The role stare decisis has in the common law legal system is that it allows parties to predict the outcome of the
litigation and thus avoid going to court. However, a significant disadvantage of the following precedent is that a judge
must follow another judge’s decision even though social attitudes may have changed. The system is anchored to the
past, with only limited capacity to make corrections or to adapt and change to meet modern needs.
The judge’s job is to analyze the facts of the precedent cases and compare them with the case at hand. Since no two
cases are ever exactly alike, the judge has some flexibility in deciding whether or not to apply a particular precedent.
Judges try to avoid applying precedent decisions by finding essential differences between facts of the two cases if
they feel the prior decision will create an injustice in the present case. This process is called Distinguishing the
Facts of opposing precedents.
Sources of Law Common Law:
At an early stage in the development of common law, three great courts were created: the court of common pleas, the
court of kings bench, and the exchequer courts, referred to all together as the common law courts. The rules
developed in the courts we called “common law” because judges, at least in theory, did not create law but merely
discovered it in the customs and traditions of the people to whom it was to be applied. However, the foundation of a
complete legal system cannot be created on the local tradition and custom alone, so common law judges borrowed
legal principles from many different sources. Roman Civil Law gave us our concepts of property and possessions.
Canon or Church Law contributed law in relation to families and estates. Law Merchant contributed to law when
trading between nations was performed by merchants who were members of guilds, which developed their own
rules to deal with disputes between members.
Because of rigidity of the process in common law, the inflexibility of the rules applied, and the limited scope of the
remedies available, people often went to the king (instead) for satisfaction and relief. The burden of this process
made it necessary for the king to delegate the responsibility to the chancellor, who, in turn, appointed several vice
chancellors. This body eventually became known as the Court of Chancery, sometimes referred to as the Court of
Equity. It dealt with matter that, for various reasons, could not be handed adequately or fairly by the common law
courts. The court of Chancery did not hear appeals from the common law courts; rather it provided an alternative
form. If people seeking relief knew that the common law courts could provide no remedy or that the remedy was
inadequate, then they would go to the court of chancery instead. This court could decide a case on its own values. The
system of law delivered by the court of Chancery became known as the Law of Equity. This flexibility was the courts
most significant asset but also was its greatest drawback. Finally the two separate court systems were combined by
the Judicature Act of 1873-1875.
Although the two court systems merged, the bodies of law they created didn’t, and it is still best to think of common
law and equity as two distinct bodies of rules. Rules of equity may have been developed on fairness and justice, but
when a person today asks a judge to apply equity, they are not asking for fairness, they are asking for rules developed
by the court of chancery.
Justice was not available in either chancery of common law courts, and another method was needed to correct these
inadequacies. Parliament handled any major modification to the law. Parliamentary enactments are referred to as
Statutes or legislation and take precedence over judge made law based on common law or equity. The government
has several distinct functions. Legislative or Parliament creates law, the Judicial Branch is the court system, and
the judiciary interprets legislation and makes case law, The Executive or Administrative branch are the agencies,
which administer and implement the law.
Law in Canada Confederation
Confederation was accomplished when the British Parliament passed the British North American Act (BNA Act),
which is now referred to as the Constitution Act, 1867. The BNA Act’s primary significance is that it created the
dominion of Canada, divided power between the legislative, executive, and judicial branches of government and
determined the powers and functions of the federal, judicial, and provincial levels of government. Rule of Law
recognizes that although Parliament is supreme and can create any law considered appropriate, citizens are
protected from any uninformed actions of the government. Canada’s constitution is, in essence, the “rulebook” that
government must follow. It is comprised of three elements; 1 Statutes such as the constitution act and statutes
creating various provinces, 2 conventions, which are unwritten rules dictation how the government is to operate
and include the rule of law, and 3 case law on constitution issues such as if the federal or provincial government has
jurisdiction to create certain statutes.
Constitution and Division of Powers
Because of the Constitution Act, the 3 different governments all received different powers. The Federal Government
has power over such matters as banking, currency, the postal service, criminal law (although its not enforcement),
and the appointment of judges in the federal and higher level provincial courts. The federal government passes
considerable legislation affecting such matters as the regulation of all import and export activities, taxation,
environmental concerns, money and banking transportation, patents, and trademarks. The provinces have
jurisdictions over such matters as hospitals, education, administration of the courts, and commercial activities at the
provincial level. Thus most business activities that are carried on within the province are governed by Provincial