What Is the Common Law - Assignment Example

By Common law one means a system of law and legal system that has come up through the numerous decisions espoused by, judgments of courts, tribunals etc. It is not a system that pertains to have been matured through law legislated by the legislature and through the power of executive action. Common Law based legal system basically emanated from England and is widely used in countries like England, India, Australia, Pakistan, United States etc. It connotes that the countries wherever the English people had a colonial interest the imprint of common law based legal system has been left. Common Law is deeply entrenched in the idea of Precedents followed by the state and territory courts as well as the Federal Courts. Precedents are of two types : Binding and Persuasive. According to legal terminology, a binding precedent, which is also known by other names such as mandatory or binding precedent, is a precedent, example, model or guide that should be followed by all the lower courts in countries whose legal system is based on the common law legal systems. According to English law, or the law of the countries that follow the common law legal system it is usually created by the decision espoused by a higher court, like the House of Lords in England or United Kingdom . As per Civil law and pluralist systems, under Scottish law, though precedent is not binding but case laws are taken into account by the courts. The legal principle of stare decisis is the touchstone behind binding precedent. By ‘stare decisis’ it literally means to stand by the things decided. This thing makes sure that there is certainty and consistency in the application of law. For the system of precedents to work efficiently, the hierarchy of the courts should be well defined and needs to be accepted by each across the board, along with that the reporting of case laws should also be run by well-oiled legal machinery. Following the system of precedents is like walking a tight rope as a thorough balance should be maintained by recognizing the binding effect of past decisions, and also there should not be undue restriction on the proper development of the law' The Law of binding precedents in United Kingdom and other common law jurisdictions bind judges. This is a unique aspect of the English and other legal systems following common law. Though in many countries throughout the world, especially in many European nations, judges following civil law do not follow the precedent strictly and take it in to account in terms of principle only. Their fellow judges' decisions may be persuasive but are not binding. Under the countries following the common law legal system, judges are bound by a decision reached in a previous case by a higher court. Though the same court that set the precedent can over-turn the precedent set by it in a new case upon the facts of the new case. There are many advantages as well as disadvantages of a binding precedent like through precedents the law becomes certain, consistent, precise, flexible and timesaving. The disadvantages are that there is a possibility that law can also become rigid, complex and illogical. Whereas, a persuasive precedent doesn’t have a binding effect but it still plays a major role in the development of law. A persuasive precedent can be a opinion, decision of a lower court, other courts or tribunals like the Income Tax tribunal, Military tribunal etc. The opinion from other forums of law can be applied to the facts of the case in question and that helps reach a decision through deliberations and systematic review of the law in the light of similar decisions. A decision from a court in some other country that runs on a parallel legal system can also be considered and can also take the shape of a persuasive precedent. While talking about Statutory Law it can be said that it is that form of the law that is in the written form and has been legislated and set in the present form by the will of the legislature. It can be said that it is a codified form of law as opposed to the common law system. Statutes are enacted to bring clarity to the running of the government and the administrative systems, be it civil or criminal. A person can have a clear view about the existing legal position about a certain aspect of the government if a statute governing it has been put in place. Statutes can also be defined as the laws passed by the central government and as well as local ordinances passed and put in to practice at the local level of the government. A variety of laws like the corporate laws, family law, intellectual property laws and the criminal laws come in to the category of statutory law. The major differences between the Common Law and the Statutory Law can be the following : While creation of the common law can be attributed to the judiciary the statutory law has been created by the legislature by following a formal law making process. Under Common Law the rules and regulations are derived from the previous judgments of the Courts, whereas under statutory laws the rules are in the form of official codified text. It can be said that the scope under common law is a bit limited as it is confined to the facts of the actual case in front of the court that has come up for adjudication, whereas the scope of the statutory law is quite broad and is subject just to the limitations imposed by the constitution. While the judges that are the main movers of the common law type of legal system are not accountable to any political