Historically speaking, common law is what we call precedent; in other words, past judicial rulings informing current ones. This tradition is strong in the US, but not without exception. English case law, however, is barely taught anymore and even Supreme Court justices can have entire careers being blissfully ignorant of it.
No they don't. As I said elsewhere, even early English common law was often not written with reference to precedent. You'll see this if you read early English cases.
Just a note, precedent has little impact on law outside of countries that don't practice common law. Common law originates from the UK and Germany and France don't practice it, therefore precedence has little to no impact.
English law is also a common law system, relying heavily on previous precedents that have been set down in similar decisions. Civil law juristictions (for example France) give less weight to precedence, so courts have narrower scope to interpret areas the current law does not cover exactly.
English civil law therefore has gained popularity, as it is reliable (precedents can be consulted), and because judges can easily adapt previous rulings to new circumstances.
Can you give an example of a law being deemed unlawful on common law basis?
My understanding is that typically precedent is used in the absence of statute law and for the interpretation of statute law, so a new law will typically override older precedents.
Perhaps it's up to a judge to decide which takes precedence if two statutes contradict each other, but really that shouldn't happen (Parliament employs lawyers to check for that sort of thing) and if a statute states explicitly that it overrides an earlier one then it does so, as I understand it.
(I'm not a lawyer, not even a competent amateur, just interested in this stuff and hoping someone will correct my misunderstandings.)
You're about 850 years too late on that front. Common Law has been a thing since Henry the Second and we just ggyG'd the whole UK legal system and edited from there.
You can't really avoid this either without throwing out judicial precedent because "knowing how the court will rule on subsequent cases" is basically the same as law.
In the UK, precedents are set by the decisions of the High Court (civil) or Crown Court (criminal), and by higher courts. Lower courts don't set precendents I believe - IANAL.
Setting a precedent is, in fact, the creation of new law. This is the basis of the Common Law system that the United States and other former English colonies use. See, for example, http://en.wikipedia.org/wiki/Common_law
Common law uses case law for precedent, which is insanely complicated and requires years of study and decades of active practice to not screw up badly.
(IANAL. As I understand it,) Precedent is generally followed unless there is a difference of circumstance, which could include changing cultural mores.
The (old) British legal scholar William Blackstone dives into it in his work "Commentaries of the Laws of England" (Introduction - Section 3) if you want a more thorough understanding of the foundation of precedent in common law.
It's funny seeing "common law" referred as a US thing when it's literally been in use in the UK for centuries before the US was a thing, and that's where the US inherited it from.
And precedent has it's place in civil law countries too, mostly around clarifying existing legislation in case of ambiguity, but it isn't an automatic ironclad thing.
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