Explain the Historical Development of Common Law. in Particular Explain the Evolution and Operation of the Doctrine of Precedent.

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  • Topic: Common law, Legal systems of the world, Law
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  • Published : November 3, 2008
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The common law constitutes the basis of the legal systems of many other generally English-speaking countries or Commonwealth countries. Such as England, America, Australia, New Zealand, Malaysia, Singapore, Hong Kong and so on. The Australian political system is based upon elements of the British and American systems. In 1788, when Australia was first colonized, British applied the English law in Australia. In order to explain this issue, it is necessary to define the concept of ‘common law’, ‘doctrine’ and ‘precedent’. The term Common law can be defined as a part of the English law developed by the Courts of common law which judgments by judges hearing real cases . Furthermore, Doctrine can be defined as a commonly accepted set of rules and procedures. Precedent means an example serving for the future . Moreover, this essay will clarify that the historical development Australia legal system, development of common law, the evolution and operation of the doctrine of precedent. These points above will be explained in the essay.

First of all, the legal system in Australian that operates today arrived with the ‘First Fleet’ a mere two centuries ago. It can be explain that into three steps. Firstly, Australia received English law. Then, English statutes Australia that mean Australia can make law for the Australian colonies. When the Australia was first colonized in 1788, English naturally applied the only law they knew, that including the laws, the procedures, the institution, the value and the tradition. All English laws that were suitable to colonial setting were applied . This was because of the doctrine of terra nullius. This doctrine meant that Australia was regarded as isolated when the English law that was suitable to the circumstances applied. In 1853, self-government was approved by the English to the Australian colonies. Self-government meant that each colony had its own parliament which could mark laws for colony . Moreover, federal government was established on 1 January 1901. It is a central government received its power to make laws belong to the whole nation from the Australian Constitution. The various states still retain the power to make laws about matter that pertain to each state . Over nineteenth and twentieth centuries, power to legislate was gradually transferred from the British imperial parliament to Australian parliaments. As the result, in 1986, Australia had complete power to repeal English laws that had applied to Australia. Current developments in English case law can still have some importance to the development of Australian law . Australia is a federal system with a written constitution. It is a Constitutional Monarchy, the highest authority in the lead is the Queen of the England’s representative (Governor-General) but that person must act in accordance with the Constitution. Generally, all of these powers are exercised on the advice of the Prime Minister or Premier in a State government. The constitution divides legislative power between federal parliament and state parliament. Parliament house are use for make Statute law. However, Common law make by judge in court. The law that applies to all Australia has urbanized over the past 200 years. Nowadays, Australian legal system and custom stop directly from the English form. It started with the British law that was passing out with the First Fleet. It has been developed to meet the requirements of Australian style of life through the passing of legislation by Australia Federal governments or passing by the interpretations made by courts. There are two major legal systems used in Australia today that are statute law and common law.

Australia uses common law system. This may be difference with most European countries which uses civil law system that most of the laws need to be codified. The common law is a type of legal system, it has several of meanings. Mostly, it is used to draw characteristic between the law made by the courts and...
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