constituency and it can be said that they are insulated from pressures from various lobby groups, whereas the effect of the statutory laws can have a deep bearing on the incumbent government. While broadly it can be said that common law is the form of law that has developed over a period of time through the judicial decisions and whereas the statutory law has been legislated, drafted and put in to use by the legislative arm of the government but still it can be argued that there is a little bit of similarity between the two systems by extending the argument that even the judiciary the prime movers in the expansion of common law system is part of the government. Town Planning and development in Australia is governed by the ‘Planning and Development Act 2005’. This Act incorporates the Western Australian Planning Commission Act 1985, the Metropolitan Region Town Planning Scheme Act 1959 and the Town Planning and Development Act 1928 into one act. This Act addresses the modern trends in urban development, housing density, architecture and transport that the past acts were unable to address. It gives the law more teeth according to the needs of the modern times. The new act is more flexible and simplifies the planning procedure making it plain and simple to understand for the end-user, weeding out any ambiguity that remained. It has more food for thought for the region and the local schemes giving them more weight that missed in the past. The act is fairer and people friendly as it invites public feedback as well as extends the right of appeal. As far as the tort of nuisance is concerned the ‘Planning and Development Act 2005’ gives specific provisions as to how to address the issue. The issue of compensation if the land is injuriously affected due to any scheme is provided under S-173 of the Act. “173. Entitlement to compensation where land injuriously affected by planning scheme (1) Subject to this Part any person whose land is injuriously affected by the making or amendment of a planning  scheme is entitled to obtain compensation in respect of the injurious affection from the responsible authority.” (Planning and Development Act 2005)(ALII) S-176 of the ‘Planning and Development Act 2005’ provides for the procedure for determining the compensation amount : “176. How questions determined (1) A claimant or responsible authority may apply to the State Administrative Tribunal for determination of any question as to whether land is injuriously affected. (2) Any question as to the amount and manner of payment (whether by instalments or otherwise) of the sum which is to be paid compensation under this Division is to be determined by arbitration under and in accordance with the Commercial Arbitration Act 1985, unless the parties agree on some other method of determination.” (Planning and Development Act 2005)(ALII) S-227 and S-228 of the ‘Planning and Development Act 2005’ provides for the prescribed offences and the giving of infringment notices by a designated person. Now before discussing the Common Law actions for nuisance we should know what is nuisance. “Nuisance as a tort means an unlawful interference with a person’s use or enjoyment of land, or some right over, or in connection with it.”(Winfield on Tort,7th ed.p.193) Nuisance is of two kinds : (1) Public or Common Nuisance, : Public Nuisance is a crime whereas private nuisance is a civil wrong. Public nuisance is interference with the right of the public in general and is punishable as an offence. To avoid multiplicity of suits under common law Public nuisance is an offence punishable under criminal law. In certain cases, when any person suffers some special or particular damage, different from what is inflicted upon public as a whole, a civil right of action is available to the person injured. What is otherwise a public nuisance, also becomes a private nuisance so far as the person suffering special damage is concerned. In ‘Rose v. Milles’(1815)4M.&S.101 and ‘Campbell v. Paddington Corporation’(1911)1K.B.869 the Plaintiffs were awarded special damages due to the loss suffered by them. (2) Private Nuisance. Under common law the basic essentials of private nuisance is unreasonable interference with the Plaintiff’s property and the interference should be with the use of enjoyment of land. Under Common Law an unauthorized interference with the use of property of another person through some object, tangible or intangible, which causes damage to the property, is actionable as nuisance. Right to light is also not a natural light and may be acquired by grant or prescription. When such a right has been thus acquired, a substantial interference with it is a actionable nuisance. It is possible to acquire a right of air by grant and prescription. After such a right has been acquired its infringement is a nuisance. Under Common Law unlike Trespass, which is actionable per se, actual damage is required to be proved in an action for nuisance.( Nicholls v. Ely Beet Sugar Factory 1936) In the case of Public nuisance, the plaintiff can bring an action in tort only when he proves a special damage to him. In private nuisance, although damage is one of the essentials, the law will often presume it.(Fay v. Prentice 1854 1 CB 828) Works Cited Elliott,Catherine. July 2007. ‘Nuisance’ Ch-9;Law of Tort. Pearson Education Ltd. Bangia,R.K. 2008.‘Nuisance’Ch-4;pp201-222; Law of Torts. ALA < http://www.dpi.wa.gov.au/cityregionalplanning/1688.asp ‘retrieved on 27 May’2009> Deptt. Of Planning and Infrastructure, Govt. of W.Australia Read More