricism are poor substitutes for the accumulated experience of the community, enshrined in the common law. The common law experience reflects the wisdom and even the follies of our civilization. However, it represents an evolved public morality which is the soundest basis for the formulation of legal precepts (subject to comments below relating to modernisation and legislation).

The Virtues Of The Common Law

The common law method, as compared to reformist legislative change, results in gradual change through the determination of individual disputes in which parties present contending arguments regarding just ...