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Doctrine of Precedent - Essay Example

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The first settlement of the British in Australia was distinguished by the establishment of a penal colony at Botany Bay in New South Wales in the year 1788. This land inhabited till then by the aboriginals had no legal system to cite and was characterized only by some unrefined and undefined folk traditions…
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Download file "Doctrine of Precedent" to see previous pages... But in due course, to cope with the administration of the colony, the English in Australia, simply acquired almost all of the prevailing British law at their discretion and for their easiest convenience, started applying them according to the call of the circumstances in the colony. Thus, common law of Britain which originated in the thirteenth century based unevenly on Roman traditions became the guiding principles of the current legal system of Australia.
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The Australian legal system founded on the common law has the elements of trial by jury, adversarial system and presumption of innocence.
But as the society became civilized and the living conditions changed, many of the existed laws became incapable to meet the challenging situations and requirements of the people. Hence, legislation was required to formulate new statutes or Acts to meet the varying needs of the people. These legislations were enacted to broaden the living style of the people and also to regulate the society as a whole, to bring in equity of law. However, the laws based on the doctrine of precedent or case laws edge over the statutory laws, because of its simplicity in its application facilitating decisions on a case by the jury. The statement that the current Australian legal system exhibits an increasing reliance on statute law must be analyzed in the above context, and in order to verify its sanctity it is necessary to have a clear picture of the law structure of the Australian legal system. (Robin Banks, 2006, Law Australia, Legal Information Access Centre, (Sydney, NSW), http://www.liac.sl.nsw.gov.au/hot/pdf/aust_leg_syst_60.pdf. viewed on 9th May, 2009)
Classification and Sources of Law
Law can be classified into two, as public law and private law. Public law is criminal law and is concerned with matters of the State whereas, private law is civil law pertaining to the matters of individuals. Criminal law is used to suppress criminal offences by punishing the accused. Civil law deals with disputes between individuals
Australian law is based on the system of common law and its procedures are (i) the adversarial nature of court proceedings, and (ii) the appeal provisions. The sources of the law are statute law and case law, and they are of equal validity. Statute law known as Act is enacted law made by parliament. Case law is the principles of law arrived at by the judges in court decisions. (Victoria Law Foundation, 2009, Law & Our legal systems, Chapter-1, http://www.rurallaw.org.au/handbook/xml/ch01s02.php, viewed on 9th May, 2009)
History of Case Law and the guiding Principles
According to Baker, 'A precedent is a decision or judgment of a court, which is used as authority for reaching the same decision in subsequent cases.' (Baker J.H., 1979, An Introduction to English Legal History p. 171, Butterworths, London)
However, it should be noted that Australia has a federal structure and that it has a parliament for each state and also has one for the Commonwealth. The Federal system of government was established by the Commonwealth of Australia Constitution Act 1900. The colonies became states and the states joined to form a Federation. The Law making power is vested with the Federal government as well as the state governments
The doctrine of parliamentary sovereignty demands that nobody can annul a law promulgated by the parliament, whereas, common law can be changed through ...Download file "Doctrine of Precedent" to see next pagesRead More
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