CLAW1001 Lecture Notes - Lecture 1: Precedent, Ratio Decidendi, Parliamentary Sovereignty
16 May 2018
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1| The Australian Legal System
1. The Law and the Legal System
• The law is the system of control through which society operates
• A legal system is the totality of laws that regulates a legally organised community
• Requirements of a legal system:
Body of laws
A body that creates laws
A body that administers and enforces laws
A body that adjudicates disputes regarding the law
Types of legal systems:
• Common law
• Civil law
Heritage in Roman law
• Legal systems based on religion e.g. Islamic law
• Legal systems based on politics e.g. socialist law
Sources of law
• Customary law
Unwritten
By habitual use
Customary law generally integrated into the common law OR can be created into
legislation (e.g. Sale of Goods Act 1893 (UK) )
In contract law: only slightly relevant where existence of custom or habitual usage
may justify the implication of a term into conract if there is evidence that all those
people in the contract are aware of the terms
• Common law:
Law developed by the courts
Judges create law by interpreting legislation
Court hierarchy allows decisions to be bound through stare decisis
Courts follow ratio decidendi of similar cases to reach conclusions
• Legislation:
Law made by a body recognised by the legal system as having the power and
authority to make laws
Under the common law sytem, supreme law-making authority resides in a legislature
Powers conferred to Federal and State Parliaments by Constitution → not complete
parliamentary sovereignty since Constitution restricts them
• Common law and equity:
Equity evolved over centuries ago to provide recourse in situations where the
common law either operated to produce a defective result or failed entirely
Equity grew as a supplement to the common law initially and intervened when the
common law failed
Requisites of law:
• Certainty
People, in both their business and personal lives, should be able to form relationships
with others, enter into contracts and acquire and dispose of property with a reasonable
feeling of security, in knowing the effects of what they are doing
• Flexibility
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