Salient Features of the Common Law System

1.) Strict Adherence to the Doctrine of Stare Decises

       

 •“Stare Decisis” forms an integral feature of common law countries. Common-law judges are obliged to adhere to previously decided cases or precedents where the facts are substantially the same. A court’s decision is binding authority for similar cases subsequently decided by the same court or, by any court of inferior jurisdiction situated within the territorial limits of the former. The decision is not binding on courts of higher rank or those in other jurisdictions. For them, it may simply be considered as persuasive authority. Therefore, the precedent has a very prominent place in a common law system wherein they play a dominant role.

• Stare Decisis insures certainty, consistency, logical progression and development in the law. However, it can be rigid and complex at the same time. What is “the law” on a subject may be very difficult to find or to state as it is spread across many cases.

• Due to the strict adherence to the doctrine, the law is rich in details but, somewhere weak in general principles.

2.) Disputes are settled through an Adversarial System

• “Adversarial System” implies that both parties to a dispute, present their respective cases before a neutral fact-finder that is, either a judge or a jury. 

• The judge/jury evaluates the evidence, applies the appropriate laws to the facts and renders a judgement in favour of one of the parties.

•Following the decision, either party may appeal the decision to a higher court. 

•Appellate court in a common law system may review only findings of law, not determinations of fact.

3.) Precedents are considered to be the Biggest and Most Important Source of Law Over and Above Legislation 

• Common law courts base their decisions on prior judicial pronouncements rather than on legislative enactments. 

• Where a statute governs a dispute, judicial interpretation of that statute determines how the law is to be applied. 

• The Common law judges rely on their predecessor’s decisions of actual controversies, rather than on abstract codes or texts, to guide them in applying the law.

• The Common law judges find the grounds for their decisions in law reports, which contain decisions of past controversies.

4.) Power of Judicial Review

• Due to the pivotal role played by judges in a common law system, the judiciary is an independent body therein.

• It is equipped with the powerful weapon of “Judicial Review” wherein it can struck down any legislative or executive action/decision, declaring it as null and void, if it fails to conform with the constitutional requirements.

5.) Equality

• Under common law, all citizens, including the highest-ranking officials of the government, are subject to the same set of laws and, the exercise of governmental power is limited by those laws.

6.) Flexibility

• Common law decisions deal with everyday situations as they occur.

• The recurring and unexpected social changes, inventions and discoveries make it necessary for judges to look outside reported decisions for guidance in a case of the first impression that is, previously undetermined legal issue. 

• The common law system allows judges to look to other jurisdictions or to draw upon past or present judicial experience to help in making a decision.

• This flexibility allows common law to deal with changes that lead to unanticipated controversies.